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1 

2 

3 

:■     1  ■■■. 

2 

3 

4 

5 

6 

\  • 


A   DIGEST 


OF 


RAILWAY    DECISIONS. 


c  %  I  C 


EMBRACING 

AZZ  THE  CASES  FROM  THE  EARLIEST  PERIOD  OF  RAILWAY 
LITIGATION  TO  THE  PRESENT  TIME 

IN  THE 

UNITED  STATES,  ENGLAND  AND  CANADA. 


BV 


STEWART  RAPALJE 


AND 


WILLIAM  MACK. 


Volume  I. 


NORTHPORT.   LONG   ISLAND,    N.  Y. : 

EDWARD  THOMPSON  COMPANY,  Law  Publishers. 

1895. 


0 


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i'/> 


Copyright,  1894, 

BY 

BDWARD  THOMPSON  COMPANY. 


AU  Rightt  R$urv*d. 


M 


PREFACE. 


This  work  has  been  prepared  under  the  belief  that  an  urgent  need  for  it  has  ex- 
isted for  a  considerable  length  of  time. 

During  more  than  sixty  years  of  railway  litigation,  increasing  from  year  to  year 
in  a  ratio  so  ast'^nishing  as  to  almost  satisfy  the  rule  of  geometrical  progression, 
only  one  special  digest  has  appeared.*  That  work,  the  second  and  final  volume  of 
which  was  published  in  1884,  contains  about  20,000  points  of  law  ;  this  one,  published 
ten  years  later,  contains  about  7S,ooo,  or  nearly  four  times  as  many  as  its  predecessor. 

Assuming  that  the  learned  author  of  the  earlier  work  collected  all  the  cases 
then  reported,  which  he  claims  to  have  done — and  we  have  no  intention  to  dispute 
his  claim— it  follows  that  the  courts  have  furnished  nearly  three  times  as  much  railway 
law  during  the  last  ten  years  as  they  did  during  the  fifty  years  of  railway  litigation 
which  preceded  that  period.  If  this  be  true,  surely  the  present  work  is  needed;  and 
if,  on  the  other  hand,  the  fact  be  that  the  former  work  did  not  cover  all  the  cases,  or 
approximately  all  of  them,  then,  a  fortiori,  a  thorough  and  exhaustive  digest  of  the 
entire  body  of  railway  case  law  has  become  an  urgent  necessity,  for  it  is  undoubt- 
edly true  that  a  large  majority  of  the  cases  which  are  here  digested  and  which  do  not 
appear  in  the  former  work  Iiave  hitherto  been  practically  inaccessible  to  the  brief- 
maker,  because  scattered  through  a  multitude  of  digests,  and  not  thoroughly  digested 
in  any. 

In  gathering  the  materials  for  this  work  nearly  six  thousand  volumes  of  American, 
English,  and  Canadian  reports  have  been  carefully  examined,  page  by  page.  We  have 
not  relied  upon  the  labors  of  other  digest-makers,  but  have  done  the  work  afresh,  en- 
deavoring to  cull  from  the  decisions  every  point  of  railway  law  to  be  found  in  them, 
whether  decided  in  a  distinctively  railway  case  or  not. 

Fulness  of  statement  has  been  preferred  to  a  brevity  that  might  mislead  in  view 
of  the  inaccessibility  of  some  of  the  reports  embraced.  To  seoiire  accuracy  every 
citation  has  been  twice  verified,  once  in  the  manuscript  and  again  in  the  proof-sheets. 

The  classification  adopted  is  minute,  logical,  and  scientific,  and  the  arrangement 


*  Mr.  Lacey's,  in  two  volumes,  the  first  covering  forty  years  and  the  second  ten. 


iii 


iv 


I'Rlil'ACK. 


of  the  matter  under  Hivisions,  subdivisions,  and  numbered  "captions  "  or  "  catch- 
lines'  is  so  simple  thit  it  is  believed  the  reader  will  meet  with  less  difficulty  in  find- 
ing what  he  wants  in  this  than  in  any  other  digest  extant. 

The  American  and  English  Railkoau  Cases,  covering  the  years  1881  to  1S94, 
including  cases  reported  in  full,  cases  abstracted,  and  annotations,  are  completely 
digested  herein  down  to  and  including  volume  58. 

Following  the  principal  case,  references  to  all  reports  of  which,  official  and  unoffi- 
cial, are  given,  will  be  found  listed  the  authorities  upon  which  it  is  based,  or  which  it 
distinguishes,  or  reviews  in  any  way;  and  following  these  is  given  a  full  reference  to 
all  subsequent  decisions  in  which  the  principal  case  is  itself  passed  upon,  so  far  as 
the  precise  point  in  question  is  concerned.  In  this  way  the  judicial  history  of  every 
railway  case  is  given,  and  its  weight  as  authority  upon  each  and  every  one  of  its 
holdings  becomes  a  matter  of  easy  ascertainment. 

The  titles  of  the  principal  cases,  i.e.,  the  cases  directly  deciding  the  points  of  law  given 
in  the  text,  are  printed  in  italics  j  those  in  Roman  type  are  the  cases  passed  upon  in,  or 
which  pass  upon,  the  principal  cases.  Where  tivo  or  more  principal  cases  are  grouped, 
the  citations  which  folloiv  are  to  be  referred  to  th.  1  Incipal  case  last  cited,  and  not  to  the 
whole  group. 

Full  cross-references,  specific  in  character,  and  sufficient  in  number  to  make  the 
work  its  own  index,  will  be  found  throughout  the  alphabet  of  titles.  In  addition  to 
this  a  complete  and  thoroughly  reliable  index  to  the  entire  contents  of  the  work  will 
be  given  in  the  proper  place. 

The  table  of  cases  digested  will  l^fer  to  each  place  where  any  given  case  appears 
in  the  Digest ;  it  will  also  give  a  complete  list  of  all  railway  cases  which  approve, 
distinguish,  follow,  disapprove,  or  in  any  other  way  pass  upon  it,  and  also  those 
which  cite  it,  even  though  it  be  merely  to  back  up  an  elementary  principle  of  law 
laid  down  by  the  court. 

Still  another  and,  in  our  view,  a  very  important  and  useful  feature  of  the  Digest 
is  the  very  large  number  of  references,  in  the  foot-notes,  to  important  annotations 
(many  of  them  monographs  in  themselves)  scattered  through  the  American  and 
English  Railroad  Cases,  American  Decisions,  American  Reports,  American 
State  Reports,  and  Lawyers'  Reports  Annotated.  All  that  is  of  value  to  the 
railroad  lawyer  in  the  notes  given  in  the  above  standard  series  is  referred  to  in  every 
appropriate  place  in  the  Digest. 

In  concluding  we  desire  to  express  our  thanks  to  a  number  of  gentlemen,  some 
of  them  the  publishers,  and  others  the  reporters,  of  many  of  the  most  authoritative 
and  most  ably-edited  sets  of  our  reports,  for  their  very  kind  permission  to  use  their 
copyrighted  syllabi,  of  which  permission  we  have  availed  ourselves  in  very  many 
instances,  thus  considerably  lightening  our  labors  and  expediting  the  completion  of  the 
work.  Our  thanks  for  this  courtesy  are  due  to  A.  Moore  Berry,  Esq.,  St.  Louis,  Mo.; 
Hon  Henry  N.  Blake,  Helena,  Mont;  The  Bowen-Merrill  Co.,  Indianapolis,  Ind.; 
Hon.  Horace  R.  Buck,   Helena,   Mont.;    Hon.    Lorenzo   Crounse,  Lincoln,  Neb.; 


r  \ 


(  < 


(  .■ 


PREFACE.  V 

S.  Meredith  Dickinson,  Esq.,  Trenton,  N.  J.;  L.  B.  France,  Esq.,  Denver,  Colo.; 
Norman  L.   Freeman,  Esq.,  Springfield,  111.;  Hon.  James  Z.  George,  Washington, 

D.  C;  John  L.  Griffiths,  Esq.,  Indianapolis,  Ind.;  Moses  Hallett,  Esq.,  Denver,  Colo. ; 
Hon.  N.  J.  Hammond,  Atlanta,  Ga.;  G.  W.  Hansbrough,  Esq.,  Salem,  Va.;  George 

E.  Harris,  Esq.,  Washington,  D.  C;  Hon.  J.  B.  Heiskell,  Memphis,  Tenn.;  J.  B.  H. 
Hemingway,  Esq.,  Clayton,  New  Mex.;  Messrs.  Kav  &  Brother,  Philadelphia,  Pa.; 
Messrs.  Loring,  Short  &  Harmon,  Portland,  Me.;  J.  M.  Moore,  Esq.,  Little  Rock, 
Ark.;  Messrs.  John  P.  Morton  &  Co.,  Louisville,  Ky.;  Charles  E.  Nash,  Esq., 
Augusta,  Me.;  Joseph  Poland,  Esq.,  Montpelie.,  Vt.;  Messrs.  Rees,  Welsh  &  Co., 
Philadelphia,  Pa.;  John  W.  Rowell,  Esq.,  West  Randolph,  Vt.;  J.  B.  Sanborn,  Esq., 
Concord,  N.  H.;  E.  W.  Stephens,  Esq.,  Columbia,  Mo.;  J.  Shaaff  Stockett,  Esq., 
Annapolis,  Md.;  W.  G.  Veazey,  Esq.,  Rutland,  Vt.;  J.  M.  Woolworth,  Esq.,  Omaha, 
Neb.;  Hon.  George  B.  Young,  St.  Paul,  Minn. 

S.  R. 

W.  M. 

November,  1894. 


TABLE  OF   REPORTS  EMBRACED 


SHOWING  THE  ABBREVIATIONS  USED.* 


Reports.  How  Citkd. 

Abbott's  New  Yor'c  Appeal  Decisions,  vols.  1-4 Abb.  App.  Dec.  (N.  Y.). 

Abbott's  New  York  New  Cases,  vols.  1-30 Abb.  N.  Cas.(N,  Y.). 

Abbott's  New  York  Practice  Reports,  vols.  1-19 Abb.  Pr.  (N.  Y.). 

Abbott's  New  York  Practice  Reports,  New  Series,  vols.  2-16 Abb.  Pr.  N.  S.  (N.  Y.). 

Abbott's  U.  S.  Circuit  and  District  Court  Reports,  vols,  i,  2 Abb.  (U.  S.). 

Alabanna  Reports,  vols.  2-98 Ala. 

Allen's  Massachusetts  Reports,  vols.  i-r4 Allen  (Mass.). 

American  and  English  Railroad  Cases,  vols.  1-58 Am.  &  Eng.  R.  Cas. 

American  Railway  Reports,  vols.  1-21 Am.  Ry.  Rep. 

Appeal  Cases,  District  of  Columbia,  vol.  i App.  Cas.  (D.  C). 

Arkansas  Reports,  vols.  9-57 Ark. 

Atlantic  Reporter,  vols.   1-26 All.  Rep. 

Bailey's  South  Carolina  Reports,  vols,  i,  2 Bailey  (So.  Car.). 

Baldwin's  U.  S.  Circuit  Court  Reports,  vol.  i Baldw.  (U.  S.). 

Barbour's  New  York  Chancery  Reports,  vol.  2 Barb.  Ch.  (N.  Y.). 

Barbour's  New  York  Supreme  Court  Reports,  vols.  3-67 Barb.  (N.  Y.). 

Baxter's  Tennessee  Supreme  Court  Reports,  vols.  1-9 Baxt.  (Tenn.). 

Bay's  South  Carolina  Superior  Court  Reports,  vol.  i Bay  (So.  Car.). 

Benedict's  U.  S.  District  Court  Reports,  vols.  2-10 Ben.  (U.  S.). 

Bissell's  U.  S.  Circuit  and  District  Court  Reports,  vols,  i-il   Biss.  (U.  S.). 

Blackford's  Indiana  Supreme  Court  Reports,  vols.  4,  5 Blackf.  (Ind.). 

Black's  U.  S.  Supreme  Court  Reports,  vols.  1-2 Black  (U.  S.). 

Bland's  Maryland  Chancery  Reports,  vol.  3 Bland's  Ch.  (Md.). 

Blatchford's  U.  S.  Circuit  Court  Reports,  vols.  2-24 Blatchf.  (U.  S.). 

B.  Monroe's  Kentucky  Court  of  Appeals,  vols.  3-18 B.  Mon.  (Ky.). 

Bond's  U.  S.  Circuit  and  District  Court  Reports,  vols,  i,  2 Bond  (U.  S.). 

Boswortli's  New  York  City  Superior  Court  Reports,  vols.  2-10 Bosw.  (N.  Y.). 

Brewster's  Pennsylvania  Reports,  vols.  1-4 Brews.  (Pa.). 

Brightly's  Pennsylvania  Nisi  Prius  Reports,  vol.  I Bright  N.  P.  (Pa,^, 

British  Columbia  Reports,  vol.  2  British  Col. 

Brunner's  U.  S.  Circuit  Court  Collective  Cases,  vol.  i Brun.  Col.  Cas. 

Busbee's  North  Carolina  Supreme  Court  Reports,  vol.  i Busb.  (N.  Car.). 


*The  English  reports  prior  to  1865.  when  the  "  Law  Reports"  began,  though  cited  in  the  text 
are  not  referred  to  in  this  Table.  The  early  volumes  of  many  sets  of  reports  are  not  included 
herein  for  the  reason  that  they  contain  no  railway  decisions.  They  antedate  the  period  of  railway 
litigation. 

Tii 


T 


VIII 


'i'.\i;i,i.  oi'  kKi'oki'S  I'MimAt.i'.i). 


Kl'i  I'll  IS.  I|iiv\   ("i  ihl", 

Hush's  KeriKirkv  Conrl  (if  Appeals  Reports,  vols.  1-14 HusliiKy.). 

California   l<epi)rls,  vols,  i-ico Cal, 

Canada  Exclit-quer  Reports,  vols.  1-3 Can.  Kxdi, 

Canada  Suprenif  Court   Reports,  vols,  i-jo Can.  .Si.p,  Ct, 

{.Ihasc's  U.  S.  Ciri  uit  Coiiii  Reports,  vol.  I Chase  (U,  S.). 

(.Iheves'  South  Carolina  Reports,  vol.  I Clievcs  (So.  Car.). 

("incinnati  .Superior  Court   Reports,  vols.  I,  a CIn.  Siipr.  Ct. 

(Jiiy  (,'ourt  Reports,  New  York,  vol.  2 .  ,   Ciiv  Ct.  (N.  Y.). 

Civil  Procedure  Reports,  Ne.v  York,  vols.  6-21 Civ    I'ro.  (N.  Y.). 

Clarke's  New  York  Chancery  Reports,  vol.  i Clarke  (N.  Y.). 

Clifford's  U.  S.  Circuit  Court  Reports,  vols.  2-4 Cliff.  (U.  S.). 

Coldwell's  Tennessee  Suprcinc  Couri  Reports,  vols.  1-7 Coldw.  (Tenn.). 

Colorado  ('oiirl  of  Appeals  Reports,  vols.  1-3 Colo.  App. 

Colorado  Reports,  vols.  I -18   Colo. 

Connecticut  Reports,  vols.  12-63 Conn. 

Cowcn's  New  York  Supreme  Court  Reports,  vol.  6 Cow.  (N.  Y.), 

Curtis'  L'.  S.  (Circuit  Court  Reports,  vol.  2 Curt.  (U.  S.). 

Cushinji's  Mrtss.irhiiseits  Reports,  vols.  1-12 Cush.  (Mass.). 

Dakota  Reports,  vols.  i-O Dak.  T. 

Daly's  New  York  Common  Pleas  Reports,  vols.  1-16 Daly  ( N.  Y.). 

Dana's  Kentucky  Reports,  vols.  1-9 Dana  (Ky.). 

Delaware  Chancery  Reports,  vols.  4,  5 Del.  Ch. 

Denio's  New  York  Supreme  Court  Reports,  vols.  1-5 Den.  (N.  Y.). 

Devereu.x  &  Kattle's  North  Carolina  Reports,  vols.  1-3 Dev.  &  H.  (N.  Car.). 

Dillon's  U.  S.  Circuit  Court  Reports,  vols.  1-5 Dill.  (U.  S.). 

DiMiey's  Ohio  Superior  Court  Reports,  vols,  i,  2 Disney  (Ohio). 

District  of  Columbia  Reports,  vols.  6,  7 D.  C. 

Douglass'  Michigan  Supreme  Court  Reports,  vols.  I,  2 Dougl.  (Mich.). 

Dudley's  South  Carolina  Reports,  vol.  I Dudley  (So.  Car.). 

Duer's  New  York  Superior  Court  Reports,  vols.  1-6 Duer  (N.  Y.). 

Duvall's  Kentucky  Reports,  vols,  i,  2 Duv.  (Ky.). 

ICdmond's  New  York  Select  Cases,  vols,  i,  2 Edm.  Sel.  Cas.  (N.  Y.). 

1;.  D.  Smith's  New  York  Common  I'leas  Reports,  vols.  1-4 E.  D.  Smith  (N.  Y.). 

Edward's  New  York  Chancery  Reports,  vols.  3,  4 Edw.  Ch.  (N.  Y.). 

Federal  Cases,  vols.  I,  2 Fed.  Cas. 

Federal  Reporter,  vols.  1-57 Fed.  Rep. 

Flippin's  U.  S.  Circuit  and  District  Court  Reports,  vols.  I,  2 Flipp.  (U.  S.). 

Florida  Reports,  vol.  1-32 Fla. 

Georgia  Reports,  vols.  1-90 Ga. 

Gill  &  Johnson's  Maryland  Reports,  vols.  4-12 Gill  &  J.  (Md.). 

Gill's  Maryland  Reports,  vols-  1-6 Gill  (Md  ). 

Grant's  Canada  Chancery  Reports,  vols.  4-29 Grant's  Ch.  (U.  C.) 

Grant's  Pennsylvania  Cases,  vols.  1-3 Grant's  Cas.  (Pa.). 

Grattan's  Virginia  Reports,  vols.  2-33 Gratt.  (Va.). 

Gray's  Massachusetts  Reports,  vols.  1-16 Gray  (Mass.). 

Greene's  Iowa  Supreme  Court  Reports,  vol.  4 Greene  (Iowa) 

llandy's  Ohio  Superior  Court  R»ports,  vols.  I,  2 Handy  (Ohio). 

Harrington's  Delaware  Reports,  vols.  4,  5 Harr.  (Del.). 

Head's  Tennessee  Supreme  Court  Reports,  vols.  1-3 Head  (Tenn.). 

Heiskell's  Tennessee  Supreme  Court  Reports,  vols.  1-12 Heisk.  (Tenn.). 

Hill  &  Denio's  New  York  Reports,  vol.  i Hill  &  I).  (N.  Y.). 

1 1  ill's  New  York  Supreme  Court  Reports,  vols.  2-7 Hill  (N.  Y.). 

Hilton's  New  York  Common  Pleas  Reports,  vols.  I,  2 Hilt.  (N.  Y.). 

Holmes'  U.  S.  Circuit  Court  Reports,  vol.  i Holmes  (U.  S.). 

Houston's  Delaware  Reports,  vols.  I-5 Houst.  (Del.). 

Howard's  New  York  Appeal  Cases,  vol.  i How.  App.  Cas.  (N.  Y.). 


TAULli   Ol'    Klil'OKTS   liMURACIiU. 


ix 


Y.). 


Car.). 


Y.). 
Y.). 


i.  Y.). 


KhI'uHTs.  Ilnw   ClIKI). 

Iliiward's  New  Vork  Practice  Reports,  vols.  1-67 How.  I'r.  (N.  ¥.)• 

Howard's  New  York  Practice   Reports,  New  .Series,  vols.  1-3 How.  I'r.  N.  S.  (N.  Y.). 

Howard's  U.  S.  Supreme  Court  Reports,  vols.  2-24 How.  (U.  S.). 

HiiKhes'  U.  S.  Circuit  and  District  Court  Reports,  vols.  1-4 H utiles  (U.  S.). 

Humphrey's  Tennessee  Supreme  Court  Reports,  vols.  4-11 Humph.  (Tenn.), 

Hun's  New  York  Supreme  Court   Reports,  vols.  I-75 Hun  (N.  Y.). 

Idaho  Reports,  vols,  i,  3 ■ .  .Idaho. 

Illinois  Appellate  Court  Reports,  vols.  1-49 III.  A  pp. 

Illinois  Reports,  vols.  3-148  111. 

Indiana  Appellate  Court  Reports,  vols.  1-5 In  '.  App. 

Indiana  Reports,  vols.  2-133 Ind. 

Interstate  Commerce  Commission  Reports,  vols.  1-5 Int.  Com.  Com. 

Ir.'e:  •;  le  Commerce  Reports,  vols.  1-3 Int.  Com.  Rep. 

Iowa  Reports,  vols.  1-85. Iowa. 

Iredell's  North  Carolina  Kquity  Reports,  vol.  3 Ired.  Eq.  (N.  Car.). 

Iredell's  North  Carolina  Law  Reports,  vols.  1-12 Ired.  (N.  Car.). 

Johnson's  New  York  Supreme  Court  Reports,  vols.  6,  la Jo!  ns.  (N.  Y.). 

Jones  &  Spencer's  Superior  Court  Reports,  vols.  1-29 J.  &  S.  (N.  Y.) 

Jones'  North  Carolina  Equity  Reports,  vols.  1-5 Jones  Eq.  'N.  Car.), 

Jones'  North  Carolina  Law  Reports,  vols.  1-8 Jones  (N 

Kansas  Reports,  vols.  2-52 Kan. 

Kentucky  Reports,  vols.  78-92 Ky. 

Keyes'  New  York  Court  of  Appeals  Reports,  vol.  4 Keyes  (N 

Lansing's  New  York  Supreme  Court  Reports,  vols.  1-7 Lans.  (N 

Law  Reports,  Appeal  Cases,  vols.  1-15 App.  Cas. 

Law  Reports,  Appeal  Cases,  vol.  i [i8qi]  A.  C. 

Law  Reports,  Appeal  Cases,  vol.  i [1892]  A.  C. 

Law  Reports,  Appeal  Cases,  vol.  i ['893 J  A.  C. 

Law  Reports,  Chancery  Appeals,  vols,  i-io L.  R.  Ch.  App. 

Law  Reports,  Chancery  Division,  vols.  1-45 Ch.  D. 

Law  Reports,  Chancery  Division,  "ols.  1-3 [tSyi]  Ch. 

Law  Reports,  Chancery  Division,  vols.  1-3 [1892]  Ch. 

Law  Reports,  Chancery  Division,  vols.  1-3 [1893]  Ch. 

Law  Reports,  Common  Pleas,  vols.  1-9 L.  R.  C.  P. 

Law  Reports,  Common  Pleas  Division,  vols.  1-5 C.  P.  D. 

Law  Reports,  English  and  Irish  Appeals,  vols.  1-7 L.  R.  E.  ft  I.  App. 

Law  Reports,  Equity  Cases,  vols.  1-20 L.  R.  Eq. 

Law  Reports,  Exchequer,  vols,  i-io „  L.  R.  Ex. 

Law  Reports,  Exchequer  Division,  vols.  1-5 Ex.  D. 

Liw  Reports,  Probate  Division,  vols.  1-15 p.  D. 

t-aw  Reports,  Probate  Division,  vol.  I [1891]  P. 

Law  R'iports,  Probate  Division,  vol.  I [1892]  P. 

Law  Reports,  Probate  Division,  vol.  i [1893]  P. 

Law  Reports,  Queen's  Bench,  vols,  i-io L.  R.  Q.  B. 

Law  Reports,  Queen's  Bench  Division,  vols.  1-25 0-  B.  D. 

Law  Reports,  Queen's  Bench  Division,  vols.  I,  2 [1891]  Q.  B. 

Law  Reports,  Queen's  Bench  Division,  vols,  i,  2 ['892]  Q.  B. 

Law  Reports,  Queen's  Bench  Division,  vols.  I,  2 ['893]  Q.  B. 

Railway  and  Canpl  Traffic  Cases Ry,  &  c.  T.  Cas. 

Lea's  Tennessee  Supreme  Court  Reports,  vols.  1-16 Lea  (Tenn.). 

Leigh's  Virginia  Appeal  and  General  Court  Reports,  vols.  8-12 Leigh  (Va.). 

Louisiana  Annual  Reports,  vols.  1-44. . .    ,  La.  Ann. 

Lowell's  U.  S.  Circuit  and  District  Court  Reports,  vols.  I,  2 Low.  (U.  S.). 

Lower  Canada  Reports,  vols.  2-17 .Low.  Can. 

MacArthur  and  Mackey's  D.  C.  Reports,  vol.  i MacArth.  &  M.  (D.  C), 

Mac  Arthur's  D.  C.  Reports,  vols.  1-3 MacArth.  (D.  C). 


TAHLK    OF    RKPORTS   liMBRACIiD. 


i  I 


Reports.  How  Cited. 

Mackey's  D.  C.  Reports,  vols.  1-9 Mackey  (D.  C). 

Maine  Reports,  vols.   iS-85 Me. 

Manitoba  Queen's  Bench  Reports,  vols.  1-8 Man. 

Manitoba  Reports,  temp.  Wood,  vol.  i Man.  (T.  Wood). 

Manning's  Louisiana  Unreported  Cases,  vol.  I Man.  (La.). 

Maryland  Chancery  Reports,  vol.  I Md.  Ch. 

Maryland  Reports,  vols.  1-76  Md. 

Massachusetts  Reports,  vols.  97-159 Mass. 

McCrary's  U.  S.  Circuit  Court  Reports,  vols.  1-5 McCrary  (U.  S.). 

McGloin's  Louisiana  Reports,  vol.  i McGloin  (La.). 

McLean's  U.  S.  Circuit  Court  Reports,  vols.  2-6 McLean  (U.  S.). 

McMullan's  South  Carolina  Reports,  vols.  1,2 McMull.  (So.  Car.). 

Meigs' Tennessee  Supreme  Court  Reports,  vol.  i Meigs  (Ten n.). 

Metcalfe's  Kentucky  Court  of  Appeals  Reports,  vols.  1-4 Mete.  (Ky.). 

Metcalf's  Massachusetts  Supreme  Court  Reports,  vols.  2-13 Mete.  (Mass.). 

Michigan  Nisi  Prius  Reports,  vols.  I,  2 .Mich.  N.  P. 

Michigan  Reports,  vols.  1-97 Mich. 

Minnesota  Reports,  vols.  1-52 Minn. 

Miscellaneous  Reports,  New  York,  vols.  1-6 Misc.  (N.  Y.). 

Mississippi  Reports,  vols.  4-70 Miss. 

Missouri  Appeal  Reports,  vols.  1-54 Mo.  App. 

Missouri  Reports,  vols.  9-1 1 7 Mo. 

Montana  Reports,  vols.  2-12 Mont. 

Montreal  Law  Reports,  vols.  1-7 Montr.  L.  R. 

Montreal  Superior  Court  Reports,  vols.  1-7 Mont.  Supr. 

Nebraska  Reports,  vols.  1-36 Neb. 

Nevada  Reports,  vols.  5-21 Nev. 

New  Brunswick  Supreme  Court  Reports,  voVj.  10-29 New  Brun. 

New  Hampshire  Reports,  vols.  7-65 N.  H. 

New  Jersey  Equity  Reports,  vols.  1-50 N.  J.  Eq. 

New  Jersey  Law  Reports,  vols.  14-54 N.  J.  L. 

New  Mexico  Reports,  vols.  1-4 N.  Mex. 

New  York  Court  of  Appeals  Reports,  vols.  2-141 N.  Y. 

New  York  State  Reporter,  vols.  1-57 N.  Y.  S.  R. 

New  York  Supplement,  vols.  1-27 N.  Y.  Supp. 

North  Carolina  Reports,  vols.  63-113 N.  Car. 

North  Dakc'.a  Reports,  vols,  i,  2 N.  Dak. 

North  Eastern  Reporter,  vols.  S-32 N.  E.  Rep. 

North  Western  Reporter,  vols.  24-55 N.  W.  Rep. 

Nova  Scotia  Supreme  Court  Reports,  vols.  8-23 Nov.  Sc. 

Ohio  Probate  Court  Reports,  vol.  I Ohio  Prob. 

Ohio  Reports,  vols.  8-20 Ohio. 

Ohio  State  Reports,  vols.  1-49 Ohio  St. 

Oklahoma  Territory  Reports,  vol.  i Okla. 

Ontario  Appeal  Reports,  vols.  2-20 Ont.  App. 

Ontario  Practice  Reports,  vols.  1-13 Ont.  Pr. 

Ontario  Reports,  vols.  1-23 Ont. 

Oregon  Reports,  vols.  1-23 Oreg. 

Pacific  Reporter,  vols.  2-32 Pac.  Rep. 

Paige 'i5  New  York  Chancery  Reports,  vols.  3-10 Paige  (N.  Y.). 

Parker's  New  York  Criminal  Reports,  vols.  3,  5 Park.  Cr.  (N.  Y.). 

Pennsylvania  District  Court  Reports,  vols,  i,  2 Pa.  Dist. 

Pennsylvania  State  Reports,  vols.  2-158. Pa.  St. 

Pennypacker's  Pennsylvania  Supreme  Court  Reports,  vols.  1-3 Pennyp.  (Pa.). 

Peters'  U.  S.  Supreme  Court  Reports,  vols.  11,  14 Pet.  (U.  S.). 

Philadelphia  Reports,  vols.  1-20 Phila.  (Pa.). 


TABLE  OF  REPORTS  EMBRACED. 


XI 


Reports.  "°"'  ^ited. 

Phillips' North  Carolina  Supreme  Court  Reports,  vol.  i Phil.  (N.  Car.). 

Pickering's  Massachusetts  Supreme  Court  Reports,  vols.  8-23 Pick.  (Mass.). 

Pinney's  Wisconsin  Reports,  vols,  i,  3 Pinn.  (Wis.). 

Pittsburgh  Reports,  vols.  1-3 P'"^^-  (P*-)- 

Porter's  Alabama  Supreme  Court  Reports,  vols,  i,  4 Port.  (Ala.). 

Quebec  Law  Reports,  vols.  4-15 Quebec  L.  R. 

Rhode  Island  Reports,  vols.  2-17 R.  ^. 

Rice's  South  Carolina  Reports,  vol.  I Rice  (So.  Car.). 

Richardson's  South  Carolina  Equity  Reports,  vols.  4-13 Rich.  Eq.  (So.  Car.). 

Richardson  South  Carolina  Law  Reports,  vols.  ■2-15 Rich.  (So.  Car.). 

Robertson's  New  York  Superior  Court  Reports,  vols.  1-7 Robt.  (N.  Y.). 

Robinson's  Virginia  General  Court  Reports,  vol.  I Rob.  (Va). 

Sandford's  New  York  Chancery  Reports,  vols.  2,  3 Sandf.  Ch.  (N.  Y.). 

Sandford's  New  York  Superior  Court  Reports,  vols.  1-5 Sandf.  (N.  Y.). 

Sawyer's  U.  S.  Circuit  and  District  Court  Reports,  vols.  I-14 Sawy.  (U.  S.). 

Sheldon's  New  York  Superior  Court  Reports,  vol,  i   Sheld.  (N.  Y.). 

Silvernail's  New  York  Court  of  Appeals  Reports,  vols.  7-4 Silv.  App.  (N.  Y.). 

Silvernail's  New  York  Supreme  Court  Reports,  vols.  1-5 Silv.  Sup.  Ct.  (N.  Y.). 

Sneed's  Tennessee  Supreme  Court  Reports,  vols.  1-5 Sneed  (Tenn.). 

South  Carolina  Reports,  vols.  1-38 So.  Car. 

South  Dakota  Reports,  vol.  I S.  Dak. 

South  Eastern  Reporter,  vols.  2-15 S.  E.  Rep. 

Southern  Reporter,  vols,  i-ii So.  Rep. 

South  Western  Reporter,  vols.  1-22 S.  W.  Rep. 

Spear's  South  Carolina  Reports,  vol.  2 Spear  (So.  Car.). 

Sprague's  U.  S.  District  Court  Reports,  vol.  I Sprague  (U.  S.). 

Stewart  &  Porter's  Alabama  Supreme  Court  Reports,  vols.  2,  4 S»ew.  &  P.  (Ala.). 

Story's  U.  S.  Circuit  Court  Reports,  vol.  2 i.  jry  (U.  S.). 

Strobhart's  South  Carolina  Supreme  Court  Reports,  vols.  1-5 Strobh.  (So.  Car.). 

Supreme  Court  Reporter,  vols.  1-13 ...  .Sup.  Ct.  Rep. 

Swan's  Tennessee  Supreme  Court  Reports,  vols.  1,2 Swan  (Tenn.). 

Sweeney's  New  York  Superior  Court  Reports,  vols.  I,  2 Sweeney  (N.  Y.). 

Taney's  U.  S.  Circuit  Court  Reports,  vol.  i Taney  (U.  S.). 

Tennessee  Chancery  Reports,  vols.  1-3 Tenn.  Ch. 

Tennessee  Reports,  vols.  85-92 Tenn. 

Texas  Appeals  Civil  Cases,  vols.  1-4 Tex.  App.  (Civ.  Cas.). 

Texas  Appeals  Reports,  vols.  4-28 Tex.  App. 

Texas  Civil  Appeals  Reports,  vols.  1-3 Tex.  Civ.  App. 

Texas  Reports,  vols.  2-85 Tex. 

Texas  Unreported  Cases,  vols,  i,  2 Tex.  Unrep.  Cas. 

Thompson  &  Cook's  New  York  Supreme  Court  Reports,  vols.  1-6 T.  &  C.  (N.  Y.). 

United  States  Court  of  Claims,  vols.  3-28 Ct.  of  CI. 

United  States  Supreme  Court  Reports,  vols.  91-1 52 U.  S. 

Upper  Canada  Chancery  Chamberj  Reports,  vols.  1-3 Chan.  Chamb.  (U.  C.i. 

Upper  Canada  Common  Pleas  Reports,  vols»  4-32  U.  C.  C.  P. 

Upper  Canada  Error  and  Appeal  Court  Reports,  vols.  :!.  3 Up.  Can.  E.  &  A. 

Upper  Canada  Queen's  Bench  Reports,  vols.  2-46 U.  C.  Q.  B 

Utah  Reports,  vols,  i-g Utah. 

Vermont  Reports,  vols.  16-65 Vt. 

Virginia  Cases,  General  Court,  vol.  2 Va.  Cas. 

Virginia  Reports,  vols.  75-89 Va. 

Walker's  Michigan  Chancery  Reports,  vol.  I Walk.  (Mich.). 

Wallace's  U.  S.  Supreme  Court  Reports,  vols.  1-23 Wall.  (U.  S.). 

Washington  Reports,  vols.  1-7 Wash. 

Washington  Territory  Reports,  vols.  1-3 Wash.  T. 

Watts'  Pennsylvania  Supreme  Court  Reports,  vols.  5-10 Watts  (Pa.). 


I' 


mmm 


TABLK  OF  REPORTS  EMBRACED. 

How  Cited. 

RF-roKTs.  r-^-.r*  Rpnnrts  vols.  1-8 ...  Waits  &  S.  (Pa.). 

Watts  &  Sargeanfs  Pennsylvania  Supreme  Court  Reports.  ^ 

Wendell's  New  York  Supreme  Court  Reports,  vols.  6-.6 "  y;;;;.^   Va 

West  Virginia  Reports,  vols.  1-38.  ••   •  •  •  -••■■•• ' '   .•_  '  l^'  " ^^art.  (Pa.). 

Wharton's  Pennsylvania  Supreme  Court  Reports,  vols.  26 ^heat.  (U.  S.). 

Wheaton's  U.  S.  Supreme  Court  Reports  vol.  4-  •  •  •  .^j  •  •••••—• ^.^^^  ^^^^ 

Winston's  North  Crrolina  Supreme  Court  Reports,  vol.  I. ^,^ 

Wisconsin  Reports,  vols.  4-85 •••••■ . . .  .Wood  fU.  S.). 

Wood's  U.  S.  Circuit  Court  Reports,  vols.  i-4-  • .^^^  S_j^ 

Woolworth's  U.  S.  Circuit  Court  Reports,  vol.  I ^  ^  ^  ^^^^ 

Wyoming  Territory  Reports,  vols.  '"S- •  •  •  •  • '  *  •■• Yerg.  (Tenn.). 

Ycrger's  Tennessee  Supreme  Court  Reports,  vol.  9 8 


DIGEST 


OF 


RAILWAY    DECISIONS. 


A 


ABANDONMENT. 

Of  charter,  see  Charier,  IV. 

—  condemnation   proceedings,  see  Eminent 

Domain,  XIII. 

—  easements,  see  Easements,  9, 

—  private  way,  see  Private  Ways,  8. 

—  stations  and  depots,  see  also  Stations  and 

Dei'ots,  III,  I. 

—  streets  and  highways,  see  Streets  and 

Highways,  I,  3. 
When  a  defence  to  suit  on  subscription  to 

stock,  see  Subscriptions  to  Stock,  III, 

6. 
t! .  Geuei-ally  ~  Intent.*  —  Abandon- 
ment consists  in  a  great  measure  of  intent, 
and  is  always  voluntary,  no  matter  whether 
the  rauses  wliich  induce  it  are  within  the 
control  of  a  party  or  not.  Nari  v.  Boston, 
H.  &>  E.  R.  Co.,  40  Conn.  524. 

3.  Of  right  of  way.-| — The  mere  non 
user  of  a  right  of  way  granted  to  a  company 
will  not  extinguish  the  easement  where 
there  is  no  adverse  possession  or  where 
there  are  no  acts  on  the  part  of  the  com- 
pany from  which  an  abandonment  can  be 
clearly  inferred.  Roanoke  Inv.  Co.  v.  Kan- 
sas City  &>  S.  E.  R.  Co.  {Mo.),  51  Am.  &* 
Eng.  R.  Cas.  426,  17  S.  W.  Rep.  1000. 

To  constitute  an  abandonment  of  any 
part  of  the  right  of  way,  there  must  not 
only  be  non-user  but  an  intention  to  aban- 

*  Abandonment  by  railroad  companies  gener- 
ally, see  note,  10  Am.  &  Eng.  R.  Cas.  143. 

f  Abandonment  of  location  or  right  of  way, 
see  notes,  51  Am.  &  Eng.  R.  Cas.  436;  10  Id. 

143. 

Sale  of  right  of  way  to  rinother  company  not 
an  abandonment.  See  note,  14  Am.  &  Eng.  R. 
Cas.  51. 

I  D.  R.  D  — I. 


don.  Durfce  v.  Peoria,  D.  &•  E.  R.  Co., 
140  ///.  435,  30  N.  E.  Rep.  686. 

Where  a  railway  company  entered  into 
an  agreement  with  another  company, 
whereby  the  former  acquired,  by  lease,  the 
right  to  run  its  trains  over  the  tracks  of  the 
latter  for  ten  years,  and  then  removed  the 
ties  and  rails  on  its  own  road  and  faiic.^  io 
occupy  the  land  over  which  its  road  passed 
for  nine  or  ten  years,  but  without  an  inten- 
tion to  permanently  abandon  the  same, 
held,  that  such  company,  by  its  acts,  did  not 
lose  its  right  of  way.  Dtirfee  v.  Peoria,  D. 
6-  E.  R.  Co.,  140  ///.  435,  30  N.  E.  Rep.  686. 

The  statute  declaring  that  non-user  for 
five  years  of  any  "turnpike,  plank-road, 
canal,  or  slack-water  navigation  or  public 
highway  of  any  company  or  corporation  " 
shall  constit  'te  an  abandonment  has  no 
application  to  a  railroad  company,  which 
will  not  by  a  mere  lapse  of  five  years'  time 
be  presumed  to  have  abandoned  its  right  of 
way  for  constructing  branch  lines.  Pitts- 
burgh, V.  &>  C.  R.  Co.  v.  Pittsburgh,  C.&'S. 
L.  R.  Co.  (Pa.),  57  Am.  &>  Eng.  R.  Cas.  46, 
28  Atl.  Rep.  155. 

Where  no  statute  requires  a  company, 
after  making  a  location,  to  keep  stakes  in 
position  along  the  proposed  line,  or  any 
map  to  be  recorded,  the  failure  to  keep  its 
lines  staked  out  will  not  imply  abandon- 
ment of  the  location  so  as  to  estop  the 
company  from  denying  the  right  of  another 
company  to  construct  its  road  on  such  lo- 
cation. Pittsburgh,  V.  <&-  C.  R.  Co.  v.  Pitts- 
burgh, C.  &•  S.  L.  R.  Co.  {Pa),  57  Am.  «S- 
Eng.  R.  Cas.  46,  28  Atl.  Rep.  155. 

Where  a  company  acquired  the  right  of 


2 


ABANDON MKNT,  2-4. 


way  prior  to  1856,  but  transferred  to  an- 
other company  cliarteied  subsequent  to 
said  date,  sucli  riylit  c(  way  is  property, 
iind  it  is  not  competent  for  tiie  lcj;isl,itiire 
to  give  it  to  anotiier  corporation  without 
maliing  compensation;  but  proof  of  non- 
user  of  ten  years  is  suiricieni  proof  that  the 
company  lias  abandoiicl  tiie  rii^iil  of  way. 
and  being  so  abandoneii  ii  is  witiiin  tlie 
constitutional  power  of  tlie  legislaiure  to 
grant  ii  to  anoti)er  company,  ilt-iuicr- 
son  V.  Centyal  J'<iss.  A".  Co.,  20  .liii.  &^  Kiig. 
Ji.  Cits.  542,  21  /•■<■(/.  A'</.  358. —  Dis- 
tinguishing Hesionville  R  Co.  v.  Phila- 
delpiiia,  89  I'a.  St.  215. 

Where  a  r.iilroad  company,  more  than 
twenty  years  l)efore  an  action  of  ejectment 
was  i)rought,  had  surveyed  and  located  its 
line  on  land  described  in  the  compl<int,  and 
had  constructed  its  road-bed  by  the  build- 
ing of  embankments  and  cuts,  but  before 
any  rails  or  cross-ties  had  been  laid  desisted 
from  the  work,  and  did  not  return  to  it 
until  after  the  purchase  by  plaintiiT  of  the 
land  on  which  the  right  of  way  was  located, 
when  the  timber  which  had  meantime  grown 
on  the  road-bed  was  removed,  the  road-bed 
refilled,  and  defendant's  railway  constructed, 
the  question  of  abandonment  of  such  right 
of  way  was  for  the  jury.  Tennessee  &^  C.  R. 
Co.  V.  Taylor  {Ala.),  57  Am.  &«•  Eng.  R.  Cas. 
296,  14  So.  Rep.  379. 

The  C.  R.  Co.  procured  a  right  of  way  to 
run  from  the  track  of  the  M.  R.  Co.  through 
the  streets  of  Columbus,  toward  S.,  and  sub- 
sequently, under  a  running  agreement  with 
said  M.  R.  Co.,  gave  the  control  of  it«  road 
to  that  company,  and,  by  that  company,  and 
with  the  consent  of  the  C.  Co.  (the  track 
through  the  streets  still  remaining),  the  road 
superstructure  of  the  C.  Co.  adjoining  the 
city   was   removed    for   the    distance   of    a 
mile  beyond   the  city,  and   the  remaining 
track  to  S.  w:is  connected  with  the  road  of 
the   M.    R.    Co.  around  said  city,  tlirough 
lands  with  the  owner   of  which  the  latter 
company  contracted  to  procure  a  release  for 
him   from  the  C.  Co.  of  the  right  of  way 
over  tlie  land  where  the  superstructure  was 
removed.     Held,  that  this  did  not  con.stitute 
an  abandonment  of  the  right  of  theC.  R.  Co. 
to  maintain  a  track  tlirf)ugh  the  streets  of 
Columbus.     Columbus  v.  Columbus  &•  S.  R. 
Co.,  yj  Intl.  294,  3  Am.  Ry.  Re/>.  70. 

3.  Of  ouiistriictioii  of  road.— The 
right  to  construct  a  railroad  and  the  right 
of  abandonment  are   not    necessarily   the 


same;  the  right  to  abandon  a  light  of  way 
does  not  always  result  from  tlie  riglit  not  to 
construct.  People  v.  Albany  Cs-  V .  R.  Co. 
37  Jiarb.  (A'.    V.)  21O. 

Tile  abandonment  ui  the  construction  of 
a  railroad  docs  not,  of  itself,  constitute  a 
defence  to  a  suit  to  recover  debts  due  the 
company :  wliilst  the  corporate  organization 
remains,  they  may  collect  dues  in  their  cor- 
porate name  for  the  payment  of  debts. 
Hardy  v.  Merriweat/ter,  14  Jnd.  203. 

A  right  of  way  is  not  forfeited  by  a  failure 
to  occupy  it  for  thirteen  years,  growing  out 
of  delay  in  the  construction  of  the  road. 
Mere  non-user  of  an  easement  of  this  char- 
acter, acquired  by  deed,  will  not  operate  to 
defeat  or  impair  the  right.  Barhnv  v.  Chi- 
cago, R.  I.  &^  P.  R.  Co.,  29  loiva  276.— Dis- 
TiNGUlSHKU  IN  Ball  V.  Keokuk  &  N.  W.  R. 
Co.,  20  Am.  cSc  Eng.  R.  Cas.  375,62  Iowa  751. 
FoLi.owKD  IN  Noll  V.  Dubuque,  B.  &  M. 
R.  Co.,  32  Iowa  66. 

A  plea  that  parties  had  forfeited  a  right  of 
way  by  voluntarily  abandoning  the  construc- 
tion of  railroads  in  certain  streets,  and  by 
failing  to  construct  said  roads  within  the 
time  limited  by  contract,  is  not  made  out 
when  proved  that  they  were  prohibited  to  do 
the  work  by  an  injunction  from  a  third  party ; 
and  because  the  injunction  taken  in  Sep- 
tember, 1866,  was  not  dissolved  before  June, 
1872,  it  is  not  to  be  inferred  that  it  was  kept 
so  long  in  force  by  the  wish  and  connivance 
of  the  relators,  when  the  city  was  a  party  to 
the  injunction  suit,  and  having  the  same 
right  to  push  the  case  that  the  relators  had, 
did  not  do  so.  State  ex  rel.  v.  Cockrem,  25 
La.  Ann.  356. 

4.  Of  part  of  road. — A  railway  com- 
pany is  bound  to  construct  its  road  to  and 
from  the  several  points  named  in  its  charter, 
and,  when  built,  to  run  its  trains  over  its 
entire  line,  in  such  a  manner  as  to  afford 
reasonable  facilities  for  the  prompt  and 
efficient  transaction  of  sucli  legitimate  busi- 
ness as  may  be  oflfered  to  it  on  any  and 
every  part  of  its  road ;  and  this  obligation 
is  equally  binding  on  its  successors.  No 
part  of  the  road  can  be  abandoned  without 
rendering  its  franchises  liable  to  forfeiture. 
People  e.x  rel.  v.  Louisrille  &^  N.  R.  Co. ,  1 20 
///.  48,  10  A^.  E.  Rep.  657.— Approved  in 
Illinois  C.  R.  Co.  v.  People,  143  111.  434. 

A  company  has  not  the  unrestricted  right 
to  abandon  a  part  of  a  road  which  is  neces- 
sary to  preserve  an  unbroken  line,  but  the 
government  in  a  proper  case  may  interfere 


ABANDONMENT,  5,  6. 


8 


to  prevent  the  abandonment  or  to  control 
it.  People  V.  Albany  &^  V.  R.  Co.,  yj  Barb. 
(A*.  Y.)  2i6;  (tffinning  ii  Abb.  Pr.  136, 
19  How.  523.— Ai'i'RoviNU  Rex  v.  Severn  & 
W.  Ry..  2  Burn.  &  Aid.  646. 

A  company  chartered  to  build  and  oper- 
ate a  road  between  certain  designated 
points  cannot  operate  the  road  only  from 
the  point  of  bcj^inning  to  an  intermediate 
point  and  abandon  the  remainder  of  the 
line.  If  it  does  so,  its  corporate  existence 
may  be  annulled  or  its  charter  declared  va- 
cated by  a  proi)er  proceeding.  People  v. 
Albany  &>  V.  A".  Co.,  24  A^.  y.  261  ;  affirming 
16  Abb.  Pr.  465. 

Where  a  company  fails  to  build  its  road 
over  the  entire  line  chartered,  but  builds  a 
portion  of  the  line  and  abandons  the  re- 
mainder, the  proper  remedy  is  an  action  in 
the  name  of  the  people  to  vacate  the  char- 
ter; a  suit  ill  equity  to  compel  a  specific 
performance  of  tiie  obligation  of  the  com- 
pany to  build  the  entire  line  will  not  lie. 
People  V.  Albany  &'  V.  N.  Co.,  24  N.  V.  261  ; 
affirming  16  Abb.  Pr.  465.— Reviewed  in 
Port  Clinton  R.  Co.  v.  Cleveland  &  T.  R. 
Co.,  13  Ohio  St.  544. 

It  is  not  the  province  of  highway  com- 
missioners to  seek  to  prevent,  by  injunc- 
tion or  otherwise,  a  railroad  company  from 
abandoning  a  portion  of  its  route  on  a 
highway.  Moore  v.  Brooklyn  City  R.  Co., 
31  Hun  (A'.  J'.)  90. 

A  company  cannot  question  the  consti- 
tutionality of  Act  No.  275,  Laws  of  1887  (3 
How.  Mich.  Slat.  §§  3457".  3457''').  which 
makes  it  unlawful  for  any  railroad  com- 
pany whose  road  has  been  constructed, 
wholly  or  in  part,  by  public  or  local  aid,  to 
take  up,  abandon,  or  cease  the  operation  of 
any  portion  of  its  road,  etc.,  in  a  suit  insti- 
tuted by  the  company  under  the  provisions 
of  the  act  to  obtain  an  order  or  decree  au- 
thorizmg  such  abandonment.  Flint  &•  P. 
M.  R.  Co.  V.  Rick,  91  Mich.  293,  51  A^.  IV. 
Rep.  1 00 1. 

A  railroad  company  cannot  be  permitted 
to  abandon  a  portion  of  its  road  under  Act 
No.  275,  Laws  of  1887,  without  reimbursing 
those  individuals  who  contributed  to  its 
construction  and  advanced  as  a  bonus 
either  money,  labor,  or  material.  Flint  &^ 
P.  M.  R.  Co.  V.  Ric/i,  91  Mic/i.  293,  51  A'. 
IV.  Rep.  looi.  — DlSTlNCUisniNO  Ayres  ;-. 
Duttoii,  87  Mich.  528. 

The  provisions  of  section  1260,  Code  of 
Iowa,  as  amended  by  act  of  1874,  in  relation 


to  the  abandonment  of  a  railroad  line, 
clearly  contemplate  there  may  be  an  aban- 
donment of  a  part  of  a  constructed  railway. 
Whether  an  abandonment  exists  depends 
upon  the  circumstances  of  each  case.  Cen- 
tral Imva  R.  Co.  v.  Moulton  iS-» .,'/.  A*.  Co.,  10 
Am.  &^  Eng.  R.  Cas.  138,  57  Iowa  249,  lo 
A'.  W.  Rep.  639. 

5.  Of  .station.*— A  railway  company 
which,  in  the  interests  of  economy,  has 
abandoned  a  station  and  established  two 
others,  thereby  hoping  to  increase  the  busi- 
ness of  the  road,  will  not  be  compelled  to 
re-establish  the  station  abandoned  where 
the  evidence  shows  no  patron  of  the  road 
is  inconvenienced  by  the  change.  State  v. 
Des  Moines  &>  K.  C.  R.  Co.  {Io7va),  54  A'.  IV. 
Rep.  461. 

The  plaintiff  agreed  with  the  contractors 
for  the  building  of  a  railway  to  convey  to 
them  in  fee  simple  six  acres,  to  be  increased 
to  ten  if  necessary,  in  consideration  of  their 
])lacing  the  station  for  the  town  of  P. 
thereon.  After  the  road  had  been  surveyed 
and  the  station  buildings  erected  on  the 
property,  the  plaintiff  executed  a  convey- 
ance thereof  to  the  contractors,  which  con- 
tained a  covenant  by  them  to  continue  and 
maintain  the  station  on  those  lands  from 
thenceforth,  but  the  deed  was  never  exe- 
cuted by  the  grantees.  The  company  con- 
tinued to  use  sucii  station  for  about  ten 
years,  when  they  removed  it  to  a  distance 
of  one  and  a  half  miles.  Held,  that  the  act 
of  the  company  in  thus  placing  at;d  using 
the  station  was  a  substantial  compliance 
with  the  agreement,  and  that  they  were  not 
bound  to  continue  that  station  there  for  all 
time.  Jessup  v.  Grand  Trunk  R.  Co.,  7  Ont. 
App.  128;  reversing  28  Grant  Cli.  583. 

O.  Evidence  on  question  ot  abaii- 
(lonniciit.— An  abandonment  of  a  right  of 
way  is  usually  and  properly  shown  by  acts 
which  do  not  appear  of  record;  and  it  need 
not  appear  of  record  in  order  to  be  effectual. 
West  cot  t  V.  Ne^u  York  (S-  A^.  E.  R.  Co.,  152 
Mass.  465,  25  A^  E.  Rep.  840. 

The  failure  of  a  company  to  complete  its 
road,  and  permitting  the  owners  to  use  the 
land  upon  which  its  line  is  located  for  the 
prescribed  statutory    period,  and  for  pur- 

*  Removal  and  abandonment  of  railroad  sta- 
tions, see  note,  50  Am.  &  Enu.  R.  Cas.  14.  See 
also  SlW'I'tONS  AND  DKi'ors,  III,   I. 

Wliat  constitutes  a  station  within  the  meaning 
of  titatuies  relating  to  tlie  abandonment  of  sta- 
tions, sf<;  iiDic,  21  Am.  iV  I"n<;.  R.  Cas.  241. 


ABAN'DONMENT,  7,  8. 


poses  inconsistent  with  its  occupation  and 
use  as  a  railroad,  is  evidence  of  an  intention 
to  surrender  the  easement,  and  may  consti- 
tute, an  abandonment  of  ilie  lijjjlit  of  way. 
Ikattie  V.  Carolina  Cent.  R.  Co.,  ^0  ,/w.  &^ 
Eng.  R.  Cas.  524,  108  N.  C(<r.  425,  12  .y  K. 
Rep.  913. 

Proof  tliat  a  railway  company  has  occu- 
pied a  highway  f(jr  30  years  for  the  purposes 
of  its  road  and  with  tiie  consent  of  the 
county  commissioners  is  sutlicient  to  show 
an  abandonment  of  the  highway.  Louis- 
ville, A'.  A.  &^  C.  R.  Co.  V.  S/i(iiil:liii.\  (j.li/i. 
1^  Eiij;.  R.  Cas.  555,  98  Iiid.  573.  — DlS- 
TiNcuisiiiNc;  Louisville,  N.  A.  &  C.  R.  Co. 
V.  Francis,  58  Ind.  389;  Louisville,  N.  A.  & 
C.  R.  Co.  V.  VVysong,  58  Ind.  597;  Croy  v. 
Louisville,  N.  A.  &  C  R.  Co.,  97  Ind.  126. 

Where  a  company  ceases  to  run  cars  over 
a  portion  of  its  road  for  12  years,  the  ques- 
tion/jf  abandonment  is  one  to  be  determined 
from  the  facts,  and  not  from  testimony  as  to 
the  intention  of  the  officers  of  the  railroad 
company  either  at  the  outset  or  during  such 
period.  Hickox  v.  Chicago  S^  C.  S.  R.  Co., 
94  Mich,  zyi,  53  A^.    W.  Rep.   1105. 

Proof  that  a  street  railway  company  fails 
for  II  years  to  exercise  a  chartered  right,  at 
its  option,  to  use  a  portion  of  another  road 
is  sufficient  to  siiow  an  abandonment  of  the 
right,  and  to  justify  a  court  in  declaring  it 
forfeited  as  to  other  companies.  Girard 
College  P.  R.  Co.  v.  13///  &•  \t,th  Sts.  R.  Co., 
7  Phila.  (Pa.)  620.— Following  Common- 
wealth V.  Erie  &  N.  E.  R.  Co.,  27  Pa,  St.  339. 

Where  a  question  of  the  abandonment  of 
part  of  a  right  of  way  is  raised,  a  deed  to 
trustees  who  were  temporarily  in  possession 
of  the  strip  of  land,  reciting  that  in  their 
opinion  increase  of  business  required  its 
purchase,  is  admissible  in  evidence.  West- 
cot  t  V.  A'<w  York  &<•  N.  E.  R.  Co.,  152 
.'ifass.  465,  21N.E.  Rep.  840. 

It  appeared  that  a  railroad  was  originally 
located  on  a  right  of  way  5  rods  wide,  but 
soon  after  the  road  was  located  the  direc- 
tors passed  an  order  providing  for  narrow- 
ing the  right  of  way  at  certain  places.  At  a 
particular  place  thereafter  damages  were 
awarded  for  the  right  of  way  for  4  rods  in- 
stead of  5.  and  for  30  years  thereafter  the 
company  maintained  a  fence  which  marked 
its  right  of  way  as  4  rods  wide.  Held,  that 
the  evidence  was  sufficient  to  warrant  a  ver- 
dict of  abandonment  of  the  extra  rod. 
W'estcolt  V.  iXnv  Vork  &>  N.  E.  R.  Co.,  152 
Mass.  465,  25  A'.  /•;.  Rep.  840. 


7.  Coiiseqiieiices  orubaiuluuiiiciit, 
{jt'iierally.* — Under  the  provisions  of  the 
Va.  code  of  1849,  relating  to  railroads,  no 
forfeiture  of  title  to  railroad  property  on  the 
ground  of  abandonment  can  be  enforced 
except  by  the  stale.  McCoiiihay  v.  Wright, 
\2\  U.  S.  201,  7  Sup.  Ct.  Rep.  940. 

The  question  as  t(j  the  abandonment  or 
forfeiture  of  a  location  for  branch  railway 
lines  is  for  the  commonwealth  alone,  and 
third  persons  cannot  assume  the  right  to 
raise  such  a  question.  Pittsburgh,  V.  &>  C. 
R.  Co.  V,  Pittsburgh.  C.  >&^  S.  L.  R.  Co.  (Fa.), 
57  .  //«.  &>  E/tg.  R.  Cas.  46. 

A  landowner  who  retains  the  fee  in  the 
land  over  which  a  railroad  has  obtained  a 
right  of  way  cannot  maintain  a  p  oceeding 
to  recover  possession  of  the  la'  1  on  the 
ground  that  the  company  has  diverted  it 
from  its  original  purpose  by  leasing  it  to 
third  parties  for  business  not  connected 
with  railroading.  A  private  party  cannot 
take  advantage  of  a  mere  misuser  of  the 
land  by  the  company  ;  his  remedy  would  be 
by  a  proceeding  to  recover  additional  dam- 
ages. Proprietors,  etc.,  v.  Nashua  &•>  L.  R. 
Co.,  104  Mass.  I.— Distinguished  in  Il- 
linois C.  R.  Co.  V.  Wathen,  17  111.  App.  582. 
Quoted  in  Schulenburg  v.  Memphis,  C.  & 
N.  W.  R.  Co.,  67  Mo.  442.  Reviewed  in 
Peirce  v.  Boston  &  Lowell  R.  Co.,  27  Am. 
&  Eng.  R.  Cas.  359,  141  Mass.  481  ;  Lyon 
7'.  McDonald,  47  Am.  &  Eng.  R.  Cas.  217, 
78  Tex.  71. 

8. reversion  to  abnttiii^Towi^ftr  + 

Upon  the  abandonment  by  a  raiho  ••.■1- 

pany  of  a  portion  of  its  road  unde; 
visions  of  Mich.  Act  No.  275,  Law ,  c;  ''.cj, 
the  title  to  the  land  which  was  ti!^  ,'or 
right  of  way,  and  for  the  other  purposes  oi 
the  road,  reverts  to  the  original  owners,  and 
no  reconveyance  or  order  of  the  court  is 
necessary.  Elittt  &*  P.  M.  R.  Co.  v.  Rich, 
91  Mich.  293,  51  A'.  W.  Rep.  looi. 

//  seems  that  upon  the  company  ceasing 
to  use  the  lands  for  the  purpose  for  which 
alone  they  had  been  conveyed,  the  grantor 
would  be  at  liberty  to  resume  possession. 

*  Abandonment  of  road  as  a  defence  to  an 
action  to  recover  subscriptions,  see  note,  30  Am. 
&  Eng.  R.  Cas.  528. 

Liability  of  company  for  loss  to  landowner, 
see  note,  27  Am.  &  Eng.  R.  Cas.  4^0. 

f  Conveying  a  right  of  way  with  condition 
that  it  should  revert  if  not  used  for  railroad  pur- 
poses at  any  time.  Company  may  abandon, 
and  action  for  specific  performance  will  not  lie, 
see  3O  Am.  &  Eng.   R.  Cas.  428— abstr. 


AHAXDONMliNT.  H,  i>. 


Ji:ssii/>  V.  CniVhl  I'ntnk  R.  Co.,  7  Out.  App. 
128;  riTer.u'ii_i;  2S  Gr.  CIt.  583. 

A  right  of  way  was  conveyed  to  a  railroad 
company  and  its  assigns  forever,  "  so  long 
as  the  said  land  hereby  conveyed  shall  be 
used  for  railroad  purposes."  The  roadbed 
was  graded,  but  the  successor  of  the  grantee 
completed  the  road  by  a  new  route.  The 
owner  of  the  tract  occupied  the  right  of  way 
for  five  years  after  the  completion  of  the 
road  by  the  new  route,  and  put  valuable  im- 
provements upon  it  without  objection  from 
tiie  railroad  company.  NeM.thm  the  right 
of  way  was  abandoned,  and  reverted  to  the 
owner  of  the  tract  of  which  it  was  originally 
a  part.  Roanoke  Iiiv.  Co.  v.  Kansas  City  &^ 
S.  R.  Co.  {Mo.),  51  Am.  &•  Eng.  R.  Cas.  426, 
17  .S".  W.  Rep.  1000. 

A  conveyance  made  to  the  city  of  B.,  pur- 
suant to  acts  of  the  legislature  (ch.  220,  N. 
Y.  Laws  j8s3,  and  ch.  475,  Laws  1855),  of 
lands  for  the  purpose  of  a  street  which  had 
been  acquired  by  the  B.  &  J.  R.  Co.  by 
proceedings  under  its  charter  (ch.  256,  Laws 
1832),  was  eiiectual  only  as  a  relinquishment 
of  the  right  of  the  company  to  the  use  of 
the  lands;  and  upon  the  abandonment  of 
the  use,  the  owners  of  the  fee  were  entitled 
to  re-enter  and  take  possession.  Heard  v. 
lU-ooklyn,  60  A^.  Y.  242.— Distinguished 
IN  Beal  V.  New  York  C.  &  H.  R.  R.  Co.,  3 
How.  Pr.  N.  S.  (N.  Y.)  329. 

Deeds  by  the  owners  of  the  fee  of  adjoin- 
ing lands  which  bounded  them  by  the  rail- 
road, executed  while  the  lands  were  in  the 
use  of  the  corporation,  in  the  absence  of 
covenants  that  upon  the  termination  of 
such  use  said  lands  should  be  thrown  open 
as  a  public  street,  did  not  operate  as  a  dedi- 
cation thereof  for  that  purpose,  and  in  no 
way  impaired  or  affected  the  owner's  title. 
Heard  v.  Brooklyn,  60   N.   V.  242. 

The  law  vested  in  the  state  a  title  "  in 
perpetuity  "  to  lands  acquired  for  the  state 
canal.  A  deed  was  made  conveying  the 
land  for  the  canal,  but  "  excepting  there- 
from ground  for  a  basin."  The  canal  and 
basin  were  built,  but  no  damages  assessed, 
and  afterward  the  same  were  sold  to  a  rail- 
road and  abandoned.  He/d,  that  the  reser- 
vation in  the  deed  was  of  no  effect ;  that 
the  state  took  an  absolute  estate  in  the 
basin,  and  the  same  did  not  revert  on  aban- 
donment. The  title  could  not  be  affected 
by  the  owner's  failure  to  have  damages  as- 
sessed. Robinson  v.  West  Pennsylvania  R. 
Co.,  72  Pa.  Sf.  316. 


The  Vermont  C.  R.  Co.  acquired  title  to 
certain  land  in  Vermont  by  warranty  deeds, 
in  the  usual  form,  which  land  they  subse- 
quently abandoned  for  railroad  purposes, 
liaving  changed  the  location  of  their  road- 
bed. Held,  that  the  land  did  not  revert,  by 
reason  of  such  abandonment,  but  that  the 
railroad  company,  by  said  deeds,  acquired  a 
title  in  fee  to  the  same.  Page  v.  Heineberg, 
40  Vt.  81. 

O.  Compelling  rebiiiltliiit;  of  aban- 
doned line. — Mandamus  will  lie  to  com- 
pel a  railway  company  which  has  taken  up 
its  track  to  reinstate  and  lay  it  down  again, 
where,  by  the  act  of  parliament  under  which 
it  was  constructed,  the  public  were  given 
the  beneficial  enjoyment  of  such  railway. 
Rex  V.  Severn  &•  W.  R.  Co.,  2  B.  &>  A.  646. 

Where  the  facts  show  that  the  public  will 
be  as  advantageously  served  by  a  train  ser- 
vice of  a  railroad  company  over  a  leased 
line  between  two  points  as  it  would  be  by  a 
service  over  a  line  of  its  own  which  the 
company  has  abandoned,  the  leased  line  be- 
ing but  a  few  feet  from  the  old  line,  and  it 
appearing  that  the  expense  of  rebuilding 
and  operating  the  old  line  would  be  very 
heavy  and  would  be  without  practical  ad- 
vantage to  any  one,  the  court  will  refuse  to 
enforce  an  order  of  the  railroad  commis- 
sioners compelling  the  company  to  rebuild 
and  operate  its  abandoned  line,  since  such 
an  order  is  unreasonable  and  unjust  within 
the  meaning  of  the  statute.  State  v.  Des 
Moines  &>  Ft.  D.  R.  Co.  [Iowa),  49  Am.  &• 
Eng.  R.  Cas.  186. 

It  cannot  be  said  that  there  is  any  legal 
obligation  of  a  railroad  company  to  operate 
its  trains  on  its  own  line  rather  than  on  a 
leased  one  if  the  public  are  served  equally 
well,  although  the  company  has  received  a 
land  grant  from  the  state  in  consideration 
of  its  completing  the  line  which  it  has  aban- 
doned. The  receipt  of  such  aid  from  the 
state  does  not  take  away  from  the  company 
its  right  to  maki  such  changes  in  its  line  as 
its  interests  might  dictate,  by  placing  its 
train  service  for  some  parts  of  the  way  on 
a  leased  line  of  another  company,  providing 
that  such  a  service  is  maintained  as  was 
contemplated  when  its  obligation  to  the 
public  was  assumed.  State  v.  Des  Moines 
&^  Ft.  D.  R.  Co.  {Io7ua),  49  Am.  &*  Eng.  R. 
Cas.  186. 

The  fact  that  the  lease  of  the  track  oper- 
ated will  soon  expire,  and  that  it  contains 
no  provisions  for  a  renewal,  will  not  war- 


6 


AHANDONMENT,   lO,  1 1. -ABATliMKNT,   I. 


liint  tlii'ctifonTincrit  ul  ilic  order  lorcl)uilfl 
tlic  aljatidoncd  ti,i<k  ;  iini  can  sticli  an  ordiT 
be  sustained  on  ilii;  i^round  that  a  further 
delay  inij'ht  cause  the  statute  of  limitations 
to  run  in  favor  of  the  company,  since  no 
cause  of  action  has  yet  arisen  against  it. 
Statf  V.  Drs  Afonirs  &•  /■'/.  IK  R.  Co.  (Iowa). 
49  Am.  &*  f'-'i.ii-  A'.  Cax,  i86. 

An  ord<'r  of  the  commissioners  requiring 
the  company  to  ojjcrate  tlirough  trains  over 
the  leased  litie,  pending  the  completion  of 
tlie  work  of  rebuilding  the  abandoned  line, 
will  not  be  enforced,  since  the  court  has 
decidefl  tli;it  the  order  compelling  the  re- 
building of  the  abandoned  line  sliould  not 
be  enforced,  and  the  matter  of  future  train 
service  is  left  to  the  further  inquiry  and 
direction  of  tiie  commissioners.  Slate  v. 
Jhs  Moines  &■*  Ft.  D.  A'.  Co.  (/owa),  49  /1m. 
6^  E/tj,'-.  N.  Ciis.  1 86. 

10.  (Joiiipviisatioii  of  landuwuer 
out  of  deposit  moneys.— Where  a  rail- 
road company  lias  entered  into  a  covenant 
to  build  a  station  at  a  designated  i,oint,  be- 
ing of  such  a  nature  that  the  abandonment  of 
the  railway  necessarily  implies  a  breach  of 
tile  covenant  to  build  the  station,  a  failure 
to  build  the  station  may  be  taken  into  ac- 
count in  assessing  damages  to  the  land  by 
the  abandonment  of  the  road  ;  but  a  cove- 
nant to  build  fences  on  the  land  is  not  such 
an  obligation  as  to  form  the  basis  of  a  claim 
for  compensation  out  of  the  deposit.  /»  re 
Ruthin  &>  C.  D.  R.  Co.,  27  Am.  &*  Enif.  R. 
Ciis.  434,  32  C/i.  D.  438. 

Where  the  act  incorporating  an  English 
railroad  contains  the  usual  clause  that  in  case 
of  abandonment  of  the  road  the  parlia- 
mentary deposit  shall  be  applicable  towards 
compensating  any  landowners  whose  prop- 
erty may  have  been  interfered  with  or 
rendered  less  valuable  by  the  location,  con- 
struction, or  abandonment  of  the  road,  as  a 
rule  the  landowner  can  only  claim  compen- 
sation for  acts  done  or  omitted  by  the  com- 
pany under  its  statutory  powers,  and  not 
compensation  on  account  of  any  collateral 
agreement  that  the  company  may  have  en- 
tered into.  ///  ;■('  Ruthin  &^  C.  D.  R.  Co., 
2y  Am.  S"  Eng.  R.  Cus.  434,  32  Ch.  1).  438. — 
Rkvikwino /«  ;-<?  Potteries,  S.  &  N.  W.  R. 
Co.,  25  Ch.  D.  251. 

Where  a  railway  has  been  abandoned 
under  the  Railways  Abandonment  Acts,  the 
costs  of  a  petition  by  the  depositor  for  the 
transfer  out  to  him  of  the  bulk  of  the  de- 
posit moneys  will  be  ordered  to  be  paid  out 


of  the  company's  general  assets,  fn  rr 
I.aui^harne  R.  Co.,  L.  R.  12  Ef.  454,  ig  //', 
A'.  1108. 

The  solicitor  and  parliamentary  agent  of 
a  company  are  not  entitled  to  be  paid  their 
costs  and  charges  out  of  moneys  deposited 
in  the  court  of  chancery  as  security  to  be 
applied  as  part  of  the  assets  of  a  company 
abandoning  its  road,  /n  re  A'fnsini;ton  Sta- 
tion Act,  /..  A'.  20  Ey.  197,  23  H\  R.  463.  32 
/..  T.  M.  S.  183. 

1 1. of  crerti*r.r.s. — All   distinction 

between  meritorious  and  non-meritorious 
creditors  as  to  the  right,  upon  the  abandon- 
ment of  an  undertaking,  to  share  in  the  de- 
posit made  by  the  promoters  in  order  to  ob- 
tain from  the  Board  of  Trade  the  provi- 
sional order  authorizii  g  the  undertaking, 
has,  since  the  passing  of  the  Parliamentary 
Bonds  and  Deposits  Act,  1892,  ceased  to 
exist.  Ex  parte  Bradford  &*  Dist.  T.  Co. 
1 1 893 1,  3  Ch.  463. 

Persons  who  lent  the  money  to  the  pro- 
moters of  the  undertaking  to  enable  them 
to  make  the  deposit  are  "creditors"  en- 
titled, under  §  i,  sub-sec.  2,  of  that  act, 
upon  the  abandonment  of  the  undertaking, 
to  share  in  the  deposit  iwwA  pari  passu  v\t)[\ 
the  other  creditors  of  the  company.  Ex 
parte  Bradford  &'  Dist.  T.  Co.  \  1893 J,  3  Ch. 

463. 

The  word  "creditors"  in  Parliamentary 
Deposits  and  Bonds  Act,  JS92  (55  &  56  Vict, 
c.  27J,  «;  1,  sub-sec.  2,  is  not  limited  to  the 
creditors  of  the  particular  undertaking 
which  has  been  abandoned,  but  includes  the 
general  creditors  of  the  company.  Ex  parte 
Bradford  &>  Dist.  T.  Co.  [1893],' 3  Ch.  463. 


ABATEMENT. 

Forra  and  sufficiency  of  plea  in.  see  Plead- 

INO,  I,  3. 

....       6 
n 


I.  GROUNDS 

U.  BEVIVAL  ;  CONTINUAITCE 


I.  GROUNDS. 

1.  Ineapacity  to  sue.— Where  a  suit 
has  been  properly  brought,  the  defendant 
cannot  cause  its  abatement  by  afterwards 
creating  a  state  of  facts  against  the  ability 
of  the  plaintiff  to  sue.  Board  of  Com' rs  v. 
Lafavette,  M.  &>  B.  R.  Co.,  50  fnd.  85,  8  Am. 
Ry.  Rep.  324. 

A  suit  by  an  abutting  owner  to  restrain 
the  operation  of  an  elevated  railway  in  the 


I  4 


AHATKMHNT,  2. 


Ureet,  and  to  recover  dainaf'iis,  will  iioi 
abate  if  the  plaintiff  conveys  the  premises 
pending  the  suit.  Moss  v.  A'rw  York  El.  K. 
Co..  27  Abb.  N.  C.  {N.  Y.)  3«8.  '7  A'-  J^- 
Supp.  586. 

2.  Aiiotlier  a('ti«>n  pcudiiii;.  -  (1) 
IV/wn  Ground.— Where  two  actions  are 
l.rought  by  the  same  parties,  involving  the 
same  state  of  facts,  both  praying  the  same 
relief,  the  suit  last  commenced  should  be 
stayed  until  the  matters  have  been  fully 
heard  and  decided  in  the  first  suit.  New 
York,  L.  E.  &•  IV.  R.  Co.  v.  Robinson,  15 
A^.   Y.  S.  K.  237,  48  Hun  614. 

Under  the  practice  in  New  York,  for  a 
former  suit  to  be  ground  for  abatement  of 
a  second  suit  it  must  appear  that  both  suits 
are  in  the  state  and  the  first  suit  must  have 
been  pending  when  the  second  was  com- 
menced. HadJen  v.  St.  Louis,  I.  M.  &* 
S.  A'.  Co..  57  /^/ow.  Pr.  (N.   Y.)  390. 

(2)  IV hen  not  Ground.  ■—  A  creditor  of  a 
railroad  who  is  not  made  a  party  to  a  gen- 
eral creditors'  bill  filed  against  the  company 
in  a  state  court  is  not  prevented  thereby 
from  bringing  a  separate  suit  in  a  federal 
court  on  his  demand.  Parsons  v.  Green- 
ville <>  C".  R.  Co.,  I  Hughes  (  U.  S.)  279. 

Regiiliir  proceedings  to  condemn  land  for 
the  purpose  of  a  railroad  do  not  abate  upon 
an  agreement  between  the  parties  to  arbi- 
trate, but  where  no  reference  has  been  had  ; 
and  especially  is  this  so  where  the  party 
raising  the  question  has  gone  to  trial  in  the 
eminent-domain  proceeding  without  objec- 
tion. Laflin  v.  Chicago,  IV.  &^  N.  R.  Co., 
34  P'ed.  Rep.  859. 

A  suit  in  equity  in  a  state  court  in  Ala- 
bama by  a  holder  of  railroad  bonds,  en- 
dorsed by  the  state,  on  behalf  of  himself  and 
all  other  holders  of  the  same  class  of  bonds, 
does  not  abate  by  reason  of  the  fact  that 
another  suit  relating  to  the  same  subject- 
matter  is  pending  in  a  United  States  circuit 
court  in  Tennessee.  Forrest  v.  Luddington, 
12  Ant.  <S-»  Eng.  R.  Cas.  330,  68  Ala.  1. 

An  action  for  damages  for  an  injury  to 
the  person  of  the  plaintiff  abates  by  his 
death,  and  the  pendency  thereof  cannot  be 
pleaded  in  bar  of  an  action  brought  by  his 
personal  representative,  for  his  death  result- 
ing from  such  injury,  and  caused  by  the 
wrongful  act  or  omission  of  the  defend- 
ant. Indianapolis  &^  St.  L.  R.  Co.  v.  Stout, 
53 ///^«'.  143. 

.\  railroad  company  cannot  set  up  the 
pendency  of  a  suit  in  a  federal  court,  between 


the  same  parties,  for  the  same  cause  of  ac- 
tion, and  for  the  same  relief,  in  .ibatement 
01  in  bar  of  a  subsequent  suit  in  a  state 
court.  The  proper  remeily  » >  to  apply  for  a 
stay  of  the  subsequent  suit,  or  reserve  final 
judgment  pending  the  other  suit.  Vail\. 
Central  R.  Co.  (N.  J.  Eg.).  4  Atl.  Rep.  663. 

The  pendency  of  another  action  in  perso- 
nam for  the  same  cause  in  a  court  of  the 
United  States  or  of  a  sister-state  is  no  de- 
fence to  an  action  in  a  New  York  court 
against  the  trustees  under  a  railroad  mort- 
gage. Hollister  v.  Stewart,  38  Am.  (S^»  Eng. 
R.  Cas.  599,  III  A^.  K.  644,  19  A^.  E.  Rep. 
782, 

A  pending  suit  by  a  director  to  compel 
the  officers  of  a  railroad  to  account  will  not 
prevent  the  attorney-general  from  institut- 
ing a  suit  to  remove  the  officers,  and  to  com- 
pel an  accounting  by  the  officers,  including 
the  plaintiff  in  the  first  suit.  Keeler  v. 
Brooklyn  El.  R.  Co.,  9  Abb.  N.  C.  {N.  Y.) 
166;  People  V.  Bruf,  9  Abb.  N.  C.  {N.  Y.) 
153,  60  How.  Pr.  I. 

(3)  Illustrations. — A  foreclosure  suit 
on  part  of  a  railroad  was  commenced  in  a 
U.  S.  court  by  the  first-mortgage  trustee. 
Another  suit  was  begun  against  him  and 
others  in  a  state  court  to  foreclose  a  subse- 
quent mortgage,  covering  the  entire  road. 
Held,  that  the  complainant  in  the  suit  fore- 
closing the  first  mortgage  could  not  set  up 
his  suit  in  bar  of  the  second  suit,  and  espe- 
cially where  it  appeared  that,  on  account  of 
citizenship,  the  first  bill  was  dismissed  as  to 
complainants  in  the  second  bill.  Meyer  v. 
Johnson,  53  Ala.  237,  1 5  Am.  Ry.  Rep.  467. 

The  same  person  made  two  subscriptions 
to  the  stock  of  a  railroad,  the  one  in  his  in- 
dividual name,  the  other  as  executor.  Under 
the  terms  of  the  subscription,  each  sub- 
scriber was  severally  liable  for  the  subscrip- 
tions. Held,  that  the  pendency  of  a  suit  on 
one  subscription  was  no  ground  for  abating 
a  suit  to  recover  on  the  other.  Erie  <&«•  A'^, 
Y.  C.  R.  Co.  V.  Patrick,  2  Abb.  App.  Dec. 
(N.  Y.)  72,  2  Keyes  256. 

To  an  action  by  a  personal  representative 
a  railroad  company  set  up,  as  a  defence 
and  ground  for  abatement, that  the, same 
plaintiff  had  brought  a  former  action  for  the 
same  cause,  which  had  been  compromised 
and  a  release  given.  After  the  trial  the 
company  offered  as  evidence  an  unverified 
petition  of  the  plaintiff  addressed  to  the 
proper  court,  praying  leave  to  settle  the  first 
suit;  also  an  order  of  the  court  granting 


8 


ABATI'MI'A'T,  M,  4. 


such  leave,  and  a  re'easc  under  seal.  UelU, 
that  such  evidence  should  have  been  ad- 
mitted, and  for  a  refusal  to  admit  it  a  ver- 
dict in  favor  of  the  plaintiff  should  be  set 
aside.  Mtirsymnvski  v.  Delaware,  L.  6^  \V. 
R.  Co.,  39  .V.  ]'.  S.R,  299,  15  .V.  V.  Supp. 
841. 

;j.  C'olliiHioii—C'liaiii|>crt,v.— Proof  in 
an  action  against  a  railroad  that  certain 
oflicials  of  a  rival  corporation  have  assisted 
the  plaintiff  in  preparing  his  case,  and  that 
plaintifT  had  close  business  relations  with 
such  rival  corporation,  is  not  sufficient  to 
sustain  a  plea  in  abatement  charging  "col- 
lusion." l)ins)iiore  \.  Central  R,  Co.,  id  Am. 
Sf*  Eng.  R.  Cas.  450,  19  /'"tv/.  AV/».  153. 

Under' Iowa  Code,  §  2732,  providing  that 
matter  in  abatement  m^y  be  stated  in  the 
answer  or  reply,  either  together  with  or 
without  causes  of  defence  in  bar,  it  is  not 
proper  in  an  action  against  a  railroad  to  re- 
cover damages  to  allow  evidence  that  the 
attorney  had  an  agreement  with  his  client 
that  was  cliampertous,  i.e.,  that  he  would 
prosecute  the  claim  for  a  certam  share  of 
the  damages,  unless  such  agreement  be 
pleaded.  Allison  v.  Cliicago  (^  N.  W.  R. 
Co..i\2lo7ua  274.— QuoiED  IN  Small  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  55  Iowa  582. 

4.  Death  of'plaintift'or  co-plaiiitiif. 
— (i)  Action  abates. — The  right  of  action 
for  a  tort  to  the  person  dies  with  the  person 
injured.  Chichester  v.  Union  Transfer  Co., 
I  MacArth.  (D.  C.)  295. 

If  a  plaintiff  in  an  action  for  personal  in- 
juries dies  before  verdict,  the  action  abates. 
Baltimore  &>  O.  R.  Co.  v.  Ritchie,  31  Md. 
191. 

Under  McClellan's  Fla.  Dig.  830,  §  77, 
an  action  against  a  railroad  company  to 
recover  for  personal  injuries  abates  on 
the  death  of  the  plaintiff.  Jacksonville 
Street  R.  Co.  v.  Chappell,  22  Fla.  616,  i  So. 
Rep.  10;  Jacksonville  Street  R.  Co.  v.  Chap- 
pell, 28  Am.  (Sw  Eng.  R.  Cas.  227,  21  Fla.  175. 

A  widow's  suit  for  negligent  killing  of 
her  husband  cannot  be  revived  and  pro.-.e- 
cuted  in  name  of  her  personal  representa- 
tive where  she  dies  during  its  pendency. 
Loagite  V.  Memphis  &"  C.  R,  Co.,  52  Am.  <&«» 
Eng.  R.  Cas.  635,  91  Tenn.  458,  19  S.  IV. 
Rep.  430. 

An  action  by  a  husband  to  recover  dam- 
ages for  the  killing  of  his  wife  abates  on  the 
death  of  the  husband  ;  section  i  of  article  2 
of  the  Code  of  i860,  which  provides  for  the 
survival  of  personal  actions,  expressly  ex- 


cepting from  itp  operation  actions  for  in- 
juries to  the  person.  Harvey  v.  lialtimore 
&*  O.  R.  Co.,  70  Md.  319,  17  ////.  Rep.  88.— 
Following  Ott  v.  Kaufman,  68  Md.  56. 
Distinguishing  Cregin  z/.  Brooklyn  Cross- 
town  R.  Co.,  83  N.  Y.  596 ;  Potter  v.  Metro- 
politan Dist.  R.  Co.,  30  L.  T.  N.  S. 
765. 

The  fact  that  the  statute  provides  that 
the  suit  shall  be  brought  in  the  name  of  the 
state,  for  the  use  of  the  person  entitled  to 
damages,  creates  no  contractual  relation 
between  the  state,  the  legal  plaintifT,  and 
the  defendant,  and  on  the  death  of  the 
equitable  plaintiff  the  suit  cannot  be  car- 
ried on  in  the  name  of  the  state.  Harvey 
V.  Baltimore  &•  O.  R.  Co.,  70  Aftl.  319,  17  All. 
Rep.  88.— Distinguishing  State  v.  Dorsey, 
3  Gill  &  J.  (Md.)  75  ;  Fridge  v.  State,  Id. 
103;  Logan  V.  State,  39  Md.  177. 

Under  the  Tenn.  act  of  1851,  ch.  17,  as 
amended  in  1871,  ch.  78,  providing  that  the 
right  of  action  to  a  person  who  is  wrong- 
fully injured  shall  not  abate  by  his  death, 
but  shall  pass  to  his  widow  or  children,  or 
to  his  personal  representative  for  the  bene- 
fit of  his  widow  or  next  of  kin,  free  from 
the  claims  of  creditors,  if  the  deceased 
leaves  no  widow,  child,  or  next  of  kin,  the 
action  abates,  and  cannot  be  prosecuted 
for  the  benefit  of  creditors  or  of  the  state. 
East  Tenn.,  V.  *S-  G.  R.  Co.  v.  Lilly  ( Tenn.), 
18  S.  IV.  Rep.  243. 

(2)  Action  does  not  abate. — The  general 
rule  in  Colorado  is  that  actions  at  law 
do  not  die  with  the  person  ;  the  exceptions 
i  .e  specified  by  statute.  Kclley  v.  Union 
Pac.  R.  Co.,  16  Colo.  455,  27  Pac.  Rep.  1058. 

An  action  against  a  railroad  company  for 
personal  injuries,  pending  when  the  Georgia 
act  of  November  12,  1889,  amending  sec- 
tion 2967  of  the  Code,  was  passed,  was  not 
abated  by  the  death  of  the  plaintiff;  nor  is 
that  act,  as  applicable  to  actions  pending 
at  the  time  of  its  passage,  unconstitutional. 
Pritchardv.  Savannah  St.&^R.  R.  R.  Co.,  87 
Ga.  294,  13  S.  E.  Rep.  493.— Distinguish- 
ing Wilder  v.  Lumpkin,  4  Ga.  208;  Chi- 
cago, St.  L.  &  N.  O.  R.  Co.  V.  Pounds,  1 5  Am. 
&  Eng.  R.  Cas.  510.  Following  Johnson 
V.  Bradstreet  Co.,  87  Ga.  79.  Reviewing 
Bailey  v.  State,  20  Ga.  742. 

An  action  brought  to  recover  damages 
for  personal  injuries  sustained  by  the  plain- 
tiff as  a  passenger  on  defendant's  railroad 
does  not  abate  by  the  death  of  plaintifT. — 
Peedle  v.  North   Carolina  R.  Co.,  63  N.  C. 


abati:m1':nt,  n  h. 


9 


2^,S,_niSTINOUISHKI>  IN  Hatlllilll   V.   Ricli- 

mond  &  D.  R.  Co..  87  N.  C.  351. 
a.  nt'ti'V  vordlft  or  decision.— 

(1)  Action  (jAi/V.f. — The  rule  of  tlie  common 
law  that  an  action  to  recover  daniiiges  fo'  a 
personal  injury  abates  on  the  death  of  '.he 
plaintirt  is  not  changed  by  N.  Y.  Cocie  .;i 
Civ.  Proc,  except  where  "a  verdict,  report, 
or  decision"  has  been  rendered  upon  the 
issues  (i!  764).  L'orhett  v.  Twenty-third  St. 
a:  Co.,  iH  a/,  y.   579.  21  .V.  /i.  A'ffi.  1033. 

24  .V.  y,  s.  A\  538. 

A  nonsuit  on  trial  by  jury  is  not  a  "de- 
cision" within  the  meaning  of  said  Code, 
nor  is  an  order  of  General  Term  reversing 
a  judgment  entered  on  the  nonsuit;  that 
word  refers  to  a  decision  made  by  a  court 
on  trial  without  a  jury.  Corltett  v.  Twenty- 
third  St.  N.  Co.,  1 14  A'.  1'.  579,  21  N.  E.  Rep. 
1033.  24  A'.  }'.  .S-.  R.  538. 

Actions  for  personal  injuries  ibate  upon 
the  death  of  the  plaintiff.  A  procurement 
of  a  verdict  does  not  save  it  from  the  rule 
where  such  verdict  is  set  aside  on  appeal. 
Ke/sey  v.Jewett,  34  llun  (A.  K)  11. 

Pending  an  a()peal  in  an  action  against  a 
railroad  to  recover  for  personal  injuries,  the 
plaintiff  tlierein  died  and  his  personal  repre- 
sentative was  made  a  party.  Held,  that  the 
action  should  abate  upon  being  remanded  to 
the  lower  court.  Thompson  v.  Centra!  R. 
Co.,  60  (7(1.  120. 

P.  brought  an  action  against  a  conductor 
of  the  I.  C.  R.  for  injuries  received  in  at- 
tempting to  board  a  train  alleged  to  be 
caused  by  the  negligence  of  the  conductor 
in  not  bringing  the  train  to  a  standstill.  On 
the  trial  P.  was  nonsuited,  and  on  motion 
to  the  full  court  the  nonsuit  was  set  aside 
and  a  new  trial  ordered.  Between  the  ver- 
dict and  the  judgment  ordering  a  new  trial 
P.  died  and  a  suggestion  of  his  death  was 
entered  on  the  record.  On  appeal  to  the 
Supreme  Court  under  Lord  Campbell's  Act 
or  the  equivalent  statute  in  New  Brunswick 
(C.  S.  N.  B.  ch.  86),  an  entirely  new  cause  of 
action  arose  on  the  death  of  P.  and  the  ori- 
ginal action  was  entirely  gone  and  could  not 
be  revived.  IVhite  v.  Parker,  16  Can.  Sup. 
Ct.  699. 

(2)  Action  does  not  abate. — After  a  decree 
for  the  partition  and  sale  of  lands,  the  action 
does  not  abate  by  reason  of  the  death  of 
two  of  the  complainants,  but  survives  to 
their  co-complainants,  it  appearing  that  all 
the  parties  to  be  affected  by  the  decree  are 
b°tore  the  court.     Speck  v.  Put/man  Pa/ace 


Car  Co.,  121  ///.  33.  1 2  A'.  £.  Rep.  21^,  9  IVgst. 

Rep.  771. 

A  claim  for  damages  for  a  personal  injury 
is  merited  in  a  judgment,  and  a  reversal  by 
the  appellate  court  does  not  destroy  but 
merely  suspends  it  until  acted  upon  by  the 
su|>reme  court ;  hence  the  action  will  not 
abate  where  the  plaintiff  dies  pending  an 
appeal,  /.e^cis  v.  .SV.  Louis  iS-*  /.  .)/.  A',  Co., 
59  A/o.  495,  18  Am.  Ry.  Rep.  450. 

Under  N.  Y.  Code  of  Proc,  §  121,  enact- 
ing that  after  a  verdict  shall  be  rendered  in 
any  action  for  a  wrong,  such  action  shall 
not  abate  by  the  death  of  any  party,  a  ver- 
dict in  favor  of  a  plaintiff  against  a  railroad 
to  recover  for  a  personal  injury  is  within  the 
rule,  and  the  a'~tion  will  not  abate  upon  the 
death  of  the  plaintiff.  Lyons  v.  Third  Ave- 
nue R.  Co.,  7  Rod/.  (TV.  y.)6os. 

H.  Dvatli  of  real  party  in  interest. 
— A  Wisconsin  statute  provided  that  the 
representative  of  a  person  killed  by  the  negli- 
gence of  another  might  recover  damages  for 
the  benefit  of  the  husband  or  wife,  or  if 
neither,  for  the  lineal  descendants,  or  if 
none,  for  the  lineaj  ancestors.  L/e/d,  that 
an  action  comnenced  under  the  statute  by 
the  representative  for  the  benefit  of  a  hus- 
band or  wife  abates  upon  the  death  of 
either.  The  personal  representative,  though 
willing  to  prosecute  for  the  person  next  in 
order,  cannot  do  so.  lVood7vardv.  Chicago 
&*  N.  JV.  R.  Co.,  23  PVis.  400. 

7.  Dissolution  of  corporate  de- 
fendant.—A  corporation  becoming  con- 
solidated with  another  and  changing  its 
name  pending  a  suit  against  it  is  not  so  dis- 
solved, nor  its  original  liability  so  extin- 
guished, as  that  the  pending  suit  abates. 
And  if  the  rule  were  diffeient,  the  question 
could  not  be  raised  by  motion  in  arrest  of 
judgment.  Prosecuting  an  appeal  and  giv- 
ing bond  in  the  name  of  the  original  cor- 
poration estops  it  from  denying  its  corpor- 
ate existence.  East  Tenn.  Of  G.  R.  Co.  v. 
Evans,  6  Heisk.  {Tenn.)  607.— Applied  in 
Louisville,  N.  &  G.  S.  R.  Co.  v.  Reidmond, 
II  Lea  (Tenn.)  205.  Quoted  in  Kelleyv. 
Mississippi  C.  R.  Co.,  2  Flip.  (U.  S.)  5S1, 
I  Fed.  Rep.  564. 

8.  Appointment  of  receiver.— A  suit 
against  a  railway  corporation  will  not  be 
abated  upon  its  plea  averring  that  the  suit 
had  been  brought  after  the  road  had  passed 
into  the  hands  of  a  receiver,  and  that  pro- 
cess had  been  served  upon  a  station  agent 
of  the  receiver,  where  it  appears  that  such 


10 


AMA'n;MI.\  I,  U  t'2. 


av;(nt  had  been  originally  iMDploycd  by  tbi- 
(ritnpany  and  (ontinucd  in  same  scrvifi: 
iiiuler  llic  receivership.  Simpson  v.  /msI 
Tfnn.,  y.&'d.  A'.  Co..  89  /'<•«//,  304,  1 5  S.  11'. 
N,/>.  735- 

1».  l^\|iirutioii  ol'rliartiT.  A  person 
desiriii^j  to  buy  a  ti(  kel  (or  his  |)assage  bc- 
( anie  involved  in  u  (piarrel  witli  the  tick.t 
agent  and  was  assaulted  by  liim.  While  an 
action  was  pending  af^aiiist  liie  corporation 
to  recovc!  daina(,'i-s  for  the  assiiult,  the 
charter  of  the  corporation  ex|)ired.  J/M, 
that  it  was  proi)er,  under  tiie  New  York 
statute,  to  make  an  order  continuing  the 
action  ajiainst  the  directors  of  the  corpora- 
tion.    Ili'f'woilh    V.    L'nion    Juiry   Co..   62 

//////  (A',  y.)  257, 41  A'.  V.  s.  a:  783,  t(>  N.  v. 

Supp.  6y2;  appeal  dismissed,  131  A'.  )',  645, 
43  A'.  )'.  .v.  R.  i/>2. 

.Mier  an  action  for  calls  has  been  set  flown 
for  trial  it  is  loo  late  for  the  defendant  to 
ajiply  to  set  aside  the  proceedings  (ju  llie 
ground  that  the  com[)any  was  virtually  ex- 
tinct, it  api)earing  tiiat  he  had  known  the 
facts  f(jr  a  l<jng  time.  Thames  H.  1).  i!?>»  /i'. 
Co.  V.  //'///,  5  Af.  &^  C.  274,  6  .Si  ('//  A'.  A'. 
342,  3  Railw.  Cos.  441,  7,////-.  238. 

I ().  <'liaii(;«>  of  roiiKMly  by  Ntatuto.— 
Pending  an  action  against  a  railrcjad  to  re- 
cover a  statutory  penalty  for  not  stopping 
its  trains  at  the  inierscction  of  its  railroad 
with  another,  the  statute  giving  the  penalty 
was  changed,  prescribing  a  different  form  of 
action,  the  second  statute  being  declared 
retroactive,  //e/d,  that  the  action  must 
abate.  J//.rv.  lUinois  C.  R.  Co.,  i\6 III.  502, 
6  .\'.  /:.  AV/.  42. 

11.  Nrrosslty  of  application  to 
rourt.— Actions  for  personal  injuries  abate 
upon  the  death  of  the  plaintiff,  and  this 
without  any  formal  plea  on  the  part  of  the 
defendant,  it  being  sufHcient  for  the  defen- 
ilant  to  ask  the  instruction  of  the  court. 
lUiltimore  &^  I).  A'.  Co.  v.   Ritchie,  31   Md. 

Where  a  cause  of  action  survives,  the  ac- 
tion does  not  abate  by  the  death  of  the 
plaintilT  ipso  facto,  but  only  upon  the  appli- 
cation of  the  party  aggrieved ;  and  then 
only  in  the  discretion  of  the  court,  and  in  a 
time  to  be  lixed,  not  less  than  six  months, 
nor  more  than  one  year  from  the  granting 
of  the  order.  Moore  v.  North  Carolina  R. 
Co.,  74  A'.  C".  528. 

12.  Stipulation  to  prevent  abate- 
UHMit — Though  an  action  for  personal  in 
juries,  under  the  New  York  law,  abates  wit.. 


the  death  of  the  pl.iintifT.  >et  ii  is  lawful  for 
a  flefeiidant  or  its  attfirncy  to  enter  into  an 
agreement,  for  the  purpose  of  obtaining  a 
continuance,  to  the  etlect  that  the  cause  of 
action  shall  not  abate  by  the  death  of  tiie 
plaintifT  at  any  time  before  verdict,  and  the 
courts  will  enforce  such  an  agreement  by 
|)rosecuting  the  action  in  the  name  o(  the 
personal  representative  of  tlie  plaintifT. 
Ma; Hire  v.  AVw  VorJk  C.  &»  //.  R.  R.  Co..  6 
Daly  (A'.    )'.)  70. 

In  an  action  against  a  railroad  company 
to  recover  damages  for  injuries  sustained  by 
a  passenger  in  consequence  of  being  unlaw- 
fidly  ejected  from  its  cars,  flcfcnflant's 
counsel,  as  a  condition  for  putting  the  cause 
over  a  circuit,  stipulated  that,  in  case  of  the 
death  of  plaintifT  before  final  judgment  and 
determination  of  the  action,  tlic  alleged 
cause  of  action  should  survive,  and  any  ver- 
dict and  judgment  be  regarded  as  if  rendered 
in  plaintitT's  lifetime;  and  also  tiiat,  in  case 
of  such  death,  plaintiff's  representative 
might  be  substituted  as  plaintifT.  Held,  that 
the  stipulation  continued  in  force  until  final 
judgment, although  meanwhile  a  verdict  and 
judgment  In  plaintiff's  favor  had  been  set 
aside.  Cox  v.  Neu<  York  C.  &^  II.  R.  R. 
Co.,6iN.  K.  414;  re^iersing  \IIun  176,6  T. 
<S^  C.  405. 

A  verdict  and  judgment  obtained  in  plain- 
tiff's lifetime  having  been  set  aside,  plaintifT 
died  before  a  second  trial,  and  his  executors 
were  substituted.  Upon  the  second  trial, 
the  objection  that  the  action  did  not  sur- 
vive was  taken  and  overruled.  Held,  no 
error;  that  plaintifT's  representatives  might 
have  proceeded  with  the  action  in  the  name 
of  the  original  plaintifT,  but  their  becoming 
parties  to  the  record  was  no  insuperable  ob- 
jection to  a  judgment  in  their  favor;  and 
that  the  stipulation  was  a  sufficient  answer 
to  the  objection.  Co.x  v.  New  York  C.  &^ 
H.  R.  R.  Co.,(iiN.  K  414;  rmersinf;  \  Hun 
176.6  T.  (^  C.  405. 

Where  a  passenger  has  brought  suit  to 
recover  damages  for  being  unlawfully  put  off 
a  train,  and  an  agreement  is  entered  into  to 
the  effect  that  the  suit  shall  not  abate  in 
case  the  plaintiff  dies,  and  be  dies  pending 
the  suit,  his  executors  may  recover  a  sum 
which  would  have  compensated  him  had  he 
lived,  and  this  though  his  earning  capacity 
was  rot  diminished  by  the  injury,  and  his 
r  Mate  had  not  suffered  loss.     Cox  v.  New 

York  C.  &•  H.  R.  R.  Co.,  11  Hun  (N.  V.) 
621. 


ahati;mI'NT,  im-i.v 


u 


1:1.   Non-rcNidciMT  ol'th'IViDliiiil. 

A  (Icfciulaiit  III  a  li'dciiil  lomi  who  nsidos 
in  another  statu  from  wlicre  iiiil  i^  hrounlil, 
wlierc  he  is  served  wilii  process  in  tlic  latter 
state,  may  plead  the  matter  in  abatement; 
but  if  he  docs  not  so  plead  it,  he  cannot 
afterward  take  advantage  of  it.  Seinies  v. 
Jacksonville,  /'.  (s*  M.  R.  Co.,  2  Woods  (U. 
S.)(>2\. 

II.  REVIVAL  :  CONTIHUANOE. 

14.  What  uctioiiM  Hurvlve.*-The 

right  t<j  sustain  a  personal  action  for  dam- 
ages to  u  person  did  not  survive  to  his 
representatives  at  common  law,  but  exists 
in  Delaware  bv  force  of  the  statute.  Pa)  vis 
V.  l>/iila<leip/iia.  IV.  (^  //.  A".  Co.  (Del.),  17 
.///.  Kep.  702. 

Where  the  plaintiff,  pending  an  action 
brought  by  him  to  recover  for  a  personal  in- 
jury resulting  fr(jm  negligence,  dies  from 
some  other  cause  than  such  injury,  the  ac- 
tion will  survive,  and  may  be  prosecuted  in 
tlie  name  of  his  administrator.  Chicai^o  &* 
K.  I.  A\  Co.  V.  O'Connor.  119  111.  586,  9 /V.  /t. 
Hep.  263;  affirm iiijL,^  19  ///.  App.  591. 

By  the  New  Hampshire  act  of  July  18, 
1879,  rights  of  action  for  tortious  personal 
injuries  were  made  to  survive,  and  an  action 
for  an  injury  arising  from  a  defective  or  in- 
sufficiently guarded  highway,  and  resulting 
in  death,  can  be  maintained  against  the  town 
or  city  where  the  highway  is,  under  that  stat- 
ute ;  and  in  such  case  the  notice  required  by 
Ci.  L.,  c.  75,  ss.  7  and  8,  is  not  necessary. 
Clark  V.  Manchester,  62  A'.  //.  577.— DIS- 
TINGUISHING Sawyer  v.  Concord  R.  Co., 
58  N.  H.  517.  Not  following  Kearney 
V.  Boston  &  W.  R.  Co.,  9  Cush.  (Mass.)  108; 
Louisville  &  N.  R.  Co.  v.  Burke,  6  Cold. 
(Tenn.)  45. 

Upon  the  death  of  the  plaintiff,  in  an  ac- 
tion by  a  husband  for  a  wrongful  injury  to 
tile  person  of  his  wife,  the  right  to  damages 
for  loss  of  the  wife's  services  and  the  ex- 
penses necessarily  incurred  by  reason  of  the 
injury  survive  to  his  personal  representa- 
tives, as  they  are  a  pecuniary  loss  dimin- 
ishing his  estate  ;  but  the  right  of  action 
for  the  loss  of  the  society  of  his  wife  and 
tlie  comforts  of  that  society  dies  with  him. 
Upon  revival  of  the  action,  only  the  dam- 
aj^es  that  so  survive  are  recoverable.    Cregin 

*  Survival  of  statutory  liability  for  corporate 
delns  against  stockholders'  personal  representa- 
tive, sc(.'  note,  3  Am.  St.  Rki'.  86(). 


V.  r>ti',<Uyit  iioss  town  R.  t'c,  .Sj  X  V.  595. 
;,S  .\>ii.  l\,p.  474;  rn'ers/ng  19  //un  341; 
s,e  also  s.  c,  18  Ihin  3O8.  DisiiNGinsH- 
iNt;  Moore  v.  llaiiiilion,  44  N.  Y.  666; 
Harvey:'.  Baltimore  &  O.  R.  Co.,  70  Md. 
319;  Maxson  c.  Delaware,  L.  A  W.  R.  Co., 
112  N.  Y.  559,  20  N.  v..  Rep.  544,  21  N.Y. 
b.  R.  767. 

Such  an  action  is  an  action  "  for  wrongs  " 
within  the  meaning  of  2  N.  Y.  Rev.  St.  457, 
%  I,  and  does  not  abate  on  the  death  of  the 
plaintiff.  Such  action  is  nut  within  the  ex- 
ception to  ji  2  of  such  stcutite,  providing  for 
actions  upon  the  cas*-  ior  injuries  to  tlie  per- 
son of  tlie  jilaintiff.  Cretin  v.  Ihooklyn 
Cross-tmvn  li.  Co.,  75  A'.  )'.  njz,  31  Am. Rep. 
459;  affirming  56  /Aw.  /V.  32.— Rkvikw!. 
IN  (lalvcstoii,  H.  &  S.  A.  R.  Co.  7/.  Roe- 
mer,  I  Tex.  Civ.  App.  iiyi  ;  Foels  v.  Town 
of  Tonawanda,  20  N.  Y.  Slipp.  447. 

An  action  by  an  abutting  owner  to  re- 
strain the  operation  of  an  elevated  railway 
in  the  street,  and  to  recover  damages,  is  not 
an  action  of  trespass,  but  one  in  equity 
which  will  survive  to  the  executor  and  de- 
visee on  the  plaintiff's  death.  Sanders  v. 
A'ew  York  El.  R.  Co.,  1 5  Daly  (N.  Y.  i  388,  7 
.V.  Y.  Supp.  641,  27  A'.  Y.  S.  R.  795. -Re- 
viKWiNG  Shepard  7'.  Manhattan  R.  Co., 
5  N.Y.  Supp.  189.  Ari'LViNG  McCrca  7'. 
New  York  El.  R.  Co.,  13  Daly  (N.  Y.)  302. 
Approving  Henderson  v.  New  York  C. 
R.  Co.,  78  N.  Y.423.— Rkvikwek  in  Werfel- 
mcn  V.  Manhattan  R.  Co.,  16  Daly  (N.  Y.) 

355- 

15.  What  do  not  survivo.— An  exec- 
utor cannot  maintain  an  action  for  a  tres- 
pass to  realty  done  in  the  lifetime  of  the 
testator,  as  such  actions  do  not  survive. 
Reeii  V.  Peoria  <S^•  O.  R.  G>.,  18  ///.  403. 

A  right  of  action  for  a  personal  injury 
does  not  survive  or  pass  to  the  personal  rep- 
resentative. Sawyer  v.  Concord  R.  Co.,  58 
A'.  H.  517.— Distinguishku  in  Clark  v. 
Manchester,  62  N.  H.  577. 

A  right  of  action  against  a  railroad  com- 
pany f  r  ejecting  a  passei\<'er  does  not  sur- 
vive and  cannot  be  prosecuted  by  the  per- 
sonal representative.  Hannah  v.  Richmond 
<S^  D.  R.  Co.,  10  Am.  &^  Eng.  R.  Cas.  737, 
87  A'.  C.  351. —  Distinguishing  Peebles  v. 
North  Carolina  R.  Co.,  63  N.  C.  238 ;  Purcell 
V.  Richmond  &  D.  R.  Co.,  108  N.  Car.  414. 

Only  actions  which  do  not  die  with  the 
person  come  within  the  Md.  acts  of  1785, 
ch.  80,  and  1798,  cli.  loi.  authorizing  per- 
sonal representatives  to  prosecute  certain  ac- 


lilUM 


12 


ABATliMENT,   Hi,  17.— ACCESS. 


tions  after  the  death  of  the  person  to  wliom 
they  occurred,  and  causes  (jf  action  wliich 
previously  died  witli  the  person  are  not 
saved  by  the  operation  of  buid  statutes.  //«/- 
timore  &^  O.  R.  Co.  v.  Hit  chic,  31  Md.  191. 

10,  Who  may  revive— heir  or  twl- 
niinistrator.— Where  a  widow  dies  pend- 
ing a  suit  by  lier  against  a  railroad  company 
for  negligently  causing  the  deatii  of  her  hus- 
band, the  suit  may  be  revived  in  the  name 
of  her  personal  representative,  and  prose- 
cuted to  final  judgment  the  same  as  she 
might  have  done,  lirmvii  v.  Philadelphia 
&^  R.  R.  a  Co.,  19  Phi/a.  (Pa.)  372. 

Where  pending  an  action  for  damages  to 
realty  the  plaintilT  dies,  the  suit  should  be 
continued  in  the  name  of  the  aoministrator 
and  not  in  the  name  of  the  heir.  Nashville 
&>  C.  R.  Co.  V.  T}'>ie  {Tettn.),7  Am.  &^Eng. 
R.  Cas.  515. 

Wliere  a  landowner  dies  pending  a  pro- 
ceeding to  condemn  land  for  railroad  pur- 
poses, or  pending  a  proceeding  to  reverse  a 
judgment  therein,  the  proceeding  must  be 
revived  in  the  name  of  the  landowner's  heirs 
or  devisees,  and  not  in  the  name  of  his  per- 
sonal representative.  Valley  R.  Co.  v. 
Rohm,  29  Ohio  St.  633. 

17.  Substitution  of  new  party. — 
Under  the  California  practice,  on  a  sugges- 
tion made  to  the  court  of  the  death  of  a 
plaintitT  and  on  satisfactory  proof,  it  is  pro- 
per to  substitute  the  personal  representa- 
tive of  the  plaintiff  in  his  stead.  If  this  prac- 
tice should  lead  to  a  substitution  of  one  who 
had  not  qualified  as  such  personal  represen- 
tative, the  CO'  rt  could  make  the  propercor- 
rection.  Taylor  v.  Western  Pac.  R.  Co.,  45 
Cal.  323. 

Under  Conn.  Gen.  St.  1S88,  §  1005,  pro- 
viding that  upon  the  death  of  a  plaintiff 
the  personal  representative  may  appear  and 
prosecute  the  suit,  the  appearance  must  be 
at  the  next  term  after  plaintiff's  death.  So 
where  a  suit  was  brought  against  a  railroad 
for  a  personal  injury,  and  pending  which  the 
plaintiff  died,  and  the  administratrix  was  not 
appointed  for  20  months,  ant!  did  not  apply 
for  leave  to  prosecute  the  suit  for  17  days 
after  her  appointment,  the  action  was  barred, 
no  good  or  sufficient  reason  for  the  delay 
iippearing.  Johnson  v.  New  York  &>  N.  E. 
R.  Co..  56  Conn.  172,  14  Atl.  Rep.  773. 

In  Tennessee  a  new  plaintiff  can  be  substi- 
tuted without  a  new  process  upon  the  death 
of  the  one  bringing  the  action,  under  !;§  2291 
and  2292  of  the  code,  allowing  actions  for 


personal  injuries  to  proceed  in  the  name  of 
a  personal  representative  on  the  death  of  the 
plaintiff.  Flailey  v.  Memphis  6-  C.  R.  Co., 
9  Heisk.  {Tenn.}  230. — DISTINGUISHED  IN 
Webbw.  East  Tennessee,  V.  &  G.  R.  Co., 
42  Am.  &  Eng.  R.  Cas.  44,  88  Tenn.  119,  12 
S.  W.  Rep.  428 ;  Nashville.  C.  &  St.  L.  R. 
Co.  V.  Foster.  10  Lea  (Tenn.)  351. 


ABUTTING  OWNEBS. 

Consent  of,  to  construction  of  underground 
railroad,  see  Undercikound  Railways, 
2. 

to  occupation  of  street,  see  Elevated 

Railways,  I,  3  (c) ;  Street  Railways 

in.  3. 

under  Rapid  Transit  Act,  see    Rapid 

Transit  Acts,  6. 

Relative  rights  of  company  and,  see  Right 
OF  Way,  II. 

Release  by,  see  Release,  IV. 

Remedies  of,  against  steam  railways  in 
streets,  see  Streets  and  Highways, 
IV. 

Reversion  to,  of  land  taken,  see  Eminent  Do- 
main, XIII,  3. 

on  abandonment  of  railway,  see  Aban- 
donment, 8. 

Right  of,  to  build  fence  where  company  fails 
to  do  so,  see  Fences,  II,  4. 

to  tunnel  under  railway,  see  Mines  and 

Mining,  1* 

Rights  and  remedies  of,  generally,  see  Ele- 
vated Railways,  III  ;  Eminent  Do- 
main. 

Rights  of,  as  against  street  railways,  see 
Street  Railways,  V. 

as  respects  construction  of  telegraph 

lines,  see  Telegraph  Lines,  !• 

as  respects  embankments,  see  Embank- 
ments, 1,  2. 

as  respects  steam  railroads  in  streets, 

see  Streets  and  Highways,  III. 
See  also  Riparian  Rights. 


ACCEPTANCE. 

Of  charter,  see  Charter,  I,  2. 

—  debentures  tendered  before  suit,  see  De- 

bentures, 14. 

—  dedication,  see  Dedication,  4. 

—  negotiable  paper,  see  Bills  and  Notes,  I,  3. 

—  road  substituted  for  that  taken,  see  Turn- 

pikes, 3. 


ACCESS. 

To  property,  covenant  to  provide,  see  Cove- 
nants, 1, 


ACCIDENT    INSURANCE,   1,  2. 


13 


ACCIDENT. 

By  cars  leaving  track,  see  Derailment. 

—  collision,  see  Collisions. 

Involving  loss  of  property,  see  Carriage  of 
Merchandise,  IV. 

Notice  of,  to  Insurance  Company,  see  Acci- 
dent Insurance,  8. 

On  tramways,  see  Tramways,  6,  7. 

—  Sunday,  see  Sunday,  6,  8. 

To  children,  see  Children,  Injuries  to. 

—  employes,  see  EMPLOYfes,  Injuries  to. 

—  passengers,  see  Carriage  ov  Passengers, 

III. 
To  trespassers,    see   Trespassers,   Injuries 

TO. 

When  virithin  terms  of  insurance  policy,  see 
Accident  Insurance,  2. 
Sjc  also  Electric  Railways,  II ;  Elevated 
Railways,  IV  •  Explosions  ;  Fires  ;  Flying 
Switch  ;  FRiCHTENEO  Teams. 


ACCIDENT  INSURANCE. 

See  also  Relief  Associations. 

1.  Construction  of  policy,  gener- 
ally. —  An  agent  of  a  transfer  company 
whose  duties  require  him  to  get  on  trains 
before  they  reach  the  station,  for  the  pur- 
pose of  changing  baggar'^-checks  and  ar- 
ranging for  its  transfer,  is  "a  railroad  em- 
ploye" within  ':he  meaning  of  a  provision 
in  an  accident  policy  excepting  such  em- 
ployes from  a  provision  against  entering 
moving  trains,  Co//en  v.  Fidelity  6-  C.  Co., 
41  Fed.  Rep.  506. 

The  effect  of  "from"  in  a  policy  "for 
twelve  calendar  months  from  November  24, 
1887,"  is  to  exclude  November  24,  1887,  and 
to  include  November  24,  1888,  in  the  period 
covered  by  the  insurance.  South  Stafford- 
shire T.  Co.  V.  Sickness  <&>»  A.  A.  Assoc. 
[1891],  I  Q.  Z?.  402. 

An  accident  policy  contained  a  provision 
limiting  the  liability  of  the  company  to 
accidents  received  by  the  insured  while  act- 
ually travelling  in  a  public  conveyance  pro- 
vided by  common  carriers,  and  in  compli- 
ance with  all  rules  and  regulations  of  such 
carriers.  Held,  that  under  this  provision 
the  insured  might  recover  for  an  accident 
happening  while  getting  on  or  off  a  train  ; 
but  could  not  recover  for  an  accident  while 
attempting  to  get  on  a  train  after  it  has 
reached  its  destination.  Tooley  v.  Railway 
Pass.  A.  Co.,  3  Diss.  (U.  S.)  399. 


2.  What  accidents  are  within  the 
policy.* — (i)  In  general. — Where  an  acci- 
dent policy  covers  only  risks  while  actually 
travelling,  a  recovery  may  be  had  for  an  in- 
jury while  getting  into  a  public  conveyance 
while  in  motion.  Chatiiplin  v.  Railway 
Pass.  A.  Co.,  6  Lans.  (A'.  F.)  71. 

A  provision  in  an  accident  policy  against 
standing  or  walking  on  a  railroad  track  or 
bridge  does  not  include  crossing  a  track  at 
a  public  crossing.  Duncan  v.  Preferred 
Mitt.  Ac.  A.  of  N.  v.,  36  N.  V.  S.  R.  928,  27 
/.  (&«'  5.  145,  13  A^.  Y.  Supp.  620. 

An  injury  to  a  passenger  owing  to  a  slip- 
pery car-step  is  an  accident  within  the 
meaning  of  an  insurance  policy  agreeing  to 
pay  a  certain  sum  on  account  of  injuries 
happening  to  the  assured  from  railway  ac- 
cidents. Theobald  v.  Railway  Pass.  A.  Co. , 
10  Exch.  45,  2  C.  L.  R.  1034,  12  Jur.  583,  23 
L. /.  Exch.  249. 

(2)  Illustrations. — A  contract  of  life  and 
accident  insurance  excepted  from  the  risks 
covered  by  it  injuries  resulting  from  being 
upon  the  platform  of  moving  cars,  or  from 
attempting  to  enter  or  leave  such  cars  in 
motion,  this  exception  not  being  appli- 
cable, however,  to  the  exposure  of  railway 
employes  in  the  performance  of  their  duty. 
The  assured,  a  shop-hand  of  a  railway  com- 
pany, while  being  carried  homeward  from 
the  shop  at  the  close  of  the  day's  work, 
upon  one  of  the  company's  trains,  went  out 
upon  the  platform  while  the  train  was  in 
motion,  intending  to  get  off  when  it  should 
stop,  for  the  purpose  of  crossing  over,  by  a 
switch,  to  another  track.  He  was  thrown 
off  and  killed.  Held,  that  the  case  was 
within  the  specific  exceptions  in  the  con- 
tract, and  the  insurer  was  not  liable.  Hull 
V.  Equitable  Ace.  Assoc.  (Minn),  42  A^.  W. 
Rep.  936. 

An  engineer  who  was  killed  had  a  ticket 
issued  by  a  passenger  assurance  company,  in- 
suring him  against  death  "  caused  by  acci- 
dent while  travelling  by  public  or  private 
conveyance  provided  for  the  transportation 
of  passengers."  The  proof  showed  that  de- 
fendants were  selling  two  classes  of  tickets, 
one  known  as  the  "  travellers"  risk,"  the  other 
as  the  "  general  accident,"  the  latter  being 

*  What  is  injury  caused  by  "accident"  within 
the  meaning  of  insurance  laws,  see  notes,  8  Am. 
Rep.  2ig,  54  Id.  302. 

What  is  an  injury  caused  by  "  outward  r  nd 
visible  means "  within  meaning  of  insurance 
laws,  see  note,  7  Am.  Rep.  414. 


14 


ACCIDENT    INSr RANCH,  :i-8. 


hi 


scld  for  the  liighest  price;  that  deceased 
purchased  the  latter  ;  that  at  the  time  of  the 
purchase  defendant's  agent  knew  him  to  be 
an  engineer,  and  liad  no  instructions  not  to 
sell  to  railroad  employes.  J/M,  that  de- 
ceased was  insured  against  all  accidents, 
without  regard  to  the  capacity  in  which  he 
was  acting;  that  the  ticket  was  intended 
to  cover  the  accident  by  which  he  met  his 
death ;  and  that  defendant  was  liable.  Brcnun 
V.  Raihi.Hiy  Pass.  A.  Co.,  45  Mo.  221. 

;j.  Proxiniiito  and  roiiiotc  caiiso.— 
The  death  of  one  assured  was  due  to  the 
"elTccts  of  an  injury  caused  by  accident," 
where  the  death,  thougii  due  to  pneumonia, 
would  not  have  occurred  but  for  the  pain, 
worry,  and  weakness  resulting  from  the  ac- 
cident. Isitt  V.  Riu'hmiy  Pass.  .1.  Co.,  22  Q. 
B.  D.  5o.^. 

4.  Soiiiiiaiiibiilisiii  o£' traveller. — In 
an  action  to  recover  from  an  insurance  com- 
pany an  averment  in  the  complaint  suffi- 
ciently negatives  a  provision  in  the  policy 
exempting  from  liability  for  injuries  self- 
inflicted,  or  those  that  result  from  design  or 
voluntary  e.xposure  to  unnecessary  danger, 
where  it  charges  that  the  insured  fell  asleep 
from  weariness  and  the  motion  of  the  cars, 
in  the  night-time,  and  while  he  was  in  a 
dazed  and  unconscious  condition,  and  not 
kiunving  or  realizing  what  he  was  doing,  in- 
voluntarily arose  from  his  seat  in  the  car,  and 
walked  unconsciously  to  the  platform  of  the 
car,  and  without  fault  on  his  part  fell  to  the 
ground  and  was  injured.  Schcidcrer  v. 
Travellers'  Ins.  Co. ,  1 2  Am.  vSn^  Eng,  /?.  Cas. 
160,  58  }Vis.  13,  16  A'.  IV.  Rep.ii. 

5,  "Piiblie  or  private  eoiiveyanee." 
— A  holder  of  an  accident  policy  was  insured 
to  a  certain  amount  against  death  caused  by 
accident  while  travelling  by  public  or  pri- 
vate conveyances,  provided  for  the  trans- 
portation of  passengers.  In  passing  from  a 
steamboat  to  a  connecting  railway  the  in- 
sured fell  upon  the  slippery  sidewalk  which 
it  was  usual  for  travellers  to  use  in  passing 
from  one  line  to  the  other,  and  was  so  in- 
jured as  to  die.  Held,  that  the  death  was 
within  the  terms  of  the  policy,  and  a  recovery 
could  be  had.  Northrup  v.  Railway  Pass. 
A.  Co.,  43  A'.  Y.  516. 

6.  Total  or  partial  (liHability. — 
Where  an  accident  policy  provides  for  an 
indemnity  while  the  insured  is  totally  dis- 
abled, there  can  be  no  recovery  for  a  par- 
tial disability  ;  neither  can  there  be  a  recov- 
ery where  the  insured  is  so  disabled  as  to 


prevent  him  from  following  his  ordinary 
avocation,  but  where  he  is  still  able  to  en- 
gage in  some  other  employment.  Lyon  v. 
Railway  Pass.  A.  Co.,  46  /owa  631. 

7.  Payment  of  preiuiiiin.— A  brake- 
man  who  had  taken  an  accident  policy  gave 
the  insurance  company  a  written  order  on 
the  railroad  company  that  employed  iiini  to 
pay  the  insurance  company  out  of  his  wages 
the  instalments  of  the  premium  as  they  fell 
due.  This  was  delivered  by  the  insurance 
company  to  the  railway  company,  according 
to  custom.  The  policy  provided  that  so  long 
as  an  instalment  remained  unpaid  there 
could  be  no  claim  for  any  injury  received 
meanwhile.  The  railway  company  neglected 
to  pay  one  of  the  instalments,  and  within  the 
period  which  it  should  have  covered  the 
brakeman  was  killed.  I/eld,  that  notwith- 
standing the  non-payment,  the  beneficiary 
in  the  policy  was  entitled  to  recover;  the 
arrangement  between  the  insured  and  the 
companies  amounted  to  an  assignment  to 
the  insurance  cor.ipany  of  enough  of  his 
wages  to  pay  the  premium  when  the  instal- 
ments fell  due,  and  must  be  regarded  as  a 
payment  so  long  as  the  insurance  company 
did  not  notify  the  insured  that  it  was  not 
paid.  Lyon  v.  Travellers'  Ins.  Co.,  55  Midi. 
141.  20  A'.  W.  Rep.  829. 

8.  Notiee  of  aceideiit  to  eoiiipaiiy. 
Where  a  policy  contains  a  provision  that  in 
case  of  accident  immediate  notice  shall  be 
given  the  company  the  giving  of  such  notice 
is  essential  to  a  recovery,  but  what  is  a  suf- 
ficient notice  is  a  question  for  the  jury. 
Lyon  V.  Railway  Pass.  A.  Co.,  46  Io^>a  631. 

A  policy  stipulating  that  failure  to  notify 
the  company  of  any  injury  for  the  space  of 
ten  days  after  it  is  received  shall  bar  all 
claim  under  the  policy,  is  valid;  and  when 
such  stipulation  has  neither  been  complied 
with  nor  waived,  the  assured  cannot  recover 
upon  the  policy.  Heywood  v.  Maine  Mui. 
Ace.  Assoc,  85  Me.  289,  27  Atl.  Rep.  154. 

Where  a  policy  requires  imniediate  notice 
in  case  of  accident,  a  complaint  to  recover 
the  amount  of  the  insurance  is  good  that 
states  generally  that  the  insured  has  per- 
formed all  the  conditions  of  the  policy  on 
his  part.  Scheiderer  v.  Travelers'  Ins.  Co.. 
12  Am.  &>  Eng.  R.  Cas.  160,  58  Wis.  13,  16 
A^.  \V.  Rep.  47. 

A  policy  contained  a  provision  that  if  an 
injury  should  occur  during  the  term  covered 
by  the  policy,  the  insured  slioukl  forthwith 
give  the  company  notice,  suiting  the  nature 


ACCIDRNI     IX^jURANCE,  9. 


15 


and  extent  of  the  injury.  An  injury  oc- 
curred, but  the  policy-holder  failed  to  give 
notice.  The  company  pn^ceeded  it  ex- 
amine the  proofs  of  the  injury,  and  based  a 
refusal  to  pay  on  other  grounds,  //t/i/,  that 
this  was  a  waiver  of  the  conditit^n  requiring 
notice,  and  if  other  necessary  facts  were 
proven  the  insured  might  recover,  i/n- 
thank  v.  Travelers'  Ins.  Co.,  4  Biss.  {[/.  S.) 

357. 

A  policy  required  immediate  notice  to  be 
given  to  the  company  of  an  injury  to  the 
insured,  and  also  contained  this  provision  : 
"  Provided,  always,  that  no  claim  shall  be 
made  under  thi>  policy  by  the  said  insured 
in  respect  to  any  injury,  unless  the  same 
shall  be  caused  by  some  outward  or  visible 
means,  of  which  proof  satisfactory  can  be 
furnished."  Ne/d:  i.  That  a  notice  given 
six  days  after  the  alleged  injury,  which  hap- 
pened in  the  city  where  the  policy  was  is- 
sued, and  where  the  company  had  a  resident 
agent,  was  too  lace,  where  no  excuse  was 
shown  for  the  delay  ;  that  the  word  "  imme- 
diate "  in  such  case  is  not  to  be  literally 
construed,  but  the  notice  must  be  given 
within  a  reasonable  time,  according  to 
the  circumstances  of  the  particular  case. 
2.  That  tliisdid  not  require  the  insured  to 
furnish  proofs  of  the  character  and  extent 
of  the  injury  before  bringing  suit.  Railway 
Pass.  A.  Co,  v.  Burwell,  44  Ind.  460. 

A  provision  in  a  policy  contained  the 
condition  that  in  case  of  fatal  accident 
within  the  United  Kingdom,  notice  must  be 
given  within  seven  days.  The  insured  was 
drowned  in  Jersey,  where  it  was  impos- 
sible to  give  notice  within  that  time.  Held, 
that  such  notice  was  not  a  condition  prece- 
dent to  the  right  to  recover,  and  that  the 
accident  happened  within  the  United  King- 
dom, and  the  insurers  were  liable.  Stone- 
ham  v.  Ocean  R.Sr' G.A.I.  Co.,  19  Q.  B.  D. 
237- 

9.  Defences— Netflect  of  personal 
safety.— The  general  rule  of  law  is  that  a 
party  is  not  entitled  to  compensation  for  an 
injury  of  which  his  own  negligence  or  want 
of  due  care  has  been  the  primary  cause ;  but 
the  contract  of  insurance  forms  an  exception 
to  this  rule,  as  has  been  repeatedly  held  in 
England  and  in  the  United  States.  Champ- 
lin  V.  Railway  Pass.  A.  Co.,  6  Lans.  {N.  Y.) 
71. 

Where  a  policy  of  insurance  against  acci- 
dental injuries  or  death  contains  a  condi- 
tion that  the  insured  shall  at  all  times  "use 


due  care  and  diligence  for  his  personal  safety 
and  protection,"  and  a  plea  to  an  action  on 
It  avers  that  he  failed  to  do  so,  "  but  con- 
tributed directly  and  proximately  to  his  own 
injury  and  death  by  getting  off  an  engine 
in  motion  in  the  night-time,  with  his  back 
in  the  direction  in  which  said  engine  was 
going,  which  was  an  unsafe  and  dangerous 
way  of  aligliting  from  it," — held,  that  a  rep- 
lication alleging  "that  said  insured  was  a 
railroad  switchman,  was  insured  as  such,  and 
met  the  accident  whi^  1  caused  his  death 
while  in  the  discharge  of  his  customary 
duties  as  such  switchman,"  was  demurrable 
and  insufficient,  because,  though  the  policy 
covered  injuries  resulting  from  the  dangers 
incident  to  the  service,  it  did  not  cover  in- 
juries resulting  from  negligence  or  want  of 
due  care  in  the  performance  of  customary 
duties.  Standard  Life  &'  A.  Ins.  Co.  v. 
Jones,  94  Ala.  434, 10  So.  Rep.  530.— Distin- 
guishing National  Benefit  A?soc.  v.  Jack- 
son, 114  111.  533. 

A  railway-passenger  policy  provided  that 
the  insurers  should  not  be  liable  for  an  in- 
jury which  was  the  result  of  the  negligence 
of  the  insured.  In  a  suit  to  recover  the 
amount  of  the  policy  the  only  proof  offered 
was  to  the  effect  that  the  insured  dii-d  from 
falling  from  a  car  platform  in  the  night- 
time, when  the  train  was  in  full  motion ; 
that  he  was  either  passing  from  one  car  to 
another,  or  was  riding  on  the  platform. 
Held,  sufficient  to  show  that  the  accident 
was  the  result  of  the  negligence  of  the  in- 
sured, and  to  justify  the  court  in  directinga 
verdict  for  the  company.  Sawtelle  v.  Rail- 
way Pass.  A.  Co.,  It,  B  latch/.  (U.S.)  216. 

A  policy  contained  the  provision  that 
there  should  be  no  recovery  for  an  accident 
which  was  the  result  of  the  exposure  to  an 
obvious  or  unnecessary  danger,  and  required 
the  insured  to  use  all  due  diligence  for  his 
personal  safety  and  protection.  It  appeared 
that  he  was  killed  in  the  night-time  while 
running  along  the  track  to  get  on  a  train, 
by  being  struck  by  a  train  moving  in  the 
opposite  direction,  on  a  parallel  track. 
Held,  there  could  be  no  recovery.  Tuttle 
V.  Travelers  Ins.  Co.,  15  Am.  &>  Eng.  R. 
Cas.  488,  134  Mass.  175. 

A  policy  contained  the  provision  that  the 
insured  should  use  all  due  diligence  for  per- 
sonal protection.  While  crossing  certain 
railroad  tracks  several  persons  from  different 
directions  called  to  him  "  to  look  out  for  the 
express,"  whereupon  he  hastily  attempted 


..JMMMM 


16 


ACCIDENT    INSURANCE,  lO. 


to  cross  to  the  platform,  but  was  struck 
by  the  train  and  killed.  Ihld,  that  the 
question  of  his  negligence  was  for  the  jury. 
Dunciin\.  Preferred  Mut.  Ac.  A.  of  A'.  V., 
36  A'.  V.  S.  A'.  928,  27  /.  (5-  .V.  145.  '3  A'. 
1'.    Sit^p.  620. 

10.  Voluutary  exposure.— (1)  Ingt-n- 
eriil. — Where  a  policy  provides  that  the 
company  shall  not  be  liable  where  the  in- 
sured voluntarily  exposes  himself  to  un- 
necessary danger,  and  it  appears  that  the 
insured  was  a  railroad  employe,  and  was  in- 
jured in  trying  to  get  on  a  train  moving  at 
the  rate  of  four  or  five  miles  an  hour,  it  is  a 
question  for  the  jury  to  say  whether  such 
conduct  was  within  the  meaning  of  the  con- 
dition in  the  policy.  Co/ten  v.  Fidelity'  &^ 
C.  Co.,  41   /•>•(/.  Rep.  506. 

A  passenger  on  a  railroad  train  who  goes 
upon  the  platform  of  the  train  while  moving, 
because  he  is  sick  and  overcome  with  heat, 
does  not  violate  a  provision  in  a  policy,  pro- 
viding that  he  "shall  not  voluntarily  ex- 
pose himself  to  (jr  unnecessarily  incur 
danger."  Marx  v.  Travelers'  Ins.  Co.,  39 
Fed.  Rep.  321. 

Where  a  policy  insures  against  accidents 
causing  death  while  "travelling  by  public 
or  private  conveyances  provided  for  the 
transportation  of  passengers,"  and  the  in- 
sured falls  on  a  slippery  sidewalk  and  is 
killed  while  attempting  to  walk  a  short 
distance,  from  a  steamboat  landing  to  a  rail- 
road station,  the  right  to  recover  is  not 
affected  by  the  fact  that  she  might  have  pro- 
cured a  hack  to  carry  her,  where  it  appears 
that  she  pursued  the  same  course  that  the 
great  majority  of  passengers  did.  A'orthrup 
V.  Railway  Pass.  A.  Co.,  43  N.  V.  516. — 
Following  Theobald  v.  Railway  Pass.  A. 
Co.,  26  Eng.  L.  &  Eq.  432. 

In  an  action  to  recover  on  an  accident 
policy  which  exempted  the  company  from 
liability  where  the  insured  might  meet  his 
death  "  by  voluntary  exposure  to  unneces- 
sary danger,"  it  was  proper  for  the  court  to 
charge  that  in  order  to  establish  death  by 
voluntary  exposure  to  unnecessary  danger 
the  jury  must  find  that  the  act  of  the  in- 
sured in  exposing  himself  was  known,  or 
ought  to  have  been  known  to  him ,  and  it 
was  proper  to  refuse  to  charge  that  the  in- 
sured was  bound  to  exercise  more  than  or- 
dinary care,  the  insured  only  being  bound 
to  exercise  the  care  that  a  prudent  man 
would  have  exercised  under  the  same  cir- 
cumstances.    Duiuan    v.    Preferred   Mut. 


Ac.  A.  of  N.  v.,  36  N.  V.  S.  R.  928,  27  /. 
<5-»  S.  145,  13  A".  V.  Supp.  620. 

A  condition  in  a  policy  exempting  the 
company  from  liability  where  the  insured  ex- 
poses himself  "to  obvious  risks  of  injury," 
is  violated  where  it  appears  that  the  insured 
was  injured  by  a  risk  which  was  obvious  to 
him,  or  would  have  been  so  if  he  had  been 
paying  reasonable  attention  to  what  he  was 
doing.  Cornish  v.  Accident  Ins.  Co.,  23  Q, 
n.  I).  453- 

(2)  Illustrations. — A  person  insured  against 
death  or  injury  "  by  violent  and  accidental 
means,  within  the  terms  of  the  policy," 
jumped  from  a  moving  train  of  cars  to  effect 
an  important  business  which  required  haste, 
and  received  certain  internal  injuries.  Held, 
that  the  insurers  were  not  liable.  South- 
ward  V.  Railway  Pass.  A.  Co. ,  34  Conn.  574. 

A  policy  held  by  an  engineer  contained 
the  provision  that  he  "  should  not  wilfully 
expose  himself  to  unnecessary  peril."  While 
backing  his  train  at  a  moderate  rate  of  speed 
on  a  down  grade,  he  slipped  and  fell  in  at- 
tempting to  pass  from  the  tender  to  the 
cars  attached  to  apply  the  brakes.  Held, 
that  he  did  not  violate  the  terms  of  the 
policy.  Prorvidence  L.  Ins.  &=  I,  Co.  v.  Mar- 
tin, 32  Md.  310. 

A  person  insured  against  accidents  was 
crossing  railroad  tracks,  and  was  warned 
while  upon  the  tracks  by  persons  on  both 
sides  of  the  track  "  to  look  out  for  the  ex- 
press," whereupon,  in  his  confusion,  he  ran 
toward  the  station  platform,  but  was  struck 
by  the  train  and  killed.  Held,  that  it  was  a 
question  for  the  jury  to  determine  as  to  how 
far  he  was  influenced  by  such  warnings, 
and  if  they  believed  from  the  evidence  that 
his  conduct  was  such  as  a  man  of  ordinary 
prudence  would  have  done  under  like  cir- 
cumstances, then  they  were  bound  to  find 
that  his  act  was  not  voluntary.  Duncan  v. 
Preferred  Mut.  Ac.  A.  of  N.  K,  36  N.  V. 
S.  R.  928,  27  /.  (Sv  5.  145,  13  N.  V.  Supp. 
620. 

A  policy  upon  the  life  of  W.  provided 
that  it  should  not "  extend  to  or  cover  *  *  * 
suicide,  sane  or  insane,  *  *  *  voluntary 
exposure  to  unnecessary  danger,"  etc.  It 
appeared  that  W.,  after  crossing  a  railroad 
track  in  the  village  in  which  he  lived,  in 
the  evening,  met  two  men  going  toward  the 
crossing,  to  whom  he  said :  "  Boys,  look  out 
for  the  engine;"  and  one  of  them  replied: 
•'I'm  not  afraid;  my  life  is  insured."  A 
train  was  at  that  time  approaching.     The 


ACCIDENT   INSURANCE,   11-13. 


17 


men  passed  on  over  the  track.  W.  turned 
and  retraced  his  steps,  and  when  within  a 
few  feet  of  the  crossing  stood  still.  The 
train  was  moving  at  about  four  miles  an 
hour,  the  whistle  blowing  and  bell  ringing. 
When  it  was  within  about  twenty-five  feet 
of  the  crossing  W.  moved  forward,  and 
when  upon  the  track  "squatted  down."  He 
was  struck  by  the  engine  and  killed.  The 
locality  was  lighted  by  an  electric  light.  It 
did  not  appear  that  the  men  W.  met  were 
inebriated,  or  that  there  was  any  reason  for 
him  to  incur  danger  on  their  behalf.  Held, 
that  the  evidence  disclosed  that  the  danger 
was  voluntarily  and  unnecessarily  incurred, 
and  that  defendant  was  ....  liable;  also, 
that  evidence  given,  negativing  the  idea  of 
a  motive  on  the  part  of  W.  to  destroy  his 
life,  did  not  justify  the  submission  of  the 
case  to  the  jury.  Williams  v.  U.  S.  Mitt. 
Ace.  Assoc.,  133  N.  v.  366,  31  N.E.  Rep.  222, 
45  N.  Y.  S.  R.  238. 

1 1.  Violation  of  carrier's  rules.— An 
accident  policy  held  by  a  railroad  employe 
contained  the  provision  that  the  company 
should  not  be  liable  in  case  of  death  result- 
ing from  a  violation  of  the  rules  of  the  cor- 
poration. Held,  in  order  to  be  a  violation 
within  the  meaning  of  the  policy,  such  rule 
must  be  in  full  force  at  the  time  of  its  vio- 
lation and  must  be  known  to  the  policy- 
holder. Marx  V.  Travelers'  Ins.  Co.,  39 
Fed.  Rep.  321. 

A  rule  of  a  railroad  comoany  prohibiting 
persons  from  riding  on  the  car  platforms, 
but  which  is  not  at  the  time  in  force,  and 
which  is  generally  disregarded  by  both  em- 
ployes and  passengers,  is  not  a  rule  of  the 
company  within  the  meaning  of  such  a  pro- 
vision in  a  policy.  Marx  v.  Travelers' 
I  Its.  Co.  39  Fed.  Rep.  321. 

If  the  policy  contains  an  exception  as  to 
injuries  resulting  from  a  violation  of  the 
employer's  rules,  the  insured  being  pre- 
sumed to  have  knowledge  of  them,  it  is  not 
necessary  for  the  defendant  to  prove  his 
knowledge  of  them  ;  but  evidence  as  to  the 
rules  is  not  admissible,  unless  the  exception 
is  especially  pleaded.  Standard  Life  (&>•  A. 
Ins.  Co.  v.  Jones,  94  Ala.  434,  10  So.  Rep. 

530- 

Proof  that  people  were  accustomed  to 
cross  the  track  at  the  point  in  question  is 
admissible  on  the  question  whether  de- 
ceased was  killed  while  violating  the  rules 
of  the  company  within  the  meaning  of  the 
policy.     Duncan  v.  Pnfored  Mid.  Ac.  A. 


of  N.  v.,  36  N.  V.  S.  R.  928,  27/.  A-  S.  14s, 
13  A'^.  Y.  Supp.  620. 

Under  the  provisions  of  a  policy  insuring 
the  holder  against  accidents  while  travelling 
on  the  conveyances  of  any  common  carrier, 
provided  he  complied  with  the  rules  and 
regulations  of  such  carrier,  and  exercised 
due  diligence  for  self-protection— //^/</,  that  a 
passenger  on  a  railway  car,  who  was  injured 
by  being  thrown  from  the  steps  of  the  car, 
where  he  stood  while  the  train  was  ap- 
proaching a  station,  in  violation  of  a  known 
rule  of  the  company,  was  not  entitled  to 
recover.  Bon  v.  Railway  Pass.  A.  Co.,  56 
Iowa  664,  10  A^.  IV.  Rep.  225.— QUOTING 
Hickney  v.  Boston  &  L.  R.  Co.,  14  Allen 
429 ;  Damount  v.  New  Orleans  &  C.  R.  Co., 
9  La.  Ann.  441.— Compared  in  Lindsey  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  18  Am.  &  Eng. 
R.  Cas.  179.  64  Iowa  407. 

12. intoxication.— The  accidental 

shooting  of  an  insured  person  while  intoxi- 
cated, by  a  drunken  companion,  is  within 
the  meaning  of  a  condition  in  a  policy  pro- 
viding that  "  no  claim  shall  be  made  under 
the  policy  where  the  death  or  injury  may 
have  happened  while  the  insured  was,  or  in 
consequence  of  his  having  been,  under  the 
influence  of  intoxicating  drinks."  The  pol- 
icy was  violated  if  the  accident  happened 
while  the  insured  was  in  a  state  of  intoxica- 
tion, whether  it  was  the  direct  agent  caus- 
ing the  accident  or  not.  Shader  v.  Rail- 
way Pass.  A.  Co.,  3  Hun  (N.  Y.)  424,  $  T.  &> 
C.  643. 

If  there  is  an  inconsistency  between  the 
terms  of  the  application  for  the  policy  and 
the  policy  itself,  excepting  injuries  resulting 
from  intoxication,  or  received  while  under 
the  influence  of  intoxicants,  the  policy  must 
control ;  but  where  the  application  uses  he 
words,  "any  accidental  injury  which  may 
happen  to  me  while  under  the  influence  of 
intoxicating  drinks,  or  in  consequence  of 
having  been  under  their  influence,"  and  the 
policy  excepts  injuries  "  happening  to  the 
insured  while  intoxicated,  or  in  consequence 
of  having  been  under  the  influence  of  any 
intoxicating  drink,"  there  is  no  material 
difference  between  the  two,  and  it  is  not 
necessary,  in  order  to  make  out  the  defence, 
that  the  intoxication  should  have  contrib- 
uted to  the  injury.  Standard  Life  &■•  A.  Ins. 
Co.  V.  Jones,  94  Ala.  434,  10  So.  Rep.  530. 

13.  Amount  recoverable.  —  Plain- 
tilTs,  a  tramcar  company,  were  insured  by 
defendants  against  "  claims  for  personal  in- 


18    ACCIDENT  INSURANCE,  14.-ACCORI)  AND  SATISFACTION,  1-5. 


jury  in  respect  of  accidents  ♦  ♦  ♦  to  the 
amount  of  /250  in  respect  of  any  one  acci- 
dent." A  tramcar  was  overturned  and  many 
persons  injured,  tlie  company  being  com- 
pelled to  pay  ^833  indemnity.  Hild,  that 
the  word  "  accident  "  in  tiie  policy  meant  in- 
jury in  respect  of  which  a  person  claimed 
compensaiion  from  tiie  plaintilTs,  and  that  the 
liiiliility  of  the  defeiidanis  was  consequently 
not  limited  to  ^^250,  but  the  plaintiffs  were 
entitled  to  rec(jver  the  whole  ^833  on  the 
policy.  South  Staffordshire  T.  Co.  v.  Sick- 
ness (SrJ  A.  A.  Assoc.  [189 1  J,  I  (2-  B.  402. 

14.  Kcfovcry  over  by  insurer 
against  railway  company.— Where  a 
railroad  company  lias  negligently  burned 
insured  property,  the  insurance  company 
cannot  sue  the  railroad  after  paying  tlie  in- 
surance ;  but  the  owner  of  the  property  may 
sue  for  the  use  and  benefit  of  the  insurance 
company.  Holcombe  v.  Richmond  6r^  D.  R. 
Co.,  78  Ga.  776,  3  S.  E.  Rep.  755. 


ACCORD  AND  SATISFACTION. 

As   regards   public    contracts,  see    Claims 
AGAINST  United  STArics,  ©. 

1.  "Wliat  amounts  to.— If  one  having 
a  cause  of  action,  unliquidated  in  respect  to 
amount,  for  a  personal  injury  caused  by  the 
negligence  of  another,  and,  knowing  all  the 
facts,  demands  and  receives  from  the  wrong- 
doer a  Slated  sum  of  money  on  account  of 
the  injury,  there  being  no  express  agree- 
ment that  it  shall  be  in  satisfaction,  either 
in  whole  or  in  part,  of  the  cause  of  action, 
t!ie  presumption  is  that  it  was  intended  by 
the  parties  as  a  full  recompense  for  the  in- 
i  ; .-,  and  operates  as  an  accord  and  satisfac- 
..  a,  barring  a  subsequent  action  to  recover 
''piiagcs  for  the  same  injury.  Hinkle  v. 
.luapolis  <S^»  St,  L.  R.  Co..  i'^  Am.  &^ 
hn^.  R.  Cas.  391,  31  Minn.  434,  18  A^.  IV. 
Rep.  275.— Distinguished  in  Sobieslci  v. 
St.  Paul  &  D.  R.  Co.,  41  Minn.  169,  42  N. 
W.  Rep.  863.  Quoted  in  Gulf,  C.  &  S.  F, 
R.  Co.  V.  Gordon,  70  Tex.  80. 

The  plaintiff  had  a  claim  against  the  de- 
fendant, which  the  defendant  disputed  and 
refused  to  pay.  The  defendant  had  a  claim 
against  the  plaintiff  for  freight  charges 
which  the  plaintiff  insisted  were  illegal,  and 
which  he  refused  to  pay  for  that  reason. 
Ttie  defendant  brought  suit  for  its  freight. 
Thereupon  all  matters  in  dispute  between 
the   parties  were  settled   by  offsetting  the 


claims  of  the  parties,  and  the  payment  of  a 
small  balance  by  the  plaintiff.  Held,  that 
this  was  an  accord  and  satisfaciion,  and 
that  the  plaintiff  could  not  recover  the 
amount  of  the  illegal  freight  charges,  pro- 
vided the  defendant  made  its  above  claims 
in  good  faith.  IViidcr  v.  St.  Johnshury  <&* 
L.  C.  R.  Co.,  65  Vt.  43,  25  At  I.  Rep.  896. 

2.  What  does  not.— .A  voluntary  pay- 
ment of  money  to  an  employe  injured  by 
the  negligence  of  the  employer,  merely  as 
"wages"  during  the  per.od  of  disability, 
does  not  constitute  a  satisfaction  of  the 
cause  of  action.  Sobieski  v.  St.  Paul  &•  D. 
R.  Co..  41  Minn.  169,  42  A'.  IV.  Rep.  863.— 
Distinguishing  Hmkle  v.  Minneapolis  & 
St.  L.  R.  Co..  31  Minn.  434,  18  N.  W.  Rep. 
275. 

3.  Necessity  of  peribrinance.— 
Where  the  plaintiff  agrees  to  accept  the  de- 
fendant's promise  in  satisfaction,  if  the 
promise  be  not  performed,  [)laintiff's  remedy 
is  by  action  for  breach  of  the  promise,  and 
he  cannot  proceed  on  the  original  agree- 
ment or  demand  ;  but  if  he  has  agreed  to 
accept  the  performance  of  such  promise  in 
satisfaction,  then  there  can  be  no  satisfac- 
tion without  performance.  Gulf,  C.  &•  S. 
F.  R.  Co.  v.  Harriett.  80  Tex.  73,  15  ,5".  IV. 
Rep.  556. 

4  With  whom  made.— A  railway 
company  cannot  satisfy  the  estate  of  an 
emi)loye,  killed  through  its  negligence,  by 
settlement  with  and  payment  to  his  widow, 
she  not  being  the  administratrix  of  his 
estate.  Dowell  v.  Burlington,  C.  R.  &*  N. 
R.  Co.,  1 5  Am.  &'  Eng.  R.  Cas.  1 53,  62  Iowa 
629,  17  A'.  W.  Rep.  907.— Reviewed  in 
Yelton  V.  Evansville  &  I.  R.  Co.  (Ind.),  54 
Am.  &  Eng.  R.  Cas.  69,  33  N.  E.  Rep.  629. 

5.  Effect. — Accord  and  satisfaction  with 
a  person  injured  is  a  defence  to  proceedings, 
under  Lord  Campbell's  Act,  by  his  represfen- 
tatives  after  his  death.  Readw  Great  East- 
ern R.  Co..  37  L.  J.  Q.  B.  278.  L.  R.  3  Q. 
B.  555.  16  (-v.  R.  1040,  18  L.  T.,  N.  S.  82  ; 
g  B.^*  S.  714. 

Where  the  vendor  of  land  for  a  railroad 
depot  accepts  the  amount  raised  by  sub- 
scription when  collected  in  full  satisfaction 
of  the  contract  of  purchase,  the  exact 
amount  agreed  to  be  paid  will  be  a  matter 
of  no  importance,  especially  when  the  ven- 
dor has  the  land  surveyed  and  staked  off, 
and  removes  his  fences  from  the  land,  and 
gives  possession.  Hall  v.  Peoria  &-  E.  R. 
Co.,  143  ///.  163.  32  .Y.  E.  Rep.  598. 


ACCORD   AND   SATISFACTION,  «,  7.— ACCOUNTING,  1. 


19 


A  lot  owner  accepted  a  certain  sum  "  in 
full  payment  and  satisfaction  "  of  any  claim 
that  he  might  have  for  damages  to  his  lots 
against  a  railroad  "  by  reason  of  the  con- 
struction of  such  railroad."  Afterward  he 
claimed  damages  by  reason  of  the  track  be- 
ing raised  above  the  street  grade  in  front  of 
his  property,  insisting  that  his  release  cov- 
ered only  damages  resulting  from  construct- 
ing the  track  at  grade.  Held,  that  it  cov- 
ered all  damages,  and  he  could  not  recover. 
Kansas  City  &*  O.  A'.  Co.  v.  Hicks,  14  Am. 
&»  Eiig.  li,  Cas.  100,  30  Kan.  288,  i  Pac. 
Rip.  396. 

An  agreement  by  a  railway  company  with 
a  landowner  under  the  Lands  Clauses  Act, 
1845,  §  6,  to  purchase  part  of  his  land,  with 
the  understanding  that  the  purchase  money 
should  be  taken  in  full  compensation  for  all 
damage  by  severance  and  injury  to  the  ad- 
joining lands,  covers  injury  to  houses  (jn  the 
adjoinnig  land  owing  to  the  subsidence  of 
the  land,  consequent  upon  excavations  for 
which  the  landowner  obtained  an  assess- 
ment of  damages  by  inquisition  under  the 
Lands  Clauses  Act,  §  68,  and  afterwards 
i)ronght  an  action  to  recover  the  amount  of 
I  lie  assessment  and  the  costs  of  the  inquisi- 
ii(jn.  Todd  v.  Metropolitan  District  R.  Co., 
24  Z.  7'.,  A'.  S.  435. 

O.  Iiiipeacliiiieiit  for  ITraurt.— The 
jilaintiff,  in  an  action  for  personal  injuries, 
wiiere  the  company  pleads  receipt  in  full, 
may  file  a  bill  in  equity  alleging  the  receipt 
to  have  been  obtained  by  fraud,  and  praying 
tiiat  the  company  might  be  restrained  from 
setting  it  up  as  a  defense.  The  prayer  of  tiie 
bill  in  such  case  is  rightly  limited  to  the  relief 
asked.  Stewart  v.  Great  Western  R.  Co.,  2 
J)e  G.,J.  (Sr-  .S'.  319,  II  Jur.  N.  S.  627,  13  \V. 
R.  907,  13  Z,.  T.  N.  S.  79.— Distinguished 
IN  Lee  V.  Lancashire  &  Y.  R.  Co.,  L.  R.  6 
Ch.  527,  25  L.  T.  N.  S.  77,  19  W.  R.  729. 

Where  a  person  injured  is  paid  money, 
and  gives  a  receipt  acknowledging  the  pay- 
ment to  be  in  full  discharge  of  his  claims, 
and  afterwards  brings  suit  on  account  of 
such  injuries,  a  bill  in  equity  filed  by  him 
to  restrain  the  company  from  setting  up 
such  receipt  as  a  complete  defence  to  the 
action,  not  charging  fraud,  but  alleging  that 
he  signed  the  receipt  on  the  express  condi- 
tion that  he  should  not  be  excluded  from 
further  compensation  if  his  injuries  prove 
to  be  more  serious  than  was  first  supposed, 
will  be  dismissed,  since  the  whole  case  can 
I)e  better  tried  at  law.    Lee  v.  Lancashire  <S>» 


Y.  R.  Co.,  L.  R.  6  Ch.  527,  19  W.  R.  729, 
25  Z.  r.  N.  S.  77. 
7.  Bet'uudiug  amount  received.— 

If,  after  the  injury,  the  plaintiff  receives 
money  from  the  defendant,  its  return  is  not 
a  condition  picf^edent  to  a  recovery,  unless 
it  be  shown  that  it  was  paid  under  an  agree- 
ment of  settlement  of  the  damages.  Vait- 
train  v.  St.  Louis,  /.  M.  &^  S.  R.  Co.,  8  Mo. 
App.  538. 

\Yhere  accord  and  satisfaction  are  em- 
bodied in  a  written  instrument  which  the 
plaintiff  has  signed  with  his  mark,  and  he 
denies  that  he  ever  entered  into  such  a  con- 
tract, or  that  the  same  was  read  over  to 
him,  and  claims  that  the  amount  paid  him 
was  not  paid  upon  such  contract,  but  upon 
his  claim  for  wages,  and  that  in  signing  he 
thought  he  was  subscribing  to  an  ordinary 
pay-roll  only,  it  is  not  necessary  for  him  to 
refund  the  amount  received  to  entitle  him 
to  make  the  question  of  fraud  in  imposing 
upon  him  the  written  contract  into  which 
he  did  not  enter  in  lieu  of  the  actual  con- 
tract under  which  the  money  was  paid  to 
him.  Butler  v.  Richmond  &*  D.  R.  Co.,  88 
Ga.  594,  15  S.  E.  Rep.  668. 


ACCOUNTINO. 

Between  land-grant  railways  and  the  gov- 
ernment, see  Lanu-grant  Railroads,  8. 

Bondholder,  when  entitled  to,  see  Reorgani- 
zation, 8. 

By  receivers,  see  Receivkrs,  X. 

1.  Who  may  be  oalled  to  account. 

— Persons  appointed  to  receive  and  disburse 
subscriptions  for  the  purpose  of  consolidat- 
ing and  extending  certain  railroads  may  be 
required  to  account  to  the  persons  paying 
in  the  subscriptions  for  amounts  so  received, 
and  the  questions  of  the  legality  of  their 
appointment,  or  whether  they  were  origi- 
nally trustees,  are  immaterial.  Gould  v. 
Seney,  5  N.  V.  Supp.  928. 

An  account  will  be  ordered  as  of  course 
where  defendant  admits  he  is  an  accounting 
party.  But  if  the  liability  to  account  is  de- 
nied (as  here  by  former  settlement)  no  order 
of  reference  or  other  issue  can  be  had  until 
the  alleged  bar  is  passed  upon.  Therefore, 
in  an  action  on  the  bond  of  a  railway  treas- 
urer where  the  defendant's  accounting  char- 
acter is  admitted  in  the  answer,  but  a  settle- 
ment with  the  company  pleaded  in  bar  of  an 
account,  the  court  did  not  err  in  submitting 
an  issue  to  the  jury  in  relation  to  the  settle- 


30 


ACCOUNTING,  a,  3.— ACCOUNTS,  1. 


ment,  as  a  preliminary  mailer.     Atlantic,  T. 
&>  O.  A'.  Co.  V.  Morrison,  83  N.  Car.  141. 

On  the  irial  of  such  issue  the  proof  was 
that  defendant  had  turned  <jver  ihe  assels 
enumerated  in  a  certain  receipt  and  had  iiad 
other  moneys  not  embraced  tiierein,  and 
that  ihc  parly  giving  the  receipt  refused  to 
execute  it  in  full.  Upon  this  proof  the 
judge  properly  told  the  jury  there  was  no 
evidence  of  a  final  settlement.  Atlantic,  T. 
6-  0.  R.  Co.  V.  Morrison,  82  X.  Car.  141. 

2.  And  at  whose  instance— A  cred- 
itor and  stockholder  of  a  railroad  company 
may  bring  an  action  to  compel  its  oiFicers  to 
account  for  their  management  of  the  prop- 
erty and  the  disposition  of  its  funds,  and, 
if  need  be,  to  obtain  a  removal  of  the  offi- 
cers. Ramsey  V.  Gould,  39  H010.  Pr.  (N.  Y.) 
62,  8  Abb.  Pr.  N.  S.  174.  57  ^^'"^'^-  398; 
affirmed  in  3  Lans.  181. 

A  court  of  equity  will  not  order  an  ac- 
counting between  a  railroad  company  and 
its  contractor  at  the  suit  of  the  contractor 
where  he  does  not  himself  offer  to  render  an 
account,  showing  the  balance  due ;  neither 
will  the  court  enjoin  the  company  from  mak- 
ing a  contract  with  other  parties  for  the 
completion  of  the  work.  Wood  v.  Boney 
iJN.J.  Eq.\  21  All.  Rep.  574- 

Where  a  party  has  a  legal  right  to  bring 
an  action,  the  court  has  no  right  to  look  into 
his  motives  for  doing  so.  So  held  where  a 
motion  was  made  to  dismiss  a  bill,  filed  by  a 
creditor  and  stockholder,  to  compel  officers 
of  a  railroad  to  account  for  their  manage- 
ment of  the  property  and  the  disposition  of 
its  funds,  the  motion  being  based  upon  the 
ground  that  the  action  was  brought  in  bad 
failh  and  was  but  an  attempt  to  pervert  and 
abuse  the  process  of  court  to  purposes  of 
retaliation  and  revenge,  and  to  compel  the 
defendants  to  cease  a  certain  litigation  which 
was  adverse  to  the  complaint.  Ramsey  v. 
Gould,  39  How.  Pr.  {N.  Y.)  62.  8  Abb.  Pr.  N. 
S.  174,  57  Barb.  398  ;  affirmed  in  3  Lans. 
181. 

Where  a  creditor  and  stockholder  files  a 
bill  to  compel  officers  of  a  railroad  company 
to  account,  and  the  defendants  move  to  dis- 
miss on  the  ground  that  the  action  was 
brought  in  bad  faith,  the  prosecution  of  the 
suit  will  not  be  deemed  an  abuse  or  perver- 
sion of  the  process  of  the  court,  unless  it 
plainly  appears  that  plaintiff  has  no  merito- 
rious cause  of  action,  or  that  he  was  es- 
topped from  prosecuting  it;  and  this  is  true 
in  a  rontt  of  equity,  regardless  of  the  rule 


that  a  plaintiff  must  come  into  court  with 
"clean  hands."  Ramsey  \.  Gould,  39  How. 
Pr.  (A'.  }'.)  62,  >i  Abb.  Pr.  A'.  S.  174.  ^7  Bard. 
398;  affirmed  in  3  Lans.  181. 

A  railroad  company  having  purchased  a 
majority  of  the  shares  of  stock  m  a  canal 
company,  elected  for  the  latter  a  board  of 
directors  who  were  in  the  interest  of  the 
railroad  company,  and  then,  with  the  assent 
of  said  board,  appropriated  the  entire  canal 
and  property  of  the  canal  company  as  a  rail- 
road track,  paying  therefor  a  price  or  com- 
pensation which  was  agreed  upon  by  the 
directors  of  the  two  companies,  but  which 
was  far  below  the  actual  value  of  the  prop- 
erly. Held,  that,  although  the  stockholders 
and  creditors  of  the  canal  company  could 
not,  after  the  road  had  been  completed,  re- 
claim the  property  or  enjoin  its  use,  yet  they 
were  not  concluded  by  such  agreement,  so 
far  iis  regarded  the  price  of  the  property, 
but  could,  by  action,  compel  the  railroad 
company  to  account  for  its  additional  value, 
which  was  what  the  interest  of  the  canal 
company  was  worth  generally  for  any  and 
all  uses,  and  not  for  canal  purposes  merely, 
or  for  any  particular  use.  Goodin  v.  Cin- 
cinnati &*  IV.  Canal  Co.,  18  0/iio  St.  169. — 
Quoting  Chapman  v.  Mad  River  &  L.  E. 
R.  Co.,  6  Ohio  St.  120.  Reviewing  Hatch 
V.  Cincinnati  &  I.  R.  Co.,  18  Ohio  St.  92. — 
Followed  in  Doud  v.  Mason  City  &  Ft. 
D.  R.  Co.,  36  Am.  &  Eng.  R.  Cas.  633,  76 
Iowa  438,  41  N.  W.  1.  jp.  65. 

In  a  proceeding  to  compel  a  company  to 
pay  for  land  appropriated,  the  measure  of 
damages  is  the  value  of  the  land  at  the  time 
it  is  assessed  in  the  proceeding.  Goodin 
v.  Cincinnati  Sr'  IV.  Canal  Co.,  18  0/tio  St. 
169.— Reviewed  in  Railroad  Co.  i'.  Perkin, 
49  Ohio  St.  326. 

JJ.  Procedure—Proper  charges.— 
Township  aid  bonds  were  delivered  by  a 
railroad  company  to  one  of  its  directors  to 
pay  for  depot  buildings  which  he  had  put  up 
and  agreed  to  convey,  but  did  not  do  so. 
Held,  on  a  bill  for  accounting,  that  he  should 
be  charged  with  the  bonds.  Michigan  Air 
Line  R.  Co.  v.  Mellen,  5  Am.  &^  £n(f.  R-  Cas. 
245,  44  Mic/i.  221,6  N.  IV.  Rep.  845. 


ACCOUNTS. 

Of  agents,  jurisdiction  of  equity  over,    see 
Eijunv,  8. 

1.  In  general.— Plaintiff  sued    to    re- 
cover for  services  rendered  the  company  by 


12-4] 


ACCOUNTS,  ii-4.     ACKNOWLKIHIMK NT. 


21 


I    to    re- 
ipany  by 


him  as  section  foreman,  and  also  to  recover  for 
board  of  laborers  employed  by  the  company. 
His  claim  was  in  the  form  of  an  account  veri- 
fied by  affidavit.  Jle/i/,  that  the  claim,  being 
for  items  based  on  different  transactions,  was 
not  an  account  within  the  meaning  of  Tex. 
Rev.  St.  art.  2266,  and  it  was  error  to  admit 
iti  II  evidence.  Galveston,  H.  &*  S.  A.  A'.  Co. 
v.  Sc/nuarts,  2  Tex.  App.  (Civ.  Cas.)  664. 

2.  Accounts  stated.— An  account 
stnted  cannot  be  based  on  an  appraisal  where 
it  does  not  appear  that  both  parties  mutu- 
ally agreed  on  the  appraisers,  or  recognized 
them  as  authorized  to  bind  them  by  their 
action.  C/ticago  &^  C.  S.  R.  Co.  v.  Peters,  45 
Mich.  636,  8  N.  IV.  Rep.  584. 

A  roadmaster  of  a  railroad,  in  the  line  of 
his  duty,  audited  accounts  of  an  employe  of 
the  company,  and  reported  it  to  the  paymas- 
ter of  the  company,  and  certified  therewith 
the  balance  that  was  due  the  employ6.  Held, 
that  this  certificate,  accepted  by  the  employe, 
constituted  an  account  stated  between  him 
and  the  company  on  which  a  suit  could  be 
maintained,  without  reference  to  the  items 
making  up  the  accounts.  St.  Louis,  I.  M. 
&■'  S.  R.  Co.  V.  Camden  Bank  (Ark.),  i  S. 
W.  Rep.  704. 

A  railway  company  brought  an  action 
against  A.,  formerly  its  agent,  on  an  acount 
stated.  A.  filed  an  answer  containing  a 
general  denial.  On  the  trial  the  plaintiff 
read  in  evidence  a  letter  of  A.  to  the  auditor 
of  the  company,  dated  February  12,  1874, 
proposing  to  pay  every  dollar  of  the  defalca- 
tion of  one  B.,  to  the  amount  of  $7582.11,  if 
he  had  time,  and  stating  therein  that  his 
January  report  was  short  $5042.07,  and  that 
the  balance  of  $2540.04  would  have  to  be  re- 
ported in  his  February  account,  and  then  pro- 
duced the  auditor  as  a  witness,  who  testi- 
fied the  account  sued  on  was  furnished 
by  him  to  A.  on  March  21,  1874;  that  A. 
went  out  of  office  on  February,  14,  1874; 
that  he  met  A.  in  regard  to  the  account 
three  or  four  times;  that  the  account  in- 
cluded the  whole  of  February,  1874 ;  that  he 
saw  the  account  in  his  posession,  and  that 
he  made  no  objection  to  it ;  that  several 
other  statements  of  account  were  sent  A. 
before  and  after  March  21,  1874  ;  that  they 
were  not  all  liketheonesuedon  ;  that  those 
after  March  21  were  different;  that  these 
statements  were  given  A.  as  matters  of  in- 
formation. Held,  that  the  stated  account 
was  not  conclusively  established  by  the  tes- 
timony, and  therefore  it  was  not  error  for 


the  district  court  to  submit  the  question  in 
the  case  to  the  jury.  Kmnas  Pac.  R.  Co. 
v.  Anderson,  23  Kan.  44. 

3.  Iteopeiiiiig  and  restating  ac- 
counts. —  Although  pariifs  may  have 
agreed  upon  a  statement  of  account,  tliey 
may,  by  mutual  consent,  waive  this,  and 
agree  to  a  reopening  and  restatement  of 
the  account ;  and  if,  after  such  statement, 
the  creditor  accepts  the  amount  thus  stated 
as  full  payment  of  the  account,  without 
exception  or  reservation,  ihis  will  con- 
stitute a  full  settlement  of  his  whole  claim, 
although  the  amount  received  is  less  than 
the  sum  agreed  on  as  his  due  at  the  first 
settlement.  Horn  v.  St.  Paul  <S^•  N.  P.  R. 
Co.,  37  Minn.  375,  34  N.  IV.  Rep.  593. 

Equity  lias  jurisdiction  to  hear  and  deter- 
mine the  matters  under  a  bill  filed  by  ship- 
pers of  live  stock,  charging  that  during  the 
past  year  complainants  had  made  some  250 
shipments  of  stock  over  defendant  railroad, 
upon  which  the  freight  amounted  to  about 
$350,000;  that  the  freight  had  been  paid 
monthly,  and,  by  reason  of  fraud  and  con- 
cealment on  the  part  of  the  company,  that 
an  excess  of  freights  had  been  paid ;  the 
prayer  of  the  bill  being  that  the  settlements 
might  be  opened,  that  plaintiffs  might  re- 
cover back  whatever  sum  should  be  found 
due  upon  a  proper  settlement.  Kir  by  \, 
Lake  Shore  6f*  M.  S.  R.  Co.,  120  U.  S.  130, 
7  Sup.  Ct.  Rep.  430. 

4.  Recovery  for  items  not  included. 
— A  railroad  company  may  recover  from 
another  company  for  use  of  a  house  fur- 
nished by  authority  of  the  latter  to  a  joint 
traffic  agf;nt  as  part  of  his  compensation,  by 
accident  not  included  in  the  accounts  of 
their  traffic  contract  upon  which  a  division 
of  profits  was  made.  Boston  iS^  L.  R.  Co. 
v.  Nashua  &•  L.  R.  Co.,  157  Mass.  258,  31 
N.  E.  Rep.  1067. 


ACCOUNTS  STATED. 
What  are,  effect,  etc.,  see  Accounts,  2. 


ACCRETION. 

Title  by,  see  Riparian  Rights,  12. 


ACKNOWLEDGMENT. 
Of  deeds,  see  Deeds,  III. 


S3 


ACgUlESCIiNCli     ACTIONS. 


ACaUIESCENCE. 

Estoppel  by,  slt  Kshiitki,  IV.  2. 
Ratification  of  president's  act  by,  see  Fubbi- 

DKNI ,  II. 

When  a  bar  to  suit,  set  l;c.>li rv,  7, 

When  bars  stockholder's  right  of  action,  see 

SlOCKIIOl.DKKS,  111,  6. 


ACTING  SUPERINTENDENT. 

See  Sll'IKlMKNDKNT,  8. 


ACTIONS. 

Against  carriers  of  live  stock,  see  Carriage  ok 
LiVK  SrocK,  X. 

—  carriers  of  passengers,  see  Carriage  ok 

1'assi:m;i  ks,  V'll. 

—  elevated  railways,  see  Ei.evatkd  Railways, 

III,  IV. 
Between   buyer  and  seller  of  chattel,   see 
Sai.ks,  IV, 

—  vendor  and  purchaser  of  land,  sec  Vendor 

AND  Purchaser,  IV. 
By  and  against  corporations,   see  Corpora- 

TIO.SS,    IV. 

—  and    against     foreign    corporations,    see 

Foreign  Corporations,  II. 

—  and  against  husband  and  wife,  see  Hus- 

iiAND  AND  Wife,  III. 

—  and  against  railway    commissioners,  see 

Railway  Co.mmissioners,  III,  8. 

—  and  against  receivers,  see  Receivers,  IX. 

—  bailee  against  third  person,  see  Bailment, 

6. 

—  personal  representatives,   see  Executors 

AND  Ad.ministrator>,  11-13. 

—  stockholders  against  company  or  its  offi- 

cers, see  Stockholders,  III, 
For  breach  of  contract,  see  Contracts,  IX. 

—  breach  of  duty  to  build  cattle-guards,  see 

Cattle-guards,  II. 

—  causing  death,  see  Death  hy  Wrongkul 
.  Act. 

—  causing  fires,  costs  in,  see  Costs,  8. 

—  damage  caused  by  fire,  see  Fip.es,  IV. 

—  dividends,  see  Dividends,  11-14. 

—  ejection  of  passenger,  see  Ejection  ok  Pas- 

sengers, III. 

—  ejection  of  passengers,  costs  in,  see  Costs, 

6. 

—  failure  to  construct  culverts,  see  Culverts, 

5. 

—  flooding  lands,  see  Flooding  Lands,  II. 

—  illegal  removal  of  corpse,  see  Coroners,  2. 

—  injuries  caused  by  fellow-servants,  see  Felt 

low-servants,  VII. 

—  injuries  caused    by   steam  -  railways    in 

streets,  see  Streets  and  Highways,  VI. 


ror  injuries  received  at  stations,  see  SiA' 

IIO.NS  AND  DKI'hTS.  \'. 

injuries  to  children,  sec  Children,  Injuries 

TO,  V. 

—  injuries  to  employes,  see   Employes,   In 

JURIES  ro,  VI. 

—  injuries  to  persons  at  crossings,  see  Cross- 

ings, Injukiks  to  Persons  at,  VII. 

—  interference    with    easements,  see    Ease- 

ments, 14,  in. 

—  interference  with  or  disturbance  of  fran- 

chises, sec  Franchises,  f>. 

—  interference  with  or  cbstrurtion  of  private 

ways,  see  Private  Ways,  9-17. 

—  killing  or  injuring  animals,  see  Animals,  In- 

juries TO. 

—  loss  of  baggage,  see  Baggage,  VIII. 

—  loss  or  injury  to  goods  carried,  see  Car- 

RiA(iEOK  Merchandise,  XII. 

—  negligence,  see  Negligence,  III. 

—  negligent  injuries  caused  by  street  rail- 

ways, see  Street  Railways,  IX,  2. 

—  overcharges,  costs  in,  sec  Costs,  lO. 

—  personal  injuries,  costs  in,  see  Costs,  1 1. 

—  refusal  to  transfer  stock,  see  Siock,  V,  7. 

—  specific  performance,  see    Specikic    Per- 

formance, II. 

—  taxes,  see  Taxation,  VIII,  3. 

—  unlawful  discharge  of  superintendent,  see 

Superintendent,  7. 

—  unlawful  taxation,  see  Taxation,  X. 

—  wrongful  interference  with  property  under 

color  of  eminent  domain,   sec   Eminent 
Domain,  XIV. 
On  certificates  of  indebtedr.  ess,  see  Certifi- 
cates OF  Indebtedness,  H. 

—  construction  contracts,  see  Construction 

OF  Railways,  II,  6, 

—  coupons,  see  Coupons,  II. 

—  covenants,  see  Covenants,  II. 

—  debentures,  see  Debentures,  13-15. 

—  fire  policies,  see  Fire  Insurance,  III. 

—  jtldgments,  sec  Judgment,  VI. 

—  negotiable  paper,  see   Bills  and   Notes, 

III. 
To  enforce  claims  of  creditors,  see  Creditor's 
Bill. 

—  enforce  penalties,  see  Penalties,  II. 

—  enforce  subscriptions  to  stock,   see  Sub- 

scriptions TO  Stock,  III. 

—  foreclose  deeds    of  trust,   see   Deeds   of 

Trust,  14-20. 

—  foreclose  laborers' lien,  see  Liens,  III,  5. 

—  foreclose  mechanics'  lien,  see  Liens,   II, 

6. 

—  foreclose  mortgages,  see  Mortgages,  VI. 

—  quiet  title,  see  Cloud  on  Title. 

—  recover  charges,  see  Charges,  VIII,  4,  5- 

—  recover  penalties  for  importing  laborers, 

see  Contract  Labor  Law,  2. 

—  recover  wages,  see  Employes,  12-19. 


ACTIONS,    I,  2. 


28 


What  may  be  compromiMd,  see  Comi'komisk, 

6. 

—  survive  after  death  of  party,  sec  AnATK- 

MENT,  14,   tS. 

See  also  Assault  ;  Assumpsit;  Attachment; 
Ejectment;  Equity;  Forcibi.k  Entry  and 
Detainer;  Injunction;  Libel;  Malicious 
I'KosECUTioN  ;  Replevin  ;  Trover. 

1.  When  ail  action  will  lie.— The 
right  to  bring  an  action  based  upon  a  wrong 
or  negligence  depends  upon  the  law  of  the 
slate  where  the  injury  is  inflicted,  Ilnnna  v. 
Grand  Trunk  R.  Co.,  41  ///.  App,  116. 

The  fact  that  a  state  is  the  sole  proprietor 
of  a  corporation  does  not  prevent  it  from 
being  sued.*  Hutc/iinsonv.  Western  Ort  A.  R. 
Co.,  6  Heisk.  ( Tenn!)  634, 12  Am.  Ry.  Rep.  16. 

One  corporation  cannot  maintain  an  ac- 
tion against  another  for  refusing  to  per- 
form a  duly  or  to  render  a  service  unless  it 
affirmatively  appears  that  the  duty  or  ser- 
vice exists  by  force  of  a  statute  or  contract, 
or  a  usage  having  the  force  of  law.  Dela- 
ware, L.  &^  IV.  R.  Co.  v.  Centra/  S.  V.  &"  T. 
Co..  37  Am.  (S^•  En^'^.  R.  Cas.  607,  45  A^.  7.  Eg. 
50,  17  A//.  Rep,  146;  affirmed.,  46  A^.  J.  Eg, 
280.— Reviewing  Atchison.  T.  &  S.  F.  R. 
Co,  V.  Denver  &  N.  O.  R.  Co.,  iioU.  S.  667. 

A  railroad  company  is  not  liable  for  negli- 
gently running  over  and  mutilating  a  dead 
body,  but  it  may  be  liable  for  damages  to 
apparel  in  which  the  body  was  shrouded. 
Griffith  v.  Charlotte,  C,  &*  A.  R.  Co.,  23  S. 
C.  25,  55  Am.  Rep.  i. 

It  is  no  ground  for  damages  against  a  com- 
pany that  a  drayman  was  discharged  by  his 
employer  because  an  agent  of  the  company 
informed  the  employer  that  the  drayman 
would  not  be  allowed  to  violate  proper  regu- 
lations of  the  company.  Donoranv.  Texas 
&>  P.  R.  Co,,  29  Am.  &>  Eng.  R.  Cas.  320, 
64  Tex.  519. 

A  woman  cannot  recover  damages  for  a 
fright  received  in  seeing  a  horse  running 
away,  which  came  toward  her  but  did  not 
come  in  physical  contact  witli  her,  nor  cause 
her  to  come  in  physical  contact  with  any 
other  object.  Lehman  v.  Brooklyn  City  R. 
Co.,  14  A'.  Y.  S.  R.  575,  47  Hun  355.t 

8  &  9  Vict.  c.  20  takes  away  the  common- 
law  right  of  action  for  an  interference  with  a 
road  underthe  powers  of  a  railway  company, 
with  a  private  right  of  way,  except  when 


*  Sovereignty  cannot  be  sued,  see  note,  16 
Am.  &  Eng.  R.  Cas.  309. 

j  Fright  as  a  basis  for  an  action  for  damages, 
see  note,  14  L.  R.  A.  666. 


special  damage  has  been  sustained,  ll^ut- 
kins  V.  Great  Northern  R.  Co.,  16  Q,  B.  961, 
20/..  7.  Q.B.3<Jf. 

3.  When  eusv  will  lie.'*'— An  action  on 
the  case  lies  against  a  party  who  has  a  pub- 
lic employment — as,  for  example,  a  com- 
mon carrier  or  other  bailee — for  a  breach  of 
duty,  which  tiie  law  implies  from  his  em- 
ployment or  general  relation.  Southern  Exp. 
Co.  V.  McVeigh,  20  Graft.  (I'a.)  264. 

A  corporation  is  liable  in  an  action  on  tlie 
case  for  the  want  of  skill, negligenceorcare- 
lessness  of  its  employes,  but  not  for  wilful 
and  intentional  acts  not  coinmiited  in  the 
course  of  their  employment.  Illinois  C.  Ji, 
Co.  V.  DiAvney,  \%  III.  259.— Not  followed 
IN  Gilliam  V.  South  &  N.  Ala.  R.  Co., 
15  Am.  &  Eng.  R.  Cas.  138,  70  Ala.  268. 

Where  the  command  of  the  company  is  to 
do  only  a  lawful  act,  and  the  servant  does  it 
in  an  unlawful  way,  so  as  to  injure  another, 
an  action  on  the  case  is  the  remedy  ;  but 
where  the  act  is  unlawful  in  and  of  itself, 
and  not  from  the  mode  of  doing  it,  trespass 
is  the  proper  action.  St.  Louis,  A.  &^  C.  R. 
Co.  V.  Dalby,  19  ///.  353,— Followed  in 
Chicago  &  N.  W.  R.  Co.  v.  Peacock,  48  III. 

ass- 
Trespass  on  the  case  will  lie  by  a  passen- 
ger, where  he  has  been  wrongfully  ejected 
from  a  train  by  the  company's  employes, 
after  the  company  has  agreed  to  carry  him. 
Emigh  V.  Pittsburgh,  Ft.  IV.  &-  C.  R.  Co., 
4Biss.  {U.  S.)  114. 

Trespass  on  the  case  may  be  maintained, 
under  the  Va.  Code,  i860,  ch.  148,  §  7,  in 
any  case  in  which  trespass  will  lie  ;  but  the 
converse  of  the  proposition  is  not  provided 
for  by  statute  ;  trespass  therefore  remains  as 
at  common  law.  So  where  a  party  is  ejected 
forcibly  from  a  car  and  brings  an  action  of 
trespass,  and  in  his  declaration  alleges  sec- 
ondary or  consequential  damages,  a  de- 
murrer is  properly  sustained,  as  the  declara- 
tion shows  a  case  in  which  trespass  at  com- 
mon law  will  not  lie,  that  action  being  al- 
ways for  immediate  and  direct  injury.  Bar- 
num  V.  Baltimore  &>  O.  R.  Co.,  5  W.  Va. 
10. 

A  company  using  the  cars  of  another  com- 
pany for  hire  can  maintain  an  action  on  the 
case  for  an  injury  to  such  cars.     Montgomery 

•  Proper  form  of  action  against  carriers,  see 
note,  II  A   .  &  Eng.  R.  Cas.  ioi. 

Form  of  action  where  passenger  is  injured, 
see  notes,  16  Am.  &  Eng.  R.  Gas.  309,  11  /</. 
toi. 


•J4 


ACTIONS,  .'I. 


iiitUi_i;/il  Co.  V.  Monl)^omery  &*  E.  A',  (c.  So 
///.«.  372,  5  .Sr).  Kip.  735. 

An  action  fur  duiiia^es  (ur  riiniiin)^'a  train 
ut  a  prohibited  rate  of  speed  in  a  town  or 
city,  when  in  the  <:ir(:uit  lourt,  may  be  a 
case,  tliuu({li  the  statute  preitcribeilcht  or  as- 
sumpsit before  a  justice  of  the  peaci'.  Chi- 
Ciijio,  R.  I.  6-  /'.  R.  Co.  V.  RiUy,  (>()  III.  43. 

An  action  to  recover  dainaj^'cs  f<jr  the 
diminution  >f  the  value  of  adjacent  property, 
occasioned  by  the  location  and  use  of  rail- 
way tracks  in  a  public  street,  is  not  an  action 
of  trespass  qu.  cl.fr.,  but,  at  the  common 
law,  would  have  been  an  action  on  the  case. 
Jfffersonvillf.  M.  6'-^/.  A'.  Co.  v,  liih-rli,  13 
Jiiis/t  (A>.)  667,  17  Am.  Ry.  Rip.  111. 

Case  and  not  trespass  is  the  proper  rem- 
edy for  an  injury  to  land  caused  by  the 
ne>{lect  of  a  corporation  to  remove  stones 
.thrown  upon  it  in  the  course  of  construct- 
ing a  railroad.  Satin  v.  I'ennont  C.  R.  Co., 
25  r/.  363. 

:{.  Wlio  may  Hiie.— (1)  /«  .(,v//(V-rt/.— 
The  true  owner  of  personal  property  may 
enforce  his  right  to  it,  as  against  the  con- 
signor or  consignee  or  carrier,  or  other 
bailor  or  bailee,  whenever  he  sees  lit  to  do 
so,  before  its  delivery  to  the  bailee,  as  di- 
rected by  the  bailor.  U^flls  v.  American 
Exp.  Co.,  6  Am.  &*  Eng.  R.  Cas.  298,  55 
ll^is.  23,  II  N.  IV.  Rep.  537,  12  N.  W. 
Rep.  441,  42  Am.  Rep.  695. 

A  master  whose  servant  is  injured  by  the 
negligence  of  a  railway  company  whose 
train  comes  into  collision  with  the  train  of 
another  company,  in  which  the  servant  was 
riding,  may  maintain  an  action  for  such  in- 
juries. Berringer  v.  Great  Eastern  R.  Co., 
L.  R.  4  C.  P.  Div.  163,  48  L.  J.  C.  P.  Div. 
400,  27  W.  R.6&1. 

An  action  to  recover  assets  of  a  railroad 
company  claimed  to  have  been  fraudulently 
disposed  of  or  converted  to  the  use  of  direc- 
tors or  trustees  of  the  company,  should  be 
in  the  name  of  the  corporation.  A/kn  v. 
New  Jersey  S.  R.  Co.,  49  Hmo.  Pr.  {N.  V) 
14. 

Where  the  articles  and  by-laws  of  a  rail- 
road company  do  not  recognize  any  such 
officer  as  a  general  solicitor  or  attorney, 
such  person  has  no  authority  to  institute 
and  carry  on  suits  without  the  sanction  or 
permission  of  the  board  of  directors.  Z>« 
Moines  &-  M.  R.  Co.  v.  Chicago  &-  N  W 
R.Co..  2  McCrary  {I/.  S.)  531,  7  Fc^i.  Rep. 
748. 

A  widow  cannot  maintain  an  action,  be- 


fore her  interest  in  her  dcccMseii  liii>l)and's 
r<';iity  has  been  set  apart,  to  compel  a  rail- 
way company  to  purchiise  lior  allf^jed  dower 
interest  in  a  right  of  way  granted  by  him. 
/'/////<•  V.  liurlinjiton  H^  M.  R.  Co.,  49  /oiaa, 

134. 

(2)  Injuries  to  lanit. — A  subsequent  pur- 
chaser of  lands  cannot  maintain  an  action 
for  damages  against  a  railroad  company  for 
injuries  resulting  for  surveying  trial  lines 
over  the  land  for  the  location  of  its  road. 
Galveston,  II.  &*  S.  A.  R.  Co.  v.  I'/eiiffer,  1 1 
.////.  (^  Eng.  R.  Cau  373,  56  Te.v.  66. 

The  owner  of  land  adjoining  a  railroad 
who  sold  the  same,  reserving  no  rent  and 
no  rent  having  been  assigned  to  him,  and 
who  afterwards  receives  l)ack  a  deed  for  the 
same,  cannot  recover  damages  from  injury 
done  to  the  property  when  the  title  was 
outstanding,  even  though  while  out  of 
ownership  he  was  permitted  by  the  owner 
to  collect  the  rents  for  his  own  use.  Tliomp- 
son  v.  Pennsylvania  R.  Co.  51  N,  J.L.\2,  15 
Atl.  Rep.  833. 

(Jl)  Injuries  to  personal  properly — A  per- 
son in  possession  of  goods  belonging  to 
another  may  maintain  an  action  against  a 
railroad  company  for  negligently  injuring 
them.    Moran  v.  Portland  Steam  Packet  Co., 

35  ^fe.  55- 

Either  the  owner  or  the  consignee  of 
goods  shipped  by  rail  may  maintain  an 
action  against  the  company  for  damage  or 
loss.  Western  &^  A.  R.  R.  Co.  v.  Kelly,  1 
Head  {Tenn.),  158, 

Where  a  family  picture  kept  as  an  heir- 
loom is  loaned  by  the  real  owner  tempo- 
rarily to  his  sister,  and  is  injured  while 
being  carried  on  the  railroad,  the  right  of 
action  for  the  injury  is  in  the  owner,  and 
not  in  the  one  to  whom  it  is  loaned.  Lock- 
hart  V.  IVestern  &^  A.  R.  Co.,  73  Ga.  472, 
54  Am.  Rep.  883. 

Where  a  horse  is  injured  by  a  street-car 
company  while  in  the  possession  of  an  auc- 
tioneer for  sale,  who  has  the  privilege  of 
using  it  until  sold,  but  who  was  under  no 
liability  to  the  owner  for  an  injury  to  the 
same,  the  auctioneer  cannot  maintain  an 
action  against  the  street-car  company  for 
the  injury.  Claridge  v.  South  Stajford- 
shire  T.  Co.  [1892].  i  Q.  B.  422. 

Plaintiflf  shipped  goods  from  Canada  to 

England  "to  be  delivered  to order  or 

his  assigns,  he  or  they  paying  the  freight." 
The  shipper  indorsed  the  bills  of  lading  to 
various  purchasers  who  paid  drafts  on  them 


ACTIONS.  4  «. 


af) 


(or  till!  piicf;  ili<;  noixls  li,i\ mjj  Ijclmi  daiii- 
aj{i*(l  in  transit,  tliey  made  claim  u|«)ii  ♦''« 
sliippcr  for  tlie  amonnt  thereof.  Held,  that 
the  shipper  had  such  an  interest  as  would 
enable  liim  to  recover  against  the  carriers 
for  the  dama)j;e.  Ilatcly  v,  Mirchants  De- 
s/)titi/i  Co.,  2  Oiil.  385. 

4.  l>ciiiiiiMl  lM>l'or<>  siiil.— Where  it  is 
claimed  that  a  railroad  coini)any  does  not 
furnish  a  certain  town  with  necessary  rail- 
road facilities,  it  is  not  necessary  to  make  a 
demand  on  the  company  before  instituting 
suit  to  compel  the  company  to  furnish  such 
facilities.  Northern  Pac.  A*.  Co.  v.  Territory 
ex  nl.,  29  .,•/;//.  &*  A//*,'.  A'.  Cas.  82,  3  Was/i. 
Ty.  303,  13 /'ru-.  Kip.  604. 

5.  NotliHi  but'orc!  Hult.— The  New 
Hampshire  statute  of  1847,  requiring  notice 
before  suit,  applies  to  all  railroads,  and  is 
not  restricted  to  public  corporations.  I.atn- 
phier  v.  IVorces/ir  6^-  A'.  A'.  Co.  33 N.  II.  495. 

A  provision  in  a  private  railway  act  that 
no  action  shall  be  commenced  against  any 
person  for  any  act  done  in  pursuance  of  the 
statute  unless  twenty  days' previous  notice 
in  writing  shall  have  been  given,  apph'es  to 
the  company  for  whose  benefit  the  act  was 
passed,  as  well  as  to  a  single  individual. 
lioyds.  London  &*  C.  R.  Co.,  6  D.  P.  C.  721, 
4  li/njf.  N.  C.  669,  6  Sco/t,  461. 

Where  a  company,  by  its  act,  is  entitled 
to  notice  before  any  action  can  be  brought 
against  it  for  any  thing  done  or  omitted  in 
pursuance  of  its  act,  and  an  action  is  com- 
menced against  it  for  money  received  to  the 
plaintiff's  use,  a  plea  that  no  notice  of  action 
was  given,  without  alleging  that  the  money 
was  received  in  pursuance  of  its  act,  is  bad. 
Gar/on  v.  Great  Western  A\  Co.,  El.,  Bl.  &* 
El.  837,  5  Jur.  N.  S.  1244,  28  L.  j.  Q.  li. 
321. 

An  action  against  a  railway  company  for 
liquidated  damages  incurred  by  obstructing 
a  canal  is  an  action  for  something  done 
under  the  company's  act,  providing  that  no 
action  shall  be  brought  for  anything  done 
or  omitted  to  be  done  in  pursuance  thereof 
without  twenty  days'  notice,  and  the  limita- 
tion clause  applies.  Kennet  <&»  A.  Canal 
Navigation  v.  Great  Western  R.  Co.,  7  Q.  li. 
824,  4  Railw.  Cas.  90,  9  Jur,  788,  14  L.  J. 

Q.  n.  325. 

A  provision  in  a  railway  company's  act, 
that  no  action  shall  be  brought  for  anything 
done  in  pursuance  thereof  unless  notice  in 
writing  is  given,  does  not  apply  to  an  action 
for  overcharges.     Carton  v.  Great  Western 


A".  Co.,  1:1.,  HI.  i^  i.l.  837,  5  Jur,  N.  S.  1344, 
28/..  7.  Q.  //.  321. 

Under  its  special  act  the  defendant  com- 
pany was  entitled  to  notice  of  an  action  to 
recover  excessive  charges  for  the  carriage 
of  goods.  A'ent  v.  Great  Western  R,  Co,,  3 
C.  /y.  714.,  16  L.  7.  C.  P.  72. 

A  notice  of  action  for  extortion  in  carry- 
ing goods  need  not  contain  a  demand  of 
interest  in  order  that  the  arbitrator  to  whom 
the  matter  is  submitted  may  award  interest. 
Edwards  v.  Great  Western  R,  Co.,  11  C,  li. 
588.  21  L,  J.  C.  P.  72. 

Where  a  company  is  sued  as  a  carrier  no 
notice  of  action  is  necessary,  although  the 
act  incorporating  the  company  provides 
that  no  action  should  be  brought  for  "  any- 
thing done  or  omitted  to  be  done,"  in  pur- 
suance of  the  act,  unless  fourteen  days' 
previous  notice  was  given.  Palmer  v.  Grand 
Junction  R.  Co.,  4  M.  <S-  W,  749,  7  D.  P.  C. 
232. 

So  held,  although  the  loss  was  caused  in 
consequence  of  the  fences  on  its  line  having 
broken  down,  whereby  the  train  was  upset. 
Palmer  v.  Grand  Junction  R.  Co.,  4M.&* 
W.  749,  7  I).  P.  C.  232. 

Where  an  action  is  brought  against  a  rail- 
way company  for  negligence  in  carrying  a 
passenger,  it  is  not  entitled  to  the  notice 
provided  by  its  act,  where  an  action  is 
brought  for  anything  done  or  omitted  to  be 
done  in  pursuance  of  the  act,  since  in  such 
case  the  company  is  sued  as  a  carrier  and 
not  for  anything  done  or  omitted  under  the 
act.     Carpue  v.   London  <S«»  B.  K.  Co.,  5  Q. 

B.  747,  D.  A-  M.  608,  3  Railw.  Cas.  692,  8 
Jur.  464, 13  A.  J.  Q.  B.  138.— Questioned 
IN  Hammack  7/.  White,  8  Jur.  N.  S.  796,  11 

C.  B.  N.  S.  588. 

O.  What  actions  are  local.'*'— A  bill 
filed  by  creditors  of  a  railroad  company  for 
the  appointment  of  a  receiver  is  of  a  "  local 
nature,"  within  the  meaning  of  U.  S.  Rev. 
Stat.  i$^  740-742,  relating  to  the  districts  in 
which  suit  may  be  brought.  East  Tenn.,V. 
6-  G.  R.  Co.  V.  Atlanta  6*  F.  R.  Co.,  49  Fed. 
Rep.  608. 

A  suit  to  restrain  defendant  from  remov- 
ing earth  from  plaintiff's  land  is  an  action 
for  "  an  injury  to  real  property,"  within  sec. 
4994  of  Mansf.  Dig.,  and  must  be  brought 
within  the  county  where  the  land  lies.     Cox 


*  Where  venue  may  be  laid  in  suits  against 
corporations  in  state  courts,  see  note,  57  Am.  & 
Eng.  R.  Cas.  96. 


•4(i 


ACTIONS,  7. 


V.  5/.  Louis,  I.  M.  c.~  .v.  A'.  C'r'..  55  .Irk.  454, 
18  S.  IV.  Rep.  630. 

Actions  for  tlic  (lowding  ot  pellicular 
lands  are  local.— J/t^/v/j  \.  .Missouri  l\ic.  R. 
to.,  78  Tex.  1/,  14  S.  ir.  R,p.  22i;.  Kli- 
VlbWING  Livingston  7'.  Ji'lfrisoii,  1  Brock 
enbrough  (U.  S.),  203.  Dim  in(;i;i.shku  in' 
Western  Union  Tel.  Co.  t'.  Piiillips,  2  Tex. 
Civ.  App.  608. 

An  action  against  a  railroad  to  recover 
damages  for  the  floodiiij^  of  lands  need  not 
be  brought  in  tiie  coimiy  where  the  laud 
is  situated.  Sucii  aciiuii  is  not  of  a  iol.i1 
nature  wiliiin  the  incaii.ny  of  the  Missis- 
sippi code.  jlrciiibaU  v.  Mississippi  &-»  T. 
R.  Co.,  66  .Uiss.  .\''\.  6  So.  Rip.  23S. 

An  action  ;ij;ani.si  a  town  to  recover  tiie 
amount  of  boiul.s  issued  by  it  in  aid  of  a 
railroad  is  niit  an  action  to  establish  a  lien 
on  the  real  estate  of  the  town,  and  is  there- 
fore not  within  the  provisions  of  N.  Y. 
Code  of  Civ.  Proc.  ^  892,  which  requires  ac- 
tions to  establish  liens  on  real  property  to 
be  tried  in  the  county  where  such  pro|jerty 
is  situated.  Becker  v.  Clerry  Creek,  70 
Hun{N.  r.)6. 

7.  What  aie  truiisltory.— (i)  In  gen- 
eral.— Actions  are  deemed  transitory  when 
the  transactions  on  which  they  were  founded 
might  have  taken  place  anywhere,  but  are 
local  where  their  cause  is  in  its  nature 
necessarily  local.  Nonce  v.  Richmond  &• 
D.  R.  Co.,  33  Fed.  Rep.  429. 

Actions  based  upon  the  negligence  of  the 
defendant  are  personal  and  transitory. 
Home  his.  Co.  v.  Pennsylvania  R.  Co- ,  1 1 
Hun  V  '.     Y.)  182. 

Under  Ind.  Pev.  Sts.  §  796,  an  action 
against  a  corporation  may  be  instituted  in 
any  county  where  the  corporation  has  an 
office  or  an  agent  upon  whom  process  can 
be  served,  and  said  section  is  not  in  conflict 
with  ^  30  of  the  act.  New  Albany  iS-  S.  R. 
Co.  v.  Haskell,  11  Ind.  301. 

An  action  to  recover  for  an  injury  result- 
ing from  the  negligence  of  the  defendant 
may  be  brought  in  any  county  where  the 
defendant  is  found  and  served  with  process, 
such  action  being  transitory  and  personal. 
Harney  v.  Burnstenhinder,  64  Barb.  {N.  Y.) 
212,  7  Lans.  210. 

Actions  against  railroad  companies  may 
be  brought  in  any  county  in  which  any  part 
of  their  lines  may  be.  Louisville  &>  N.  R. 
C.  V.  Saucier,  (Miss.)  i  So.  Rep.  511. 

An  action  may  be  brought  against  a  rail- 
road curporatio  J  for  services  rendered  it  in 


any  county  where  it  has  an  olFice  for  the 
transaction  of  business,  or  any  person  re- 
sides upon  whom  process  may  be  seived. 
Section  796  of  the  Indiana  Code  of  1852  is 
still  in  force.  Evansville  &*  I.  R.  Co.  v. 
Spcllbring,  \  Ind.  App.  167,  27  A'.   E.   Rep. 

239- 
(2)    Actions  for    personal   injuries. — By 

the    common    law,   actions  ex   delicto    for 

injuries   to    personal   property,  or   to  the 

person,  are    transitory,  and    suit    may  be 

brought    wherever    plaintifT   or    defendant 

resides  when  suit  is  instituted.     Hanna  v. 

Grand  Trunk  R.  Co.,  41  ///.  App.  116. 

Actions  for  personal  injuries  are  transitory 
in  their  character,  and,  notwithstanding  the 
death  of  the  person  injured,  may  be  brought 
in  a  stale  other  than  that  in  which  the  acci- 
dent occurred,  provided  the  right  accrued  in 
the  latter  state  under  a  statute  similar  in  im- 
port and  character  to  the  one  in  force  in  the 
jurisdiction  in  which  the  suit  is  brought. 
Cincinnati,  H.  &'  D.  R.  Co.  v.  McMullen, 
38  Atn.  Gf  Eng.  R.  Cas.  165,  117  Ind. 
439,  20  A^.  E.  Rep.  287. — Following  Burns 
V.  Grand  Rapids  &  I.  R.  Co.,  113  Ind. 
169. 

A  passenger  being  injured  by  the  negli- 
gence of  a  railroad  company  in  another 
state  may  maintain  an  action  for  such 
injury  in  New  Jersey.  Such  action  is 
transitory,  and  the  venue  may  be  laid  in 
the  county  in  which  the  defendants  were 
served  with  process.  Ackerson  v.  Erie  R. 
Co.  Zi  N.J.  L.  309. 

A  tort  to  the  person,  although  alleged  in 
the  formal  and  technical  language  of  plead- 
ing as  contra pacem,  is  only  a  civil  injury  in 
contemplation  of  law ;  and  the  right  of  re- 
dress, like  any  other  personal  right,  accom- 
panies the  party  injured  wherever  he  may 
go  and  have  an  opportunity  to  enforce  his 
remedy.  Nonce  v.  Richmond  &■' D.  R.  Co., 
33  Fed.  Rep.  429. 

Actions,  whether  allowed  by  statute  or 
common  law,  brought  to  recover  for  per- 
sonal injuries,  are  transitory ;  thus,  on  de- 
murrer, it  appeared  that  the  defendant  com- 
pany existed  under  the  laws  of  this  state, 
and  was  operating  a  certain  railroad  in  the 
province  of  Quebec,  and  it  was  held  that 
the  plaintiff  could  sustain  an  action  against 
the  defendant  for  personal  injuries  alleged 
to  have  been  sustained  by  him  in  said  prov- 
ince through  the  neglect  of  the  defendant 
to  comply  with  the  statute  law  of  that 
province.      McLeod   v.   Connecticut   &*  P, 


ACTIONS.  «,  O. 


a:  A'.  Co.,  28  Am.  iL~  Eii^.  A.  Cus.  644,  5S  /  V. 
727,  6  .///.  A'ty>.  648.— Quoting  Denmck 
V.  Central  R.  Co.  of  N.  J.,  103  U.  b. 
II. 

Actions  for  injuries  to  the  person  caused 
by  a  railroad  company  are  transitory  in 
their  nature,  and  may  be  brouglit  in  any 
county  throughout  which  such  road  runs. 
Soit//i  Florida  A.  Co.  v.  H'ecsc,  32  J- la.  212, 
13  So.  Alp.  436. 

Where  a  railroad  is  chartered  both  in 
Tennessee  and  Mississippi,  and  has  but  one 
set  of  officers,  and  a  passenger  is  injured  in 
Mississippi  while  travelling  on  a  single 
ticket,  and  sues  for  damages  in  Tennessee, 
it  is  immaterial  whether  the  corporation  be 
sued  as  a  Tennessee  or  a  Mississippi  cor- 
poration. Missi.'isippi  &^  T.  A.  Co.  v.  Ayres, 
16  Lea  (7'f/in.).  725. 

8.  Wliut  actions  arc  foiiiidcd  011 
contract.— An  action  against  a  carrier  for 
a  breach  of  contract  of  transponation  is 
one  arising  on  the  implied  contract,  and  is 
not  an  action  i:v  delicto.  Evansville  &•  A. 
A.  Co.  V.  Kyte,  6  hid.  App.  52,  32  A'.  E.  Acp. 

1134- 

An  action  for  failure  to  safely  carry  goods 
is  one  growing  out  of  contract,  and  is  there- 
fore not  included  in  L.  Code,  art.  165,  mak- 
ing an  exception  as  to  trespass,  etc.,  to  the 
rule  requiring  actions  to  be  brought  at  the 
place  of  domicile.  Gossin  v.  Williams  A^ 
M.  L.  &-  T.  A.  <S-  S.  Co.,  36  La.  Ann.  186. 
—Quoted  in  Caldwell  v.  Vicksburg,  S.  & 
P.  R.  Co.,  39  Am.  &  Eng.  R.  Cas.  239,  40 
La.  Ann.  753;  St.  Julien  v.  Morgan's  L.  & 
T.  R.  &  S.  Co..  33  Am.  &  Eng.  R.  Cas.  92, 
39  La,  Ann.  1063,  3  So.  Rep.  280. 

Where  the  controlling  facts  in  a  com- 
plaint show  that  the  cause  of  action  is 
based  upon  a  contract,  other  less  important 
averments  of  negligence  or  fraud  do  not 
make  the  cause  of  action  one  of  tort. 
Aol//i/iild V.  Grand  Trunk  A.  Co.,  30  N.  F. 
S.  A'.  6  -,  10  Civ.  Pro.  Aep.  53,  10  N.  V. 
Supp.  j6. 

In  an  action  for  damages,  the  complaint 
alleged  that,  in  consideratio-i  ol  the  promise 
of  the  defendant  to  keep  stock  out  of  the 
crops  of  the  plaintiff,  the  latter  had  granted 
the  former  leave  to  enter  upon  his  farm  and 
construct  its  line  of  road  across  such  farm, 
but  that  the  defendant  had  permitted  stock 
to  enter  upon  and  destroy  such  crops. 
HM,  that  the  action  is  one  upon  contract, 
and  not  for  a  tort.  Cincinnati,  IV.  &*  M. 
R.  Co.  V.  Harris,  61  Ind.  290. 


i>.  Whal  aition^i  sound  in  tort.'  — 

All  action  to  recover  lor  injuries' to  a  pas- 
senger caused  by  the  upsetting  of  a  coach  is 
an  action  for  tort,  though  it  involves  the 
violation  of  a  contract  between  the  carrier 
and  the  passenger  to  safely  carry ;  yet  the 
plaintiff  may  waive  the  tort  and  sue  in  as- 
sumpsit. Salto/i stall  V.  Stockton,  i  Taney 
((/.  S.)  II. 

An  action  by  a  passenger  to  recover  both 
actual  and  exemplary  damages  for  being 
carried  beyond  his  station  is  an  action  of 
tort,  though  the  complaint  alleges  the  pur- 
chase of  a  ticket  which  would  raise  the  ob- 
ligation of  the  railroad  company  to  safely 
carry.  Galveston,  H.  <S«  S.  A.  A.  Co,  v. 
Aocvier,  i  Tex.  Civ.  App.  \f)\,2o  S.  IV.  Aep. 
843.— Quoting  New  Orleans.  J.  &  G.  N.  R. 
Co.  V.  Hurst.  36  Miss.  665.  Rkviewing 
Cregin  v.  Brooklyn  City  R.  Co..  75  N.  Y.  192. 

While  the  owner  of  live  stock  killed  by  a 
railroad  company  may  waive  the  tort  and 
sue  in  assumpsit,  yet  the  action  is  one 
sounding  in  damages,  and  does  not  come 
within  the  Mississippi  statute  authorizing 
final  judgment  by  default  in  actions  founded 
on  contract.  Mississippi  C.  A.  Co.  v.  Fort, 
44  Miss.  423. 

In  an  action  against  a  railroad  company  by 
a  shipper  of  grain,  the  complaint  alleged 
that  the  defendant,  while  operating  a  cer- 
tain line  of  railroad  running  from  a  certain 
place,  through  the  plaintiff's  place  of  busi- 
ness, to  another  point,  publicly  held  herself 
out  as  a  common  carrier  for  hire  along  such 
railroad ;  that  it  was  the  duty  of  the  de- 
fendant to  provide  the  usual  and  necessary 
means  for  transporting  grain  along  such 
line  from  plaintiff'f  place  of  business,  which 
was  a  station  on  such  railroad ;  that  the 
plaintiff,  at  a  certain  time,  had  purchased  a 
certain  quantity  of  grain  for  shipment  on 
defendant's  railroad,  but  that  the  defendant, 
though  often  requested  so  to  do.  failed  to 
furnish  the  means  necessary  for  transporta- 
tion, and  refused  to  receive  and  transport 
such  grain.  Held,  on  demurrer,  that  the 
complaint  states  a  cause  of  action  arising 
ex  delicto,  and  not  ex  contractu.  Pittsburi(h, 
C.  (&*  St.  L.  A.  Co.  V.  Morton,  61  Ind.  539. 

In  the  following  cases  the  action  7vas  held 
to  sound  in  tort,  and  not  to  be  founded  on  con- 
tract : 

An  action  against  a  carrier  for  the  breach 

*Action  for  tort  not  maintainable  unless  de- 
fendant owes  a  duty  to  plainlif!.  See  note,  ^6 
Am.  St.  Rep.  813. 


28 


ACTIONS.   lO,  11. 


I    ■( 


» 

hi 

t         'i 

1  '  ! 


r:  I' 


of  his  duty  to  curry  safely  <,'oods,  whereby 
the  goods  are  lost.  Tat  tan  \.Citeat  Weston 
li.  Co.,  2  El.  &•  I'.l.  844, 6 ////••  X.  S.  800.  29 
L.J.Q.li.  184,8  W.  R.  6or..— DiscussKU 
IN  Baylis  v.  Lintoit,  L.  R.  7  C.  V.  345.  42 
L.J.  C.  P.  119.28  L.  T.  N.  S.  666. 

An  action  against  a  carrier  for  wrongful 
delivery  afier  a  notice  of  stoppage  in  tran- 
sit. Ponti/ex  v.  Midland  K.  Co.,  25  \V.  K. 
215.  35  L.  T.  y.  S.  706,  37  L.  T.  X.  S. 
403,  L.  A'.  3  (J.  />'.  n.  23,  47  /..  /.  Q.  B.  28, 
26  \V.  R.  209.— Distinguished  IN  Fleming 
V.  Manchester,  S.  .t  L.  R.  Co.,  L.  R.  4  Q-  B- 
D.  81,  39  L.  T.  555.  27  W.  R.  481. 

An  action  to  recover  damages  for  illegally 
obstructing  a  navigable  river.  Doughty  v. 
Atlantic  <>  N.  C.  R.  Co.  78  N.  C.  22.  Mchr- 
hof  Bros.  Brick  Mfg.  Co.  v.  Delaware,  L. 
&  IV.  R.  Co.  (A'./.),  16  Atl.  Rep.  12. 

An  action  against  a  carrier  for  a  failure 
to  stop  at  a  particular  place  and  take  on 
board  the  plaintiff  as  a  passenger,  according 
to  previous  notice  advertised  to  the  public. 
//<■/;•«  v.  M'Caughan,  32  Miss.  17. — DlS- 
TiNGUisHEi)  IN  Thompson  v.  New  Orleans, 
J.  &G.  N.  R.  Co.,  50  Miss.  315. 

An  action  to  recover  the  penalty  of  $10, 
provided  by  Mass.  St.  of  1854,  ch.  23,  grow- 
ing out  of  the  refusal  to  check  a  passenger's 
baggage.  Comnionivealth  v.  Connecticut 
River  K.  Co.,  15  Gray  (Mass.)  447. 

An  action  for  an  assault  by  a  conductor 
upon  a  passenger.  Feeney  v.  Brooklyn  City 
R.  Co.,  36  Hun.  (A'.   I^.)  197. 

10.  Election  between  forms  of 
action. — Where  the  law  imposes  a  duty 
and  the  party  enters  into  a  contract  for  the 
performance  of  it,  suit  may  be  brought 
either  for  the  non-performance  of  the  legal 
duty  or  upon  the  contract ;  but  if  the  law 
imposes  no  duty,  or  if  the  party  is  relieved 
from  performance  of  it,  but  contracts  to  do 
what  he  is  not  required  under  the  law  to  do, 
then  the  only  remedy  is  a  suit  upon  the  con- 
tract. Illinois  C.  R.  Co.  v.  Phelps,  4  ///. 
App.  238. 

Where  a  railroad  company  agrees,  for  a 
consideration,  to  carry  a  passenger  over  its 
road,  and  by  its  negligence  an  injury  results 
to  the  passenger,  he  may,  at  his  election, 
sue  upon  the  contract  or  in  tort.  Pennsyl- 
vania R.  Co.  V.  People,  31  Ohio  St,  537. 
McMurty  v.  Kentucky  C.  R.  Co.,  84  Ky. 
462,  I  S.  IV.  Rep.  815.  Baltimore  City  Pass. 
R.  Co.  V.  A'eoip,  18  Am.  &^  Eng.  R.  Cas. 
220,  61  M(f.  74.  Baltimore  City  Pass.  R. 
Co.  V.  Rewp,  61  Md.  619,  48  Am.  Rep.  134. 


— puOTiNd  Maishail  ?'.  York,  N.  &  13.   K. 
Co"  II  C.  B.  655. 

A  passenger  may  declare  for  a  breach  of 
contract  where  there  is  one;  but  it  is  at  his 
election  to  proceed  as  for  a  tort  where  there 
has  been  personal  injury  suffered  by  the 
negligence  or  wrongful  act  of  the  carrier  or 
the  agents  of  the  company,  and  in  such  action 
the  plaintiff  is  entitled  to  recover,  according 
to  the  principles  pertaining  to  that  class  of 
actions  as  distinguished  from  actions  on 
contract.  Baltimore  City  Pass.  R.  Co.  v. 
R'e/np,  61  Md.  619,  48  Aw.  Rep.  134. 

A  person  who  has  sustained  injuries  by 
reason  of  the  failure  of  a  railroad  company 
to  provide  proper  means  of  transportation  or 
operate  its  trains  as  required  by  the  statute 
(the  Code.  §  1963)  may  bringan  action  on  con- 
tract, or  in  tort,  independent  of  the  statute. 
Pttrcell  V.  Richmond  Sir*  D.  R.  Co.  47  Am. 
&*  Eng.  R.  Cas.  457,  108  N.  C.  414.  12 
S.  E.  Rep.  954,  956.— Quoting  Heirn  v. 
M'Caughan,  32  Miss,  i;  Bowers  v.  Rich- 
mond &  D.  R.  Co,  107  N.  C.  721.  Recon- 
ciling Hannah  v.  Richmond  &  D.  R.  Co., 
87  N.  C.  351. 

Under  the  Tennessee  Code  abolishing  the 
distinction  between  actions  in  tort  and  on 
contract,  the  plaintiff  may  recover  whatever 
damages  he  is  entitled  to,  whether  hrs 
action  sounds  in  tort  or  on  contract.  Hall 
V.  Memphis  6-  C.  R.  Co.,  9  Am.  &•  Eng.  R. 
Cas.  348,  15  Fed.  Rep.  57. 

An  action  against  a  common  carrier  for 
failure  to  carry  safely  goods  delivered  to  it 
is  an  action  of  tort ;  but  an  action  may  also 
be  maintained  in  respect  of  the  contract 
entered  into  between  the  parties.  Tattan 
V.  Great  Western  R.  Co.,  2  El.  <S-  Bl.  844, 
6Jur.  N.  S.  800.  29  L.  J.  Q.  B.  184. 8  W.  R. 
606. — Discussed  in  Baylis  v.  Lintott,  L.  R. 
8  C.  P.  345.  42  L.  J.  C.  P.  119,  28  L.  T.  66> 

One  having  a  right  of  action  for  negli 
gence  in  failing  to  safely  carry,  may  sue 
either  in  tort  or  on  contract,  and  in  detei- 
mining  the  form  of  action  the  nature  of  the 
teniedy  will  be  determined  both  by  the 
form  of  the  pleading  and  the  circumstances 
of  the  case ;  but  as  tort  is  the  natural 
foundation  of  tne  action  a  declaration  will 
be  construed  to  be  in  tort  unless  it  clearly 
appears  that  the  suit  is  on  contract.  Whit- 
tenton  Mfg.  Co.  v.  Memphis  Sf  O.  R.  P. 
Co.,  21  Fed.  Rep.  896. 

11.  Joinder  of  onuses  of  notion.— 
(i)  What  may  de  joined. — Under  the  Indiana 
Code  abolishing  the  distinction  between  ac- 


'i 


ACTIONS,  11. 


29 


tions  growing  out  of  contract  and  actions 
in  tort,  causes  of  action  growing  out  of  the 
two  may  be  united  in  the  same  action. 
Cincinnati,  W.  &*  M.  R.  Co.  v.  Harris,  6i 
Ind.  290. 

Under  the  Mo.  Practice  act,  art.  6,  §  2, 
several  causes  of  action  founded  on  injuries, 
with  or  without  force  to  person  or  property, 
may  be  joined  in  the  same  petition ;  and 
this  would  seem  to  include  all  injuries 
whatever  to  person  or  property,  whether 
real  or  personal,  direct  or  consequential, 
and  whether  the  damages  are  given  by 
common  law  or  by  statute,  single  or  double, 
and  does  include  all  actions  of  trespass  or 
case.  Clark  v.  Hannibal  iS-  St.  J.  R.  Co.,  36 
Mo.  202. 

Under  the  New  York  practice  a  cause  of 
action  growing  out  of  a  failure  of  a  railroad 
company  to  purchase  another  road  at  a 
foreclosure  sale  and  to  reorganize  it,  and  a 
cause  of  action  for  damages  for  breach  of 
the  contract,  may  be  united  in  a  bill  filed 
seeking  a  specific  performance  of  the  con- 
tract. Stanton  v.  Missouri  Pac.  R.  Co.,  15 
Civ.  Pro.  Rep.  (N  V.)  296,  2  N .V.  Stipp. 
298. 

In  Ohio,  several  causes  of  action  for 
penalties,  under  71  Ohio  Laws,  146,  against 
railroads  demanding  excessive  fares  may 
be  united  in  the  same  petition,  and  where 
such  action  stands  for  judgment  on  the 
petition,  it  is  not  error  to  refuse  to  empanel 
a  jury  to  assess  damages.  Cincinnati,  S.  &• 
C.  R.  Co.  V.  Cook,  6  Am.  &*  Eng.  R.  Cas. 
317,  37  Ohio  St.  265. 

In  Pennsylvania,  a  cause  of  action  for 
causing  the  death  of  plaintiff's  child  may  be 
joined  with  one  for  killing  plaintiff's  horse, 
the  latter  being  part  of  the  same  transac- 
tion. Pennsylvania  R.  Co.  v.  Bock,  6  Am. 
&*  Etig.  R.  Cas.  20,  93  Pa.  St.  427. 

In  Texas,  a  suit  against  a  railroad  com- 
pany to  recover  for  various  items  for  over- 
charge of  freights,  excess  of  freight  charges, 
loss  and  damage  to  goods,  though  growing 
out  of  different  shipments,  is  an  action 
upon  an  account,  and  all  the  items  may  be 
joined  in  a  single  suit.  International  &*  G. 
N.  R.  Co.  V.  Donalson,  2  Tex.  App.  {Civ. 
Cas.)  183. 

(2)  What  may  not  be  joined.— Vfhtrt  a 
railroad  company  and  its  employee  are  both 
injured  by  the  same  negligence  of  another 
railroad  company,  the  first  company  has  no 
right,  in  an  action  for  its  own  damages 
against  the  second,  to  sue  also  for  the  use 


of  its  employee  to  recover  the  damages  sus- 
tained by  him  in  excess  of  those  already 
paid  to  him  by  the  plaintiff  in  the  action. 
Central  R.  &>  B.  Co.  v.  Brunswick  Sf  IV.  R. 
Co.,  87  Ga.  386,  13  S.  E.  Rep.  520. 

Where  a  member  of  a  partnership  is  in- 
jured personally  and  the  firm  property  is 
also  injured  by  a  railroad,  both  claims  can- 
not be  united  in  the  same  aplion.  Taylor 
v.  Manhattan  R  Co.,  25  N.  V.  S.  R.  226, 
53  Hun,  305,  6  N.  V.  Supp.  488. 

A  complaint  was  in  three  counts,  the  first 
for  killing  cattle,  the  second  for  killing 
swine,  and  the  third  set  up  an  agreement  to 
carry  cattle,  and  damages  for  a  breach  of 
such  contract,  being  an  injury  to  the  cattle 
by  reason  of  weak  and  insufficient  cars. 
Held,  that  there  was  a  misjoinder  of  causes 
of  action,  the  first  two  counts  being  in  tort, 
and  the  third  on  contract.  Colwell  v.  New 
York&^  E.  R.  Co.  q  How.  Pr.  (N.  V.)  311. 

Plaintiff's  complaint  contained  two  causes 
of  action,  one  to  recover  damages  alleged 
to  have  been  caused  by  the  roadbed  erected 
by  defendant  ponding  water  back  on  plain- 
tiff's land  ;  the  other  to  recover  damages  for 
an  alleged  breach  of  duty  on  the  part  of 
defendant  in  rr^t  putting  up  sufficient  cattle- 
guards,  as  required  by  the  Code,  §  1975, 
whereby  cattle  trespassed  upon  plaintiff's 
enclosed  lands  and  crops.  On  demurrer 
/leldan  improper  joinder  of  causes  of  action, 
the  first  being  for  injury  to  property,  a  tort, 
while  the  second  arose  "  upon  contract," 
for  the  breach  of  an  implied  contract  to 
perform  a  statutory  duty,  and  the  action 
should  be  divided.  Hodges  v.  Wilmington 
&>  IV.  R.  Co.,  105  N.  Car.  170,  10  S.  E. 
Rep.  917.— Approving  Thomas  v.  Utica  & 
B.  R.  R.  Co.  20  Am.  &  Eng.  R.  Cas.  93. 
97  N.  Y.  245.  Quoting  New  York  &  N.  H. 
R.  Co.  V.  Schuyler,  34  N.  Y.  30. 

The  follo^ving  causes  of  action  cannot  be 
ioined: 

A  common  law  action  for  negligence 
and  one  for  statutory  negligence.  Ken- 
drick  V.  Chicago  (&>•  A.  R.  CV.,81  Mo,  521. 

A  cause  of  action  for  a  personal  injury 
and  a  separate  cause  of  action  for  a  subse- 
quent injury  to  property.  Thclin  v.  Ste^vart, 
100  Cal.  372. 

A  claim  by  a  father  against  a  railroad 
company  for  a  personal  injury  to  himself 
and  an  item  for  killing  his  minor  child  at 
the  same  time.  Cincinnati,  H.  &•  D.  R.  Co. 
V.  Chester,  57  Ind.  297. 

A  claim  for  equitable  relief  against  a  rail- 


30 


ACTIONS,   12,  13. 


road  company,  and  a  claim  for  damages 
against  individual  defendants.  Stan/on  v. 
Missouri  l\ic.  R.  Co.,  15  Civ.  Pro.  Rep. 
(iV.   K)  296,  2  .\.    Y.  Supp.  298. 

A  cause  of  aciiun  due  plaintiff  in  his  indi- 
vidual rigiil  on  contract  with  a  railroad 
company,  and  a  cause  of  action  due  him  as 
a  stockholder  of  another  railroad  company, 
where  the  two  causes  of  action  did  not  arise 
out  of  the  same  transaction,  or  transactions 
connected  with  the  same  subject-matter. 
Stanton  v.  Missouri Pac.  R.  Co.,  15  Civ.  Pro. 
Rep.  {N.    Y.)  296,  2  A',    y.  Siifip.  298. 

A  claim  for  damages  for  ;:harging a  pas- 
senger an  excessive  fare,  and  another  for 
being  unlawfully  ejected  from  the  train  at 
another  time  ;  but  where  it  appears  that  the 
demand  for  one  of  the  claims  is  illy  pleaded 
the  court  should  strike  it  out  and  overrule 
a  demurrer  for  a  misjoinder  of  the  two 
causes  of  action.  Sullivan  v.  AVti'  York,  IV. 
H.  &•  H.  R.  Co.,  61  How.  Pr.  (A'.  1'.)  490, 
I  Civ.  Pro.  Rep.  2S5. 

An  action  for  assault  committed  in  put- 
ting a  passenger  off  a  train  and  an  action 
ex  contractu  for  breach  of  the  contract  to 
carry  the  passenger.  Such  misjoinder  of 
actions  is  demurrable,  although  the  defect 
may  be  cured  by  trial  and  verdict  where  no 
demurrer  has  been  filed.  Norfolk  &>  W.  R. 
Co.  V.  Wysor,  26  Am.  &*  Eng.  R.  Cas.  234, 
82  Va.  250. 

A  cause  of  action  against  a  railroad  com- 
pany for  raising  an  embankment  so  as  to 
flood  lands,  and  a  cause  of  action  growing  out 
of  a  breach  of  a  contract  to  niaintain  a  farm 
crossing.  Thomas  v.  Ulica  6^  /?.  A'.  A".  Co., 
20  Am.  &>  Eni^.  R.  Cas.  93,  97  A'.  )'.  245; 
reversintf  24  //«;/,  488.* — Foi.i.owiNd  New 
York  &N.  H.  R.  Co.  v.  Schuyler.  34  N.  Y. 
30.— Ai'PROVKn  IN  Hodges  v.  Wilmington 
&  W.  R.  Co..  105  N.  Car.  170,  10  S.  E.  Rep. 
917.  Reviewed  in  Leggett  7/.  Rome,  W.  & 
O.  R.  Co..  41  Hun  (N.  Y.)  80,  2  N.  Y.  S.  R. 
3«2. 

12.  Statutory  and  ooiiiiiiun  law  ac- 
tions*.— Where  the  remedy  is  a  statutory 
one.  and  a  new  right  is  given  and  specific 
relief  prescribed,  tiie  remedy  is  confined  to 
that  which  the  statute  gives  ;*but  this  rule 
does  not  ai)ply  where  no  new  remedy  is  given 
by  the  statute  which,  whileenjoining  a  new 
duty  upon   the  company,  leaves  the  right, 


*  Cause  of  action  for  failure  to  erect  cattle- 
((uards  cannot  be  joiiieii  with  cause  of  action  for 
rtooding  lanils,  see  44  Am.  &  E.vc.  R.  Cas.  494, 
.iti-itr. 


which  corresponds  with  that  duty,  to  be  en- 
forced by  old  remedies.  Graham  v.  Dela- 
uhire  &•  H.  C.  Co.,  46  Hun  (A'.  1'.),  386.  12 
A',  Y.  S.  R.  390.— Distinguishing  Cran- 
dall  7'.  Eldridge,  46  Hun,  411. 

The  extraordinary  remedy  provided  by 
Wagn.  Mo.  Stat.  310,  31 1.  ^  43,  for  a  failure 
of  a  railroad  comjjany  to  fence  is  only  cumu- 
lative, and  does  not  prevent  an  action  to 
enlf)rce  a  common-law  remedy  for  such 
failure,  /da  v.Haniii/ial &^  St.  J.  R.  Co.,  45 
Mo.  469.— Rkvikwing  Riddle  v.  Proprie- 
tors, etc.,  7  Mass.  186;  Morr's  z/.  Andro- 
scoggin R.  Co.,  39  Me.  273;  Calvert  v. 
Hannibal  &  St.  J.  R.  Co.,  34  Mo.  242. 
—  Fi)Li-<)WEn  IN  Creason  ?'.  Wabash,  St.  L. 
&  !'.  R.  Co.,  17  Mo.  App.  III.  Quoted  in 
Hill  7>.  Missouri  Pac.  R.  Co.,  49  Mo.  App. 
520. 

Where  plaintiff  sues  f  ir  negligence  as  at 
common  law,  he  cannot  .d)andon  the  cause 
of  action  as  thus  stated  in  his  complaint, 
and  recover  under  the  statute.  Davis  v. 
Utah  Southern  R.  Co.,  3  Utah,  218,  2  Pac. 
Rep.  521.— DiSTiNGUi.sHiNG  Anderson  v. 
Wasatch  &  J.  V.  R.  Co.,  2  Utah.  518.  Re- 
viewing Siou.x  City  &  P.  R.  Co.  v.  Stout. 
17  Wall.  (U.  S.)657. 

A  provision  in  a  railway  act,  that  any 
penalty  imposed  thereby,  the  recovery  of 
which  is  not  otherwise  provided  for,  may  be 
recovered  by  summary  proceedings  upon 
complaint  before  two  or  more  justices,  does 
not  bar  the  party  entitled  to  his  remedy  by 
action.  Collinson  v.  A'ewcastle  &^  D.  R.  Co., 
I   C.  6-  A'.  546. 

The  C.  V.  Railroad  had.  in  the  process  of 
its  construction,  the  legal  right  to  pass  over 
and  destroy  a  portion  of  a  certain  higlnvav 
in  the  town  of  E^.,  and  a  general  statute  of 
the  state  provided  a  specific  remedy  for  the 
injury  so  done.  Held,  that  to  recover  f<ii 
the  acts,  which  were  done  according  to  law, 
the  declaration  should  be  specially  founded 
upon  the  statute,  and  that  an  action  for  such 
acts  could  not  be  maintained  upon  a  declara- 
tion at  common  law.  Henniker  v.  Contoo 
cook  R.  Co..  29  \\  H.  146.— Distinguish  I'D 
in  Eaton  v.  Boston,  C.  &  M.  R.  Co.,  51  N. 

H.  504. 

13.  Splitting:  or  severance— Claims 
for  damages  growing  out  of  a  single  wrong 
must  be  united  in  a  single  action,  and  where 
there  are  various  items  of  damage  growing 
out  of  the  wrong  they  must  all  be  unitetl. 
Wichita  &>  \V.  R,  Co.  v,  Beebe,  39  Kan.  465, 
iS  />,u\  Rep.  502. 


ACTIONS,   14. 


81 


A  claim  lot  damage  for  killing  several 
cattle  at  the  same  time  constitutes  but  one 
cause  of  action,  but  if  they  are  killed  at  dif- 
ferent times  each  killing  constitutes  a  sepa- 
rate cause  of  action,  and  may  be  sued  on 
separately.  Pttcket  v.  St.  Louis,  I.  M.  <Sw  .S'. 
R.  Co.,  25  Mo.  App.  650.  Brannenburg  v.  In- 
dianapolis, P.  &"  C.  A'.  Co.,  13  /«</.  103. 

A  company  cannot  enjoin  separate  actions 
by  partners  in  their  individual  name  before 
a  justice  of  the  peace  for  killing  live  stock, 
on  the  ground  that  by  splitting  the  action 
the  company  is  deprived  of  an  appeal  on 
account  of  the  small  amount  involved. 
The  company  has  a  right  to  consolidate  the 
actions  and  appeal,  if  the  judgment  is  ad- 
verse. Gu//,  C.  &*  S.  F.  R.  Co,  V.  Bacon,  3 
Tex.  Civ.  App.  55.  21  S.  W.  Rep.  783. 

Where  the  defendant  during  the  years 
1885,  1886  and  1887  failed  to  fence  its  road, 
whereby  stock  came  upon  and  damaged 
plaintiff's  adjoining  piisture  in  each  of  said 
years,  and  in  1887  plaintiff  instituted  suit 
and  recovered  for  damages  thereby  inflicted 
in  1886,  he  cannot  afterwards  maintain  an 
action  to  recover  damages  inflicted  in  1885, 
so  splitting  his  demand  and  vexing  defend- 
ant with  different  actions  ic  separate  items 
of  damage,  known  to  have  been  inflicted  at 
the  time  of  the  former  suit,  as  all  such 
items  of  damage  flow  from  the  one  viola- 
tion of  the  statute.  Steiglider  v.  Missouri 
Pac.  R.  Co.,  i^Mo.  App.  511. 

A  change  in  the  grade  of  an  alley  done 
under  color  of  legal  right  is  presumptively 
permanent  in  character,  and  a  lot-owner 
whose  property  is  injured  thereby  cannot 
split  his  cause  of  action,  but  must  recover 
all  damages,  past  and  prospective,  in  one 
action.  Lafayette  v.  Nagle,  113  Ind.  425, 
15  A''.  E.  Rep.  I,  12  West.  Rep.  637. 

When  a  person  answerable  in  contract  to 
two  jointly,  settles  with  one  of  them,  so 
that  this  one  has  no  longer  any  real  interest 
in  the  matter,  there  is  a  severance  of  the 
cause  of  action,  and  the  debtor  is  liable  in 
an  action  at  law  to  the  other  alone.  Boston 
fi-  M.  R.  Co.  V.  Port/and,  S.  &*  P.  R.  Co., 
lit,  Mass.  498. 

Where  a  shipper  sues  a  railroad  company 
to  recover  a  loss  for  damage  to  goods  while 
being  shipped,  and  states  in  his  petition 
that  he  has  transferred  one-half  of  his  right 
of  action  to  an  insurance  company,  and  that 
his  suit  for  one-half  of  the  damages  sus- 
tained is  for  the  use  of  the  insurance  com- 
pany, tiie  averment  does  not  nuike  the  in- 


surance company  a  plaintiff,  and  it  is  not 
necessary  to  show  how  the  insurance  com- 
pany acquired  its  interest.  If  plaintiff  had 
not  averred  that  he  was  suing  as  well  for 
himself  as  for  the  insurance  company,  the 
defendant  might  have  defeated  his  action 
by  showing  a  transfer  of  the  cause  of  action. 
Last  Line  6>»  R.  R.  R.  Co.  v.  Ha/t,  64  Tex. 
615. 

14.  Coiiiiolidatioii.— A  c(jnipany  can- 
not complain  of  the  consolidation  of  three 
actions  against  it  for  injuries  to  as  many 
members  of  the  same  faniil\  at  the  same 
time,  where  it  has  theretofore  moved  for 
such  consolidation,  although  the  court  at 
the  time  overruled  the  motion  and  held 
that  there  should  be  a  separate  verdict  in 
each  action.  Union  Pac.  R.  Co.  v.  Junes, 
49  Fed.  Rep.  343,  4  U.  S.  App.  1 1 5,  i  C.  C. 
A.  282. 

Under  the  New  York  statute  a  right  of 
action  for  an  injury  to  property,  and  one  for 
an  injury  to  the  person,  each  being  simul- 
taneous, may  be  consolidated.  Rosenberg 
v.  Staten  Island R.  Co.,  38  A^.  Y.  S.  R.  106, 
14  A'.  Y.  Supp.  476. 

Where  two  actions  are  brought  against  a 
company,  both  based  on  negligence  and 
growing  out  of  the  same  accident,  one  for 
injuries  to  personal  property  and  the  other 
for  injuries  to  the  person,  the  company  may 
set  up  in  each  action  the  pendency  of  the 
other,  or  may  have  a  consolidation  of  the 
two  actions  ;  but  if  it  fails  to  do  so  after  a 
recovery  in  one  action,  it  is  not  entitled, 
under  the  N.  Y.  Code  of  Civ.  Proc.  §  544, 
to  an  order  permitting  it  to  serve  a  supple- 
mental answer  in  the  untried  action  setting 
up  such  recovery  as  a  bar.  Mc Andrew  v. 
Lake  Shore  &^M.  S.  R.  Co.,  70 Hun  {N.  Y.) 
46. 

A  motion  to  consolidate  three  pending 
suits  for  foreclosures  of  different  mortgages 
given  by  a  railroad  company  will  not  be 
granted  when  the  whole  of  the  suits  are  not 
ripe  for  decree  and  nothing  can  be  gained 
fur  the  purpose  of  a  hearing.  Mercantile 
Trust  Co.  V.  Missouri.  K.  dr'  T.  R.  Co. ,  43 
.Int.  6-  Eng.  R.  Cas.  469,  41  Fed.  Rep.  8. 

A  proceeding  by  a  company  to  condemn 
land,  and  a  proceeding  against  the  company 
for  taking  the  land  without  condemnation, 
cann(jt  be  consolidated  under  Wis.  Rev. 
Stat.  1858,  ch.  125,  §  42,  providing  for  the 
consolidation  of  actions  which  might  have 
been  joined.  Blescli  \.  CIticago  <S-  N.  VV. 
R.  Co.,  44  Wis.  593. 


ACTIONS,  15,  10.— ADMIRALTY,  1. 


Where  several  actions  against  a  railroad 
are  consolidated,  and  some  of  the  causes  of 
action  are  discontinued,  the  costs  in  the 
discontinued  suits  cannot  be  embraced  in 
those  not  discontinued.  Blake  v.  Michigan 
S.  ^  N.  I.  R.   Co.,  17  //tfw.  Pr.  (iV.    V.) 

228. 

FlainlilT  brought  two  suits  against  a  rail- 
road company— one  to  recover  damages  for 
a  failure  to  receive  and  .hip  lumber,  the 
other  to  recover  ftr  a  '- '  'o  receive  and 
ship  cross-ties  at   ■<   ri  ii     time.      The 

company   moved   to  i''     ;    the    two 

suits  and  to  dismiss  on  ilie  ground  liat  tiie 
amounts  when  combined  would  exceed  the 
jurisdiction  of  tlie  co.irl,  wh'ch  tiic  ''ourt 
refused.  ////J,  that  tlie  <  ;u  cs  oi  .  ...ion 
were  separate  and  that  the  two  aniens 
could  be  maintained,  and  the  discretion  of 
the  trial  court  in  consolidating  or  refusing 
to  consolidate  suits  will  not  be  reversed, 
unless  there  is  a  clear  abuse  of  such  dis- 
cretion. Texas  &^  P.  H.  Co.  v.  Naj^s,  2  Tex. 
A  pp.  (Civ.  Cas.)  341. 

15.  Uiscoiitinuauce. — Where  several 
suits  have  been  commenced  upon  indepen- 
dent causes  of  action,  but  of  a  like  nature, 
and  the  suits  have  been  consolidated  by 
order  of  the  court,  the  plaintiff  may  discon- 
tinue without  prejudice  as  to  any  one  or 
more  of  the  original  actions.  Young  v. 
Grand  Trunk  R.  Co.,  10  Hiss.  (If.  S.)  550,  9 
Fed.  Rep.  348. 

A  common-law  agreement  to  arbitrate 
the  subject-matter  of  a  suit  and  enter  judg- 
ment upon  the  award  in  the  court  where 
suit  is  pending,  when  rendered,  does  not 
operate  as  a  discontinuance  of  such  suit, 
nor  as  a  stay  of  proceedings,  but  may  be 
used  as  the  basis  for  an  application  for  a 
stay;  neither  can  it  be  pleaded  in  bar. 
Callanan  v.  Port  Huron  dr'N.  IV.  R.  Co.,  61 
Mich.  15,  27  ^V.   W.  Rep.  718. 

The  amendment  found  in  Minnesota  Gen. 
Laws,  1881  (E.X.  Sess.  ch.  26,  §  i),  to  Gen. 
Stat.  1878, ch.  66,  §  262,  relating  to  voluntary 
dismissals  of  actions  by  plaintiffs,  is  simply 
prohibitory,  and  a  dismissal  forbidden  there- 
by does  not  in  itself  operate  as  a  determina- 
tion of  the  action  on  the  merits.  Walker  v. 
St.  Paul  City  R.  Co..  52  Minn.  127, 53  N.  IP', 
Rep.  1068. 

The  mortgagees  of  a  railroad  tiled  a  bill 
for  a  foreclosure,  and  had  a  receiver  ap- 
pointed, and  the  company  appealed.  Pend- 
mg  the  appeal  the  mortgagees  gave  notice 
of  a  discontinuance  of  the  suit,  and  con- 


sented to  a  setting  aside  of  the  order  ap- 
pointing the  receiver,  and  to  payment  of 
costs.  Held,  th.tt  the  appeal  fell  as  a  matter 
of  course,  and  that  the  company  could  not 
continue  it  for  the  purpose  of  enjoining 
certain  parties  who  had  obtained  possession 
of  the  road  under  proceedings  in  a  federal 
court.  Spaulding  v.  Milwaukee  &*  H.  R.  Co., 
12  Wis.  607. 

10.  Dismissal  ns  to  a  joint  defeud- 
ant.  —  Where  a  joint  action  is  begun 
against  two  railroads,  based  upon  negli- 
gence, one  cannot  complain  because  plain- 
tiff discontinues  as  to  the  other.  Pophani  v. 
Twenty-third  St.  R.  Co.,  16  y.  &>  S.  {N.  V.) 
229.     See  97  A^.  y.  652,  Mem. 

When  a  cause  of  action  exists  against  two 
companies  for  an  act  or  omission  for  which 
they  are  severally  liable,  and  suit  is  brought 
against  both,  the  plaintiff  may  at  his  option 
dismiss  as  to  either,  and  prosecute  his  suit 
against  one  of  them  alone.  Central  &^  M. 
R.  Co.  v.  Morris,  28  Am.  &*  Eng.  R,  Cas. 
50,  68  Tex.  49,  3  S.  W.  Rep.  457. 


ACTS  OF  BANKRUFTGT. 
See  Bankruptcy,  4. 


ADMINISTRATION. 

In   general,    see    Executors    and   Adminis- 
trators. 
Of  assets  in  equity,  see  Equity,  9> 


ADMIRALTT. 

Jurisdiction  of  courts  of,  generally,  see  Juris- 
diction, 11. 

1.  Jurisdiction  over  ferry-boats.— 

Under  U.  S.  Rev.  St.  §  5258,  authorizing 
railroad  companies  to  carry  over  their 
"  roads,  boats,  bridges  and  ferries  "  passen- 
gers and  freight  "  on  their  way  from  any 
state  to  another  state  and  to  connect  with 
roads  of  other  states,  so  as  to  have  continu- 
ous lines  of  the  same  to  the  place  of  destina- 
tion," a  steam  ferry-boat,  owned  by  an  inter- 
state railway  company  and  used  exclusively 
in  crossing  a  river  which  is  the  boundary 
between  two  states,  is  not  part  of  a  railway 
so  as  to  exclude  admiralty  jurisdiction  over 
it.  The  same  may  be  liable  for  wages,  as 
provided  by  statute.  The  St.  Louis,  48  Fed. 
Rep.  312. 


^J 

i 


■I 


ADMIRALTY,  2-4.-ADVERSE    POSSESSION,  1,  2. 


33 


il.  Who  are  "  seamen."— Under  U.  S. 

Rev.  St.  §  4612,  providing  tliat  tlie  word 
"ship"  shall  be  taiten  to  comprehend 
"every  description  of  vessel  navigating  on 
any  sea  or  channel,  lake  or  river,  to  whicii 
the  provisions  of  this  title  are  applicable," 
and  that  all  persons  engaged  in  navigating 
tiic  same  should  be  deemed  "seamen,"  a 
person  serving  on  board  a  railway  ferry-boat, 
crossingtheVViIlametteriver,Oregon,in  tide- 
water, is  a  seaman,  and  may  claim  the  benefit 
of  J!  4536,  providing  that  the  -vages  due  any 
seaman  or  apprentice  "  shall  not  be  subject 
to  attachment  orarrestment."  T//f  St. Louis, 
48  Fed.  Rep.  312. 

JJ.  Libel  for  death  of  passenger. — 
A  passenger  was  drowned  from  a  railway 
ferry-boat  crossing  a  river  in  tide-water.  It 
was  shown  that  the  drowning  was  due  to 
the  negligence  of  the  company.  Held,  that 
this  was  a  maritime  tort  for  which  the  ad- 
ministrator of  the  deceased  might  maintain 
a  libel  in  admiralty  under  the  Oreg.  Civ. 
Code,  §  367,  giving  the  personal  representa- 
tive the  right  to  institute  such  suits.  Holmes 
V.  Oregon  &'  C.  R.  Co.,  6  Sawy.  {U.  S.)  262. 

4.  Salvage  service. — A  company  start- 
ing its  trains  from  the  New  Jersey  shore, 
opposite  New  York  city,  received  freights 
in  the  city  and  contracted  with  a  person  to 
carry  them  across  East  river  to  its  trains, 
who  was  to  assume  the  risks  of  transporta- 
tion. While  certain  barges  belonging  to 
the  company  loaded  with  freights  were 
being  towed  across  they  got  caught  in  the 
ice  and  became  helpless,  and  were  drifting 
with  the  ice,  being  in  imminent  danger  of 
being  crushed  against  a  pier.  Upon  those 
aboard  calling  for  help,  a  steam-tug  rescued 
them  and  got  them  safely  into  a  slip.  The 
value  of  the  tug  was  about  $ro,ooo  and  the 
barges  and  cargo  from  $30,000  to  $45,000. 
The  services  in  rescuing  occupied  about 
half  an  hour.  Held,  that  the  service  was 
a  salvage  service  for  which  the  railroad 
company  was  liable,  and  that  $500.  was  a 
reasonable  allowance  therefor,  with  an  addi- 
tional $50  for  an  injury  to  a  hawser.  Sea- 
man V.  Erie  R.  Co.,  2  Ben.  {U.  S.)  128. 


ADMISSIONS. 

As  evidence,  see  Evidence,  VIII,  i. 

In  actions  for  injury  to  animals,  see  Animals, 

V.  7  (</). 
Of  agent,  when  bind  principal,  see  Agkncv, 

37,  38. 

I  D.  R.  D.— 3. 


ADVERSE  POSSESSION. 

Acquirement  of  easement  by,  see  Easements, 

8. 
private  way  by,  see  Private  Ways,  2. 

1.  What  may  be  held  adversely.*— 

Though  a  railroad  company  has  once 
obtained  title  to  lands,  yet  a  title  by  adverse 
possession  may  be  acquired  against  it.  Erie 
&•  N.  R.  Co.  V.  Rousseau,  46  Am.  (S»  Etig.  R. 
Cas.  539,  17  Ont.  App.  483. — .Approving 
Bobbeit  V.  South  Eastern  R.  Co.,  yQ.  B.  D. 
424. 

.  The  land  of  a  railway  company  may  be 
acquired  by  adverse  possession,  although 
such  land  is  required  for  the  purposes  of 
the  railway  and  is  not  superfluous  land. 
Bobhettv.  South  Eastern  R.Co.,L.R.<)  Q.  B. 
Div.  424,  S\  L.  /.  Q.  B.  Div.  161,  46  L. 
T.  N.  S.  31  ;  affirmed  on  evidence.  Weekly 
Notes,  [1882]  p.  92.  See  also  Norton  v.  Lon- 
don &^  N.  IV.  R.  Co.,  L.  R.  13  Ch.  Div.  268, 
41  L.  T.  N.  S.  429,  28  IV.  R.   173 

The  equitable  right  of  a  railroad  com- 
pany to  land  outside  of  its  location  will  not 
prevent  the  acquisition  of  title  by  adverse 
possession.  Littlcfield  v.  Boston  (S-»  A.  R. 
Co.  146  Mass.  268,  5  N.  Eng.  Rep.  833,  15 
N.  E.  Rep.  648. 

A  private  right  of  way  being  an  easement 
may  be  acquired  by  prescription,  and  may 
be  acquired  in  the  property  of  infants  in  the 
hands  of  a  trustee,  where  he  fails  to  bring 
an  action  within  the  time  prescribed  in  the 
Statute  of  Limitations.  Patc/iett  v.  Pacific 
Coast  R.  Co.,  100  Cal.  505. 

No  prescription  runs  against  the  state, 
and  this  is  true  of  the  state's  title  to  the 
Western  and  Atlantic  railroad  as  well  as  the 
balance  of  the  public  domain,  and  it  does 
not  matter  whethe'  the  road  was  for  the 
time  being  in  the  hands  of  the  state's  own 
officers  or  of  her  tenants  or  lessees.  Glaze 
v.  Western  &>  A.  R.  Co.,  67  Ga.  761.— Fol- 
lowed IN  Kirschner  v.  Western  &  A.  R. 
Co.,  67  Ga.  760. 

2.  What  possession  is  adverse, 
generally.— A  party  may  obtain  title  by 

*  Acquiring  an  easement  by  prescription,  see 
nc'c,  35  Am.  &  Eng.  R.  Cas.  320. 

Acquisition  of  right  to  flood  lands  by  pre- 
scription, see  note,  48  Am.  &  Eng.  R.  Cas.  80. 

Right  of  way  by  prescription  over  land  ac- 
quired by  a  railroad  company  from  a  state,  see 
46  Am.  &  Eng.  R.  Cas.  542,  abstr. 

When  a  homestead  claim  may  be  held  ad- 
versely  to  a  claim  undrr  a  railroad  land  grant, 
see  34  Am.  &  Eng.  R.  Cas.  no,  abstr. 


84 


AUVERSli    I  CSSESSION,  3. 


adverse  possession  to   lands  as  againsi  an 
individual,  though  he  holds  it  in  subordina- 
tion to  the  title  (j(  ihc  general  government. 
J'tancoiurv.  Aiw/iouse,  i^Snuy.  (U.S.)  boo. 
Possession  of  a  company  and  its  succes- 
sors, under  a  grant  of  the  right  of  way.  for 
construction  and  operation,  dates  from  the 
commencement   of   construction,   and    not 
merely  from  completion  a-  i  the  running  of 
trains.     (Jcv>x/a  l\ic.  R.   Co.  v.  StitMaiul, 
80  Uit.  776,  o'.s'.  I-:.  Kfp.  27,  12  Am.  St.  Kep. 
282. 

VViierea  comi)any  enters  into  possession 
of  land  under  a  parol  license  and  promises 
to  pay,  twenty  years'  occupancy  will  bar  an 
action  to  recover  the  land.  EvansvilU  &* 
T.  H.  K.  Co.  v.  .\ye,  113  Ind.  223,  15  A'.  E. 
A',p.  261,  12  ll'ts/.  Rep.  727- 

An  adjoining  landowner  cannot  build  a 
fence  on  a  strip  of  land  that  has  been  in  the 
exclusive  adverse  possession  of  a  company 
for  twenty  years,  neither  can  he  recover 
damages  against  the  company  for  the  re- 
moval of  such  fence.  Sherlock  v.  Louisville, 
N.  A.  &•  C.  R,  Co.,  115  /ml.  22,  14  lyest. 
Rip.  843,  17  X.  E.  Rep.  171. 

Actual,  open  and  continuous  possession 
by  a  company  of  a  right  of  way  for  fourteen 
years  is  sufficient  to  establish  adverse  pos- 
session as  against  one  with  whom  the  com- 
pany had  in  contractual  relations.  Turner 
V.  Union  Pac.  R.  Co.,  112  Mo.  542,  20  S. 
W.  Rep.  673. 

Mere  provisions  in  a  corporate  charter 
for  compensation  to  the  owner  of  property 
taken  in  invitum  for  corporate  purposes  do 
not  necessarily  make  an  entry  by  the  cor- 
poration upon  private  property  in  sub- 
ordination to  the  private  riglit;  such  an 
entry  may,  notwithstanding  the  provisions, 
be  adverse  and  such  as  may  ripen  into  a 
prescriptive  title.  American  Bank  Note  Co. 
v.  New  York  El.  R.  Co.,  so  Am.  &*  Eng.  R. 
Cas.  292,  129  A'.   V.  252. 

In  a  proceeding  to  condemn  land  for  the 
purpose  of  a  railway,  consisting  of  beach 
and  upland,  there  was  evidence  offered  to 
the  effect  that  the  railroad  company  in  its 
location  and  plans  had  described  the  beach 
as  belonging  to  the  landowner;  that  it  had 
always  been  treated  as  a  part  of  his  estate, 
and  that  no  one  else  had  ever  claimed  the 
beach  or  damages  for  the  taking  of  it  by  the 
company.  There  was  no  dispute  but  that 
the  adverse  occupation  of  the  upland  had 
been  in  the  landowner  for  twenty  years, 
there  being  no  evidence  to  distinguish  title 


between  the  beach  and  upland.  Nelii,  suffi- 
cient evidence  to  warrant  a  finding  of 
adverse  possession  of  the  beach  for  twenty 
years.  Amlrew  v.  Nantasket  Beach  R.  Co., 
1 52  Mass.  506.  25  N.  E.  Rep.  966. 

a.  What  Ls  not.— An  adverse  posses- 
sion cannot  be  based  upon  a  mere  per- 
mission to  occupy  lands.  Borden  v.  South 
Side  R.  Co.,  5  Hun  (N.  V.)  184;  affirmed  in 
67  iV.  v.  588,  mem. 

Possession  held  under  a  license  cannot  be 
adverse.  Blaisdell  v.  Portsmouth,  G.  F.  &* 
C.  R.  Co.,  51  A'.  H.  483. 

Where  abutting  or  adjoining  landowners 
cultivate  and  occupy  a  part  of  a  right  of 
way  granted  by  Congress  as  an  easement  to 
a  railway  company,  such  possession  is  per- 
missive only,  and  not  hostile  or  adverse  so 
as  to  confer  title.  Union  Pac.  R.  Co.  v.  Kin- 
dred, 43  Kan.  134,  23  Pac.  Rep.  112.—  Fol- 
lowing Smith  V.  Smith,  34  Kan.  293. 

While  a  company  may  have  a  prescriptive 
right  to  maintain  an  embankment  at  a  cer- 
tain height,  it  cannot  acquire  a  prescriptive 
right  to  increase  its  height,  unless  such  in- 
crease is  acquiesced  in  by  persons  interested 
during  the  time  necessary  to  create  a  pre- 
scriptive right.  Ohio  &*  M.  R.  Co.  v.  Elliott, 
34  ///.  App.  589. 

The  constant  and  exclusive  use  by  a  comi 
pany  of  a  part  of  a  street,  as  and  for  a  right 
of  way,  cannot  by  the  lapse  of  any  time 
ripen  into  an  absolute  ownership  of  said 
part.  Pndianaj)olis,  P.  &*  C.  R.  Co.  v.  Ross, 
47  Ind.  25. 

In  a  suit  to  recover  from  a  company  the 
statutory  penalty  for  failure  to  construct  a 
suitable  crossing  of  its  track  at  a  public 
highway,  possession  of  the  right  of  way  for 
seven  years  is  not  a  bar  where  it  is  such 
only  as  is  ordinarily  taken  by  railways  for 
the  purpose  of  enabling  them  to  construct 
their  tracks  and  operate  their  trains  thereon. 
State  V.  Kansas  City,  Ft.  S.  &*  M.  R.  Co.,  54 
Ark.  608,  16  5.  W.  Rep.  657. 

Where  the  owner  of  a  tract  of  land  con- 
veys the  same  to  a  company,  by  which  only 
a  portion  thereof  is  used,  and  the  said  owner 
remains  in  possession  of  the  residue,  farming 
and  improving  the  same,  such  possession 
will  be  deemed  to  be  by  permission  of  the 
company  and  not  adverse  to  it.  Hence  it 
cannot  be  made  available  I  v  a  grantee  of 
said  owner  in  order  to  set  up  a  title  under 
the  statute  of  limitations.  Jeffersonville, 
M.  S^  I.  R.  Co.  V.  Oyler,  5  Am.  &-  Eng.  R. 
Cas.  397,  82  Ind.  394. 


1 


ADVERSE   POSSESSION,  4,  5. 


lib 


Where  it  is  complained  that  the  "drill- 
ing "  of  cars  on  a  certain  track  is  a  nuisance, 
a  company  cannot  justify  such  acts  on  the 
ground  of  adverse  user,  where  it  appears 
that  the  particular  track  used  for  that  pui- 
pose  has  not  been  laid  twenty  years,  although 
adj(}ining  tracks  have  been  laid  and  used 
for  more  than  twenty  years.  Pennyslvania 
R.  Co.  V.  Thompson,  45  N.  J.  Eq.  870,  19 
Atl.  Rep.  623.— Following  Pennsylvania 
K.  Co.  V.  Angel,  4>  N.  J.  Eq.  316.  NOT 
FOLLOWING  Besenian  v.  Pennsylvania  R. 
Co.,5oN.  J.  L.  235. 

Wliere  a  company  surveys  the  line  of  its 
road  and  stakes  it,  and  sets  up  posts  for 
fencing,  it  cannot  hold  against  a  purcha.ser 
on  the  ground  that  such  acts  constitute 
such  possession  as  amounted  to  notice  to 
the  purchaser.  Merritt  v.  Northern  R.  Co., 
12  Barb.  (.V.  K)  605. 

At  the  time  plaintifl  took  a  deed  for  lands 
"  subject  to  any  right  of  way  said  railroad 
may  own  over  the  same,"  the  company  held 
by  parol  an  easement  in  a  strip  thirty-five 
feet  wide  from  the  centre  of  its  track  across 
the  land,  but  a  fence  had  been  erected  and 
stood  only  fourteen  feet  from  the  centre  of 
the  road.  After  the  purchase  plaintiflf  made 
improvements  on  the  part  of  the  strip  out- 
side of  the  fence.  Held,  that  the  deed  was 
sufficient  notice  of  the  easement  of  the 
company  to  prevent  plaintiff  from  acquiring 
title  by  adverse  possession.  Slociimb  v. 
Chicago,  B.  &»  Q.  R.  Co.,  57  /o7va  675,  1 1  N. 
IV.  Rep.  641.— Distinguishing  Davies  v. 
Heubner,  45  Iowa  574. 

4.  The  hostile  claim  of  title.— To 
overcome  the  presumption  that  land  is 
occupied  under  a  legal  title  possession  must 
be  under  a  claim  of  title,  and  must  be  open, 
notorious  and  continuous,  and  only  such  as 
would  be  consistent  with  the  claim  of  ad- 
verse holding.  Buttery  v.  Rome,  W.  &*  O. 
R.  Co.,  14  iV.   y.  S.R.  131. 

To  acquire  a  public  prescriptive  right  to 
cross  a  railroad  in  a  carriage  or  on  foot  at 
what  was  originally  a  private  farm  crossing, 
established  by  agreement,  it  is  necessary  for 
the  plaintiff  to  show  that  there  was  a  public 
use  continued  uninterruptedly  for  more  than 
twenty  years,  which  was  adverse  and  under 
a  claim  of  right,  and  not  merely  a  use  which 
was  tolerated  or  permitted  by  the  railroad 
company.  McCreary  v.  Boston  <S>»  M.  R, 
G?.,  153  Mass.  300,  26  N.  E.  Rep.  864. 

Where  a  company  constructs  its  track  un- 
der a  claim  of  right  to  the  land,  and  has 


daily  used  the  track  without  the  consent  of 
the  owner  of  the  land  for  more  than  7  years 
before  bringing  an  action  of  ejectment,  such 
possession  is  adverse,  and  the  company  is  en- 
titled to  hold  the  land.  Under  the  Florida 
Statute,  where  one  claims  title  not  founded 
upon  a  written  instrument  or  a  judgment, 
the  question  of  adverse  possession  is  not  af- 
fected by  the  fact  that  the  owner  of  the  land 
is  ignorant  of  the  adverse  possession. 
Florida  Southern  R.  Co.  v.  Lorin^,  51  Fed. 
Rep.  932,  2  U.  S.  App.  310,  2  C  C.  A.  546. 

Under  the  New  York  Statute  of  Limita- 
tions an  actual  adverse  title  is  not  necessary 
to  an  adverse  possession ;  a  general  assertion 
of  ownership  will  suffice  if  there  be  color  of 
title,  however  groundless  in  fact.  American 
Bank  Note  Co.  v.  New  York  El.  R.  Co.,  50 
Am.  <S^  Eng.  R.  Cas.  292,  129  N.  Y.  252. — 
Distinguishing  Broiestedt  v.  South  Side 
R.  Co.,  55  N.  Y.  220. 

When  a  trespasser  defends  by  setting  up 
a  prescriptive  right,  if  he  fails  to  show  such  a 
right  to  the  extent  of  the  user  claimed  and 
proved,  his  defence  fails.  American  Bank 
Note  Co.  V.  New  York  El.  R.  Co.,  $oAm.  &<• 
Eng.  R.  Cas.  292,  129  A\  Y.  252.— Distin- 
guishing Davenport  v.  Lamson,  21  Pick. 
(Mass.)  74. 

5.  Color  of  Title.— The  occupation  of 
premises  on  the  line  of  a  highway  for  a 
period  of  twenty  years  or  more  without  any 
paper  title  affords  no  presumption,  as  mat- 
ter of  law,  that  the  possessor's  title  extends 
beyond  the  limits  of  his  actual  possession  or 
to  the  centre  of  th^  highway.  Hatchv.  Ver- 
mont Cent.  R.  Co.,  28  Vt.  142.— Approving 
Hatch  V.  Vermont  Cent.   R.  Co.,   25  Vt. 

49- 

The  condemnation  of  a  right  of  way  by 
statutory  proceedings  may  constitute  color 
of  title  when  possession  has  been  taken  and 
held  under  it,  notwithstanding  irregularities 
which  might  render  it  invalid,  and  although 
the  owner  had  no  notice,  or  the  assessed 
value  of  the  property  was  not  paid.  Cogsbill 
V.  Mobile  (S-»  G.  R.  Co.,  92  Ala.  252,  9  So. 
Rep.  512.  Mobile  &>  G.  R.  Co.  v.  Cogsbill, 
85  Ala.  456,  5  So.  Rep.  188. 

A  deed  is  color  oi  title  only  of  that  which 
is  shown  upon  its  face,  or  otherwise,  to  be 
within  the  description  of  the  grant.  When 
it  purports  to  convey  all  the  right  of  way, 
etc.,  which  before  belonged  to  a  certain 
company  named,  it  is  not  color  of  title  to 
any  tract  of  land  not  shown  to  have  been 
the  right  of  way  of  the  company  therein 


86 


ADVliRSE    POSSKSSION,  <»-8. 


mimed.  Ohio  &^  M.  A'.  Co.  v.  Barker,  125 
///.  303.  15  \y^st.  h\-p.  139.  "7  A'.  A".  AV/. 
797  ;  furl  Iter  ap/na/,  1 34  ///•  470. 

A  conveyance  of  railroad  lands  executed 
by  the  general  supcriniLiident  and  attorney 
ill  (act,  willioul  written  .iutli(»rity  from  tlie 
board  of  directors,  passed  no  icfjai  title  or 
estate  as  against  ilie  corporation  or  the 
trustees  wlio  succeeded  to  its  rights;  l)iit  it 
would  constitute  color  of  tith-,  under  wliicli 
a  title  mi(,'lit  be  acquired  by  possession  field 
long  cmoukIi  to  elli'c  a  statutory  t)ar. 
SttHinn  V.  dastoii,  87  ^l/it.  569,  6  S<>.  Rep. 
3»6. 

A  deed  "i)f  the  right  of  way"  of  a  rail- 
road, with  nothing  to  define  its  width, where 
the  charter  does  not  define  the  extent  of  the 
ri.nht  of  wav,  is  too  indefinite  to  constitute 
claim  and  color  under  the  seven  years'  limi- 
tation law  of  Illinois  for  100  feet,  where 
actual  possession  was  not  had  to  that  extent 
for  seven  years,  Wray  v.  L7iiaii;o,  li.  ^(2- 
R.  Co.,  86  ///.  424. 

A  deed  describing  premises  as  the  road  of 
a  railway  company  "west  of  tlie  Illinois 
river,  and  all  brandies  thereof  which  had 
been  constructed  before,  etc. ,  and  which  have 
since  been  constructed  and  built,  including 
the  right  of  way  and  the  lands  occupied 
thereby."  wiiere  there  was  no  occupancy  to 
the  extent  of  100  feet  for  seven  years  before 
suit  brought,  is  not  sufficient  as  color  of 
title.  Wray  v.  Chicago,  U.  &>  Q.  A'.  Co.,  86 
///.  424. 

Where  a  landowner  orally  agreed  to  give 
to  a  company  the  usual  right  of  way,  and  the 
company  entered  thereon  and  exercised  act- 
ual and  exclusive  possession  of  part  of  a 
strip  of  one  hundred  feet  under  color  and 
claim  of  title  to  the  entire  strip,  such  pos- 
session (or  the  necessary  length  of  time  will 
afford  the  comjiany  a  title,  under  the  Statute 
o(  Limitations,  to  such  entire  strip.  Hariris 
V.  Kansas  City,  C.  dr'  S.  A".  Co.,  43  A»i.  &^ 
Eng.  R.  Cas.  599,  100  Mo.  210,  13  5.  JF.  Rep. 
680. 

Even  i(  there  was  no  specification  of  the 
width  o(  the  right  o(  way,  so  given,  the 
entry  and  occupation  by  the  company  will, 
in  the  absence  o(  anything  to  the  contrary, 
be  regarded  as  including  the  entire  width  o( 
land  authorized  by  law  to  be  taken  (or  rail- 
road purposes.  Harris  v.  Kansas  City,  C. 
&*  S.  R.  Co.,  43  Afn.  &*  Eng.  R.  Cas.  599, 
100  .\/fl.  210,  13  5.  IV.  Rep.  680.— Quo  T- 
INC.  Campbell  t-.  Indianapolis  it  V.  R.  Co., 
1 10  Ind.  490, 


<(.  Ni'ccNNity  of  oiM'iipalioii,  IViioo 
iiiKt  ef<'.— When;  a  company  constructs  its 
track  over  the  land  of  another,  and  erects 
buildings  thereon,  without  any  written  evi- 
dence of  title,  and  docs  not  inclose  the 
same,  its  possession  will  be  limiterl  to  the 
ground  actually  occupied.  Illinois  C.  R. 
Co.  V.  Indiana  &^  /.  C.  R.  Co.,  85  ///.. 
21 1. 

7.  INtsscHsioii  of  part,  claiiiiiiit; 
wli«l<*.  — A  landowner  quit-claimed  a  right 
of  way  to  a  railroad  company  upon  which 
it  built  its  track  and  continued  to  operate 
its  trains  (or  more  than  20  years,  but  a  part 
only  of  the  right  of  way  was  in  actual  use. 
A  subsequent  purchaser  claimed  the  part  o( 
the  riglit  o(  way  that  was  not  so  used.  /Mil, 
that  such  possession  by  the  railroad  com- 
pany was  suflficient  to  put  the  purchaser  on 
notice,  regardless  o(  whether  the  quit-claim 
deed  had  been  recorded  or  not,  such  ad- 
verse possession  by  the  railroad  company  of 
a  part  o(  the  right  o(  way,  claiming  title  to 
the  whole  o(  it,  was  notice  to  all  the  world. 
Jeffersonvillc,  M.  &•  I.  R.  Co.  v.  Oylcr,  60 
hul.  383. 

A  landowner  made  a  plat  o(  ground 
which  was  recorded,  showing  a  donation  to 
a  railroad  v,ompany  o(  a  strip  250  feet  wide. 
It  appeared  that  the  plat  was  made  under 
the  impression  that  it  would  not  j)ass  title, 
but  as  a  mere  declaration  of  his  intention  to 
make  the  company  a  title  when  certain 
round-houses  were  built,  which  the  com- 
pany failed  to  build.  The  company  claimed 
possession  o(  the  strip  o(  land,  and  in  vari- 
ous ways  exercised  control  o(  it  and  im- 
proved a  portion  o(  it,  both  by  itseK  and  by 
lessees.  Held,  not  suflficient  evidence  o( 
adverse  possession  to  make  out  a  title  by 
limitation  in  (avor  o(  the  railroad  company 
(or  the  whole  of  the  strip.  Missouri  Pac. 
R.  Co.  V.  Ma_fit,  94  Mo.  56,  12  IVesi.  Rep. 
412,  6  S.  IV.  Rep.  600. 

8.  Necessary  continuity  of  posses- 
sion.— Where  the  occupant  of  land  entered 
without  color  of  title,  there  must  be  actual 
occupancy  to  constitute  adverse  possession, 
and  the  adverse  possession  in  such  a  case  is 
only  co-extensive  with  such  occupancy. 
Coleman  v.  Northern  Pac.  R.  Co.,  36  Minn. 
525,  32  A'.  IV.  Rep.  859. 

Where  one  has  been  in  continuous  and 
uninterrupted  possession  for  10  years,  con- 
tinuing to  the  time  of  bringing  suit,  he  has 
such  title  as  will  enable  him  to  maintain  an 
action  (or  damages  caused  by  the  improjier 


ADVhkSI-;    i'OSSKSSION.  1»  l*JI. 


l>  I 


coDstniclioti  i>(  II  railroad  adjacent  thi.'rrto. 
SwfiisoH  V.  J.ixiiifi;fo>t,  (>')  A/o.  1 57. 

A  coiitiiiiiotis  exclusive  possession  fur  10 
years,  under  claim  of  ownership,  is  not 
necessary  to  support  a  title  by  adverse  pcjs- 
session.  /Inm'/i  v.  Chiciij^o,  /»'.  ^  A'.  C.  A'. 
Co.,  H)i  Mo.  484,  14  .v.  W.  AV/.  719, 

Tiie  continued  occupation  and  use  of  a 
part  of  a  li>t  by  a  railroad  company  and  its 
j^raiitors  as  a  ri^ht  of  way  for  its  road  for 
(tvi'r  twenty  years,  the  company  exercising 
c(jntrol  over  it  and  using  it  during  that 
period,  will  constitute  a  bar  to  a  recovery 
l)y  the  true  owner.  Hast  S/.  Louis  &^  C.  A'. 
Co.  V.  iXuxt'iii,  147  ///.  254,  35  ,V.  /•;.  Ki-p. 
464 —Following  James  V,  Indianapolis  & 
St.  L.  R.  Co.,  91  111.  554. 

A  company  will  acquire  a  right  by  pre- 
scription to  overflow  adjacent  lands,  if  for 
the  full  period  of  twenty  years  prior  to  the 
particular  injury  complained  of  the  com- 
pany had  continuously  maintained  a  negli- 
gently constructed  embankment,  claiming 
ing  the  right  to  do  so,  without  interruption 
from  the  landowner  or  recognition  of  his 
rights.  In  such  case  the  landowner  cannot 
maintain  suit.  Louisville  &•  A'.  A'.  Co.  v. 
.Mossiuan,  90  Teiiii.  157,  16  S.  W.  Rep.  64. — 
DisTiNUOi.sniNc;  Louisville  &  N.  R.  Co.  v. 
Hays,  II  Lea  (Tenn.)  382. 

Under  a  sealed  agreement  with  the  owner 
of  lands  subject  to  a  mortgage,  a  railroad 
company,  for  the  benefit  of  the  owner's 
business,  constructed  a  Y  upon  the  prop- 
erty iti  consideration  of  a  sum  certain  and 
the  unrestricted  right  to  turn  its  trains 
thereon  whenever  necessary.  Afterward  the 
land  was  sold  upon  a  judgment  obtained  on 
the  mortgage,  and  the  purchaser  and  those 
acquiring  his  title  recognized  the  continued 
use  of  the  Y  by  the  railroad  company,  under 
the  agreement,  for  a  period  of  twenty  years 
after  its  construction.  A  master  so  finding, 
on  a  bill  filed  by  the  landowner  to  compel 
the  company  to  remove  the  Y,  after  such 
an  acquiescence  in  its  joint  use  for  the 
period  stated,  it  was  not  error  to  decree  that 
the  plaintiff's  bill  should  be  dismissed. 
Chambers  v.  Baltimore  &•  O.  A'.  Co.,  139  Pa. 
.S/.  347,  21  Atl.  Rep.  2. 

O.  Tnckiiif;  one  adverse  posscHNion 
ii|H>ii  an otlior.— Where  realty  of  which  a 
debtor  has  had  adverse  and  continuous 
possession  under  written  color  of  title,  is  in 
the  hands  of  a  receiver  appointed  at  the  in- 
stance of  creditors,  the  possession  of  the 
receiver  may,  to  make  out  the  full  period  of 


the  prescriptive  term,  be  tacked  to  that  ol 
the  debtor  and  to  that  of  the  purchaser  of 
the  premises  at  a  judicial  sale.  Verdery  v. 
Savannah,  /'.  &*  IV.  R.  Co.,  82  Ga.  675,  9  S, 
JC.Rep.  1133. 

10.  Iiiterriipted  iMtHNCHNioii.— Where 
a  party  enji>ys  the  use  of  an  easement  in  a 
manner  otherwise  sutFicicnt  to  gain  a  riglit 
by  adverse  use,  he  will  not  be  prevented 
from  acquiring  the  right,  even  if  the  other 
party  owning  the  servient  estate  verbally 
objects,  or  denies  the  right  occasionally 
during  such  user,  if  lie  does  not  in  any  way 
interfere  with  or  interrupt  that  enjoyment, 
having  the  power  to  do  so,  and  the  case- 
ment being  of  such  character  that  the 
owner  of  the  dominant  estate  hafl  only  \.o 
enjoy  the  use  without  other  adversary  acts 
on  his  part,  Kimball  v.  Ladd,  ^z  Vt.TXJ-  — 
DlSAPPROvi'.i)  IN  Chicago  &  N.  W.  R.  Co. 
V.  Iloag,  90  III.  339. 

Mere  denials  of  the  right,  complaints,  re- 
monstrances or  prohibitions  of  user,  un- 
accompanied by  any  act  which  in  law  would 
amount  to  a  disturbance,  and  be  actionable 
as  such,  will  not  prevent  the  accjuisition  by 
a  canal  company  of  a  right  to  maintain  a 
dam  by  prescriptiim.  Lehigh  Valley  R.  Co. 
V.  Mc Parian,  1 1  Am.  &^  Pnff.  R.  Cas.  509, 
43  A^.  7-  A.  605. — No'i'  FOLLOWING  Lehigh 
Valley  R.  Co.  v.  McFarlan,  30  N.  J.  Eq. 
180. 

11.  Payinoiit  of  taxes.  —  Where  a 
claimant  to  land  sells  to  a  company  before 
he  receives  title  from  the  state,  and  the 
company  enters  upon  the  and  and  con- 
structs a  railroad  thereor  m  H  has  held  it 
adversely  and  paid  the  taxes  thereon  for 
more  than  five  years  prior  to  the  beginning 
of  suit,  the  company  may  hold  it  under  the 
Statute  of  Limitations,  though  it  is  not  en- 
closed on  all  sides  by  a  substantial  en- 
closure, it  appearing  that  the  landowner 
had  obtained  the  title  from  the  state  more 
than  five  years  before  bringing  suit.  Daniels 
V.  Gualala  M.  Co.,  77  Cal.  300,  19  Pac.  Rep. 

5'9- 

12.  When  adverse  ii,se  isa  qnestion 
for  the  jury.— .A  street  in  which  a  rail- 
road track  was  laid,  including  a  crossing, 
had  been  used  by  the  public  as  a  street  for 
more  than  20  years,  the  street  itself  having 
been  kept  in  repair  by  the  town  and  the 
crossing  having  been  planked  and  kept  in 
repair  for  the  railroad  company.  Held,  that 
it  was  a  question  for  the  jury  to  say,  upon 
all  of  the  evidence,  whether  such  use  was 


38 


ADVIiKSl-;    I'OSSICSSION,   l;i,  14.  -ACiliNCV.   I. 


ailvcrsc   or   ineri'ly    pfiini^sivc.     hilchhuti^ 

A',  f  (1.  V.  /'.».i,'<'.  7  «•'"'•  ^'^  /'-"X-  ^*'-  ^'"'  ^'^'• 
131  ilArvv.  39 1. 

1:1.  WIm'ii  »  roiivcyaiive  will  Xw 
IM'csiiiimmI.— After  continuous  user  of  a 
rij;lit  of  way  l)y  a  railroad  con)|)any  for  a 
period  of  fifty  years,  a  urant  in  fee  sin)|)lc, 
or  a  jiitlj^nient  of  C(»n(lenination  under  a  writ 
of  condemnation,  will  be  presunied,  though 
the  land  is  a  i)art  of  the  sixteenth  section. 
Ditvii  V.  Meiiipliis  &->  C.  A*.  Co.,  39  ^l»i.  i!>- 
Juij,r.  A'.  Ciis.  65,  87  ///(».  633.  6  So.  Nip. 
140. 

A  rij,'ht  acquired  by  prescription  can 
never  exceed  the  user  in  which  it  had  its 
origin  ;  it  is  nuMsured  by  the  extent  of  that 
use,  and  that  in  turn  by  its  purpose,  and 
where  essentially  dilierent  purposes  govern 
st'par^ite  and  successive  users,  it  is,  as  a 
general  rule,  impossible  to  deem  the  latter 
identical  in  any  respect  or  degree  with  the 
former.  Although  a  fraction  of  the  right 
claimed  app(  tvs  to  have  been  common  to 
each  user,  where  no  one  of  them  has  been 
of  itself  and  independent  of  the  other  for 
twenty  years,  and  where  the  fraction  was  not 
Capable  of  a  separate  user,  having  of  itself  a 
real  and  conceivable  purpose,  a  grant  can- 
not be  presumed.  AiiKrican  Hank  Note  Co. 
V.  Atw  York  El.  A'.  Co.,  50  /hit.  &^  E»K''.  A*. 

CdS.  292,   129  A'.    )'.    252.  — UlSTINT.Ul.SHlNG 

U.ildwin  7'.  Calkins,  10  Wend.  (N.  Y.)  169. 
— (JroiKi)  IN  Syracuse  S.  Co.  v.  Rome,  W. 
&().  K.  Co..  SI  N.  Y.  S.  R.  520. 
14.  (.'<»iivoyaiicc  of  land  held  nd- 

voFHoIy.  -Inasmuch  as  the  possession  of  a 
highway  by  a  railroad  company,  under  a 
statutory  license,  is  presumed  to  be  subordi- 
nate to  the  rights  of  the  owner  of  the  fee,  a 
deed  thereof  by  such  owner  to  a  third  per- 
son is  not  void  because  of  adverse  posses- 
sion. liroiestciU  v.  South  S/'di'  A\  Co.,  55 
A'.  )'.  220.  —  DisTiNdUi.SHF.K  IN  American 
Hank  Note  Co.  71.  New  York  El.  R.  Co.,  129 
N.  Y.  252.  Followed  in  American  Hank 
Note  Co.  V.  New  York  El.  R.  Co.,  27  J.  &  S. 
(N.  Y.)  175. 


AFFIDAVIT. 

For  injunction,  sec  lNjr'N<  iion,  17. 

Of  illegality  of  execution  lale,  see  E:xKruTioN, 

24. 
To  papers  filed  to  incorporate  company,  see 

Ini  ORI'OKAMON,    10, 


ADVERTISEMENT. 

For  bids  on   public  contracts,  see  Claims 
against  U.nited  States,  2. 


ADVICE  OF  COUNSEL. 

As  a  defence,  see  Contempt,  O  ;  Malicious 
Pkosecution,  13. 


AFFIRMANCE. 
On  appeal,  see  Aitkai.,  142. 

AFTER-ACQUIRED  PROPERTY. 

When  subject  to  deed  of  trust,  sre  Ukkds  ok 

iKisr,  7. 
—    —    —    mortgage,   see    Mortuaoes,     II, 

3;  II.  4. 

AGENCY. 

Agents  for  carrying  mail,  transportation  of, 
see  Cakriaok  ok  Mams,  III. 

Agents  of  express  companies,  illegal  trans- 
portation of  liquors  by,  see  Intoxicatino 
I.igi oKs,  5. 

Estoppel  by  acts  of  agents,  see  Esroi-PEL, 
IV,  3- 

Jurisdiction  of  equity  over  accounts  of  agents, 
see  Ef^uiTV,  8. 

Liability  of  company  for  acts  of  agents,  see 
also  Express  Companies,  1,3;  False  Im- 

PklSONMKNT,  it. 

Liability  of  agent  to  company,  sec  also  Ex- 
press Comi'anies,  I,  4. 

Liability  of  agent  to  physician  employed  by 
him.  see  Medical  Services,  Kt. 

Ratification  of  acts  of  agents,  see  also  False 
Imprisonment,  Hi. 

Ratification  of  unauthorized  employment,  see 
Medical  Services,  14. 

See  also  Employes;  Employes,  injuries 
to  ;  Fellow-servanis  ;    Station  Acents. 

I.  APPOINTMENT,  AHD  HOW  PBOVEO.  p.  38 
II.  BIGHTS,  POWERS  AND  LIABILITIES 

OF  AGENTS. 42 

III.  BIGHTS,  DUTIES  AND   LIABILITIES 

OF  PRINCIPALS 51 

1 .  //;  Genera/. 51 

2.  IVAen  Bound  iy  Agents'  Con- 

tracts     54 

3.  Liability  for  Torts  of  Agents.  61 

a.  General  Rules 61 

b.  Various  Applications  of 

the  Rules 73 

4.  Ratification 80 

IV.  PUBLIC  AGENTS 86 

L   APPOINTMENT.  AND  HOW  PROVED. 

1.  Power  to  appoint  agents.— Cor- 
porations have  an  implied  power  to  employ 


AGKNCY,  2  4. 


3l» 


a;{ciils  to  pcrfiiiin  scrvii  »•»  lliat  an;  in  ktc|> 
iiij;  or  liarmuiiy  wiili  the  ^fiioral  ilesijjn  of 
their  creation,  without  any  special  ^jrant  hy 
riiarter.     Kitchen  v.  Cape  liiraiiieiiit  &^  S. 
/..  A'.  Co.,  50  Mo.  514,  8  Am.  liy.  AV/.  4S1. 

A  MJliDad  company  is  a  private  corpora- 
tion, aiul  may  appoint  af^cnts  for  tiie  accoin- 
plisiimcnt  of  its  purposes.  AUhixma  ^  I. 
K.  A'.  Co,  V.  h'nid.  29  //A^  221. 

A  provision  in  a  charter  cmpowerinj.j  the 
directors  to  expend  the  funds  of  tlie  lom- 
pany  "toward  makirif^,  rompletin^  and 
maintainiiifjr  tlie  railroad,"  authorizes  tliem 
to  ap{)iMnt  an  a^ent  to  solicit  municipal  aid, 
and  t(j  nialvc  liis  compensation  a  charj^e  on 
the  funds  of  the  road  ;  and  for  th.it  purpose 
a  K  solution  of  the  directors,  or  an  entry  on 
tlieir  minutes,  is  suiricient,  without  a  by-law 
umler  seal.  Wood  v.  Ontario  ijr^  Q.  A'.  Co, 
24  U.  C,  C.  /'.  334. 

The  letter  making  piaintifl  sucfi  general 
a^ent  was  from  the  company's  mana^in^ 
director,  //eld,  that  evidence  that  he  was 
such  managing  director  was  not  sufficient 
proof  of  iiis  autliority  to  make  the  contract. 
It  sliould  be  shown  that  the  act  was  in  ac- 
cordance with  the  powers  conferred  on  him, 
Taylor  v.  Co/tour^,  P-  i^  ''/■  A*.  *S-  M.  Co., 
24  U.  C.  C.  P.  200. 

The  appointment  of  an  agent  to  sell  or 
protect  tlic  timber  or  lands  of  a  railroad 
company  by  the  presiflent,  vice-president 
or  a  director  will  not  bind  the  corporation 
unless  it  appear  that  tlie  power  to  make 
such  appointment  was  delegated  to  such 
officers  by  an  express  provision  of  the  com- 
pany's charter,  to  be  exercised  eitlier  under 
an  order  of  the  board  of  directors  or  ex-ojfi- 
cio,  but  if  it  appear  that  the  authority  was 
to  be  exercised  under  an  order  of  the  direc- 
tors, then  the  agency  may  be  established  by 
proof  of  acts  of  acquiescence.  Chicago  &• 
N.  IV.  Ji,  Co.  V. /antes,  22  Wis.  194. — Re- 
viewing Walworth  County  Bank  v.  Far- 
mers* Loan  &  Trust  Co.,  14  Wis.  325.  Dis- 
TINGUISHINO  Bridgeport  Bank  v.  New  York 
&  N.  H.  R.  Co.,  30  Conn.  231. 

2.  When  a  parol  appoiiitnieiit  is 
valid. — The  appointment  of  an  agent  by  a 
corporation  need  not  be  evidenced  by  the 
written  vote  of  its  functionaries,  but  may  be 
inferred  from  the  adoption  of  his  acts.  Ala- 
bama (S-  T.  R.  n.  Co.  v.  Kidd,  29  Ala.  221. 

Where  the  act  of  incorporation  does  not 
require  that  the  appointment  of  an  agent  or 
the  making  of  a  contract  shall  be  by  written 
instrument,  and  it  does  not  appear  to  have 


III  I'M  •>i>  miuli",  the  :i|i|ioiniini'iii  01  ((nitiact 
may  lie  provcfl  hy  |)arol.  lltimilton  v.  ,\'(7('- 
(.(v//('  iJr'  I>.  A'.  Cii.,  y  hitt.  .i59, 

It  is  the  duty  of  a  ccjrporation  carrying  on 
a  trade  to  have  on  the  sjuit  an  olhier  with 
authority  to  do  for  the  company  all  that 
the  Ji'dinary  exigencies  of  its  business  might 
require  to  be  rlone  promptly.  In  this  re- 
spect there  is  no  dilTerence  between  a  cor 
poration  and  a  parlnorslii|),  and  it  is  not 
necessary,  in  order  to  bind  the  company,  to 
show  that  the  officer  had  authority  under 
seal.  Giles  v.  Taj  I'ale  A".  Co..  2  AV.  <S^///. 
822.  —  Foi.i.owKi)  IN  (joll  7'.  Great  Northern 
R.  Co.,  3  El.  &  El.  672,  30  L.  J.  Q.  H.  148. 

:<.  Who  arc  (hM'iiu'd  to  Im»  ajfciitH.*— 

A  per>  11  t^ngiigcd  by  a  <om|)any  to  buy 
materials  and  employ  labor  for  it,  who  is 
paifl  for  his  services  a  certain  jier  cent., 
baserl  upon  his  disbursements,  is  the  agent 
of  the  company.  M-w  Orleans  &*  ;V.  A'.  A'. 
i'li.  V.  Reese,  18  Am,  &*  Eng.  R,  Cas.  no, 
61  Miss.  581. 

Contractors  engaged  in  constructing  a 
railroad  are  regarded  as  the  servants  of  the 
company,  making  it  liable  for  their  tortuous 
acts.  Chicaf;o,  St.  P.  iSn.  /'.  A.  A'.  Co.  v. 
McCarthy,  20  ///.  385.  — FOLLOWING  Minde 
7'.  Wabash  N.  Co.,  15  III.  72. — DisiiN- 
GUlsiiK.i)  IN  Atlanta  «&  F.  R.  Co.  ?'.  Kim- 
berly.  87  Ga.  161.  West  v.  St.  Louis,  V.  & 
F.  II.  R,  Co.,  63  III.  545.  Carter  v.  Merlin 
M.  Co.,  58  N.  H.  52.  FoLi.owKi)  IN  Illi- 
nois C.  R.  Co.  V.  Barrow,  5  Wall.  (U.  S.)i)o, 
Rock  ford.  R.  I.  &  St.  L.  R.  Co.  v.  Wells. 
66  III.  321. 

An  engineer  is  an  agent  within  the  mean- 
ing of  the  statute  itnposing  a  duty  on  rail- 
roads to  fence  their  roads.  .SV.  JohtislmrySr* 
L.  C.  R.  Co.  V.  Hunt,  29  Am.  &•  Kng.  R.  Cas. 
234.  59  '''/•  294.  7  -^fl-  Pep.  277.— Review- 
ing Clement  v.  Cantield,  28  Vt.  302,  Suydam 
V.  Moore,  8  Barb.  (N.  Y.)  358. 

4.  and  who   are   iiot.t—Persons 

who  have  donated  lands  to  a  company  for  a 
right  of  way  cannot  constitute  themselves 
agents,  either  of  the  company  or  of  other 
landowners,  to  receive  promises  or  offers  to 
donate  their  lands,  and  the  company  cannot 
enforce  a  promise  obtained  in  such  away. 
Chicago,  I.  Gr*  D.  R.  Co.  v.  Estes,  30  Am.  &* 
Entr.  R.  Cas.  276,  71  /oTva  603,  33  A^.  IV.  Rep. 
124.— Followed  in  Estes  t/.  Chicago,  I.  «& 
D.  R.  Co.,  72  Iowa  235. 

*  Distinction   between   servants   and   agents, 
see  note,  2  L.  R.  A..  192. 
f  See  also  post,  91. 


40 


AGENCY,  5-7. 


Where  the  engineer  and  conductor  of  a 
train  occasionally  slopped  the  train  to  take 
on  freight  at  points  along  tiie  line  not  reg- 
ular stations,  such  acts  did  not  constitute 
the  engineer  and  conductor  receiving  and 
forwarding  agents  of  the  railroad  company 
within  the  terms  of  j  1964  of  N.  C.  Code. 
Kellofig  V.  Suffolk  6-  C.  R.  Co.,  35  Am.  <3- 
Ent;.  R.  Cas.  529,  100  N.  Car.  1 58,  5  S.  E.  Rep. 

379- 

As  a  street-car  came  to  the  crossing  of  a 

steam-railway  tracl<,  a  train  thereon  was 
passing.  Just  as  the  rear  car  had  passed 
the  flagman  signaled  the  street-car  driver 
to  go  ahead,  but  when  in  the  act  of  crossing 
the  train  bacl<ed,  and  plaintiff,  who  was  a 
passenger  in  the  street-car,  was  injured  by 
the  collision.  Held,  that  proof  that  such 
driver  f  ad  been  directed  by  those  in  author- 
ity to  obey  the  signals  of  the  flagman,  that 
in  this  case  he  did  so,  did  not  convert  the 
flagman  into  an  agent  of  the  street-car 
company.     Chicago  K.   Co.  v.  Volk,  45  ///. 

»75- 
5.   Proof  of  ag^eucy,    generally.— 

A  corporation,  as  well  as  a  natural  person, 
is  bound  by  those  acts  which  create  a  pre- 
sumption of  agency.  But  when  an  effort  is 
made  to  prove  the  fact  of  agency  by  an 
order  upon  the  corporation  books,  the  books 
themselves  must  be  produced,  or  secondary 
evidence  of  the  contents,  after  notice  to 
produce  them.  Montgomery  R.  Co.  v.  Hurst, 
()Ala.  513. 

Where  it  was  in  evidence  ihat  S.,  the 
regular  agent  of  the  defendant  at  a  certain 
depot,  lived  three  miles  from  the  depot, 
and  that  T.  lived  at  the  depot  for  two  years 
prior  to  the  bringing  of  the  action,  and  dis- 
charged the  duties  of  agent  in  receiving  and 
forwarding  freight,  selling  tickets,  etc.,  all 
of  which  was  done  in  the  name  of  S.  and 
with  the  knowledge  and  acquiescence  of 
defendant,  held,  that  T.  was  the  agent  of 
defendant,  and  that  defendant  was  bound 
by  any  act  of  his  within  the  scope  of  the 
authority  impliedly  given.  Katzemtein  v. 
Raleigh  &»  G.  R.  Co.,  6  Am.  S^  Eitg.  R. 
Cas.  464,  84  A'.  Car.  688. 

Plaintiff  sued  defendants  for  services  per- 
formed by  him  as  their  agent  in  obtaining 
bonuses  from  the  different  municipalities 
through  which  defendants'  railroad  was  to 
pass,  and  the  only  evidence  of  his  appoint- 
ment was  a  letter  written  by  one  of  the 
directors,  stating  that  at  a  meeting  of  the 
board  he  was  directed   to  make  arrange- 


ments with  plaintiff  to  proceed  forthwiili. 
It  was  shown  also  that  the  president  had 
recognized  and  adopted  his  services,  and 
partially  paid  therefor.  Held,  not  sufficient 
proof  of  plaintiff's  engagement.  IVood  v. 
Ontario  &>  Q.  R.  Co.,  24  U.  C.  C.  P.  334. 

A  company  was  sued  for  a  trespass  in 
cutting  timber  by  one  who  was  superintend- 
ing or  periorming  work  connected  with  the 
construction  of  the  road.  The  question  of 
the  company's  liability  turned  upon  whether 
such  person  was  an  independent  contractor 
or  only  the  agent  of  the  company.  HeU  , 
that  if  tlie  names  of  the  persons  employed 
by  such  person  were  entered  upon  the  pay- 
roll of  the  company,  and  they  were  in  fact 
employes  of  the  company,  and  received 
certificates  of  their  time  from  the  company's 
timekeeper,  this  would  fix  his  relation  to 
the  company  as  a  mere  servant.  New  Or- 
leans &•  N.  E.  R.  Co.  v.  Reese,  18  Am.  <S- 
Eng.  R.  Cas.  no,  61  Afiss.  581. 

O.  by  Iioldingr  out.— A    principal 

may  become  liable  by  permitting  his  agent 
to  hold  liimself  out  as  having  apparent  au- 
thority. IVinchell  v.  National  Exp.  Co. ,64. 
Vt.  15,  23  Atl.  Rep.  728. 

The  question  of  agency  of  a  defendant 
railroad  company  for  another  railroad  com- 
pany depends,  so  far  as  the  public  are  con- 
cerned, not  upon  the  actual  fact  of  an  ar- 
rangement or  contract  between  the  two 
companies,  but  upon  what  the  defendant, 
by  its  holding  out,  invited  the  public  and 
the  plaintiff  to  believe.  Dye  v.  Virginia 
M.  R.  Co.,  9  Mackey{D.  C.)  63. 

Where  a  person  testified  that  he  was 
station-agent  at  the  depot  of  a  railroad,  and 
had  full  charge  of  receiving  and  forwarding 
freight  there,  although  he  testified  that  he 
had  no  authority  to  make  contracts  and  no 
control  over  the  locomotive  power  of  the 
road,  held,  that  a  jury  might  legally  find 
that  the  corporation  held  him  out  as  their 
agent  to  contract  for  sending  freight  the 
next  day.  Deming  v.  Grand  Trunk  R.  Co., 
48  N.  H.  455. 

7.  by  alleged  agents'  acts. — As 

a  general  rule,  the  fact  of  agency  cannot  be 
established  by  proof  of  the  acts  of  a  pre- 
tended agent,  in  the  absence  of  evidence 
tending  to  show  the  principal's  knowledge 
of  such  acts  or  assent  to  them ;  yet  when 
the  acts  are  of  such  a  character  and  so  con- 
tinued as  to  justify  a  reasonable  inference 
that  the  principal  had  knowledge  of  them, 
and  would  not  have  permitted  the  same  if 


AGENCY.  H,  5). 


41 


orthwiili. 

dent   had 

'ices,  and 

sufficient 

IVood  V. 

lespass  in 
periniend- 
i  with  the 
uesiion  of 
in  wliether 
contractor 
ny.  Hi-/t , 
employed 
n  the  pay- 
ire  in  fact 
I  received 
company's 
relation  to 
Afevf  Or- 
i8  Am.  &~ 

principal 
g  his  agent 
iparenr.  au- 
i.r/.  Co., 6^ 

defendant 
Iroad  com- 
ic are  con- 
t  of  an  ar- 

the  two 
defendant, 
public  and 

Virginia 

at  he  was 
lilroad,  and 
forwarding 
ied  that  he 
icts  and  no 
wer  of  the 
legally  find 
ut  as  their 
freight  the 
unk  R.  Co., 

acts. — As 

cannot  be 
s  of  a  pre- 
)f  evidence 
knowledge 
yet  when 
and  so  con- 
inference 
ge  of  them, 
the  same  if 


unauthorized,  the  acts  themselves  are  com- 
petent evidence  of  agency.  Fouilds  v.  Evans, 
52  Minn.  551.  54  A^.   H'.  Rep.  743. 

Agency  may  be  established  by  showing 
that  the  principal  had  habitually  ratified  the 
acts  of  the  alleged  agent  in  similar  transac- 
lioiis.  International  &*  G.  X.  R.  Co.  v. 
hagsdaU,  67  Tex.  24,  2  S.  IV.  Rep.  515.-- 
Olotinl;  Beattie  v.  Delaware,  L.  &  V\^  R. 
Co.,  90  N.  Y.  643. 

Evidence  that  a  party  upon  a  railroad 
train  was  performing  service  as  a  brakeman 
from  one  point  to  another,  will  justify  the 
conclusion  that  he  was  a  regular  employe 
of  the  company.  St.  Louis,  I.  M.  &*  S.  R. 
Co.  V.  Hendricks,  48  Ark.  177,  2  S.  W.  Rep. 

783. 

Evidence  that  one  had  acted  for  two  or 
three  years  as  an  agent  for  a  corporation, 
settling  its  obligations,  .s  sufficient  to  estab- 
lish/;'//;/<?  yVzr/t' the  fact  of  an  authorized 
agency.  Neibles  v.  Minneapolis  &>  .S'/. 
L.  R.    Co.,  37   Minn.  151.  33   N.   IV.    Rep. 

332- 
8.  or   his   dccIaratiuiiM. — Mere 

representation  of  an  assumed  agent  cannot 

be  taken  as  constituting  an  agency.    Taylor 

V.  Second  Ave.  R.  Co.,  17  /.  &•   S.  (;V.    V.) 

513 — Following  Marvin  i/.  VViibur,  52  N. 

Y.  270. 

The  declarations  of  an  agent  are  not  ad- 
missible to  prove  an  agency,  but  where 
there  is  testimony  to  show  ratification,  or 
original  authority,  or  a  holding  out  to  the 
world  as  having  aiiihority,  such  declarations 
accompanying  tho  act  aie  admissible  to 
show  in  what  capacity  he  contracted. 
Hirschmann  v.  Iron  Range  iS^*  H.  B.  R.  Co., 
97  Mich.  384. 

Evidence  of  the  mere  statement  of  a  con- 
ductor or  agent  of  a  railroad  conipany,  that 
he  is  such  conductor  or  agent,  should  not  be 
received  as  proof  of  the  fact;  but  one  who 
has  control  of  a  train,  and  exeicises  llie 
authority  of  a  conductor,  may  rightfully  be 
presumed  to  be  such,  aside  from  his  declara- 
tions. Columbus,  C.  &"  I.  C.  R.  Co.  v.  I'mvell, 
40  ///(/.  37. 

In  order  to  render  a  railroad  liable  for  an 
itijury  to  plaintiff  caused  by  his  being  pushed 
from  the  platform  of  a  car  by  some  person 
apparently  in  the  employ  of  the  company,  it 
must  be  shown  that  such  person  was  actu- 
ally a  servant  of  the  railroad,  but  his  own 
declarations  that  he  was  in  charge  of  the 
car  will  not  be  legal  evidence  of  that  fact. 
Lindsay  v.  Central  R.  &^  li.  Co.,  46  Ga.  447, 


II  Am.  Ry.  AV^.  415.  DlsriNUUlSHED  IN 
Central  R.  Co.  v.  Gleason,  69  Ga.  200. 

A  railroad  applied  to  the  owner  of  a 
dredging  and  pile-driving  machine  for  an 
estimate  on  certain  work  of  the  company, 
which  he  furnished.  About  two  weeks 
thereafter  one  claiming  to  be  the  company's 
agent,  but  who,  in  fact,  was  only  a  contrac- 
tor, secured  the  machine  and  crew  to  oper- 
ate it.  Held,  that  the  railroad  was  not 
liable  to  the  owner  of  the  machine  for  the 
work  done.  Chicago  &*  G.  E.  R.  Co.  v. 
Fox,  41  ///.  106.— Distinguished  in  Solo- 
mon R.  Co.  V.  Jones,  34  Kan.  443. 

]).  Agent  of  company  when  agent 
of  other  party  to  contract. — A  carrier 
who  undertakes  to  carry  cannot  make 
another  the  consignor's  agent  for  that  pur- 
pose. Fischer  v.  Merchants'  Dispatch 
Transp.  Co.,  13  Mo.  App.  133. 

In  an  action  to  recover  on  "drawbacks," 
it  appeared  that  the  contract  was  made  by 
an  agent  of  the  company  with  the  shipper, 
by  which  the  money  on  the  drawbacks  was 
to  come  through  the  agent.  Held,  that  the 
agent  of  the  company  became  the  agent  of 
the  shipper,  and  payment  of  the  money  by 
the  company  to  the  agent  released  it  from 
liability.  Pittsburgh,  F.  IV.  &^  C.  R.  Co.  \ . 
Fawsett,  56  ///.  513,  4  Am.  Ry.  Rep.  405. 

A  contract  between  a  railroad  company 
and  a  coal  company  provided  that  the  former 
should  transport  coal  to  a  certain  desig- 
nated place  and  there  deliver  it  on  boats  as 
directed  by  the  coal  company,  the  orders 
being  directed  to  the  agent  of  the  railroad 
company  at  the  point  where  the  coal  was  to 
be  delivered  on  the  boats.  Held,  that  such 
agent  was  not  the  agent  of  the  coal  com- 
pany so  as  to  bind  it  by  his  acts  and  declara- 
tions. Kelly  V.  Lehigh  Valley  C.  Co.  8  Daly 
(A'.   F.)  291. 

Plaintiff  employed  a  depot  agent  to  pur- 
chase cotton  for  him  and  hold  it  for  for- 
warding over  the  agent's  railroad  according 
to  plaintiff's  directions.  Held,  that  the 
agent  in  such  dealings  acted  solely  as  the 
plaintiff's  agent,  and  that  there  was  no  liabil- 
ity on  the  company  for  any  loss  resulting 
from  the  failure  of  the  agent  to  perform  his 
duty  with  reference  to  such  transactions. 
Sumner  v.  Charlotte,  C.  &*  A.  Ji.  Co.,  78 
A^.  Car.  289,  1 6  Am.  Ry.  Rep.  201. 

Where  it  appeared  that  the  plaintifT  in- 
structed the  depot  agent  not  to  ship  until 
he  had  purchased  a  certain  number  of  bales, 
and   before  he  had  acquired  the   requisite 


42 


Ar.KNCV,   lO,  11. 


number  the  railroad  was  taken  by  irresist- 
ible force  into  the  complete  control  of  the 
Confederate  government,  the  agent  there- 
after acquiring  the  requisite  number,  held, 
error  to  submit  to  the  jury  an  issue  as  to 
whether  or  not  it  was  impossible  for  the  de- 
fendant company  to  ship  the  cotton.  Sum- 
ner V.  Charlotte,  C.  o-^  v/.  A'.  Co..  "8  ,\'.  Cur. 
289,  16  /l>n.  Ky.  Rep.  201. 

The  defendant  was  not  liable  as  common 
carrier  but  as  bailee,  if  at  all ;  and  the  fact 
that  before  the  requisite  number  of  bales 
was  obtained  by  the  agent  the  railroad  was 
seized  by  the  Confederate  government,  is  at 
least  evidence  to  be  considered  that  the  de- 
fendant never  received  the  cotton  at  all. 
either  as  bailee  or  common  carrier.  Sumner 
V.  Cliiuiotte,  C.  &-^  A.  R.  Co.,  78  X.  Car.  289. 
The  president  of  a  railroad  fraudulently 
induced  his  aunt,  a  stockholder,  to  part  with 
certain  shares  of  stock,  representing  that  a 
loan  of  them  for  the  company  was  neces- 
sary. He  at  once  pledged  them  for  his  own 
debt,  and  afterward  transferred  to  his  aunt 
in  lieu  thereof  certain  certificates  of  an 
over-issue  of  stock.  Held,  that  the  presi- 
dent acted  as  the  agent  of  his  aunt  in  the 
transaction,  and  tiiat  the  loss  must  fall  on 
her.      IVn'x/it's  Appeal,  99  Pa.  St.  425. 

II.  BIGHTS,  POWERS  AND  LIABILITIES  OF 
AGENTS. 

10.  Iinplietl    powers,  generally.— 

A  r  idroad  company  acts  through  the  instru- 
mentality of  its  officers  and  agents,  and  if 
not  prohibited  by  the  charter  it  may  dele- 
gate its  authority  to  its  officers  and  agents, 
so  far  as  may  be  necessary  to  effect  the  pur- 
poses of  its  creation.  Was/idurn  v.  Nas/i- 
ville  6*  C.  R.  Co.,  3  Head  {Tenn.)  638.— 
yuoTED  IN  Nashville  &C.  R.  Co.  t\  Carroll, 
6  Heisk.  (Tenn.)  347. 

It  seems  that  agents  intrusted  with  the 
duty  of  procuring  the  right  of  way  for  rail- 
ways have  the  incidental  authority  to  con- 
tract for  crossings  that  shall  be  made. 
Clouse  v.  Canada  Southern  R.  Co.,  14  Am. 
&»  Enjr.  A'.  Cas.  456,  4  Ont.  28. 

A  sub-inspector  of  railway  police,  whose 
duty  it  is  to  attend  on  the  spot  where  an 
accident  occurs,  and  who  at  such  time  and 
place  is  the  superior  of  all  other  servants  of 
the  company,  has  implied  authority  to 
pledge  the  credit  of  the  company  for  the 
care  of  and  supplie3  to  persons  injured. 
Lans^an  v.  Great  Western  R.  Co.,  30  L.  T. 
iV.  6".  173;  affirming  26  L.  T.  N.  S.  577. 


Certain  subscribers,  interested  in  a  pro- 
jected road,  authorized  agents  to  contract 
with  a  railroad  company  lor  the  construction 
of  the  road,  and  authorized  the  agents,  upon 
the  road  being  built  to  deliver  the  sub- 
scriptions to  the  company.  Held,  that  the 
agents  were  empowered  in  delivering  such 
subscriptions  to  affix  the  necessary  stamps 
thereto  as  required  by  law.  Cedar  Rapids 
Hr'  St.  J'.  R.  Co.  V.  .'itewart,  25  Iowa  115. 

In  assumpsit  for  personal  services  against 
a  railroad  company,  it  appeared  that  the 
plaintiff,  by  a  letter  to  P.,  an  ex-president 
of  the  company,  in  relation  to  his  unpaid 
vouchers  for  said  services,  which  had  been 
left  by  him  with  P.  for  settlement  prior  to 
his  resignation,  authorized  P.  as  follows: 
"  I  hereby  authorize  you  to  make  the  best 
settlement  you  may  be  able  to  do  for  me." 
Held,  that  the  term  "settlement,"  as  used 
in  said  letter,  included  not  only  the  deter- 
mination by  P.  of  the  amount  due,  but  the 
collection  and  receipt  by  him  of  money 
coming  to  the  plaintiff  under  such  settle- 
ment. New  York,  P.  &>  N.  R.  Co.  v  Bates, 
68  Md.  184,  II  ////.  Rep.  705. 

The  failure  of  P.  to  pay  over  to  the  plain- 
tiff the  money  collected  from  the  company 
under  said  authority  gave  the  plaintiff  no 
right  of  recovery  against  the  company,  if 
the  latter  acted  in  good  faith  in  the  matter 
of  the  settlement,  and  payment  of  the  money 
to  P.  New  York.  P.  &*  N.  R.  Co.  v.  Bates, 
68  Afd.  184,  II  Atl.  Rep.  705. 

11. of  general   ngents.  —  If  an 

agent  of  a  corporation  is  allowed  to  exercise 
general  authority  in  respect  to  its  business,  or 
a  particular  branch  thereof,  for  a  considerable 
time ;  or,  in  other  words,  if  he  is  held  out  to 
the  world  as  having  authority  in  the  prem- 
ises, the  corporation  is  bound  by  his  acts 
in  the  same  manner  as  if  the  authority  were 
expressly  grarted.  Hirschmann  v.  Iron 
Range  &>  H.  .B.  R.  Co.,  97  Alic/i.  384.— 
Quoting  Olcott  ?:  Tioga  R.  Co.,  27  N.  Y. 
546. 

The  powers  of  the  general  agent  of  the 
owner  of  a  railroad  are  such  as  will  warrant 
him  in  executing  a  lease  of  property  to  be 
used  as  a  ticket-office  for  the  road.  £c/ter 
V.  Chicago,  B.  &>  Q.  R.  Co.,  i  Am.  &•  Eng. 
R.  Cas.  357,  8  Mo.  App.  223. 

Where  a  general  agent  is  clothed  with 
certain  power  under  the  company's  charter 
or  by  its  lawful  act,  the  use  of  that  power  in 
an  unauthorized  or  prohibited  manner  will 
render  the  corporation  liable  as  to  innocent 


AGENCY,   lU,  I:J. 


43 


third  parties.    Madison  &^  I.  R.  Co.  v.  Xor- 
wich  Sav.  Society,  24  hid.  457. 

An  agent  of  a  corporation,  appointed  by 
the  directors  for  the  purpose  of  superin- 
tending and  carrying  on  its  business,  has  no 
authority,  in  virtue  of  such  agency,  to 
pledge  or  mortgage  the  machinery  used  by 
the  company  for  the  security  of  a  loan. 
Despatch  Line  of  Packets  v.  Bellamy  Mfg. 
Co.,  12  N.  H.  205. 

Where  the  corporation  have  a  general 
agent,  who  is  employed  by  them  for  the  ex- 
press purpose  of  receiving  and  transporting 
merchandise  for  hire,  and  is  held  out  to  the 
world  as  invested  with  authority  for  this 
purpose,  if  goods  are  delivered  to  him  to 
be  transported  in  the  way  of  his  duty,  the 
corporation  will  be  liable  for  the  manner  in 
wiiich  that  duty  is  performed,  and  the  con- 
tract of  bailment  may  be  regarded  as  made 
with  them.  May  all  v.  Boston  &'  M.  R.  Co., 
i<)  N.  //.  122. 

The  power  to  make  declarations  or  ad- 
missions in  behalf  of  a  company  as  to 
events  or  defaults  that  have  occurred  and 
are  past,  cannot  be  inferred  as  incidental  to 
the  duties  of  a  general  agent  to  superintend 
the  current  dealings  and  business  of  the 
company.  Smith  v.  North  Carolina  R.  Co., 
68  N.  C.  107.— Not  Following  Charles- 
ton &  S.  R.  Co.  V.  Blake,  12  Rich.  (S.  Car.) 
634.  Distinguishing  Morse  v.  Connecti- 
cut River  R.  Co.,  6  Gray  (Mass.)  450. 

Defendant,  by  its  general  manager,  con- 
tracted with  plaintiff  for  the  publication  in 
its  paper  of  certain  matter  by  a  given  date, 
the  matter  to  be  furnished  and  the  details 
of  the  publication  to  be  looked  after  by  de- 
fendant's passenger-agent.  The  agent  failed 
to  furnish  the  matter  until  after  the  date 
named  in  the  contract  for  its  publication. 
As  soon  as  the  matter  was  furnished  plain- 
tiH  published  it,  in  accordance  with  the  con- 
tract except  as  to  time.  Held,  that  the 
plaintifl  had  a  right  to  assume  that  the  de- 
lay of  the  agent  was  authorized  by  defend- 
ant. American  Graphic  Co.  v.  Minneapolis, 
St.  P.  &•  S.  S.  M.  R.  Co.,  44  Minn.  93.  46  A'. 
IV.  Rep.  143. 

1 2. of  special  agents. -Where  a 

company  sends  an  agent  to  the  scene  of  an 
accident  in  charge  of  a  wrecking  train  and 
crew,  he  has  the  implied  authority  to  em- 
ploy additional  help  if  he  deems  it  neces- 
sary. Goffw.  Toledo,  St.  L.  6-  K.  C.  R.  Co., 
28  ///.  App.  529. 

Where  a  person  is  specipJIy  employed  to 


trace  and  find  property  which  has  been  lost 
or  mislaid  by  a  railroad  company,  he  has  not 
the  implied  authority  to  settle  the  damages 
for  the  company's  neglect  to  carry  safely  or 
promptly.  Congar  v.  Galena  &*  C.  U.  R. 
Co.,  17  Wis.  477. 

A  mere  agent  to  solicit  business  has  no 
power  to  make  for  the  company  a  contract 
for  the  carriage  of  freight  beyond  its  line, 
unless  such  power  has  been  expressly  con- 
ferred, or  is  to  be  implied  from  his  previous 
conduct,  on  the  principle  that  the  company 
has  allowed  him  to  hold  himself  out  as  pos- 
sessing such  a  power.  Crouch  v.  Louisville 
&•  N.  R.  Co.,  42  AIo.  App.  248. 

13.  of  agent  to  ship  goods.— 

Authority  to  an  agent  to  ship  goods  implies 
the  authority,  as  a  general  rule,  to  negotiate 
for  terms  of  shipment  and  to  accept  a  bill 
of  lading  from  the  carrier  containing  limita- 
tions of  the  carrier's  liability  Illinois  C.  R. 
Co.  V.  Jonte,  13  ///.  App.  424;  Brown  v. 
Louisville  &>  N.  R.  Co.,  36  ///.  App.  140.— 
Quoting  Illinois  C.  R.  Co.  v.  jonte,  13 
III.  App.  424,  Merchants'  Despatch  Transp. 
Co.  V.  Joesting,  89  III.  152.  Western  Transit 
Co.  V,  Hosl'ing,  19  ///.  App.  607.  Nelson  v. 
Hudson  River  R.  tV^,  48  A'.  Y.  498. — Apply- 
ing London  &  N.  W.  R.  Co.  v.  Bartlett,  7 
H.  &  N.  400.  Following  London  ?'. 
North  Western  R.  Co.,  7  H.  &  N.  600; 
Lewis  V.  Great  Western  R.  Co.,  5  H.  &  N. 
867.  Reviewing  Squire z/.  New  York  C.  R. 
Co.,  98  Mass.  239. 

An  agent  employed  to  ship  goods  to  the 
owner  has  authority  to  make  such  contract 
with  the  common  carrier  as  in  the  honest 
exercise  of  his  discretion  he  sees  fit.  Where 
no  particular  agreement  is  made  at  the  time 
of  shipment,  the  fact  that  the  agent  and  the 
carrier  have  a  habitual  course  of  dealing  in 
respect  to  contracts  for  transportation  is  a 
material  and  in-portant  element  in  deter- 
mining the  construction  to  be  put  upon 
their  acts.  Shelton  v.  Merchants'  Despatch 
Transp.  Co.  59  A'.  V.  258,  \^How.  Pr.  257  ; 
reversing  1^  /.&*  S.  527. — Following  Mills 
V.  Michigan  C.  R.  Co.,  45  N.  Y.  622. 
Distinguished  in  Wilde  v.  Merchants' 
Despatch  Transp.  Co.,  47  Iowa  247 ;  Little  z/. 
Fargo,  43  Hun  (N.  Y.)  233,  5  N.  Y.  S.  R. 
462. 

Where  parties  are  directed  to  ship  goods 
by  express,  they  are  deemed  to  have  the  au- 
thority to  make  such  contracts  as  the  ex- 
press company  insisted  upon,  such  as  the 
signing  of  a  receipt  which  is  in  a  book  pre- 


44 


AGFA'CY,   14  19. 


pared  and  printed  by  llie  express  company 
and  furnished  for  such  purpose.  Meyer  v. 
Harndens  Exp.  Co.,  24  Hmv.  Pr.  (N.  Y.) 
290. 

Where  a  purchaser  of  oil  has  made  a  writ 
ten  contract  with  a  railroad  company  for 
shipment  to  him  of  the  oil,  his  agent  at  the 
point  of  shipment,  to  whom  the  written  con- 
tract is  forwarded  and  who  was  intrusted 
only  with  forvvarding  the  oil,  has  no  au- 
thority to  vary  the  written  contract.  ^Vig- 
gins  V.  Erie  R.  Co.,  5  Ilitn  (.V.  }'.)  185. 

A  shipper's  broker  has  no  implied  au- 
thority, as  such,  to  direct  for  the  shipper  the 
delivery  of  goods  held  by  a  carrier  subject 
to  the  sliipper's  order.  IVatson  v.  Hoosac 
Tunnel  Line  Co.,  13  Mo.  App.   263. 

14. of  eoinpaiiy's  avt'i'iit  to  re- 
ceive i^ood.s  for  sliiiniieiit.— -An  agent  of 
a  railroad  company  whoisauthorized  tocon- 
tractfor  the  transportation  of  goods  has  the 
power  to  contract  so  as  to  bind  the  company 
to  carry  the  goods  in  a  reasonable  time. 
Blodgett  V.  Abbot,  72  Wis.  516,  7  Am.  St. 
Rep.  873,  40  A'.  W.  Rep.  491. 

The  agent  of  a  company  who  is  intrusted 
with  the  duty  of  making  special  rates  may 
contract  to  givea  rebate.  Marsh  v.  Chicago, 
R.  I.  (St*  p.  R.  Co.,  79  hnva  332,  44  X.  W. 
Rep.  562. 

Where,  according  to  the  general  scope  of 
the  business  of  a  railroad,  it  only  carries 
goods  over  its  own  line,  it  will  not  be  bound 
by  a  contract  made  by  one  of  its  agents  to 
carry  beyond  its  line,  where  it  appears  ttiat  he 
acts  contrary  to  his  instructions  and  with- 
out the  knowledge  of  the  superior  officer 
of  the  company.  Rurroughsx.  Norwich  &* 
W.  R.  Co.,  100  Mass.  26.  -  APPROVEt)  m 
Wait  V.  Albany  &  S.  R.  Co.,  5  Lans.  (N.  Y.) 
475.  Revikwko  iNGrover&  B.  S.  Mach. 
Co.  7/.  Missouri  Pac.  R.  Co.,  70  Mo.  672. 

15. of  selliiij;:  agent.— A  broker  who 

was  charged  with  selling  a  lot  of  railroad  iron 
for  cash,  and  who  did  not  have  possession 
of  the  iron,  is  not  authorized  to  demand  or 
receive  i)ayment  of  tlie  price  when  the  goods 
are  delivered,  nor  to  vary  the  terms  of  the 
sale  and  receive  notes  therefor ;  nor,  having 
received  notes,  afterward  to  collect  them. 
Western  R.  Co.  v.  Roberts,  4  Phi/a.  (Pa.) 
no. 

10. of  i>iireliasiii{ra{;eiit.— Alocal 

agent  who  is  intru.sted  with  buying  cotton 
for  non-residents  and  shipping  the  same  to 
them  is  presumed  to  have  authority  to  make 
any  lawful  contract  concerning  tlie  shipment 


of  the  cotton,  in  the  absence  of  anything  to 
show  the  limited  authority  given  him.  Mis- 
souri Pac.  R.  Co.  V.  Internationa/ Af.  I.  Co., 
84  Tex.  149,  19  i" .  W.  Rep.  459. 

The  by-laws  of  defendant  provided  that 
"the  purchasing-agent  shall,  under  the  di- 
rection of  the  executive  committee  or  some 
one  authorized  by  them,  buy  all  materials 
and  supplies  in  general  use  in  every  depart- 
ment of  the  service,  excepting  such  articles 
or  materials  the  purchase  of  which  may  be 
especially  intrusted  to  other  parties.  He 
shall  order  for  and  furnish  supplies  to  the 
various  departments  on  written  requisitions 
of  the  heads  thereof  or  such  other  officers 
of  the  company  as  may  be  designated  by  the 
president  or  first  vice-president,  such  requi- 
sition to  be  examined  and  approved  by  the 
auditing  committee,  to  whom  he  shall 
certify  all  bills  for  purchases  made  by  him." 
//«'/(/,  that  as  matter  of  law,  the  purchasing- 
agent  had  actual  authority  to  make  con- 
tracts to  supply  defendants  with  all  blank- 
books  it  would  require  in  its  business  from 
June  I,  1883,  to  May  i,  1884,  and  to  supply 
it  with  all  the  printed  blanks  it  would  re- 
quire in  its  business  for  the  year  1884.  Levey 
V.  New  York  C.  R.  Co.,  4  Misc.  {N.   Y.)  415. 

17.  engineers. — The  duties  of  an 

engineer  are  such  that,  without  special  au- 
thority, he  has  no  power  to  make  contracts 
that  will  bind  the  company.  Gardner  v. 
Poston  &^  M.  R.  Co.,  70  Me.  181. 

An  engineer,  as  such,  has  no  authority  to 
pledge  the  company  to  pay  indebtedness 
due  from  a  contractor,  who  is  engaged  in 
building  the  road,  to  one  of  his  employes. 
Powrie  v.  Kansas  Pac.  R.  Co.,  i  Colo.  529. 

18.  railway  surgeons.— The  sur- 
geon of  a  railroad  company  has  no  implied 
authority  to  bind  the  company  by  an  agree- 
ment to  pay  for  services  and  ireals  furnished 
nurses  and  others  in  attendance  upon  an 
eniploye  injured  by  an  accident  on  the  road, 
and  under  the  surgeon's  treatment.  Bush- 
nell  V.  Chicago  (S^  N.  W.  R  Co.,  69  Iowa 
620,  29  A".  W.Rep.ysy — Disi  int.uished  in 
Pieart  v.  Chicago.  R.  I.  &  P.  R.  Co.,  82  Iowa 
148.  See  St.  Louis,  A.  <S~»  T.  R.  Co.  v. 
Homier,  53  Ark.  yjT,  13  S.  W.  Rep.  1092. 

10.  roadninsters.— Neither  an  as- 
sistant roadmaster  nor  a  master  of  transpor- 
tation can  be  presumed  to  have  authority  to 
represent  a  railroad  company  in  claiming 
disputed  titles.  Drew  v.  Comstock,  ^T  Mich. 
176,  23  A'.  W.  Rep.  721. 

It  is  not  incident  to  the  operation  of  a 


AGENCY,  20-22. 


45 


railway  company  to  board  its  employes ;  nor 
is  it  within  the  apparent  scope  of  a  roadnias- 
ter's  authority  to  bind  the  company  to  [)ay  for 
the  board  of  employes.  i'A  Louis,  I.  M.  l?" 
S.  R.  Co.  V.  Bennett,  53  Ark.  208.  13  i".  IV. 
Kep.  742. 

A  roadmaster  who  is  only  charged  with 
repairs  to  his  portion  of  the  roadway  will 
not  bei'  2medto  have  the  implied  authority 
to  contract  on  the  credit  of  the  company  for 
the  nursing  of  a  person  who  is  injured  while 
working  under  him,  where  it  appears  that  a 
superior  agent  was  within  reach,  and  that 
there  was  no  immediate  emergency  for  so 
acting;  but  if  the  general  manager  of  the 
company  ratifies  sucii  contract,  upon  his 
attention  being  called  to  it,  the  company 
will  then  be  bound.  Louisville,  E.  ^S^»  St.  L. 
A'.  Co.  V.  A/c  Vay,  22  Am.  &*  Eng.  K.  Cas. 
382,  98  Ind.  391,  49  Am.  Rep.  770. — Re- 
viewing Tucker  v.  St.  Lou's,  K.  C.  &  N. 
R.  Co.,  54  Mo.  177;  Lafayette  v.  James,  92 
Ind.  240,  47  .Am.  Rep.  140;  Brown  v.  Mis- 
souri, K.  &  T.  R.  Co.,  67  Mo.  122;  May- 
berry  V.  Chicago,  R.  L  &  P.  R.  Co.,  75  Mo. 
492 ;  Rankin  v.  New  England  &  N.  Silver 
Min.  Co.,  4  Nev.  78;  Marquette  &  O.  R. 
Co.  V.  Taft,  28  Mich.  289;  Cox  v.  Midland 
Counties  R.  Co.,  3  Exch.  268;  Atlantic  & 
P.  R.  Co.  V.  Reisner,  18  Kan.  458;  New 
Albany  &  S.  R.  Co.  v.  Haskell,  1 1  Ind.  301 ; 
Cairo  &  St.  L.  R.  Co.  v.  Mahoney,  82  111. 
73;  Pacihc  R.  Co.  v.  Thomas,  19  Kan.  256. 

20.  Necessity  of  proof  of  agents* 
authority. — Where  it  is  sought  to  enforce 
an  obligation  against  common  carriers 
created  by  the  act  of  an  agent,  the  agent's 
authority  must  be  established,  but  what  con- 
stitutes such  authority  is  a  question  for  the 
jury.  Thurman  v.  Wells,  18  Barb.  (N.  Y.) 
500. 

Where  it  is  sought  to  recover  from  a  rail- 
road company  damages  to  corn  which  is  be- 
ing carried,  in  order  to  introduce  indorse- 
ments upon  a  bill  of  lading  which  had  been 
referred  to  certain  agents  of  the  company, 
the  indorsements  tending  to  show  the  con- 
dition of  the  corn,  it  must  appear  that  it  was 
the  duty  of  such  agents  to  exam  ine  corn  and 
to  indorse  the  result  of  the  examination 
upon  the  bills  of  lading.  Evans  v.  Atlanta 
«S-  W.  P.  R.  Co.,  56  Ga.  498. 

Under  Ga.  Code,  §  2084,  making  the  last 
carrier  of  connecting  roads  liable,  there 
must  be  some  proof  that  it  received  the 
goods  in  good  condition,  and  the  endorse- 
ment of  an  agent  made  some  time  after  the 


goods  were  received  is  not  evidence,  unless 
it  be  shown  also  that  it  was  his  business  to 
act  in  the  matter  and  m;ike  the  indorse- 
ment. Evans  v.  Atlanta  &^  IV.  P.  R.  Co., 
56  Ga,  498.— FuLi.owKD  IN  Joseph  v. 
Georgia  R.  &  B.  Co.,  88  Ga.  426. 

When  a  conductor  pays  out  an  illegal  note 
in  change  to  a  passenger,  the  penalty  can- 
not be  recovered  from  the  company,  without 
proof  that  he  had  the  autlicrity  from  the 
president,  directors  and  treasurer,  or  some 
of  them,  to  do  it;  and  this  authority  may  be 
inferred  from  circumstances.  Cointnonucalth 
V.  Ohio  &^  P.  R.  Co.,  I  Grant  Cas.  (I'a.)  329, 

21.  Admissibility  and  siiltieiency 
of  such  proof.— Whether  a  particular  act 
of  a  servant  was  or  was  not  in  the  line  of 
his  duty,  is  a  question  for  the  jury  to  deter- 
mine from  the  surrounding  facts  and  cir- 
cumstances; and  evidence  tliat  it  was  the 
custom  of  the  master's  servants  to  perform 
such  acts  is  admissible  to  prove  it.  St. 
Louis,  /.  M.  &>  S.  R.  Co.  v,  Hiiubicks,  48 
Ark.  177,  2  S.  IV.  Rep.  783. 

Evidence  that  brakcmen  of  a  railroad 
train  are  in  the  habit  of  ejecting  tramps 
from  the  train,  who  refuse  to  pay  fare,  is  ad- 
missible to  prove  that  it  is  within  the  line 
of  the  brakemen's  duty  to  do  so.  .SV.  Louis, 
I.  M.  G^  S.  R.  Co.  V.  Hendricks,  ^'&  Ark.  \TJ, 
2  S.  W.  Rep.  783. 

Where  the  issue  is  made  whether  a  cer- 
tain party  had  authority  to  act  for  several 
connecting  railroads  and  to  bind  them  by 
his  contracts  for  the  carriage  of  goods,  proof 
tending  to  show  that  such  roads  form  a 
through  line,  and  had  a  common  office  in 
charge  of  a  general  agent,  with  a  clerk  with 
whom  the  contract  in  question  was  made, 
are  proper  to  submit  to  the  jury,  on  the 
question  of  agency,  and  the  statements  of 
the  alleged  agent  are  not  conclusive.  Bar- 
rett V,  Indianapolis  S^  St.  L.  R.  Co.,  9  Mo. 
App.  226. 

The  frequent  exercise  of  power  by  an 
agent,  which  from  its  nature  must  have 
been  known  to  the  principal,  may  be  re- 
garded by  persons  dealing  with  the  agent 
as  sufficient  evidence  of  the  real  existence 
of  the  power  which  the  agent  assumes  to 
exercise.  Hull  v.  East  Line  iS~»  A'.  A'.  R. 
Co.,  28  Am.  &^  Eng.  R.  Cas.  221,  r,6  7'e.v.  619, 
2  S.   IV.  Rep.  831. 

22.  Question  of  antliorily  wlien  for 
jury. — Where,  in  ;in  action  for  damages 
growing  out  nf  allej;ed  negligence  on  part 
of  the  company  in  complying  with  a  verbal 


46 


AGENCY,  23. 


contract  between  the  plaintiff  and  the  com- 
pany's iif^ent.  the  company  denies  the  author- 
ity of  liie  agent  to  make  the  contract,  and 
there  is  evidence  tending;  to  prove  that  the 
aj{ent  iiad  no  authority  to  ni.iiie  tlie  con- 
tract, it  is  error  for  tlie  court  to  assume  that 
tile  agent  had  authority  and  so  instruct  the 
jurv.  Tlic  question  of  authority  sliould  be 
suljuiilted  to  the  jury.  Missouri  Pac.  A\  Co. 
V.  Carpenter,  44  Kan.  257,  24  Pac.  Rep.  462. 

A  drover  having  sued  a  railroad  company 
for  a  personal  injury  received  while  riding 
on  tlie  ens;iiie,  the  company  set  up  the  de- 
fence that  the  rules  of  the  company  forbade 
its  employes  to  permit  any  person  to  ride 
on  an  engine,  and  that  the  plaintiff  was  not 
entitled  to  be  carried  as  a  part  of  the  con- 
tract to  carry  his  cattle.  }[eld,  that  it  was  a 
question  for  the  jury  to  say,  under  all  the 
facts  of  tlie  case,  whether  the  company  had 
by  its  C(jnduct  held  out  its  employes  as 
authorized  to  consent  to  carry  him  on  the 
engine  under  the  contract  to  carry  the 
cattle.  Water  bury  v.  Ne^o  York  C.  &>  H. 
R.R.  Co..  21  Blatchf.  {I/.  S.)  314,  17  /V</. 
AV/.  671.— Ukviewing  Eaton  <>.  Deleware, 
L.  &  W.  R.  Co.,  57  N.  Y.  382 ;  Ohio  &  M.  R. 
Co.  V.  Muhling,  30  111.  9;  Ryan  v.  Cumber- 
land Valley  R.  Co.,  23  Pa.  St.  384;  Gill- 
shannon  V.  Stony  Brook  R.  Co.,  10  Cusli. 
{ Mass.)  228. 

Plaintiff  sued  defendants  for  breach  of  an 
agreement  to  carry  lumber  for  them  at  a 
stipulated  price.  Defendants  pleaded  that 
the  agreement  was  made  by  them  as  agents 
and  directors  of  the  company,  of  which 
plaintiff  had  notice.  It  appeared  that  de- 
fendants were,  at  the  date  of  the  agreement, 
one  president  and  the  other  managing  direc- 
tor of  a  main  line  and  lessees  of  a  branch 
line ;  that  by  reason  of  the  company  having 
been  long  insolvent  the  main  line  had  been 
solely  within  defendants'  control,  as  princi- 
pal bondholders  of  the  company;  and  that 
what  they  did  personally  was  in  substance, 
therefore,  done  on  the  company's  behalf. 
Ne/d,  that  whether  the  agreement  was  made 
by  defendants  acting  as  agents  for  the  direc- 
tors of  the  company,  of  which  plaintiffs  had 
notice,  was  for  the  jury.  J\feDouifa/i  v. 
Covert,  18  U.  C.  C.  P.  iig. 

tS3.  Liinitutious  of  iig:eiits'  author- 
ity—Secret  liistriictioiis.*— Those  deal- 
ing with  an  agent  c.  i  railroad  company 
have  a  right  to  conclude  that  the  principal 


*See  alio  in/ra,  46,  74. 


inten  's  the  agent  to  h.ive  and  exercise  those 
power.";,  and  those  only,  which  necessarily, 
properly  and  legitimately  belong  to  the 
character  in  which  he  holds  him  out,  and 
this  irrespective  of  any  instructions  or  re- 
strictions on  his  power;  and  this  authority 
may  be  inferred  from  the  agent's  employ- 
ment. /Harrison  v.  Kansas  City,  C.  &*  S.  R. 
Co.,  50  Jfo.  App.  332. 

Restrictions  upon  an  agent's  apparent 
authority  are  not  binding  upon  third  per- 
sons, where  there  is  nothing  to  put  them  on 
inquiry  as  to  the  extent  of  his  actual  author- 
ity. Lake  Shore  &=  M.  S.  R.  Co.  v.  Foster, 
104  Ind.  293,  4  A'.  E.  Rep.  20,  54  Am.  Rep. 
319.  Approving  Brooke  v.  New  York,  L. 
E.  &  VV.  R.  Co.,  108  Pa.  St.  529,  i  Cent. 
Rej).  123.  Explaining  Armour  v.  Mich- 
igan C.  R.  Co.,  65  N.  Y.  Ill,  22  Am.  Rep. 
603.  Baker  v.  Kansas  City,  St.  J.  &^  C.  B. 
R.  Co.,  28  A/n.  (5»  £n^.  R.  Cas.  61,  91  J/o. 
152,  36'.  IV.  Rep.  486. — Approving  Cjrover 
&  B.  S.  Mach.  Co.  v.  Missouri  Pac.  P.. 
Co.,  70  Mo.  672.  Quoting  Burtis  v. 
Buffalo  &  S.  L.  R.  Co.,  24  N.  Y.  274. 

It  is  not  sufficient  for  the  master  to  give 
proper  instructions  to  his  servants  to  avoid 
liability ;  but  he  must  also  see  that  they  are 
obeyed.  Johnson  v.  Central  Vt.  R.  Co.,  19 
Am.  &>  Eng,  R.  Cas.  169,  56  Ft.  707. 

The  liability  of  a  common  carrier  cannot 
be  limited  by  secret  instructions  given  to 
his  general  agent.  When  a  stage  proprietor 
has  habitually  carried  in  his  coaches  per- 
sons and  baggage  or  packages,  the  regula- 
tions of  his  line  and  instructions  to  his 
agents  not  to  receive  goods  to  be  carried, 
except  as  the  baggage  of  passengers  or 
in  the  care  of,  but  at  the  risk  of  the 
owner  or  of  the  person  sending  them, 
will  not  limit  his  liability  for  goods  re- 
ceived by  his  agents,  unless  the  owner  or 
his  agent  was  notified  of  the  rule  or  instruc- 
tions at  the  time  of  the  receipt  of  the  goods. 
Walker  v.  Skipwith,  Meigs  {Tenn.)  502. — 
Explained  in  Southern  Exp.  Co.  v. 
Womack,  i  Heisk.  (Tenn.)  256. 

Any  arrangement  made  between  a  car- 
rier and  his  servant,  by  which  the  servant 
is  to  be  paid  for  the  carriage  of  particular 
parcels,  will  not  exempt  the  carrier  from 
responsibility  for  the  loss  of  them,  unless 
such  arrangement  is  known  to  the  owner 
thereof,  so  that  he  contracts  exclusively 
with  the  servant.  Mayallw.  Boston  ^'M.  R- 
Co,  19  N.  H.  1 22. --Reviewed  in  Wilson 
V.  Grand  Trunk  R.  Co.,  57  Mc.  138. 


AGENCY,  24-27. 


47 


24.  Must  contract  in  uaiiie  of  priu- 
clpal.— In  order  lo  make  u  written  con- 
tract made  by  an  agent  binding  un  the 
principal  per  se,  it  should  appear  to  have 
been  made  in  the  name  of  the  latter ;  but 
the  form  of  the  signature  is  unimportant. 
Lazarus  v.  Shearer,  2  Ala.  718. 

A  written  contract  for  the  sale  of  wood  to 
a  railroad,  which  on  its  face  purports  to 
iiave  been  made  by  one  of  tiie  parties  thereto 
through  their  agent,  and  which  is  signed  and 
sealed  by  the  agent  in  his  own  name,  is  not 
a  binding  obligation.  Sherman  v.  New  York 
C.  R.  Co.,  22  Barb.  {N.  K.)  239. 

25.  Siguiiigr  as  "aj^eut  tor"  prin- 
cipal.— A  writing  in  these  words  :  "  Hired 
of  R.  C.  the  following  negroes,  to  wit,"  &c., 
"to  work  on  the  M.  &  C.  railroad,  from  now 
until  the  25th  December  next;  for  which  I 
agree  to  pay  said  C.  twenty- five  dollars  per 
month  each,  and  I  also  agree  to  feed,  and 
pay  all  medical  expenses,  if  any;  and  the 
said  C.  loses  all  runaway  time,  if  any.  Given 
under  my  hand  and  seal ;"  and  signed,  "  W. 
H.  E.,  agent  for  M.  &  C.  R.  R.  Co..  per  W. 
M.  N.,"  is,  prima  facie,  the  contract  of  the 
agent,  and  not  binding  on  the  principal  per- 
sonally. Crutcher  v.  Memphis  &>  C.  Ji.  Co., 
38  A/a.  579. 

2G.  Ititirht  to  employ  sub-agent  or 
assistant. — A  head  brakeman  of  a  con- 
struction train,  in  the  temporary  absence  of 
the  conductor  at  a  station,  has  no  implied 
authority  to  engage  a  bystander  to  get  on 
the  cars  and  assist  in  switching.  Church  v. 
Chicago,  M.  <&*  St.  P.  R.  Co.,  50  Minn.  218, 
52  N.  VV.  Rep.  647. 

A  railroad  company  employed  a  detective 
to  recover  a  lot  of  stf>len  goods  and  to  cap- 
ture the  thief,  who  in  turn  employed  plain- 
tiff, telling  him  that  if  the  company  did  not 
pay  him  he  would.  Held,  in  the  absence  of 
any  evidence  to  show  that  the  detective  was 
authorized  to  employ  plaintiff,  a  verdict 
against  the  company  for  his  services  could 
not  be  supported.  Illinois  &-  S/.  L.  R.  Co. 
V.  Dawson,  3  ///,  App.  292. 

Where  the  servant  of  a  railway  corpora- 
tion, not  having  authority  from  the  cor- 
poration to  employ  other  servants,  engaged 
G.  to  assist  him  in  moving  a  crate  of  crock- 
ery, and  through  the  negligence  or  ineffi- 
ciency of  G.,  combined  with  the  carelessness 
of  the  servant,  the  crate  was  overturned, 
striking  the  plaintiff,  whereby  he  suffered 
a  severe  injury,  held,  that  the  corporation 
was  not  liable  for  the  negligence  of  G.,  nor 


for  the  fault  of  its  servant  in  employing  G. 
to  assist  him,  even  admiiling  G.  to  have 
been  an  improper  pL-rsoii  to  engage  for  that 
service.  Jeivell  v.  Grand  Trunk  R.  Co.,  55 
JV.  H.  84,  1 1  Am.  Ry.  Rep.  496. 

27.  Bight  of  agent  to  deal  for  Ills 
own  benefit. — An  agent  employed  by  a 
company  to  purchase  wood  or  timber-laiids 
for  its  use,  has  no  right  to  receive  from  the 
vendor  a  commission  on  the  amount  of  the 
purchase-money,  for  procuring  the  sale. 
Morrison  v.  Ogdensburg  &*  L.  C.  R.  Co.,  52 
Barb.  I^N.  Y.)  173. 

An  agent  whose  duty  it  was  to  purchase 
wood  or  timber-land  for  the  use  of  tlie  road, 
examined  certain  lands  in  company  with  a 
director,  gave  his  opinion  as  to  the  amount 
of  wood  thereon  and  advised  the  purchase. 
It  turned  out  that  at  the  time  the  agent 
was  to  receive  a  commission  on  the  sale 
from  the  vendor  if  the  sale  was  completed, 
which  was  not  made  known  to  the  director 
or  any  one  else.  Held,  that  such  conduct 
was  good  ground  for  his  discharge,  and  it 
appearing  that  the  company  had  paid  more 
for  the  land  than  they  otherwise  would  have 
paid,  the  amount  of  the  agent's  commission 
belonged  to  the  company.  Morrison  v.  Og- 
densburg 6-  L.  C.  R.  Co.,  52  Barb.  {N.  Y.) 

173- 

A  person  employed  by  a  company  to  pro- 
cure subscriptions  to  stock,  while  so  engaged 
and  without  the  knowledge  of  the  company, 
received  certain  awards  or  compensation 
from  individuals  for  procuring  their  lands 
to  be  taken  as  stocks  subscribed.  Held. 
that  receiving  such  compensation  was  a 
violation  of  his  duties  to  the  company,  and 
worked  a  forfeiture  of  any  claim  to  com- 
pensation from  the  company.  Cleveland  &* 
St.  L.  R.  Co.  v.  Pattison,  1 5  Ind.  70. 

The  purchase  of  bonds  by  the  financial 
agents  of  a  railroad  company  on  belialf  of 
a  syndicate,  of  which  two  partners  of  the 
firm  acting  as  agents  were  members,  is  not 
invalid  as  a  breach  of  the  fiduciary  relation 
of  the  financial  agents,  when  it  appears  that 
the  price  of  the  bonds  was  fixed  by  the  rail- 
road company,  and  that  the  agents  did  not 
abuse  any  trust  or  obtain  any  advantage 
from  the  transaction.  Hinton,  J.,  dissent- 
ing. Atwood  v.  Shenandoah  Valley  R.  Co., 
38  Am.  dr'  Eng.  R.  Cas.  534,  85  Va.  966,  9 
S.  E.  Rep.  748. 

An  indebtedness  of  a  railroad  company  to 
a  town  was  assigned  in  writing  to  one  who 
purchased  with  his  own  money,  but  was  act- 


48 


AGENCY,  38,  20. 


inj;  at  the  same  time  as  the  agent  of  the 
company.  Held,  tliat  tlic  C(^rn|>iiny  could 
not  have  tlie  benefit  of  the  pnrchase  willi- 
oiit  an  ofTer  to  pay,  and  that  ii  was  imma- 
terial in  what  light  the  town  countil  re- 
garded tlie  transaction.  Ridcnoiir  \.  Wlui- 
ritt,  30  Ind.  485. 

28.  Duty  to  nt'couiit.— An  agi'nt  f)f  a 
railroad  who  is  required  to  remit  all  sums  over 
$10  to  the  comi)any  daily,  has  a  reasoniihle 
time  in  whicii  to  remit,  and  where  money 
was  received  by  him  too  late  to  be  remitted 
on  ace  )unt  of  other  duties,  he  cannot  be 
held  liable  where  it  was  stolen.  Robinson  v. 
Illinois  C.  A'.  Co.,  30  Iowa  401. 

A  power  of  attorney  to  a  party  to  sell 
lands  belonging  to  a  railroad  company,  at 
not  less  than  a  fixed  price,  makes  it  the  duty 
of  the  attorney-in-fact  to  sell  the  land  for 
the  highest  price  he  can  get,  and  it  becomes 
his  implied  duty  to  account  to  the  company 
for  the  whole  amount  of  the  purchase- 
money  ;  and  if  it  appear-  that  he  reports  the 
sale  at  a  less  amount  than  he  in  fact  re- 
ceived, the  purchaser  being  privy  to  an  ar- 
rangement by  which  the  agent  shall  claim  a 
part  of  the  purchase-money,  a  bill  in  equity 
may  be  maintained  by  the  company  to  re- 
scind the  sale.  Milhr  v.  Louisville  &^  A'. 
A'.  Co.,  83  Ala.  274,  3  A>n.  Si.  Rep.  Ti2,  4 
So.  Rep.  842. 

2tK  Lialiility  to  iiriiieiiml,  gener- 
ally.—A  cashier  or  clerk  of  a  company  who 
has  charge  of  its  moneys  is  under  a  legal 
liability  to  the  company  to  take  care  of 
and  preserve  its  funds  so  intrusted  to  him, 
and  if  he  loans  the  company's  money  to  a 
fellow-servant  without  authority,  he  will  be 
liable  personally  to  the  company  for  the 
same,  and  if  he  pays  the  same  he  cannot 
recover  it  back.  St.  Louis,  A.  &^  T.  H.  R. 
Co.  V.  Thomas,  85  ///.  464. 

The  balance-sheet  of  a  freight  agent  re- 
turned to  the  company,  of  the  receipts  and 
disbursements  of  his  office,  is  not  an  admis- 
sion on  his  part  that  a  deficit  is  chargeable 
to  himself.  Chicui^o  &•  A.  R.  Co.  v.  Hig- 
gins,  58  ///.  128.  10  Am.  Ry.  Rep.  434. 

Where  bonds  of  a  railroad  company  are 
deposited  in  the  hands  of  agents  for  the 
company,  to  be  issued  by  them  to  contrac- 
tors on  the  performance  of,  and  as  required 
by  the  terms  of  their  contract,  but  the 
bonds  were  never  earned  and  delivered 
after  demand,  the  company  may  maintain  a 
suit  in  equity  against  the  agents  to  compel 
a  surrender  of  the  bonds,  and  for  damages 


accruing  from  their  detention  ;  or  if  the 
bonds  cannot  be  obtained,  then  for  their 
Viilue,  it  appearing  that  tl.e  bonds  were  pay- 
able to  order,  and  if  issued,  constituted  valid 
obligations  of  the  company.  IVestern  R.  Co. 
V.  liaync,  75  A^.  Y.  I  ;  affirming  1 1  Hun 
166. 

Where  agents  of  a  railroad  company  have 
wrongfully  disposed  of  its  bonds,  in  an  action 
iigainst  the  agents  to  recover  the  bonds  or 
their  value, //•/«/«( /rtivV,  their  value  is  the 
amount  of  the  bonds  witii  interest  until 
paid  ;  but  it  is  competent  to  show  the  ina- 
bility of  the  company  to  pay,  either  in  whole 
or  part.  In  such  case  proof  of  their  market 
value  is  not  proof  of  the  value  as  between 
the  company  and  the  agents.  Western  R. 
Co.  V.  Bayne,  75  A'.  Y.  i  ;  affirming  11  Hun 
166. 

In  order  to  recover  by  a  railroad  company 
for  funds  charged  to  have  been  fraudulently 
misapplied  and  embezzled  by  its  agent,  it  is 
necessary  to  show  that  the  agent  received 
tlie  money,  and  also  that  he  fraudulently 
misapplied  or  embezzled  it,  the  burden  of 
proof  to  establish  these  facts  being  always 
on  the  company,  Panama  R.  Co.  v.  'John- 
son, 58  Hun  {N.  Y.)  557,  35  A^.  Y.  S.  R.  560, 
12  N.  Y.  Supp.  499. 

The  agent  of  a  railroad  company,  by  mis- 
take, delivered  coal  to  the  wrong  party.  A 
general  agent  discovered  the  mistake  and 
attempted  to  collect  the  price  from  the  per- 
son to  whom  the  coal  was  delivered,  but 
failing,  sued  the  agent  who  delivered  the 
coal.  Held,  that  if  the  agent  was  thrown  o(T 
his  guard  or  suffered  by  the  act  of  the  gen- 
eral agent  by  not  informing  him  of  the  mis- 
take sooner,  then  there  could  be  no  re- 
covery. Philadelphia  &*  R.  R.  Co.  v.  O'Don- 
nell,  12  Phila.  (Pa.)  213. 

A  person,  as  the  agent  of  a  firm  of  con- 
tractors for  the  construction  of  a  railroad, 
procured  subscriptions  for  the  purpose  of 
securing  the  location  of  a  depot  at  a  certain 
point  on  the  road,  in  which  those  who  made 
the  subscriptions  were  interested,  the  con- 
tractors having  no  power,  under  the  terms 
of  their  arrangement  with  the  railroad  com- 
pany, to  fix  the  location  of  the  depot  at  the 
place  desired.  The  agent  who  thus  pro- 
cured the  subscriptions  was  at  the  time  a 
director  in  the  railroad  company,  and,  hav- 
ing applied  the  proceeds  of  the  subscriptions 
to  his  own  use,  in  a  suit  by  his  principals  to 
recover  from  him  the  money  so  obtained,  he 
set  up  the  supposed  illegality  of  the  contract 


AGENCY,  30,  31. 


40 


resulting  from  his  official  relation  to  the 
railroad  company  as  a  defence;  but  it  was 
held,  he  was  estopped  from  relying  upon 
such  defence  as  agamst  his  principals.  Snell 
V.  Pells,  113  ///.  145.  —  Distinguishing 
Marsh  v.  Fairbury,  P.  &  N.  W.  R.  Co.,  64 
III..  414 ;  St.  Louis,  J.  &  C.  R.  Co.  v.  Math- 
ers. 71  111.  592. 

Defendant  being  employed  by  the  plaintiffs 
as  their  locomotive  and  car  superintendent, 
made  use  of  their  materials  and  men  in  do- 
ing work  for  a  sewing-machine  manufactory, 
in  which  he  was  a  partner,  and  untruly  en- 
tered such  time  and  materials  as  employed 
in  the  plaintiffs'  service.  The  plaintiffs 
having  sued  him  upon  the  common  counts, 
claiming  in  their  particulars  for  goods  fur- 
nished but  not  for  work  and  labor,  Held, 
that  they  could  recover  under  the  particu- 
lars, for  proof  of  the  work  expended  in  the 
goods  was  a  mode  of  ascertaining  their 
value,  and  the  defendant  could  not  have 
been  misled.  Defendant  was  precluded  by 
his  own  misconduct  from  setting  up  as  a  de- 
fence that  the  plaintiffs,  under  their  charter, 
could  not  sue  on  such  a  cause  of  action. 
Northern  R.  Co.  v.  Lister,  27  V.  C.  Q.  B. 

57- 

30.  oil  official  bond. — The  sure- 
ties in  a  general  freight  agent's  bond  are  not 
liable  for  a  defi>_ic  in  his  accounts,  arising 
from  the  default  of  his  subordinates,  under 
a  general  clause  in  the  bond,  that  "such 
agent  shall  well  and  truly  perform  and  exe- 
cute the  duties  of  freight  agent,  and  shall 
render  a  just  and  true  account  of  all 
moneys,  goods  and  chattels  which  shall 
come  into  his  charge  or  possession,"  where 
the  subordinates  are  appointed  by  the  com- 
pany, with  the  approbation  and  consent  of 
the  general  agent,  and  acting  under  his 
control.  Chtcai!;o  &*  A.  R.  Co.  v.  Higgins, 
58  ///.  128,  10  Am.  Ry.  Rep.  434. 

A  surety  on  a  bond  given  by  an  agent  of 
a  railroad  company  for  the  faithful  per- 
formance of  his  duties  as  agent  is  not  re- 
leased by  his  discharge  in  bankruptcy  from 
liabilities  accruing  under  the  bond  after  the 
estate  of  the  surety  is  settled  up  by  his  as- 
signee, but  he  is  released  by  his  discharge 
from  liabilities  accruing  before  that  time. 
Greenville  6^  C.  R.  Co.  v.  Maffett,  8  So.  Car. 
307. 

A  bond  for  the  faithful  discharge  of  his 
duties  by  an  agent  is  a  continuous  indem- 
nity, binding  the  sureties  from  time  to  time 
i'.s  breaches  occur;  and  until  there  is  a 
I  D.  K.  U  —4. 


breach  there  is  no  debt  of  the  surety,  either 
existing  or  to  become  due,  which  can  be 
proved  against  his  estate  in  bankruptcy. 
Greenville  &•  C.  R.  Co.  v.  Maffett,  8  So.  Car. 
307. 

Where  a  ticket  agent  gives  bond  and  se- 
curity as  agent  of  one  of  two  offices  that  the 
company  maintains  in  a  city,  the  consolida- 
tion of  the  offices  and  imposing  the  duties 
of  both  upon  him  without  the  consent  of 
the  sureties  in  his  bond  will  discharge  them. 
Mumford  v.  Memphis  &»  C.  R,  Co.,  2  Lea 
(Tenn.)  393.— Reviewing  Northern  R.  Co. 
V.  Whinray,  26  Eng.  L.  &  Eq.  R.  488. 

Where  a  company  has  two  ticket  offices 
in  a  city,  and  the  agent  gives  bond  to  faith- 
fully account  for  money  received  at  an  office 
in  the  city,  without  showing  to  which  office 
he  is  to  be  assigned,  and  afterward  the 
duties  of  both  offices  are  imposed  upon  him, 
without  the  assent  of  the  sureties,  it  is  com- 
petent to  prove  by  parol  to  which  office  the 
bond  related.  Mutnford  v.  Memphis  &*  C. 
R.  Co.,  2  Lea  (Tenn.)  393. 

31.  for  negligence  or  miscon- 
duct.— Where  a  third  party  has  recovered 
against  a  railroad  company  for  injuries  sus- 
tained through  the  negligence  or  miscon- 
duct of  its  employes,  the  company  may  re- 
cover over  against  such  employes.  Grand 
Trunk  R.  Co.  v.  Latham,  63  Me.  177. 

Common  carriers,  who,  by  negligent  de- 
livery of  goods  have  been  rendered  liable 
for  their  value,  cannot  maintain  an  action 
against  their  agent,  through  whose  means 
the  goods  are  lost,  unless  such  agent  was  in 
the  first  instance  guilty  of  the  negligence. 
Brooks  V.  Lawrence,  i  Edm.  Sel,  Cas.  {N.  V.) 
496. 

An  agent  may  be  liable  to  his  principal 
for  loss  occasioned  by  his  misconduct,  al- 
though such  misconduct  is  not  the  direct 
cause  of  the  loss,  and  the  loss  was  imme- 
diately attributable  to  the  intervention  of 
third  parties.  Memphis &*  C.  R.  Co.  v.  Greer, 
38  Am.  &-  Eng.  R.  Cas.  248,  87  Tenn.  698, 
n  5.  IV.  Rep.  931. 

One  may  employ  a  servant  for  the  express 
purpose  of  protecting  himself  from  loss  that 
may  arise  from  negligence  of  his  other  ser- 
vants, and  if  such  employe  negligently  and 
in  violation  of  his  duty  puts  his  principal  in 
an  attitude  whereby  loss  occurs  through 
negligence  of  his  other  servants,  and  such 
loss  could  not  have  arisen  had  such  duty 
been  performed,  then  such  employ^  is  liable 
to  his  employer  for  such  loss.    Memphis  &* 


60 


A(iIi\CY,  ;I2-II4. 


C.  A'.  Co.  V,  Grffr,  38  /iw/.  &*  Eni^^.  A'.  Cas. 

248.87  /'<■««.  698,  II  s.  ly.  A'</.  931. 

:t2.  iiiiscoiKliift  of  Niib-aKViitM- 

— Wlicrc  a  local  aj;fni  of  a  railroad  cuiii[>aiiy 
is  empowered  to  employ  assistants  or  sub- 
UKenls,  so  that  iliey  become  directly  liable 
to  the  romi)aiiy  for  the  manner  in  which 
they  discliarj^e  their  duties,  the  a^ent  hirinj,' 
them  is  not  himself  lesjioiisihle  for  their 
conduct,  unless  lie  fraudulently  procures 
their  appointment  with  knowledge  of  their 
dislionesty  or  incompcntence.  LoHisvitle 
&*  N.  R.  Co.  V.  niiiir,  4  ■Z^'"  >•'•  (  Tenn.)  407; 
iijfirmiiii;  i   Tiiiii.  CIt.  351. 

:ia.  liability  ol'  aKfciits  to  third 
persons.— A  servant  of  a  c(jrporati(jn  who 
docs  an  act  forbidden  by  law  is  responsible 
for  it  in  his  own  person,  and  the  corporation 
is  not  presumed  to  have  j,Mven  him  any 
authority  to  do  such  an  act.  Commonwealth 
V.  Ohio  &*  P.  R.  Co..  I  Gnvtt  Cas.  (Pa.)  329. 

A  j>crson  who  d(jes  an  act  by  command 
of  another  within  the  scope  of  his  authority 
is  liable  for  the  consequences,  unless  such 
act  is  one  that  the  superior  would  have 
been  justified  in  doinj;  himself.  Poiilton  v. 
London  ^  S.  W.  R.  Co.,  8  P.  &>  S.  616, 
16  IV.  R.  309,  L.  R.  2  Q.  P.  534,  36  Z.  7. 

Q.  P.  294,  17  L.   T.  .\.  S.    II.— CONSIDEKKD 

IN  Bolinj;l)rokev.  Swindon  NewTown  Local 
Bd.,  30  L.  T.  723. 

It  seems  that  the  aj^cnt  or  servant  is  liable 
as  well  as  the  muster  where  the  injury  is 
caused  by  his  misfeasance,  although  com- 
mitted in  the  master's  business;  but  where 
it  is  the  result  of  non-feasance  on  his  part 
he  is  not,  as  a  general  rule,  liable.  Murray 
V,  Usher,  117  A'.  Y.  542,  23  N.  K.  Rep.  564, 
27  X.  Y.  S.  R.  928  ;  affirmiui:;  46  Hun  404, 

II     N.    Y.   S.    R.    789.— DiSTINCUISHEU   IN 

Cregan  7'.  Marsion,  126  N.  Y.  568. 

After  an  accident  to  a  freight  train  carry- 
ing hogs  the  company's  manager  directed 
certain  employes  to  secure  a  safe  place  for 
the  hogs,  whereupon  the  hogs  were  taken  to 
plaintifl's  barn-yard  and  left,  in  his  absence 
and  without  permission.  On  his  return  he 
did  not  object  nor  assent,  but  being  asked 
to  feed  the  hogs  did  so.  It  appeared  that 
the  hogs  were  diseased  at  the  time,  and  the 
disease  was  immediately  communicated  to 
plaintifl's  hogs,  but  the  fact  of  their  being 
diseased  was  not  known  to  either  the 
manager  or  to  plaintift.  Plaintiff  sued  the 
manager  for  time  and  expense  in  tending 
the  hogs  and  for  damages  to  his  own  on 
account  of  the  communicated  disease.    Held 


(i)  tliat  tlie  manager  acted  within  the 
general  scope  of  his  authority ;  (2)  that  it 
could  not  be  said,  as  a  matter  of  law,  that 
the  nian.iger  had  been  guilty  of  a  trespass, 
milking  him  liable  on  account  of  the  disease. 
Hawks  V.  Locke,  139  Mass.  205,  i  A'.  E, 
Rep.  543- 

An  agreement  was  made  between  the 
plaintiffs  of  the  one  part  and  "The  G.  W. 
K.  Co.  by  their  agent  "  of  the  other  part,  by 
which  the  plaintiffs  contracted  to  furnish  a 
large  quantity  of  cordwood  on  tlie  terms 
specified.  The  agreem<;nt  was  signed  and 
sealed  by  the  plaintiffs  and  by  defendant, 
styling  himself  "agent."  No  representa- 
tion as  to  authority  was  shown  to  have  l)een 
made  by  defendant,  but  it  was  proved  that 
after  the  company  had  accepted  and  paid 
f(jr  a  jjortioii  of  the  wood  they  refused  to 
carry  out  the  contract,  and  dcfeat(;d  the 
plaintifis  in  an  action  brought  upon  it  by 
setting  up  the  want  of  their  corporate  seal. 
Held,  that  this  evidence  was  insufficient  to 
sustain  an  action  against  defendant  for 
falsely  representing  to  the  plaintiffs  that  he 
had  authority  to  bind  the  company.  Mc- 
Donald v.  McMillan,  17  U.  C.  Q.  P.  377. 

:i4.  ConipviiKatioii— 'Wlieii  entitled 
to  coiiiiiiiNsioiiN.* — A  corporation,  under 
its  common-law  power  to  contract,  may 
make  a  valid  agreement  to  compensate  an 
agent  for  obtaining  subscriptions  of  stock. 
Cincinnati,  I.  &*  C.  K.  Co,  v.  Clarkson,  7 
Ind.  595. 

A  person  employed  by  the  month  or  year 
in  a  particular  service  may  have  a  right  to 
compensation  for  services  rendered  on  re- 
quest out  of  the  sphere  of  such  employ- 
ment, though  there  was  no  express  agree- 
ment that  he  should  be  paid  therefor. 
Cincinnati,  I.  &•  C.  A'.  Co.  v.  Clarkson,  7 
Ind.  595. 

The  jury  were  instructed  that  the  defend- 
ant company  had  authority  to  receive,  with 
the  consent  of  the  directors,  subscriptions 
to  tlie  capital  stock,  under  regulations  pre- 
scribed by  the  directors,  in  real  estate  and 
other  property,  and  allow  their  agents  two 
per  cent,  in  stock  on  such  subscriptions 
when  accepted  ;  and  that  if  the  defendant 
company  agreed  to  give  plaintiff  two  per 
cent,  in  stock  for  accepted  subscriptions  in 
real  estate  he  would  be  entitled  to  demand 
the  per  cent,  for  stock  obtained  by  him,  and 

*  Employment  of  station  agent  and  accepting 
services  implies  a  contract  to  compensate  him. 
See  24  Am.  &  Enc.  R.  Cas.  99,  abstr. 


AGliNCV.  ;w-;i7. 


M 


upon  a  refusal  to  allow  it  in  stock  he  mi^';lit 
recover  its  value  at  the  time  of  demand. 
Held,  under  the  evidence,  that  the  instruc- 
tions were  substantially  correct.  Cincinnati, 
I.  (S-  C.  R.  Co.  V.  Clarkson,  7  Imi.  595. 

A  town  issued  bonds  in  aid  of  a  railroad 
and  placed  them  in  the  hai.ds  of  a  party  for 
sale,  or  to  be  exchanged  for  stock.  Afu-r 
some  of  the  bonds  had  been  disposed  of  the 
town  demanded  from  him  the  proceeds  of 
the  bonds,  and  denied  their  validity  and 
his  power  to  dispose  of  them.  Held,  that 
claiming  the  proceeds  of  the  bonds  was  a 
recognizing  of  their  validity,  which  entitled 
the  party  to  his  commission  upon  the  sales. 
Lyons  v.  Chamberlain,  89  N.  Y.  578.— Ap- 
plying Cagwin  v  Hancock,  84  N.  Y.  542. 

:I5. when  not  HO  entitled.— A 

person  authorized  to  make  calls  upon  sub- 
scribers to  capital  stock,  and  to  be  paid  a  cer- 
tain commission  on  the  amounts  collected, 
is  not  entitled  to  a  commission  for  receiving 
bonds  from  a  city  which  had  subscribed,  but 
paid  in  bonds  instead  of  money.  Lakenan 
v.  Hannibal  &•  St.  J.  A'.  Co.,  24  Afo.  505. 

Where  B.  was  employed  to  secure  sub- 
scriptions to  railroad  stock,  his  compensa- 
tion "  to  be  paid  as  the  subscriptions  to  its 
stock  shall  be  paid  in,"  and  a  large  amount 
of  stock  was  afterwards  forfeited  for  non- 
payment, including  the  subscriptions  pro- 
cured by  Ei.,  the  company  not  having  re- 
mitted the  forfeitures  nor  attempted  to  sell 
the  forfeited  stock,  nor  even  instituted  ac- 
tions to  recover  the  subscriptions.  Arid,  that 
B.  was  not  entitled  to  compensation  with 
respect  to  such  forfeited  shares  until  the 
money  was  realized  thereon.  Maryland 
Agric'l  College  v.  Haltimore  &^  P.  R.  Co.,  43 
Md.  434.  14  Am.  Ry.  Rep.  266. 

The  company  not  having  remitted  the 
forfeitures,  nor  having  attempted  to  sell  the 
forfeited  stock,  nor  even  instituted  actions 
to  recover  the  subscriptions,  B.  may  have  a 
remedy  to  compel  the  company  to  either 
sell  the  stock  or  remit  the  forfeitures,  and 
institute  actions  to  recover  the  balance  of 
the  subscriptions.  Maryland  Agric' I  College 
V.  Haltimore  &>  P.  R.  Co.,  43  Md.  434. 

Plaintiff,  as  agent,  negotiated  for  defend- 
ants, a  railroad  and  mining  company,  a  sale 
of  ore,  for  which  he  was  paid  a  commission. 
The  purchasers  were  to  have  the  option  of 
ordering  a  certain  additional  quantity  within 
the  next  five  years.  Afterward  plaintiff 
was  made  general  agent,  to  be  paid  a  com- 
mission on  all  ore  sold.     During  the  time 


limited  the  purchasers  of  the  lot  sold  exer- 
cised the  (jptioii,  and  made  another  large; 
order,  upon  which  piainiiff  claimed  a  com- 
mission. Held,  that  the  contract  making 
him  general  agent  only  covered  commissions 
on  sales  thereafter,  and  did  not  include 
orders  afterward  made  under  the  existing 
option.  Taylor  v.  Cobo'iog,  P.  ijr*  M.,  R.  Sf 
M.  Co.,  24  U.  C.  C,  P.  200. 

;I0.  UiKiit  to  relnilMirHeini'iit  hiiiI 
Indemnity.— Wiicre  an  agent  of  a  railroad 
company  purchases  land  in  his  own  name 
upon  the  request  and  for  the  benefit  of  his 
principal,  pays  part  of  the  consideration 
and  gives  his  mortgage  for  the  residue,  with 
a  bond  in  which  his  constituent  joins,  the 
agent  is  a  surety  for  his  constituent  in  re- 
spect of  such  bond;  and  equity  will  decree 
that  he  be  paid  his  advance  and  indemnified 
against  the  bond  and  mortgage,  on  kis  con- 
veying the  title  to  the  principal.  Mohawk 
&^  H.  R.  Co.  V.  Costigan,  2  Sand/.  Ch.(N.  Y.) 
306. 

A  banking  firm  who  had  the  general  con- 
trol of  the  finances  of  a  railroad,  and  who 
were  largely  interested  in  the  stocks  and 
bonds  of  the  road,  advanced  large  sums  of 
money  to  enable  the  company  to  meet  de- 
mands. After  the  lapse  of  some  time,  and 
while  they  were  still  carrying  a  considerable 
floating-debt  against  the  railroad,  the  com- 
pany's revenues  not  being  sufficient  to  pay 
the  interest  falling  due  on  certain  first-mort- 
gage bonds,  the  banking  firm  purchased 
with  their  own  bonds  the  interest  coupons 
due  and  unpaid.  Held,  that  such  purchase 
could  not  be  taken  as  an  extinguishmrnt 
of  the  coupons,  and  that  the  bank  had  a 
right  to  reimburse  themselves,  but  that  the 
coupons  were  not  entitled  to  any  priority 
over  the  principal  and  interest  of  others 
subsequently  maturing.  Duncan  v.  Mobile 
6-  O.  R.  Co.,  3  Woods  {U.  S.)  567. 

III.  BIQHT8,  DUTIES  AND   LIABILITIES  OF 
PBINCIPALS. 

I.  In  General. 

37.  AdniisslonM  and  decIaratioiiN 
of  a^ent,  wiieii   bind  principal. —A 

corporation  is  bound  by  the  admissions,  dec- 
larations and  representations  of  its  agents 
whenever  an  individual  could  be  bound  un- 
der like  circumstances.  Henderson  v.  San 
Antonio  &*  M.  G.  R.  Co.,  17  7Xr.  560 

The  statements  and  representations  of  an 
agent  made  in  reference  to  an  act  which  he 


59 


AGIiNCV,  ;»K-40. 


is  authorized  to  perform,  and  while  cngan<;d 
in  its  |)«;rfoniiancc,  are  biiuliiiK  upon  tiie 
principal.  They  arc  part  of  ilio  »vt  x^ciA/" 
Union  I'tic.  A'.  L'o.   v.  Hipna,  3  Colo.  App. 

3'3 

:t8.  uiul  wIk'II  do  not.— Tlie  rule 

thatwiiorc  an  aj^ent'sacts  will  bind  iiis  prin- 
cipal, his  declarations  and  admissions  ac- 
companying such  acts,  and,  with  respect  to 
tliu  subject-matter,  will  also  bind  him,  does 
not  apply  to  a  case  where  there  is  no  elTort  to 
fix  the  principal's  liability  by  showing  any 
act  of  the  agent,  but  simply  his  naked  dec- 
larations concerning  a  matter  with  which 
lie  was  entirely  unconnected,  and  of  whicii 
he  did  not  appear  to  have  any  personal 
knowledge.  lialtimore&'O.  R.  Co.  v.  Chris- 
tie, 5  W.  Va.  325. 

Railway  companies  are  not  responsible 
for  the  declarations  or  admissions  of  any  of 
their  servants  beyond  the  immediate  sphere 
of  their  agency  and  during  the  transaction 
of  the  business  in  which  they  are  employed. 
Missouri  l\ic.  R.  Co.  v.  Stu/ls,  1 5  Am.  &^ 
JCnq-.  R.  Cas.  97,  31  A'an.  752,  3  /'ac.  Refi. 
522. 

The  directions  given  by  a  baggage-master 
as  to  the  delivery  of  freight,  while  away 
from  the  baggage-room  and  about  his  own 
private  affairs,  are  not  binding  on  the  com- 
pany. Chillicothe  ex  rel.  v.  Raynard,  80 
Mo.  185.— QuoTiNC.  Adams  v.  Hannibal  & 
St.  j.  R.  Co.,  74  Mo.  554. 

A  person  who  acts  as  a  special  policeman 
about  a  depot,  whose  duties  are  confined  to 
keeping  order  about  the  grounds  and  build- 
ings, and  in  assisting  passengers  on  and  off 
trains,  cannot  bind  the  company  by  declara- 
tions and  statements  in  respect  to  trans- 
portation. Wells  V.  Alabama  G.  .S.  R.  Co., 
40  Am.  &•  Entf.  R.  Cas.  645,  67  A/iss.  24,  6 
.V,..  Rep.  737. 

A  company  is  not  bound  by  representa- 
tions as  to  its  accommodations  made  by  an 
agent  employed  by  it  to  obtain  custom. 
A'irfy  v.  Great  Western  R.  Co.,  18  L.  T.  N. 
S.  658. 

;M>.  Notici!  to  at;ciit,  when  notice 
to  principal.- Where  the  business  of  an 
incorporated  company  is  of  such  a  nature 
as  to  require  it  to  be  conducted  through 
servants  or  agents,  notice  to  one  of  its  offi- 
cers relative  to  a  matter  in  which  he  acted 
within  the  scope  of  his  employment,  and  in 
the  usual  course  of  the  company's  business, 
will  bind  the  company.  Pontc/iartrain  R. 
Co.  V.  Hierne,  2  La.  Ann.  129. 


Notice  to  an  agent  of  a  corporation  relat- 
ing to  any  matter  of  which  he  has  the  man- 
agement and  control,  is  notice  to  the  cor- 
poration, nttsbur^h.  Ft.  W.  &^  C.  R.  Co. 
V.  Rufy,  38  //<(/.  294,  10  Am.  Rv.  Rep.  199. 

Notice  to  an  agent  in  transactions  in 
which  he  is  employed,  where  it  becomes  his 
duly,  by  virtue  of  his  employment,  to  act  on 
sucii  notice,  is  notici^  to  the  principal. 
Denver,  S.  /*.  Sr*  /'.  R.  Co.  v.  Conivay,  X 
Colo.  I,  54  Am.  Rep.  537,  5  Pae   Rep.  142. 

Notice  to  an  agent,  to  be  binding  upon 
his  princi|)al,  must  be  concerning  some  fact 
within  the  scope  of  the  powers  anri  duties 
of  the  agent  as  such,  Jaeksonville,  T,&'  K, 
W.  R.  Co.  V.  Peninsular  L.,  T  &*  M.  Co., 
49  Am.  &^  Kni;;.  R.  Cas.  603,  27  J'la.  i,  9  ,So. 
Rep,  661. 

Notice  to  an  agent,  in  order  to  bind  the 
jjrincipal,  must  be  in  the  same  transaction. 
Blumenthals.  lirainerd,  38  17.  402. 

If  a  railroad  corporation  occupies  land 
after  its  agent  has  been  notified  by  the 
owner  that  rent  will  be  charged,  it  is  liable 
in  assumpsit  for  use  and  occupation.  Illinois 
C.  R.  Co.  V.  Thompson,  116  ///.  159,  5  A^.  E. 
Rep.  1 17. 

40.  —  vnrioiiN  illiiHtrntions  oi'tlie 
rule. — Where  a  master-mechanic  is  charged 
with  the  duty  of  employing  and  discharging 
engineers  and  firemen,  notice  to  such  master- 
mechanic  of  a  violation  by  engineers  and 
firemen  of  the  orders  of  the  company  is  the 
same  as  notice  to  the  company.  Ohio  &^ 
M.  R.  Co.  V.  Collarn,  5  Am.  <5-  En,  A'.  C  ,. 
554, 73  Ind.  261,  38  Am.  Rep.  134      '  >•'■ 

Pittsburgh,  Ft.  W.  &  C.   R.  (  ,vuby, 

38   Ind.  294;    Baulcc  ?'.  New  k   &   H. 

R.  Co.,  59  N.  Y.  356. 

Noti'  -  to  the  yard-master  that  certa  i  n  f  ro  ,'S 
are  unblocked,  one  of  which  is  pointed  out 
to  him,  is  notice  to  the  company.  /Ishman 
V.  Flint  &^  P.  M.  R.  Co.,  53  Am.  &^  Eng, 
R.  Cas.  80,  90  Afic/i.  567,  51  A'.  W.  Rep.  645. 

Notice  to  a  depot  agent  of  an  assignment 
of  wages  by  an  employe  is  notice  to  the 
company,  where  it  appears  that  such  agent 
has  been  receiving  such  notice  for  years  and 
transmitting  them  to  the  company  under 
orders  from  his  superiors.  Illinois  C.  R.  Co. 
V.  Bryant,  70  Miss.  665,  12  .S(>.  Rep.  592. 

The  only  representative  or  agent  of  a 
company  in  a  certain  town  was  charged, 
among  other  duties,  with  that  of  paying 
wages  to  employes.  A  certain  employ6 
transferred  his  claim  to  one  who  gave 
notice  thereof  to  the  agent  and  demanded 


ACll'NC  V,  41,  4ti. 


68 


payment,  but  noiwillistandinn,  the  aK'ni 
paid  the  inom.;'  f)  tlic  oiifjinal  fiuplnu'-. 
Held,  that  notic  lo  such  af^enl  was  notice 
to  the  company,  makin}{  it  liable  to  the  as- 
signee of  the  claim.  Memphis,  K.  &*  C  A'. 
Co.  V.  A'ot/i.  <)  .hn.  &*  Kutf.  A'.  Cut.  429,  28 
A'dit.  565. 

Where  it  appears  that  a  locomotive  is  un- 
safe, in  order  to  charge  the  company  with 
implied  notice,  it  is  not  necessary  to  show 
that  the  persons  having  charge  of  it  had 
actual  knowledge  of  the  defects,  it  being 
sufiicient  if  it  appear  that  they  had  such  re- 
ports of  its  unsafe  condition  as  should,  in 
the  exercise  of  proper  diligence,  have  put 
them  on  inquiry  and  knowledge  of  its  true 
condition.  C/i/oit^o  &*  A.  A'.  Co.  v.  S/iiiniioii, 
43 ///.  338.— Disi  iNfUJisiiKi)  IN  McKelvey 
V.  Chesapeake  &  O.  R.  Co.,  35  W.  Va.  5<x). 
Follow Ki)  in  Toledo,  St.  L.  «i  K.  C.  R.  Co. 
V.  Bailey.  145  111.  159. 

41.  Notivv  to  agent,  wlu'ii  not  no- 
tlfc  to  princ'iiml.  — In  order  to  charge  a 
corporation  with  implied  notice  on  account 
of  actual  notice  to  one  of  its  agents  or  offi- 
cers, it  must  appear  that  such  agent  or 
officer  received  the  notice  while  acting 
within  the  scope  of  his  duties  and  employ- 
ment, and  not  while  engaged  in  private 
business  of  his  own.  /iV/V/ v.  Hank  of  Mobile, 
14  //;//.  «S-  AV/^.  A'.  Cas.  554,  70  Alu.  199. 

A  complaint  of  a  defective  railroad  cross- 
ing, made  to  one  who  has  no  charge  or  con- 
trol of  the  same,  though  he  be  a  servant  of 
the  railway  company,  is  no  notice  of  the 
defect  to  the  company.  Union  Pac.  A'.  Co. 
V.  Sprintisteen,  41  A'an.  724,  21  Pac.  liep.  774. 
Notice  to  the  caller  (whose  business  it  is 
merely  to  call  the  conductors  in  a  certain 
order  when  trains  arc  ready,  and,  if  one  can- 
not go  to  call  the  next),  of  a  special  tempo- 
rary incompetency  of  a  conductor  called  by 
h'-n,  is  not  notice  to  the  company.  Michi- 
^,in  C  R.  Co.  V.  Dolan,  32  Mich.  510. — 
Following  Davis  v.  Detroit  &  M.  R.  Co., 
20  Mich.  105. 

PlaintifT,  with  others,  was  employed  by  a 
contractor  to  fence  a  track  and  they  were  fur- 
shed  a  hand -car  by  the  company  on  which 
to  move  themselves  and  tools  from  place  to 
place,  and  while  using  the  car  plaintiff  was 
injured.  Held,  that  notice  to  the  contractor 
of  the  company's  rules  as  to  the  use  of  the 
car  was  not  notice  to  the  plaintiff,  as  the 
contractor  was  not  the  company's  agent. 
Garteiser  v.  Galveston,  H.  tS-  J?.  A.  A'.  Co., 
3  Tex.  Civ.  App.  230,  21  S.  IV.  AVp.  631. 


42.  KmowUmIuv  oraK«'nl,  when  lin- 
|iiit<'«l  to  |»i'inci|»al.  Where  an  employe 
is  furnished  a  defective  hammer  which  had 
been  sent  to  an  agent  to  repair,  ih  •  em- 
ployer is  charged  with  the  knowledge  of 
such  agent  as  to  its  defects.  Johnson  v, 
.Missouri  Pac.  A'.  Co.,  96  Mo.  340. 

Wliere  a  person  in  tlie  employ  of  a  horse- 
car  company  sues  for  injuries  caused  by  a 
vicious  horse,  proof  that  the  superintendent 
of  the  stable  and  another  in  higher  authority 
than  plaintill  knew  of  the  vicious  dispo- 
sition of  the  horse,  is  sulTicient  to  show 
knowledge  by  the  company.  McGarry  v. 
Nnu  York  »5-  //.  A".  Co.,  18  N.  Y.  Siipp. 
195;  affirmed  in   137  N.  Y.  627,  33  A',  /s". 

Rep.  745- 

If  the  unsoundness  of  the  roadway  be 
known  to  the  officers  of  the  company  who 
are  charged  with  the  duty  of  repairing  it. 
this  would  be  notice  to  the  corporation. 
Kroi^g  V.  Atlanta  &>  W.  P.  R.  Co.,  77  Ga. 
202,  4  Atn.  .St.  Rep.  79. 

Where  an  employe  of  a  railroad  company 
IS  charged  with  keeping  the  track  in  good 
condition,  knowledge  by  him  of  a  defect  in 
the  track  is  the  same  as  knowledge  by  the 
company.  Speed  v.  Atlantic  &*  P.  R.  Co., 
2  Am.  (5-  F.Hfi.  R.  Cas.  77,  71  Mo.  303. 
Fort  Worth  «S-  D.  C.  R.  Co.  v.  Wilson,  3 
Tex.  Civ.  App.  583,  24  S.  W.  Rep.  686. 
Porter  v.  Hannibal  &^  St.  J.  R.  Co.,  2  Am. 
&>  Eng.  R.  Cas.  44,  71  Mo.  66,  36  Am.  Rep. 
454. — Following  Texas  M.  R.  Co.  v.  Wliit- 
more,  58  Tex.  276  ;  Houston  &  T.  C.  R.  Co. 
V.  Dunham,  49  Tex.  181  ;  Railway  Co.  v. 
Farmer,  73  Tex.  85.— Distinguished  in 
Corbett  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  26 
Mo,  App.  621. 

Where  a  former  receiver  and  officers  of  a 
railroad  continue  in  the  services  of  pur- 
chasers at  a  foreclosure  sale,  the  knowledge 
of  such  receiver  and  officers  as  to  the  con- 
dition of  the  road,  obtained  while  they  were 
in  possession  of  it,  will  be  deemed  the 
knowledge  of  the  subsequent  purchasers. 
George  v.  Wabash  W.  R.  Co.,  40  Mo.  App. 

433- 

Where  it  appears  that  the  head  switchman 
knew  of  defects  in  a  car  while  he  is  making 
it  lip,  he  being  intrusted  with  making  up  the 
train,  this  amounts  to  knowledge  of  the 
defects  and  notice  to  the  company.  Reed 
v.  Hurling  ton,  C  R.  &'  N.  R.  Co.,  31  Am. 
&•  Eng.  R.  Cas.  190,  72  Io7va  66.  33  A''.  W. 
Rep.  451. 

The  knowledge  of  the  receiving  agent  of 


r>4 


AdIiNCY,  •*:<  4«. 


a  cominon  carrier  as  to  the  diaracler  of 
goods  taken  for  transportation  is  deemed  to 
be  the  knowledge  of  his  principal.  Merrill 
V.  American  Exp.  Co.,  62  .\'.  //.  514. 

A  husband  sent  a  man  to  a  freijjht  yard 
with  his  wife's  horse  anfl  cart  for  goods,  and 
upon  entering  tiie  yard  the  man  saw  that 
the  car  containing  the  goods  was  out  on  the 
track  in  a  dangerous  place,  but  instead  of 
having  it  moved,  as  he  might  have  done,  he 
led  the  rcrse  to  the  car,  where  it  was  killed. 
Held,  in  an  action  by  the  wife  against  the 
company  to  recover  the  value  of  the  horse, 
that  the  company  was  entitled  to  an  instruc- 
tion ;  that  if  the  man  knew  the  situation, 
or  the  danger,  and  voluntarily  assumed  the 
risk,  plaintiff  could  not  recover.  Miners. 
Connecticut  River  R.  Co.,  153  Mass.  398,  26 
^V.  E.  Rep.  994. 

43.  and  when  not.— A  carrier  is 

not  bound  by  its  agent's  knowledge  or  no- 
tice of  facts  outside  of  his  duties  and  em- 
ployment as  such  agent.  Wells  v.  American 
Exp.  Co.,  44  Wis.  342. 

The  knowledge  of  the  arbitrary  mark  of  a 
consignee  of  goods  by  railroad,  possessed 
by  a  former  officer  or  agent  of  the  railroad 
company,  such  knowledge  not  having  been 
acquired  by  any  usage,  custom  or  course  of 
business  of  the  company,  is  not  the  knowl- 
edge of  the  company.  A  corporation  has 
no  memory  except  through  its  agents,  and 
from  the  nature  of  the  case,  the  notice 
should  attach  to  the  principal  only  so  long 
as  the  knowledge  remains  present  in  the 
agency.  Great  Western  R.  Co.  v.  W/ieeler, 
20  Mich.  419. 

44.  UiKlit.s  and  liabilities  of  iiiidis- 
cloHed  priiicipal.—A  person  shipped  cat- 
tle belonging  to  himself  and  to  another 
party,  but  took  the  receipt  in  his  own  name, 
there  being  nothing  to  show  that  they  did 
not  all  belong  to  him.  The  cattle  were  in- 
jured in  the  hands  of  the  railroad  company, 
and  the  party  whose  name  had  not  been 
disclosed  sued  the  railroad  for  his  share  of 
the  loss,  not  making  the  party  taking  the 
bill  of  lading  a  co-plaintifT.  The  action  was 
tried  upon  it-j  merits,  without  the  question 
of  a  defect  of  parties  being  raised,  and  judg- 
ment rendered  for  the  plaintiff.  Held,  on 
appeal,  that  the  action  could  be  maintained. 
St.  Louis,  K.  C.  £-  N.  R.  Co.  v.  Thacher, 
13  Kan.  564. 

The  general  manager  of  a  railroad  directed 
a  subordinate  to  have  certain  worlc  done, 
who  in  turn  made  a  contract  with  a  third 


party  to  do  the  work.  A  memorandum  of 
agreement  was  entered  into  reciting  that  the 
party  would  do  the  work  for  a  certain  sum, 
under  the  direction  of  the  company's  engi- 
neer, without  mentioning  for  whom  the 
work  was  to  be  done.  The  subordinate 
signed  the  memorandum  without  any  as- 
sumption of  personal  liabi'ity  and  without 
anything  to  show  for  whom  he  acted.  The 
work  done  was  entirely  for  the  benefit  of  the 
company.  Held,  that  the  memorandum  was 
the  contract  of  the  company.  Missouri,  K. 
&>  T.  R.  Co.  V.  Brown,  14  Kan.  557. 

2.  When  Bound  by  Agents'  Contracts. 

45.  Ill  generul.*— Corporations  are  only 
bound  by  the  acts  of  their  agents  where 
natural  persons  would  be  bound  under  the 
same  conditions,  i.e.,  when  the  agents  act 
within  the  scope  of  their  employment. 
Chicago  &^  N.  W.  R.  Co.  v.  James,  22  Wis. 
194.  Ellis  V.  Central  Pac.  R.  Co.,  5  Ner'.  255. 
Covington  v.  Covington  <&*  C.  Br.  Co.,  10 
Bush  (Ky)  69. 

A  railroad  company  will  be  bound  by  a 
contract  made  in  its  name  by  another  as 
agent,  when  such  other  person  has  been 
accustomed  to  make  similar  contracts  for  it 
as  agent,  with  its  knowledge  and  approba- 
tion, which  have  been  recognized  and  rati- 
fied ;  but  when  the  authority  is  denied  it 
must  V  proved.  Texas  &*  P.  R.  Co.  v. 
Hamm,  i  Tex.  App.  {Civ.  Cas.)  436. 

A  regulation  of  the  company  forbidding 
its  agents  to  make  any  contract  is  not  bind- 
ing upon  a  stranger  who  has  no  notice  of 
this  regulation.  Walker  v.  Wilmington,  C. 
&<  A.  R.  Co.,  26  .S-.  Car.  80,  I  .">.  E.  Rep.  366. 

Unless  sanctioned  by  a  superior  officer, 
the  act  of  a  subordinate  rescinding  a  con- 
tract does  not  bind  the  corporation.  Alle- 
gheny Valley  R.  Co.  v.  Steele,  i  Pennyp.  (Pa.) 
3>2. 

A  railroad  company  is  not  bound  by  the 
act  of  its  local  agent  and  engineer  in  er- 
roneously locating  its  right  of  way  on  a 
town  plat,  in  the  absence  of  proof  that  they 
were  authorized  by  the  company  to  make  the 
plat  in  the  manner  that  it  was  made.  Han- 
nibal Sf  St.  J.  R.  Co.  v.  Green,  6i  Mo.  169. 

46. where  agent  deviates  from 

his  instriictions.t— The  test  of  a  master's 
responsibility  for  the  act  of  his  servant 
is,    whether    the    act    was    done    in    the 

*  Liability  of  company  on  contracts  made  by 
agents  generally,  see  note,  20  L.  R.  A.  696. 
t  Sec  also  atite,  23. 


I 


1 

I 


AGKNCV,  47,  48. 


,)0 


prosecution  of  the  master's  business;  not 
whether  it  was  done  in  accordance  with 
the  instructions  of  the  master  to  the 
servant.  When,  therefore,  the  servant 
while  engaged  in  the  prosecution  of  the 
master's  business  deviates  from  his  instruc- 
tions as  to  the  manner  of  doing  it,  this  does 
not  relieve  the  master  from  liability  for  his 
acts.  Cosgrove  v.  Ogden,  49  N.  Y..  255. — 
Followed  in  Huglies  v.  Ne\"  York  &  N. 
H.  R.  Co.,  4  J.  &  S.  (N.  Y.)  222;  Atchison, 
T.  &.  S.  F.  R.  Co.  V.  Randall,  38  Am.  & 
Eng.  R.  Cas.  255,  40  Kan.  421,  19  Pac.  Rep. 

783- 

47.  Agreements  and  promises  as 
to  location  of  depots. — The  agent  of  a 
railway  company,  acting  under  a  general 
power  to  procure  a  right  of  way  for  the  rail- 
road, does  not  have,  as  connected  with  or 
incidental  to  such  a  power,  the  right  to 
designate  and  locate  for  his  principals  the 
depots  along  the  line  of  road;  and  his 
agreement  to  locate  a  depot  at  a  particular 
place,  as  a  consideration  for  a  deed  to  the 
company  of  a  right  of  way,  would  not  be 
binding  on  the  company.  Houston  &*  T.  C. 
R.  Co.  V.  McKinney,  8  Am.  &>  Eng.  H.  Cas. 
723,  55  Tex.  176.— Distinguishing  Hen- 
derson V.  San  Antonio  &  M.  G.  R.  Co.,  17 
Tex.  560. 

The  representations  of  the  agent  of  a 
railway  company  made  in  the  sale  of  lots  at 
a  depot  town,  as  to  the  future  location  of 
the  road  with  reference  thereto,  when  made 
as  inducements  to  the  purchaser  of  a  lot  to 
contract  therefor,  become,  when  acted  on  in 
making  the  purchase,  assurances  and  under- 
takings which  the  road  is  bound  to  comply 
with.     Greenwood  \.  Pierce,  58  Tex.  130. 

Agents  acting  on  behalf  of  persons  inter- 
ested ill  the  building  of  a  railroad  were  au- 
thorized to  contract  with  the  railroad  com- 
pany for  the  construction  of  the  road  ac- 
cording to  their  discretion,  and  upon  such 
terms  as  they,  or  a  majority  of  them,  might 
<leem  best.  Held,  that  the  agents  had  au- 
thority to  bind  their  principals  in  a  cove- 
nant to  provide  a  right  of  way  and  to  fur- 
nish depot  grounds,  the  providing  of  which 
should  be  conditions  precedent  to  the  com- 
pletion of  the  contract  on  the  part  of  the 
company.  Cedar  Rapids  <S»  St.  P.  R.  Co.  v. 
Stewart,  25  Iowa  115. 

Where  certain  petitioners  were  induced 
to  sign  a  petition  calling  an  election  in  a 
township,  upon  the  representations  of  an 
agent  of  the  railway  company  that  the  de- 


pot would  be  located  on  section  16  of  said 
township,  when,  in  fact,  the  depot  was  after- 
wards located  on  section  17,  the  company 
was  bound  by  the  representations  of  its 
agents,  and  persons  who  had  been  deceived 
thereby  and  induced  to  sign  the  petition 
might  set  up  such  facts  to  enjoin  the  issu- 
ing of  the  bonds.  Widlenwabcrv.Dunigan, 
30  Neb.  877. — Distinguishing  Perkins  v. 
Lougee,  6  Neb.  220.  Following  Donis- 
thorpe  V.  Fremont,  F,.  &  M.  V.  R.  Co.,  30 
Neb.  142.  QUOTIN.  Sandford  v.  Handy, 
23  Wend.  (N.  Y.)  263 

48. to  build  gates  or  crossings. 

— A  company  will  not  be  bound  by  an 
agreement  to  put  up  gates  on  certain  land, 
unless  it  appear  that  the  person  who  made 
the  agreement  had  authority,  either  actual 
or  ostensible,  to  contract  for  the  company, 
or  that  his  act  was  subsequently  ratified  by 
the  company.  McCoy  v.  Southern  Pac.  R. 
Co.,  94  Cat.  568,  29  Pac.  Rep.  ilio. 

An  attorney  em.ployed  by  a  company, 
among  other  things,  to  procure  a  right  of 
way,  in  taking  a  deed  for  such  right  of 
way  told  the  grantor  that  a  provision  in  the 
deed  requiring  the  company  to  construct 
and  maintain  certain  wagon-ways,  in  con- 
formity to  the  charter,  would  not  prejudice 
or  affect  his  rights.  Upon  the  refusal  of 
the  company  to  construct  crossings  or  ways, 
the  grantor  constructed  them  and  sued  the 
company  for  their  cost.  Held,  that  an  in- 
junction would  issue  to  restrain  the  com- 
pany from  setting  up  the  deed  as  a  defence. 
Morris  (S>*  E.  R.  Co.  v.  Green,  15  N.J.  Eg. 
469;  affirming  12  N.  /.  Eg.  165.— Fol- 
lowed IN  Martin  v.  New  York,  S.  &  W.  R. 
Co.,  12  Am.  &  Eng.  R.  Cas.  448,  36  N.  J. 
Eq.  109. 

Plaintiff  declared  in  assumpsit,  setting 
out  that  he  had  brought  two  actions  against 
defendants — the  first  for  breach  of  an  agree- 
ment made  by  them  to  construct  a  bridge 
or  crossing,  with  cattle-guards,  over  their 
road,  which  passed  through  his  land  ;  and 
the  second  for  an  alleged  injury  occasioned 
by  them,  the  particulars  of  which  were  not 
stated  ;  that  while  both  actions  were  pend- 
ing the  plaintiff  and  defendants  by  their 
said  attorney,  who  was  then  duly  authorized 
in  such  behalf,  made  an  agreement  in  writ- 
ing setting  it  out,  of  which  the  terms  were, 
that  plaintiff  was  to  receive  J[,\7S  for  all 
claims  against  the  company,  the  company 
to  pay  costs  and  to  make  the  cattle-pass 
and  complete  the  crossing  by  the   i6th  of 


■Si 


5G 


AGKXCV,  4!»  .-»1. 


July  tlien  next ;  the  suits  to  be  witlidruwii, 
the  agreement  to  be  carried  out  by  M.  (plain- 
tiff's attorney)  on  plaintiff's  account,  and  K. 
on  behalf  of  the  company,  as  soon  as  the 
court  was  over  (this  was  signed  by  K.  iov 
the  company).   That  in  consideration  of  the 
premises,  and  that  the  plaintiff  at  defend- 
ants' request  would  perform  said  agreement 
on  his  part,  defendants  promised  to  perform 
on  their  parts;  that  confiding  in  such  prom- 
ise he  withdrew  the  actions  and   did   all 
that  was  to  be  done  on  his  part,  but  that, 
although  defendants    in    part-performance 
paid  £75  and  costs,  yet  they  did  not  make 
the  cattle-pass  or  complete  the   crossing. 
HM.  on  demurrer  to  the  declaration,  that 
it  must  be  assumed  by  the  averments  that 
R.  had  been  authorized  under  the  defend- 
ant's corporate  seal  to  make  the  agreement ; 
but  that  no  promise  of  the  corporation,  such 
as  was  declared   upon,  could   be    implied 
therefrom ;  that  the  proper  construction  of 
llie  agreement  was,  that  it  required  a  proper 
legal  covenant  by  the  company  to  bind  them 
to  the  terms  which  they  had  authorized  him 
to  accept,  and  that  they  could  not  be  charged 
as  liable  through  him  on  a  parol  agreement 
to  do  that  which  they  could  only  liave  bound 
themselves  under  seal  to  perform.    Dorany. 
Great  IVeslern  R.  Co..  14  U.  C.  Q.  B.  403  — 
— Distinguishing  Favielli/.  Eastern  Coun- 
ties R.   Co..  2    Exch.   344.      Reviewing 
Jackson  v.  North  Wales  R.  Co..  18  L.  J.  Ch. 
91.  13  Jur.  69. 

49.  Construction  contracts.— Plain- 
tiff entered  into  negotiations  with  the  agent 
of  a  railroad  company,  looking  toward  the 
employment  of  some  person  of  means  to 
build  a  certain  part  of  defendant's  road. 
Subsequently  an  arrangement  was  made  by 
which  plaintiff,  the  agent  and  a  third  party 
took  the  contract  on  certain  conditions,  the 
profits  of  the  enterprise  to  be  divided  in 
specified  proportions  between  the  three. 
Held,  that  plaintiff  could  not  recover  com- 
pensation for  services  which  led  to  the  mak- 
ing of  the  contract.  Van  ]'alkenburg  v. 
Thomas^'illi-,  T.  &'  G.  A\  Co  .  22  JV.  V.  S.  A\ 
379,  52  //w«  610,  4  N.   y.  Sitfifi.  782. 

50.  for    supplies   to    |>or.soiis 

coiistriictiui;  road. — An  inspector  who 
superintends  the  erection  of  a  railroad 
bridge  may  contract  for  stone  and  sand 
without  the  contract  being  under  seal.  But 
apart  from  this,  where  the  company  adopts 
the  acts  of  the  inspector,  and  receives  the 
material,  it  must  pay  for  them.    O'Brien  v. 


Cn;///    Va/lev    A'.     Co.,    25    T.     f.     C.   P. 

275- 

Plaintiffs    sued    to   recover   for  supplies 

furnished  to  parties  engaged  in  the  con- 
struction of  defendant's  road,  upon  the  claim 
thai  the  goods  were  delivered  upon  orders 
given  by  defendant's  agent,  and  upon  its 
credit.  Held,  that  the  question  of  the  au- 
thority conferred  upon  the  alleged  agent 
was  one  of  fact  for  the  jury.  Hirschinann 
V.  Iron  Range  <S^•  H.  B.  R.  Co.,  97  Mich.  384. 
If  defendant  relinquished  to  another  (to 
whom  it  had  let  a  contract  for  building  its 
road,  and  who  was  the  promoter  and  organ- 
izer of  the  scheme)  the  matter  of  the  con- 
struction of  the  road,  and  he  knew  that  the 
alleged  agent  (who  was  the  engineer  in 
charge  of  the  work,  which  was  being  per- 
formed by  a  sub-contractor)  was  contracting 
the  obligations  sued  upc^n  in  defendant's 
name  and  upon  its  credit,  he  must  be  deemed 
to  have  adopted  them,  and  his  knowledge 
was  the  knowledge  of  the  defendant,  and  it 
is  liable  on  said  obligations.  Hirschmann 
V.  Iron  Range   &•  H.  B.  R.  Co.,  97  Altc/t. 

384. 

If  defendant's  officers  were  advised  that 
said  agent  had  incurred  certain  indebtedness 
to  plaintiffs  in  the  name  and  upon  the  credit 
of  defendant,  and  made  no  protest,  but,  on 
the  contrary,  corresponded  directly  with 
plaintiffs,  and  paid  them  that  indebtedness, 
plaintiffs  were  justified  in  relying  upon  such 
action  as  an  assurance  of  the  authority  of 
the  agent,  and  in  extending  further  credit, 
and  defendant  is  estopped  from  denying 
such  authority.  Hirschmann  v.  Iron  Range 
<S-  H.  B.  R.  Co.,  97  Mich.  384. 

If  the  agent,  in  the  exercise  of  the  autho- 
rity given  to  him  by  the  sub-contract  to  de- 
clare it  forfeited  in  case  of  the  inability  of  the 
sub-contractor  to  perform  it,  was  prosecuting 
the  work  for  and  on  behalf  of  tlie  defend- 
ant, which  had  assumed  its  performance, 
and  incurred  the  indebtedness  to  plaintiffs 
in  such  prosecution,  plaintiffs  are  entitled  to 
recover.  Hirschmann  v.  Iron  Range  &*  H. 
B.  R.  Co.,  97  Mich.  384. 

51.  Arrantfvmcnts  relative  to  pas- 
senger tratUc— A  contract  made  with  a 
general  passenger  agent  of  a  railroad  in- 
trusted with  the  supervision  of  its  passenger 
business,  and  a  part  of  that  business  being 
to  make  arrangements  and  special  contracts 
for  excursions,  is  binding  on  the  company. 
Houston  &'  T.  C.  R.  Co.  v.  Hill,  21  Am.  &* 
Eng.  R.  Cas.  263.  63  Tex.  381. 


1 

i 


i 
■I 


ACiKNCY,  .-.2  55. 


57 


A  statement  or  agreement  of  a  ticket 
ayeiit  or  a  conductor,  in  contravention  of 
tlie  rules  and  regulations  ol  the  company, 
liiat  a  train  shall  stop  at  a  certain  station, 
cannot  bind  the  company,  ly/iite  v.  Evans- 
vilk  &»  T.  H.  R.  Co.,  133  ■/'"'•  48o,  33  A'.  E. 
Rtp.  273. 

The  acts  of  a  ticket  agent  selling  a  certain 
ticket  are  binding  on  the  company,  when  it 
is  proven  that  such  tickets  had  been  fur- 
nished under  the  same  circumstances  by  the 
ticket  agents  on  previous  occasions.  Inter- 
national &•  G.  N.  R.  Co.  V.  Johnson,  i  Tex. 
App.  (Civ.  Cas.)  150. 

52.  Contracts  fur  shipiiieut  ot 
freight. — As  corporations  can  only  act 
through  officers  and  agents,  when  such  offi- 
cers or  agents  are  left  in  entire  char^^e  of 
freight  trains,  their  acts  and  conduct  touch- 
ing the  same  are  to  be  considered  the  same 
as  the  act  of  the  corporation  itself.  Mis- 
souri Pac.  R.  Co.  V.  Finley,  38  Kan.  550,  16 
Pac.  Rep.  951. 

Where  a  general  freight  agent,  under  a 
by-law,  is  empowered  to  contract  for  the 
transportation  of  freights  "  with  the  approval 
of  the  president,"  the  restriction  as  to 
approval  must  be  held  to  mean  that  the  ap- 
proval or  disapproval  must  be  exercised  be- 
fore the  execution  of  the  contract,  but  if  no 
interference  with  such  contracts  was  made 
before  the  goods  were  transporter',  the  com- 
pany would  be  liable  for  the  c»^uract  as 
made  by  the  general  freight  agent.  Medbtiry 
V.  New  York  <S-  E.  R.  Co.,  26  Barb.  (N.  Y.) 
564. 

Where  a  railroad  holds  one  out  as  its 
freight  agent,  with  general  authority  in  that 
line  of  business,  it  will  be  bound  by  the  acts 
of  such  agent  within  the  scope  of  his  gen- 
eral authority.  Baker  v.  Kansas  City,  St.  J. 
<>  C.  B.  R.  Co.,  28  Am.  &>  Enjr.  R.  Cas.  61, 
91  Mo.  152.  3  S.  IV.  Rep.  486. " 

A  statement  made  by  a  depot  agent  to  a 
shipper  of  perishable  goods  as  to  the  time 
that  it  would  require  for  transportation  is  a 
part  of  the  contract  of  shipment  when  acted 
on,  and  is  binding  on  thecompany.  Bhdgett 
\.  Abbot,  72  Wis.  516,  7  Am.  St.  Rep.  873, 
40  M  VV.  Rep.  491. 

53. over  connecting  lines.— In 

the  absence  of  express  authority  to  a  local 
agent,  or  an  established  custom,  a  company 
is  not  bound  by  a  contract  of  such  agent 
agreeing  to  ship  goods  beyond  the  end  of 
its  line.  Wait  v.  Albany  &^  S.  R.  Co.,  5 
Lans.  {N.  Y.)  475.    Approving  Burroughs 


-,i.  Norwich  >V  W.  K.  C.'n..  ujo  Mass.  28. 
—  DisriNGlMSHiNi;  Wilson  7'.  Great  North- 
ern &  B.  R.  Co.,  18  Eng.  L.  &  Eq.  557,  note  ; 
Schroeder  v.  Hudson  River  R.  Co.,  5  Duer 
(N.  Y.)  55- 

Where  the  freight  agent  of  a  railroad  has 
full  a'lthority  to  make  arrangements  as  to 
the  time  and  place  of  the  delivery  of  freights, 
an  agreement  by  him  to  ship  by  a  line  of 
boats  binds  the  railroad  company.  Mic/ii- 
gan  S.  &^  A'.  /.  R.  Co.  v.  Day,  20  ///.  375. 

The  agent  of  a  railroad  company  made  a 
verbal  contract  with  a  shipper  of  fruit  for  a 
through  shipment  without  a  change  of  cars, 
but  in  issuing  the  bill  of  lading  the  shipment 
was  limited  to  the  initial  carrier's  line.  In 
an  action  to  rec<jver  damages, — /lelii,  (i)  that 
the  verbal  agreement  for  through  shipment 
was  not  merged  in  the  bill  of  lading,  no 
reference  thereto  being  made ;  (2)  that  it 
appearing  that  the  agreement  was  one 
within  the  power  of  the  agent  to  make,  the 
company  was  bound  thereby.  Riley  v.  New 
York,  L.  E.  &-  W.  R.  Co.,  ii,Hun  {N.  Y.)  97. 

54. to  receive  frelKlit  from  con- 
necting; line.— An  agent  employed  for  the 
sole  purpose  of  soliciting  passengers  to 
patronize  the  road,  and  who  is  not  held  out 
by  the  company  as  their  agent  for  any  other 
purpose,  has  no  power  to  bind  the  company 
by  a  contract  to  receive  freight  from  another 
road  and  transport  it  to  the  depot  of,  and 
ship  it  on,  the  road  for  which  he  is  such 
agent.  Taylor  v.  Chicago  &^  N.  W.  R.  Co., 
74  ///.  86. 

55. flxiiit;  rates  and  cliarges.— 

A  contract  of  a  railway  company  or  asso- 
ciation of  such  companies,  made  by  its  usual 
agents  with  a  shipper,  to  ship  a  large  quan- 
tity of  grain  at  a  reduced  rate,  which  is  live 
cents  on  the  hundred  pounds  less  than  the 
customary  rates,  but  that  the  same  should 
be  billed  at  the  regular  rates  then  current 
and  the  freight  paid  at  the  latter  rates,  the 
difference  in  the  two  rates  to  be  forthwith 
paid  back  to  the  shipper,  is  valid  and  bind- 
ing on  the  company  or  companies  making 
the  same,  Erie  &-  P.  Despatch  v.  Cecil, 
112  ///.  180. —  Following  Toledo,  W.  & 
W.  R.  Co.  V.  Elliott,  76  111.  67. 

The  mere  announcement  of  the  rate  for 
freight  by  the  general  agent  of  a  connected 
railroad  will  not  operate  as  a  guarantee 
to  the  shipper  of  goods  on  the  connected 
line.  Nillv.  Burling/on,  C.  R.  jS-  A^.  R.  Co., 
9  Am.  (Sx  Eng.  R.  Cas.  21,  60  /o7i>a  196,  14 
A'.  W.  Rep.  249. 


58 


Ac.KNCV,  r.«-<n. 


Wliere  a  local  freight  agent  made  a  writ- 
ten oriier  to  ship  cuilon  at  69^  cents  per 
hundred  (or  plaintill,  who  at  once,  and  in 
writing,  accepted  tiie  ofler,  and  it  was  con- 
ceded lliat  said  agent  was  autliorized  to 
nial<e  such  proposal,  and  tiie  agent  plaiidy 
and  unecpiivocally  expressed  what  lie  under- 
stood to  be  the  price,  and  there  was  no  niis- 
underslanding  between  plaintiff  and  the 
agent  as  to  the  terms  of  the  contract;  but 
that,  by  an  error  in  the  transmission  of  a 
telegram  from  the  general  freight  agent  to 
the  local  agent  "  Sy^  '  was  changed  to  "  69! : " 
—heU,  (I)  that  the  conir.ici  was  binding  on 
defen<laiit  comi)any,  notwithstanding  the 
mistake  ;  (2)  that  in  an  action  by  the  ship- 
per (who  had  paid  the  larger  rate  under  pro- 
test) to  recover  the  diflerence  between  the 
two  rales,  all  evidence  in  regard  to  plain- 
tiffs i)Uichase  of  cotton  was  irrelevant,  and 
plainlilf  was  entitled  to  recover.  Borden  v. 
RhhimmdC'^  J).  R.  Co.,  113  N.  Car.  570,  18 
S.  K.  Rip.  392. 

50.  contracts  by  a{;eiit  ol"  sliip- 

l»cr.— An  agent  authorized  to  ship  goods 
has  power  to  contract  as  to  the  terms 
and  conditions  of  shipment,  and  may  take  a 
bill  of  lading  limiting  the  carrier's  liability. 
Root  V.  New  York  &>  N.  K.  R.  Co.,  27  A'.  Y. 
Siipf).  611,  76  Iliin  23. 

Where  a  shipper  employs  an  agent  to  de- 
liver cattle  l(j  the  comjjany  he  is  bound  by 
such  agent's  signature  to  the  consignment 
note,  k'irhy  v.  Great  Western  R.  Co.,  18  L. 
T.  N.  S.  658. 

57.  Agreeiiiciits  to  store  goods.— 
The  local  agent  of  a  railroad  company  in 
charge  of  its  general  business  has  prima 
faeie  power  to  bind  the  company  by  con- 
tracts for  the  storage  of  goods,  but  cannot 
contract  against  the  established  rules  of  the 
company,  of  which  the  other  party  has 
notice.  Ans^/e  v.  Afississippi  &'  M.  R.  Co., 
18  hrwa  555. 

A  railway  company  is  not  liable  for  loss 
of  goods  where  they  have  been  delivered  to 
the  owner  and  receipted  for,  and  he  then 
makes  an  arrangement  with  the  baggage- 
man to  leave  them  for  a  while  in  the  ware- 
house. A  baggageman,  having  no  authority 
to  make  such  arrangement,  is  not  the  agent 
of  the  company  in  doing  so.  Mulligan  v. 
Northern  J'.ie.  R.  Co.  (Dal:.),  27  Am  &*  Eng. 
R.  Cos.  33.  29  A'.  IV.  Rep.  659. 

5H.  Waiver  of  limitation  of  lia- 
bility.— Where  an  express  company  re- 
ceives goods  to  be  carried,  and   gives  a 


receipt  containing  conditions  or  limitations 
of  the  liability  of  the  company,  the  agent  of 
the  company  at  the  place  of  shipment  may 
afterward  bind  the  company  by  a  waiver  of 
the  conditions.  Vroman  v.  American  M.  U. 
Exp.  Co.,  5  r.  «^  C.  (A'.  Y.)  22,  2  J/toi  512. 
59.  Promise  to  pay  for  lost  goods. 
— Where  goods  are  lost,  and  the  consignee 
calls  at  the  railroad  auditor's  otlice  and  finds 
a  gi.Mitleman  in  charge  who  proved  to  be  the 
clerk,  and  who  promised  that  the  goods 
should  be  paid  for,  the  consignee  not  know- 
ing that  he  was  not  the  auditor,  such 
promise  will  not  bind  the  company,  in  the 
absence  of  anything  to  show  that  the  clerk 
had  authority  to  bind  the  company  by  such 
a  contract.  Gul/,  C.  6^  S.  F.  R.  Co.  v.  Ja- 
cobs,t,  rex.Civ.App.\Zl,ilS.  W.  Rep.  145. 
UO.  Compromise  of  claim  for  iiijiiry 
to  live  stock.— Where  the  evidence  is 
sufficient  to  prove  that  the  defendant's  gen- 
eral freight  agent  came  to  the  place  where 
a  wreck  had  occurred,  by  the  authority  of 
and  acting  for  the  defendant,  for  the  pur- 
pose of  looking  after  the  injured  property 
and  adjusting  claims  for  damages  ;  that  he 
knew  the  number  of  horses  that  were 
shipped  in  the  car  ;  and  that  he  took  charge 
of  the  injured  horses,  ordered  them  cared 
for  and  treated — an  agreement  by  which 
the  company  agreed  to  pay  the  plaintiff  a 
sum  in  full  for  a  mare  injured  in  the  wreck, 
the  mare  thereafter  to  be  the  company's 
property,  is  within  the  scope  of  the  author- 
ity of  the  general  freight  agent,  and  is  bind- 
ing on  the  company.  Chicago  &*  E.  I,  R. 
Co.  v,  Katsenbach,  38  Am.  (S>»  Eng.  R,  Cas. 
375,  118  /«</.  174,  20  A^.  E.  Rep.  709. 

Such  a  settlement  is  based  upon  a  suffi- 
cient consideration  to  be  supported.  C/ti- 
cago  &•  E.  I.  R.  Co.  v.  Katzenbach,  38  Am. 
&•  Eng.  R.  Cas.  375.  118  Ind.  174.  20  A^.  E. 
Rep.  709. 

01.  Engagements  for  boar<l  of  lOr- 
borers.— A  walking  bosswho  was  the  repre- 
sentative of  the  principal  contractors  in  the 
building  of  a  railroad  and  superintended  the 
work  for  them,  having  authority  to  compel 
the  sub-contractors  to  keep  a  sufficient 
number  of  men  on  the  work  to  fulfil  their 
contracts,  could  bind  his  principals  to  pay 
the  board  bills  of  laborers  for  whom  he 
secured  board.  Cannon  v.  Henry,  78  Wis. 
167,  47  A^.  W.  Rep.  186. 

Testimony  tending  to  show  that  such 
walking  boss  promised  the  plaintifT  to  see 
that  such  board  bills  were  paid ;  that  in  so 


AGKNCV,  <-.2-«4. 


69 


doinj,'  lie  was  acting  for  his  principals, 
though  he  did  not  name  them  ;  and  that  the 
plaintiff  dealt  with  him  as  an  agent  only, 
giving  credit  for  the  board  solely  to  the 
principals,  will  sustain  a  finding  that  the 
agent  promised  on  behalf  of  his  principals 
to  pay  the  board  bills.  Ca/i/ion  v.  Henry, 
78  Wis.  167.  47  N.  W.  Rep.  186. 

The  aaiency  conferred  upon  a  roadmaster 
is  special,  and  does  not  confer  authority  to 
bind  the  company  for  provisions  purchased 
to  supply  a  boarding-house  which  he  runs 
for  the  accommodation  of  certain  of  the 
company's  employes,  where  there  is  nothing 
to  show  that  he  represented  the  company  at 
the  time  he  made  such  purchases  except  his 
own  declarations.  Ft.  Worth  iS-  D.  C.  li. 
Co.  V.  Johnson,  2  Tex.  App.  (Civ.  Cas  )  179. 
Oa. of  persons  iiijiirecl  on  rail- 
way.—A  surgeon  employed  by  a  railway 
company  to  render  professional  services  can- 
not bind  the  employer  for  the  patient's 
board.  St.  Louis,  A.  &<>  T.  R.  Co.  v.  Hoover, 
Si  Ark.  yjT,  \l  S.  W.  Rep.  1092. 

A  physician  in  the  employ  of  a  railroad 
company,  who  is  authorized  to  buy  medi- 
cines on  the  credit  of  the  company,  can- 
not bind  the  company  by  a  contract  to  pay 
for  board,  lodging  and  other  attentions 
to  a  person  injured  by  the  road.  Mayberry 
V.  Chicat^o,  R.  I.  &•  P.  R.  Co.,  11  Am.  &>  Eng. 
R.  Cits.  29.  75  Mo.  492.— Distinguished 
IN  Terre  Haute  &  I.  R.  Co.  7>.  McMurray. 
98  Ind.  358.  Reviewed  in  Louisville,  E.  & 
St.  L.  R.  Co.  V.  McVay.  98  Ind.  391. 

Where  a  laborer  on  a  railroad  is  injured 
while  in  the  service  of  the  railroad  com- 
pany, a  telegram  from  the  general  superin- 
tendent directing  one  of  his  subordinates  to 
employ  a  physician  and  do  all  he  can  to 
save  the  injured  limb  and  make  the  sufferer 
comfortable,  is  authority  for  a  contract  bind- 
ing the  company  to  pay  for  the  board  and 
care  of  the  injured  party  while  recovering 
from  the  injury.  Atchison  &*  N.  R.  Co.  v. 
Reecher,  i  Am.  &*  Eng.  R.  Cas.  343,  24  /Can. 
228. — Reviewed  in  Terre  Haute  &  I.  R. 
Co.  V.  McMurray.  98  In<l.  358. 

03.  Granting  pcriiiiNMioii  to  rUle  on 
train  or  online.— A  locomotive  engineer, 
being  subordinate  to  the  conductor,  has  no 
authority  to  permit  persons  to  ride  upon  the 
train,  and  any  such  permission  in  violation 
of  the  rules  of  the  company  is  not  binding 
upon  the  company.  Chicago.  B.  &•  Q.  R. 
Co.  v.  Casey,  9  ///.  App.  632.— Quoting 
Chicago  &  A.  R.  Co.  v.  Michie.Sj  III.  427. 


It  is  not  within  the  scope  of  the  employ- 
ment of  a  baggage  master  connected  with  a 
train,  but  not  shown  to  have  been  put  in 
charge  of  the  same,  to  invite  or  permit  any 
person  or  persons  to  enter  or  ride  on  a 
coach  of  such  train  ;  and  permission  given 
under  such  circumstances  cannot  create  the 
relation  of  carrier  and  passenger.  Reary  v. 
Louiwille,  N.  O.  &•  T.  R-  Co.,  34  Am.  <&* 
Eng.  R.  Cas.  277,  40  La.  Ann.  32,  8  Am.  St. 
Rep.  497.  3  So.  Rep.  390. 

A  brakeman  employed  on  a  freight  train 
in  charge  of  a  conductor  has  no  implied  au- 
thority to  bind  the  company  by  a  contract 
of  passage,  and  his  permission  to  a  person 
to  ride  does  not  make  such  person  a  pas- 
senger. Candiff  v.  Louisville,  N.  O.  &*  T. 
R.  Co.,  42  La.  Ann.  477,  7  So.  Rep.  601. 

E.  and  a  friend  arrived  at  the  station  im- 
mediately after  the  departure  of  the  train. 
An  employe  of  the  company  who  had 
charge  of  the  trains,  trainmen  and  rolling- 
stock  invited  them  to  get  on  an  engine 
which  was  at  the  station,  and  informed  them 
that  the  engine  would  overtake  the  train  at 
the  bridge,  a  short  distance  from  the  sta- 
tion, where  they  could  catch  the  train.  The 
engine  overtook  the  train,  but  as  a  collision 
with  the  rear  car  was  imminent,  E.  jumped 
from  the  engine  to  escape  the  danger.  Held. 
that  the  act  of  the  employe  was  that  of  the 
company,  and  that  E.  and  his  friend  were 
not  guilty  of  negligence,  and  were  properly 
upon  the  engine.  Nashville  &*  C.  R.  Co.  v. 
Erwtn,  3  Am.  &*  Eng.  R.  Cas.  465. — Dis- 
tinguished IN  Ohio  &  M.  R.  Co.  V.  Allen- 
der,  47  111.  App.  484. 

64. on  hand-cars.— In  an  action 

for  damages  sustained  by  plaintiff  through 
the  alleged  negligence  of  defendant  in  op- 
erating a  hand-car  on  which  plaintiff  was 
riding  under  an  invitation  from  a  servant  of 
the  company,  it  cannot  be  assumed  as  mat- 
ter of  law  that  the  act  of  the  servant  in 
transporting  the  passenger  in  that  manner 
was  the  act  of  the  company.  The  authority 
of  the  servant  to  thus  use  a  hand-car  must 
be  shown  in  order  to  render  the  company 
liable.  International  &*  G.  N.  R.  Co.  v. 
Cock,  68  Tex.  713.  5  S.  W.  Rep.  635.-D1S- 
tinguishing  Prince  v.  International  &  (J. 
N.  R.  Co.,  64  Tex.  144;  Pool  v.  Chicago.  M. 
&  St.  P.  R.Co..  56  Wis.  227;  14  N.  W.  Rep. 
46. 

The  trainmaster  of  a  railroad  company 
who  was  shown  by  the  evidence  to  be  the 
representative  of  the  company  in  all  mat-^ 


<10 


AGKNCV,  «.->«l». 


ters  connected  will)  tlic  use  of  its  road,  cars 
of  all  kinds,  an<l  services  of  its  employes, 
lias  authority  to  invite  a  person,  r.ot  an  em- 
ploye, to  ride  upon  a  liand-car.  If  such 
trainmaster  violates  a  rule  of  the  company 
forbiddinjj  anybody  but  employes  to  ride 
upon  band  cars,  and  thus  places  a  person 
i^jnoranl  of  sucii  rules  in  a  position  where 
lie  is  injured  by  the  negligence  of  the  com- 
pany's servants,  the  company  must  respond 
in  damages  for  such  injuries.  IntcrmUional 
<S~»  G.  A'.  R.  Co.  V.  Prince,  44  Am.  &-  Eiig. 
R.  C\js.  294,  77  T.s.  560,  14  S.  IV,  Rep.  171. 
The  foreman  of  a  railroad  section  who 
has  under  his  care  hand-cars  for  other  pur- 
poses, -cts  without  the  scope  of  his  author- 
ity in  engaging  to  carry  a  person  thereon. 
Hoar  v.  .Uai'/w  C.  R.  Co.,  ~o  Me.  65. 

05.   to  move  biiildiiit;  noross 

trat'k.— A  ticket  agent  gave  persons,  hired 
to  move  a  house,  permission  to  move  it 
across  a  railroad  track,  but  while  it  was  on 
the  track  it  was  run  into  by  a  train.  It  ap- 
peared that  the  ticket  agent  had  formerly 
granted  such  leave  to  others,  but  it  did  not 
appear  that  he  had  any  special  nuthority  to 
do  so,  or  that  the  company  had  any  knowl- 
edge of  his  having  done  so.  Held,  that  the 
owner  of  the  house  could  not  recover 
against  the  company  for  the  injury.  Chi- 
cago, R.  I.  &-  /'.  A'.  Co.  V.  Hallcck,  13  ///. 
App.  643. 

<tO.  —  to  use  eiiibaiikiiicut  as  a 
daiiK— An  agreement  bytheagentof  a  rail- 
road company  that  its  embankment  might  be 
incidentally  used  as  a  dam,  is  not  such  a  devi- 
ation from  the  strict  use  of  the  embank- 
ment as  would  charge  a  lack  of  authority 
on  the  part  of  the  agent  to  make  such  con- 
tract, and  persons  so  using  it  will  be  liable 
for  damages  resulting.  Jones  v.  Western 
Vt.  R.  Co.,  27  Vt.  399. 

Where  such  agent  agrees  that  an  embank- 
ment may  be  used  as  a  dam  for  the  purpose 
of  improving  water-power,  if  the  use  is  but 
a  slight  deviation  from  the  original  purjjose 
of  the  embankment,  it  is  a  matter  between 
the  stockholders  and  the  corporation,  and 
does  not  affect  the  rights  of  strangers. 
Jones  V.  Western  Vt.  R.  Co  ,  27  Vt.  399. 

«7.  Hills  olladinjf.*— Where  a  railway 
shipping- clerk,  colluding  with  the  con- 
signor, issues  a  fictitious  bill  of  lading,  the 
goods  represented  by  it  not  having  been  re- 


*Limltaiit)n  of  agent's  authority  to  issue  bills 
of  lading,  see  note,  21  Am.  &  Eng.  R.  Cas.  68. 


ceived,  the  raiiw.iy  company  is  liable  lo  an 
innocent  third  |)erson  deceived  thereby.  As 
between  a  railway  company  and  third  per- 
sons the  true  limit  of  a  railway  agent's 
authority  to  bind  his  company  is  the  ap- 
parent authority  with  which  he  is  invested. 
lirooki!  V.  New  York,  L.  li.  <S-  W.  R.  Co.,  21 
.Int.  (Sr^  Ent;.  R.  Cas.  64,  108  Pa.  St.  529,  i 
Atl.  /iV/.  206.— Not  Foi.i.owEn  in  National 
Bank  v.  Chicago,  B.  &  N.  R.  Co.,  44  Minn. 
224. 

A  bill  of  lading  was  issued  by  the  agent 
of  a  railroad  company  on  what  turned  out 
to  be  a  forged  warehouse  receipt — no  goods, 
in  fact,  being  delivered  to  the  railroad. 
Plaintiffs  paid  drafts  for  the  price  with  the 
bills  of  lading  attached.  It  appeared  that 
the  issuing  of  bills  of  lading  was  within  the 
scope  of  the  employment  of  the  railroad 
agent.  HeU,  that  the  company  was  bound 
by  the  agent's  act,  and  was  estojiped  from 
denying  the  receipt  of  the  goods. — Armour  v. 
Michigan  C.  R.  Co  ,  65  A'.  Y.  iii,  22  Am. 
Rep.  603 ;  re^iersing  3/.  &•  S.  563. —  FOLLOW- 
ING Haille  v.  Smith,  i  B.  &  P.  563.  Over- 
ruling Grant  v.  Norway,  10  C.  B.  665. 
DiSTiNGUiSHKD  IN  Dean  v.  Driggs,  137  N. 
Y.  274.  Explained  in  Lake  Shore  &  M.  S. 
R.  Co.  V.  Foster,  104  Ind.  293,  54  Am.  Rep. 
319.  Not  followed  in  National  Bank  v. 
Chicago,  B.  &  N.  R.  Co.,  44  Minn.  224. 
Revif.wkd  in  Sioux  City  &  P.  R.  Co.  v. 
First  Nat.  Bank,  i  Am.  &  Eng.  R.  Cas.  278, 
10  Neb.  556. 

<18.  Deeds. — A  corporation  cannot  ap- 
point an  agent  to  convey  lands  except  by 
the  vote  of  its  directors  or  other  managing 
board  in  whom  the  power  to  sell  is  reposed 
by  charter  or  by  general  law  ;  and  wiiliout 
legal  proof  of  such  corporate  act,  a  deed 
purporting  to  be  executed  in  its  name  by 
an  agent  is  not  evidence  of  title,  though  it 
may  operate  as  a  color  of  title.  Standifer 
v.  Swann,  78  Ala.  88.  Sxvaun  v.  Miller,  82 
Ala.  550,  I  So.  Rep.  65. 

<W.  LoaiLs. — Where  the  evidence  shows 
that  an  officer  of  a  railway  company  was 
authorized  to  incur  indebtedness  on  behalf 
of  the  company  and  borrow  money  to  pay 
off  the  same,  the  company  is  liable  to  the 
person  lending  the  money  in  an  action  for 
money  had  and  'received.  Liebfritz  v. 
Dubuque  St.  R.  Co.,  48  /o7i'a  709. 

Where  money  is  loaned  to  certain  officers 
of  a  railroad  company  on  their  own  personal 
credit,  but  for  the  use  of  the  company,  the 
lender  cannot  afterward   treat  the  officers 


AGENCY,  70-7a. 


61 


f  lo  ai\ 
;by.  As 
ird  per- 
ageiit's 
the  ap- 
n  vested. 
?.  Ctf..2I 
</.  529.  1 
National 
4  Minn. 

he  agent 
rned  out 
10  goods, 
railroad, 
with  the 
ared  that 
fithin  the 
;  railroad 
as  bound 
ped  from 
krmour  v. 
I,  22  Am. 
■Follow- 

(.      OVEK- 

:.  B.  665. 

gs.  137  N. 
re&  M.S. 
Am.  Rep. 
il  Bank  -i'. 
linn.  224. 
R.  Co.  V. 
;.  Cas.  278, 

:annot  ap- 

except  by 

managing 

is  reposed 

nd  without 

ict.  a  deed 

s  name  by 

,  though  it 

Staiidifer 

Milkr,  82 

ence  shows 
mpany  was 
s  on  behalf 
)ney  to  pay 
able  to  the 
1  aciion  for 
.iehfritz    v. 

tain  officers 
i\n  personal 
)mpany,  the 
the  officers 


as  mere  agents  and  charge  the  company. 
Slrider\.  Winc/iester  &^  P.  R.  Co.,  21  Graft. 
(Va.)  440.— Quoting  Tliomson  v.  Daven- 
port, 9  Barn.  &  C.  78. 

70.  Negotiable  paper.— A  corporation 
is  not  bound  by  negotiable  paper  uttered  by 
its  agent,  unless  he  has  express  authority  to 
issue  the  paper,  or  there  is  an  implied  gen- 
eral authority  arising  from  such  frequent 
exercise  of  the  power  by  the  agent,  followed 
by  ratification,  as  to  constitute  a  custom  of 
the  corporation,  or  a  ratification  of  the  par- 
ticular act,  or  an  estoppel  to  deny  the  agent's 
authority.  Elivell  v.  Puget  Sound  &^  C.  N. 
Co.,  7  IVas/t.  487.  35  ^"^-  ^'P-  376. 

In  all  cases,  even  in  cases  of  negotiable 
instruments,  a  party  contracting  with  an 
agent  must  inquire  into  his  authority;  and 
either  a  state  or  a  corporation  is  bound  only 
when  its  agents  keep  within  the  limit  of  their 
authority.  Sillintan  v.  Fredericksburg,  O.  &* 
C.  A'.  Co.,  27  CraU.  (Va.)  119,  17  Am.  i\>. 
AV/.  157. 

3.  Liability  for  Torts  of  Agents, 
a.  General  Rules. 

71.  Rule  of  liability  strictly  ap- 
plieil  to  railroad  coiiipaiiies.— Upon  a 

principle  of  public  policy  and  public  neces- 
sity, the  rules  of  law  which  fix  the  liability 
of  the  principal  for  the  torts  of  his  agent 
are  applied  with  strictness  to  common  car- 
riers, and  especially  to  those  using  forces 
for  propulsion  which  are  calculated  to  en- 
danger life  or  property.  Ne^v  Orleans,  J. 
<S-  G.  N.  R.  Co.  V.  Allbritton,  38  Miss.  242. 

A  railroad  company  impliedly  warrants 
that  its  engineers,  conductors  and  other 
employes  engaged  in  running  its  trains  are 
possessed  of  due  skill,  and  are  competent 
and  faithful,  and  it  is  liable  under  all  cir- 
cumstances for  any  injury  occasioned  by  the 
misconduct,  rashness  or  negligence  of  such 
persons ;  and  where  an  injury  is  caused  by 
the  gross  negligence,  or  wanton  and  wilful 
misconduct  of  its  employes,  it  is  liable  for 
exemplary  damages.  New  Orleans,  J.  <S>»  G. 
.V.  R.  Co.  V.  Allbritton,  38  .J/m.  242.— D I. s- 
TINGUISHING  McCoy  V.  McKowen,  26  Miss. 
487  ;  McManus  v.  Cricket,  i  East  106. 

Companies  are  liable  for  the  non-feasance 
and  misconduct  of  their  employes,  and  such 
liability  is  not  afTectcd  by  the  good  or  bad 
motives  by  which  such  employes  are  actu- 
ated. Blackstockv.  New  YorkSf^  K.  R.Co., 
20  N.  Y.  48;  affirming  1  Hos^v.  77. 


72.  Corporation  liable  il'  natural 
pei'ison  would  be.— A  corporation  is  lia- 
l)le  to  the  same  extent  and  under  the  same 
circumstances  as  a  natural  person  for  the 
consequences  of  its  wrongful  acts,  and  for 
the  acts  and  negligence  of  its  agents  while 
engaged  as  such,  and  will  be  held  to  respond 
in  a  civil  action  at  the  suit  of  an  injured 
party  for  every  grade  and  description  of 
forcible,  malicious  or  negligent  tort  it  com- 
mits, however  foreign  10  iis  nature  or  be- 
yond its  granted  powers  the  wrongful  act 
may  be.  A'w  York  &*  N.  H.  R.  Co.  v. 
Schuyler,  34  A^  Y.  30 ;  modifying  38  Barb. 
534._QuoTlNG  Ranger  v.  Great  Western 
R.  Co.,  5  H.  of  L.  Cas.  86 ;  Nolton  v.  West- 
ern R.  Co.,  15  N.  Y.  444.  Miller  v.  Burling- 
ton &>  M.  R.  Co.,  8  Neb.  219.  Brokaw  v. 
New  Jersey  R.  &•  T.  Co.,  yiN.J.  L.  328.— 
Quoting  Sharrod  v.  London  &  N.  W.  R. 
Co.,  4  Exch.  585.  First  Baptist  Church 
v.  Schenectady  &^  T.  R.  Co.,  5  Barb.  (A'.  K) 
79.  Hughes  V.  Cincinnati  &*  S.  R.  Co.  15 
Am.  <S-  Eng.  R.  Cas.  100,  39  Ohio  St.  461. — 
Followed  in  New  York  &  N.  H.  R.  Co.  v. 
Ketchum.  3  Keyes  (N.  Y.)  363;  Thomas  f. 
Utica  &  B.  R.  Co.,  20  Am.  &  Eng.  R.  Cas. 
93.  97  N.  Y.  245;  reversing  24  Hun  488. 
Quoted  in  Calhoun  v.  Delhi  &  M.  R.  Co.. 
28  Hun  (N.  Y.)  379,  64  How.  Pr.  291; 
Hodges  V.  Wilmington  &  W.  R.  Co..  105 
N.  Car.  170,  10  S.  E.  Rep.  917.  Referred 
TO  IN  Cogswell  V.  New  York,  N.  H.  &  H.  R. 
Co..  105  N.  Y.  319,  II  N.  E.  Rep.  518,  7  N. 
Y.  S.  R.  203,  12  Civ.  Pro.  Rep.  222;  re- 
versing 22  J.  &  S.  92.  Reviewed  in  Tome 
7'.    Parkersburgh    Branch    R.   Co.,  39    Md. 

36. 

The  servants  of  a  corporation  are  no  more 
and  no  less  than  the  servants  of  natural 
persons,  and  whatsoever  is  negligently  done 
or  omitted  by  them  is,  to  the  public,  the 
employer's  act.  Gillenwater  v.  Madison  &^ 
I.  R.  Co.,  s  Ind.  339. 

A  corporation  is  liable  civilly  for  the  torts 
of  its  servants  wherever  natural  persons 
would  be  liable  under  the  same  circum- 
stances, and  they  are  liable  wherever  the 
agent  acts  by  authority  ;  but  it  is  not  neces- 
sary that  the  authority  be  conferred  by  a 
writing  under  seal,  nor  upon  a  vote  of  the 
corporation.  State  v.  Morris  6>«  E.  R. 
Co.,  23  A^.  /.  L.  360.— Quoted  in  Denver  & 
R.  G.  R.  Co.  V.  Harris,  3  N.  Mex.  109; 
Quinn  v.  South  Carolina  R.  Co.,  37  Am.  & 
ICng.  R.  Cas.  166,  29  So.  Car.  381,  7  S.  E. 
Ucp.  614,  I  L.  R.  A.  682. 


I 


6« 


AGENCY,  7;J,  74. 


^ 


7;i.  UnhU'  If  not  Is  within  hcoim'  of 
cnipioymeiit.*— A  master  is  liable  for  the 
wron^rful  act  of  his  servant,  to  the  injury  of 
a  third  person,  where  the  servant  is  engaged 
at  the  liniL-  in  doing  his  master's  business, 
and  is  acting  within  the  general  scope  of  iiis 
authority,  although  he  is  reckless  in  the  per- 
formance of  his  duty,  or  through  lack  of 
judgment  or  discretion,  or  from  infirmity  of 
temper,  t)r  under  the  influence  of  passion 
aroused  by  the  circumstances,  goes  beyond 
the  strict  line  of  his  duty,  and  inflicts  un- 
necessary and  unjusiifiablc  injury.     Co/if/i 
V.  Dn'  Dock,  E.  /.'.  &-  />'.  A'.  Co.,  69  N.  V. 
170;  offirmini;  8/  ^^  X.  368.— FoLLinviXG 
Rounds  V.  Delaware.  L.  &  W.    R.  Co..  64 
N.  Y.  129.     Giori^iii  Pac.  K.  Co.  v.  PropsI,  83 
Alii.   5183  So.  Rep.  764.    Western  &•  A.  R. 
Co.  v.  Turner,  28  Am.  »S«  En;^.  R.  Can.  455. 
72  Cm.  292,  53  Am.  AV/.  842.   Johnson  v.  Chi- 
cago, R.  I.  ^  P.  R.  Co.,  8  Am.  &>  Eng.  R. 
Cas.  206,  58  /(m>a  348,  12  A'.   //'.  Rep.  329. 
Aycrigg  v.  New  York  is^  E.  R.  Co.,  30  A'. 
/.  Z.. 460.— RKCoNcii.K.n  IN  Pittsburgh, C.& 
St.  L.  R.  Co.  V.  Kirk,  102  Ind.  399,  52  Am. 
Rep.  675.    Davis  v.  Chautauqua  Lake  S.  S. 
A.,  2  N.  V.  S.  R.  365,  41  Hun  638.    Hussey 
V.  Norfolk  S.  R.  Co.,  98  A'.  Car.  34,  2  Am. 
St.  Rep.  312,  3  S.  E.  Rep.  923.— Following 
Gruber  7'.  Washington  &  J.  R.  Co.,  92  N. 
Car.  I  ;    Philadelphia.  VV.  &    B.  R.  Co.  v. 
yuigley.  21  How.  (U.  S.)  202.    Not  fol- 
lowing Orr  7/.  Bank  of  U.  S..  I  Ohii),  36; 
Gillett  V.  Missouri  V.   R.  Co.,  55  Mo.  315. 
Quoting  Denver  &  C.  R.  Co.  v.   Harris, 
122  U.  S.  597.    Jones  s.   Western  Vl.  R.  Co., 
27  Vt.   399.   Rayley  v.  Manchester,  S.  &*  L. 
R.  Co..  28  /..  T.N.  S.  366,  L.  R.  8,  C.  P.  148. 
42  /,.  /.  C.  P.  78 ;  affirming  L.  R.  7.  C.  P. 

415,   41    L.J.    C.    P.   278.— CoNSIDKRF.n    IN 

Bollingbrokc  v.  Swindon  N.  T.  L.  Board,  30 
L.  T.  723.  Erb  v.  Great  Western  R.  Co.,  3 
Ont.  App.  446;  affirming  42  U.  C.  (J.  B. 
90,— Reviewing  Oliver  v.  Great  Western 
R.Co.,  28  U.  C.  C.  P.  143;  McLean  v. 
Buffalo  &  L.  H.  R.  Co,  24  U.  C.  Q.  B. 
270. 

A  master  is  responsible  for  the  illegal  acts 
of  commission  or  omission,  short  of  wilful 
wrong,  done  or  suffered  by  his  servant  or 
agent,  in  the  prosecution  of  the  business 
entrusted  to  him  by  his  principal,  whereby 

*  Liability  of  master  for  torts  of  servants  while 
a(  ting  within  scope  of  employment,  see  53  Am. 
&  Eno.  R,  Cas.  70,  ahstr.  See  also  notes,  8 
Am.  Rep.  316,  ip  l,i.  226,  60  /,/.  880,  6  L.  R. 
A.  242,  12  /</,  337. 


third  persons  are  injured.  Myers  v.  Snyder, 
Bright  N.  P.  (Pa.)  489. 

Railroad  companies  are  liable  for  the  tor- 
tious acts  of  their  .igents,  if  tliey  are  appar- 
ently in  the  interests  of  the  company,  and  in 
obedience  to  the  general  or  special  authority 
to  the  agents,  so  long  as  they  act  witiiinthe 
apparent  scope  of  the  company's  corporate 
pcjvvers.  Payne  v.  Western  &*  A.  R.  Co., 
18  Am.  il^  Eng.  R.  Cas.  119,  13  Lea  (Tenn.) 
507.  49  //w.  Rep.  666. 

A  master  is  liable  for  a  wrong  done  by  his 
servant,  whether  through  negligence  or  the 
malice  of  the  latter,  in  the  course  of  an  cm 
ployment  in  which  the  servant  is  engaged 
to  perform  a  duty  which  the  master  owes  to 
the  person  injured.  Craker  v.  Chicago  &^ 
N.  W.  R.  Co.,  36  Wis.  657.— Applied  in 
Smith  V.  Manhattan  R.  Co..  45  N.  Y.  S.  R. 
865.  QuoTii)  IN  Chicago  &  E.  R.  Co.  7'. 
Flexman,  8  Am.  &  Eng.  R.  Cas.  354,  103  111. 
546.  Reviewed  in  Stewart  v.  Brooklyn  & 
C.  T.  R.  Co.,  90  N.  Y.  588,  43  Am.  Rep. 
185. 

Corporations  are  liable  for  the  wrongful 
acts  of  their  servants  done  while  in  the  dis- 
charge of  duty,  tliough  outside  of  the  line 
of  duty.  So  held,  where  a  person  employed 
to  clean  cars  and  to  keep  persons  out  of 
them,  struck  the  hand  of  a  boy  from  the 
car-railing  while  in  motion,  causing  the  child 
to  fall  and  to  be  run  over.  North  Western 
R.  Co.  V.  Hack,  66  ///.  238.— Distinguished 
IN  Illinois  C.  R.  Co.  v,  Ross,  31  111.  App. 
170. 

Where  railroad  employes  are  charged,  in 
addition  to  other  duties,  with  seeing  that 
refuse  materials  are  properly  disposed  of,  it 
cannot  be  said,  as  a  matter  of  law,  that  such 
servants  are  not  acting  within  the  scope  of 
their  employment  when  engaged  in  placing 
old  timbers,  formerly  used  by  the  railroad, 
in  a  highway,  the  fee  to  which  land  is  in  the 
company.  'Pinker  v.  New  York,  O.  &'  II'. 
R.  Co.,  71  Hun  {A\  Y.)  431.— Distinguish- 
ing Mulligan  v.  New  York  &  R.  B.  R.  Co., 
129  N.  Y.  506;  Pittsburgh,  F.  VV.  &  C.  R. 
Co.  V.  Maurer,  21  Ohio  St.  421  ;  Dells  v. 
Stollenwerk.  78  Wis.  339.  Quoting  Phila- 
delphia &  R.  R.  Co.  7'.  Derby.  14  How.  (U.  S.) 
482.  Reviewing  Quinn  v.  Power,  87  N.  Y. 
537;  Dwindle  v.  New  York  C.  &  H.  R.  R. 
Co.,  120  N.  Y.  117. 

74.  even  tliougli  contrary  to 

orders.* — A  railroad  company  is  liable  for 

•  See  also  aii/e,  *2ii,  40. 


AGKNCV,  75. 


63 


arged,  in 

ng  that 

sed  of,  it 

:hat  sucli 

scope  of 

placing' 

railroad, 

is  in  the 

.  &^  ir. 

Nr.UISH- 

R.  Co.. 
&  C.  R. 

Dells  V. 

G  Phila- 
iw.(U.S.) 

87  N.  Y. 
H.  R.  R. 


the  tortious  act  ot  its  servant  when  done  in 
the  course  of  his  employment,  though  in 
violation  of  the  directions  of  the  company. 
Philadelphia  6-  R.  R.  Co.  v.  Derby,  14  How. 
(U.  .S.)  468.— Approved  in  Perkins  v.  Mis- 
souri. K.  &  T.  R.  Co.,  55  Mo.  201 ;  Porter  t/. 
New  York  C.  R.  Co..  34  Barb.  (N.  Y.)  353. 
DISTINGUI.SHED  IN  Cox  T/,  Keahey,  36  Ala. 
340.  Quoted  in  Heenrich  v.  Pullman 
Palace  Car  Co.,  18  Am.  &  Eiig.  R.  Cas.  379. 
20  Fed.  Rep.  100,  10  Sawy.  (U.  S.)  80 ;  Tinker 
V.  New  York,  O.  &  W.  R.  Co.,  71  Hun. 
(N.  Y.)  431 ;  De  Camp  v.  Mississippi  &  M. 
R.  Co..  12  Iowa  348.  Referred  to  in 
Byrantw.  Rich,  106  Mass.  180.  Reviewed 
IN  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me. 
202.  Heenrich  v.  Pullman  Palace  Car  Co., 
18  Am.  (So  Eng.  R.  Cas.  379;  20  Fed.  Rep. 
100,  10  Sawy.  (U.  S.)  80.— Quoting  Rams- 
den  V.  Boston  &  A.  R.  Co.,  104  Mass.  117; 
Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How. 
(U.  S.)  468.  Reconciling  Tuller  v.  Voght, 
13  111.  285:  Oxford  V.  Peter,  28  111.  435: 
Fosters.  Essex  Bank,  17  Mass.  508;  Mali  v. 
Lord,  39  N.  Y.  381.  Lake  Shore  6-  M.  S.  R. 
Co.  v.  Brown,  31  Am.  &•  Eng.  R.  Cas.  61, 
123///.  162,  14  A^.  E.  Rep.  197.  Whitehead 
v.  .S7.  Louis,  I.  M.  &•  S.  R.  Co.,  39  Am.  6- 
Eitg.  R.  Cas.  410,  99  A/o.  263,  11  S.  VV.  Rep. 
751.— Quoting  Wilton  v.  Middlesex  R.  Co., 
107  Mass.  108;  Sherman  v.  Hannibal  &  St. 
J.  R.  Co.,  72  Mo.  64.  Reviewing  Muehl- 
hausen  v.  St.  Louis  R.  Co.,  91  Mo.  332. 
Gregory  V.  Ohio  River  R.  Co.,  37  W.  Va.  606, 
16  S.  E.  Rep.  819. 

While  the  principal  is  not  liable  for  the 
wilful  or  malicious  acts  of  his  agents  done 
without  the  authority  of  the  principal,  he  is 
responsible  for  the  negligences,  omissions 
and  malfeasances  committed  in  the  regular 
course  of  their  employment,  even  tiiough 
they  were  expressly  forbidden  to  do  the  acts 
complained  of.  Turner  \.  North  Beach  &» 
M.  R.  Co.,  34  Cal.  594. 

Where  an  employe  of  a  railroad  performs 
an  act  incident  to  his  employment,  unskil- 
fully, negligently  or  wantonly,  and  thereby 
persons  whose  fault  does  not  contribute  are 
injured,  the  company  will  be  liable.  And 
the  fact  that  the  company  may  have  rules 
and  by-laws  prohibiting  the  performance  of 
such  wrongful  and  dangerous  acts,  or  that 
particular  instructions  may  have  been  given 
how  to  do  the  particular  thine;,  will  not  re- 
lease them.  Toledo  W.  6-  W.  R.  Co.  v. 
Harmon,  47  ///.  298. 

Wlicie  a  servant  is  engaged  in  accomplish- 


ing an  end  which  is  within  the  scope  of  his 
employment,  and  while  so  engaged  adopts 
means  reasonably  intended  and  directed  to 
the  end,  which  result  in  injury  to  another, 
the  master  is  answerable  for  the  conse- 
quences, regardless  of  the  motives  which 
induced  the  adoption  of  the  means ;  and 
this,  too,  even  though  the  means  employed 
are  outside  of  his  authority  and  against 
the  express  orders  of  the  master.  Pitts- 
burgh, C.  &*  St.  L.  R.  Co.  V.  Kirk,  102  Ind. 
399,  52  Am.  Rep.  675,  1  A'.  E.  Rep.  849.— 
Quoting  Quinn  v.  Power,  87  N.  Y.  535,  41 
Am.  Rep.  392.  Reconciling  Marrier  v. 
St.  Paul,  M.  &  M.  R.  Co.,  15  Am.  &  Eng. 
R.  Cas.  135.  31  Minn.  351  ;  Aycriggs  v.  New 
York  &  E.  R.  Co.,  30  N.  J.  L.  460.  Review- 
ing Philadelphia  &  R.  R.  Co.  v.  Derby,  14 
How.  (U.  S.)  468. 

75.  Not  liable  where  net  is  not 
witliiii  scope  ofeiiii»loyiiieiit.— A  com- 
pany is  not  liable  for  the  act  of  its  ser- 
vant unless  it  be  done  within  the  scope 
of  his  general  authority  in  furtherance  of 
his  master's  business  and  for  the  accom- 
plishment of  the  purposes  for  which  he  is 
employed.  International &'  G.  N.  R.Co.v. 
^Imi-rson,  53  Am.  &^  Eng.  R.  Cas.  59.  82 
V'c.v.  516,  17  S.  IV.  Rep.  1039.  Hudson  v. 
Missouri,  K.  &*  T.  R.  Co.,  16  Kan.  470. 
Eckertv.  St.  Louis  T.  Co..  2  Mo.  A  pp.  36. 
Little  Miami  R.  Co,  v.  Wet  more,  19  Ohio  St. 
1 10.  — Reviewed  in  Lakin  v.  Oregon  &  P. 
R.  Co.,  31  Am.  &  Eng.  R.  Cas.  500.  1 5  Oreg. 
220.  Moore  v.  Columbia  &»  G.  R.  Co.,  38  S. 
Car.  I,  16  S.  E.  Rep.  781.— Applying  Cobb 
7'.  Columbia  &  G.  R.  Co.,  37  S.  Car.  194. 

The  doctrine  of  respondeat  superior  ap- 
plies only  when  the  relation  of  master  and 
servant  is  shown  to  exist  between  the  wrong- 
doer and  the  person  sought  to  be  charged 
for  the  result  of  some  neglect  or  wrong,  at 
the  time  and  in  respect  to  the  very  transac- 
tion out  of  which  the  injury  arose.  Wyllie 
V.  Palmer,  137  N.  Y.  248,  33  A^  E.  Rep.  381, 
50  A'.  V.  S.  R.  706.  Arasmith  v.  Temple, 
1 1  ///.  App.  39. 

Where  the  servant,  instead  of  doing  that 
which  he  is  employed  to  do,  does  something 
which  he  is  not  employed  to  do  at  all,  the 
master  cannot  be  said  to  do  it  by  his  serv- 
ant, and  is  not  responsible  for  the  negligence 
of  his  servant  in  doing  it.  Morris  v.  Brown, 
19  A'.  Y.  S.  R.m;  reversing  4  A'.  Y.  S.  R. 
832. 

The  mere  fact  that  a  tortious  act  is  com- 
mitted by  a  servant  while  he  is  actually  en- 


64 


ACKNCV,  7«. 


% 


j,'agc(J  in  ilii:  performance  of  a  service  he 
lias  been  employed  to  render,  cannot  make 
the  master  liable.  Someitiinj,'  more  is  rc- 
<liiircd.  It  must  not  only  be  (l(jne  while  so 
fm|iloy<.-(l,  but  it  must  pertain  to  the  par- 
ticular duties  of  that  employincr;',  and  a 
general  statement  that  the  acts  of  dcfiMid- 
anl's  servants  were  within  the  range  of  their 
employment  is  a  mere  conclusion  of  lawiind 
is  not  sullicient.  Snythr  v.  J/aiiiii/itil  C'-  St, 
J.  N.  Co..6o.\fii.  4r3.— (JuoiKi)  in  Stringer 
V.  Missouri  Pac.  K.  Co.,  '/j  Mo.  299.  9  S.  W. 
Kcp.  905.  Stringer  v.  Missouri  I'ac.  A'.  Co., 
96  Afo.  299.  9  >■.  IV.  AV/.  905.  yuoriNc; 
Snyder?'.  Hannibal  &  St.  J.  H.  Co.,  60  Mo. 
419.  l-'iirber  v.  Afissouri  I'ac.  R.  Co.,  32  Mo. 
Apfi.  378.  Appi.iku  in  Snider  v.  Crawford, 
47  Mo.  App.  8. 

70.  illustrations— (I)  Injuries   to 

children.— h.  company  will  not  be  liable  for 
injuries  to  a  child  received  while  attempting 
to  get  on  one  of  its  cars,  at  the  invitation  of 
an  employe,  in  the  absence  of  anything  to 
show  autiiority  in  the  employe  to  permit 
persons  to  ride  on  the  car;  and  when  the 
invitation  and  riding  would  not  be  in  fur- 
therance of  the  interests  of  the  company, 
nor  connected  in  any  way  with  the  servant's 
duties.  Snyder  v.  Hannibal  &»  St.  J.  A'. 
Co..  60  .\fo.  413.-  Distinguishing  Lynch  7/. 
Nurdin,  1  Q.  H.  29.  Quoting  Flower  v. 
Pennsylvania  R.  Co.,  69  Pa.  St.  210.  Rk- 
viewing  Eaton  7>.  Delaware,  L.  &  W.  R. 
Co.,  13  Am.  Law  Reg.  665.  Reviewing, 
quoting  and  distinguishing  Wilton  7-. 
Middlesex  R.  Co..  107  Mass.  108.— Dis- 
tinguished IN  Sloan  7>.  Central  I.  R.  Co., 
II  Am.  &  Eng.  R.  Cas.  145,  62  Iowa  728. 
Reviewed  in  Little  Rock  &  Ft.  S.  R.  Co. 
7'.  Miles,  13  Am.  &  Eng.  R.  Cas.  10,  40  Ark. 
298,  48  Am.  Rep.  10. 

Where  a  servant  of  a  radroad  company, 
who  is  in  charge  of  one  of  its  gravel  trains, 
advises  a  boy  of  tender  years,  whom  he  has 
invited  to  ride  upon  the  train,  and  who  is 
sitting  beside  the  track  with  the  servant,  to 
get  upon  an  approaching  train  belonging  to 
the  same  company,  which  is  to  pass  the  home 
of  the  boy,  to  which  he  has  expressed  a 
desire  to  return,  the  company  is  not  liable 
for  injuries  to  the  boy  consequent  upon  his 
following  said  advice,  the  same  being  out- 
side of  the  servant's  employment,  and  in  no 
way  connected  with  or  relating  to  the  busi- 
ness in  which  he  is  at  the  time  engaged. 
A'eatini;  v.  Michigan  C.  R.  Co.,  97  Mich.  1 54. 
A  conductor  and  others  in   charge  of  a 


train  slopped  it  and  pursued  a  boy  to  his 
father's  house  with  pistols  in  hand  and  took 
him  aboard  the  train  and  carried  tiim  to  the 
next  station  under  the  pretence  of  protect- 
ing the  train.  Held,  that  these  wrongful 
acts  were  not  within  the  range  of  the  em- 
ployment of  the  conductor  and  tliose  acting 
with  him,  and  consequently  the  company 
was  not  liable,  in  the  absence  of  anything 
to  show  that  it  commanded,  authorized  or 
ratified  them.  Gilliam  v.  South,  &*  N, 
Ala.  R.  Co.,  15  Ant.  &•  Eng.  R.  Cas.  138,  70 
Ala.  268.— Not  following  Foster  v.  Essex 
Hank,  17  Mass.  479;  Illinois  C.  R.  Co.  v. 
Downey,  18  III.  259;  Wesson  v.  Seaboard  & 
R.  R.  Co..  4  Jones'  (N.  Car.)  379;  Thames 
Steamboat  Co.  v.  Housatonic  R.  Co.,  24 
Conn.  40;  DeCampz/.  Mississippi  &  M.  R. 
Co..  12  Iowa  348.  Reviewed  in  Cameron 
V.  Pacific  Exp.  Co.,  48  Mo.  App.  99. 

A  colored  boy  was  found  in  an  express 
car.  whereupon  the  express  messenger  called 
to  a  baggage-master,  and  the  two.  out  of  a 
disposition  to  have  fun  at  the  expense  of  the 
boy,  so  frightened  him  that  he  jumped  from 
the  train  and  received  fatal  injuries.  Held, 
that  the  company  was  not  liable  for  the  act 
of  the  baggage-master  in  quitting  his  apart- 
ment and  going  into  the  express  car  to  par- 
ticipate in  the  conduct  which  led  to  the  in- 
jury, unless  he  was  about  its  business. 
Louisville,  N.  O.  (5>»  T,  R.  Co.  v.  Douglass, 
69  Miss.  723,  1 1  So.  Rep.  933. 

A  fireman  was  put  in  charge  of  an  engine 
and  certain  cars  to  run  to  a  water-station, 
the  duty  usually  devolving  upon  the  engi- 
neer. At  the  station  he  invited  a  boy  to 
climb  on  the  tender  and  turn  on  the  water, 
and  in  doing  so  was  killed  by  other  cars 
running  against  the  tender.  Held,  it  not 
being  within  the  scope  of  the  employment 
of  either  an  engineer  or  fireman  to  ask  per- 
sons on  the  engine  for  such  purposes,  that 
the  company  was  not  liable  for  the  killing. 
Flower  v,  Pennsylvania  R.  Co.,  69  Pa.  St. 
210.— Distinguished  in  Sloan  v.  Central 
Iowa  R.  Co.,  II  Am.  &  Eng.  R.  Cas.  145,  62 
Iowa  728.  Followed  in  Everhart  v. 
Terre  Haute  &  I.  R.  Co.,  4  Am.  &  Eng.  R. 
Cas.  599,  78  Ind.  292.  41  Am.  Rep.  567. 
Quoted  in  Little  Rock  &  Ft.  S.  R.  Co.  v. 
Miles.  40  Ark.  298.  13  Am.  &  Eng.  R.  Cas. 
10,48  Am.  Rep.  10;  Atchison,  T.  &  S.  F. 
R.  Co.  V,  Lindley,4i  Am.&  Eng.  R.  Cas,  72. 
42  Kan.  714,  6  L.  R.  A.  646,  41  Alb.  L.  J. 
92.  7  R.  R.  &  Corp.  L.  J.  133.  22  Pac.  Rep. 
703;  Darwin  v.  Charlotte  C.  &  A.  R.  Co., 


I 


AGENCY,  77,  78. 


65 


23  So.  Car.  531, 55  Am.  Rep.  32.  Reviewed 
AND  (QUOTED  IN  Siiycicr  T.  Hannibal  &  St. 
J.  K.  Co.,  60  Mo.  413;  Wischam  v.  Rick- 
ards,  136  Pa.  St.  109;  Cotter  v.  Frankford 
&S.  R.  Co.,  15  Phila.  (Pa.)  255. 

(2)  Of/iif  /'//«.v//v»//V)«.v.— A  company  can- 
not be  held  lialilc  for  llic  acts  of  its  ayents  in 
iisinp  a  culvert  near  plainiilT's  residence  for 
tlie  purposes  of  a  |>rivy  and  tlicrcl)y  creating 
a  nuisance.  Hopkins  v.  W'lstern  I'ac.  A'.  Co., 
50  Cat.  190,  12  Am.  Ry.  Rep.  176. 

A  company  is  nut  liable  (or  an  injury  to  a 
|)crson  Itit  by  a  bundle  which  a  train  porter 
threw  out  of  a  car  window,  where  such 
bundle  is  the  personal  property  of  the 
porter.  Walton  v.  Mw  York  C.  S.  Cat  Co., 
139  Mass.  556,  2  A'.  E.  Rep.  loi. 

An  ai,'ent  of  a  railroad  company,  having 
and  exercising  supervision  over  the  lands  of 
lie  company  and  in  charge  of  such  lands, 
making  leases,  collecting  rents  and  stump- 
age,  and  negotiating  sales  of  the  lands  for 
the  company,  who  invokes  the  criminal  law 
i)y  bringing  a  charge  of  grand  larceny  against 
a  party  for  spoliation  of  the  timber-lands  of 
the  company,  is  not  in  so  doing  acting 
within  the  scope  of  his  agency  or  in  the 
course  of  his  employment,  and  the  com- 
pany is  therefore  not  to  be  held  responsible 
for  such  actions  done  maliciously  by  him. 
Ptcssky  v.  Mobile  &^  G.  R.  Co.,  \\  Am.  &> 
lut),^.  R.  Cas.  227,  4  Woods  (U.  S.)  569,  15 
/•W.  Rep.  199,— Quoted  in  Gulf.C.  and  S. 
F.  R.  Co.  V.  James,  73  Tex.  12,  10  S.  W. 
Rep.  744- 

Where  a  company  furnishes  hand-cars  for 
the  exclusive  use  of  its  employes,  who, 
without  the  knowledge  of  the  company, 
permit  plaintiff,  who  is  not  connected  with 
the  company's  business,  to  ride  thereon, 
held,  in  an  action  to  recover  for  an  injury 
received  while  so  riding,  that  plaintiff's 
ignorance  of  the  fact  that  the  cars  were  for 
the  exclusive  use  of  employes  will  not  make 
the  company  liable;  neither  will  it  be  bound 
by  the  acts  of  its  employes  in  permitting 
him  to  ride,  as  such  acts  were  not  within 
the  apparent  scope  of  their  authority.  Gulf, 
C.  &*  S.  F.  R.  Co.  V.  Dawkins,  77  Tex.  228, 
13.S'.  W.  Rep.  982. 

Plaintifl  was  in  the  employment  of  one  C, 
a  contractor  with  the  defendants  for  build- 
ing fences  along  their  line.  C,  as  a  matter 
of  convenience  to  him,  was  permitted  by 
defendants  to  carry  his  tools  on  their  trains, 
and  was  thus  taking  two  crowbars  from  H. 
to  a  point  on  the  line  where  his  men  were 
1  D.  R.  I) —5. 


at  work.  As  the  train  passed  the  spot  C. 
dropped  one  bar  out,  and  the  baggage- 
master  pitched  out  the  other,  which  struck 
and  injured  the  plaintifl.  C.  swore  that  it 
was  his  b;isiness  to  put  the  barson  and  take 
them  of!  the  car,  the  baggageman  having 
nothing  to  do  with  him  nor  any  right  to 
meddle  with  his  tools,  nor  did  he  ask  him  to 
put  the  bar  out.  Held,  that  defendants  were 
not  responsible  for  the  injury,  for  the  bag- 
gageman was  not  acting  as  their  servant  or 
in  pursuance  of  his  employment.  Cunning- 
ham v.  Grand  Trunk  R.  Co.,  31  U.C.  Q.  B. 
350.— Quoting  Murray  v.  Currie,  L.  R.  6, 
C.  P.  24. 

77. eoiitrnry  doctrine.— Because 

of  the  absolute  necessity  for  more  stringent 
rules  for  the  protection  of  life  and  property 
against  the  perils  of  the  steam-engine  with 
its  capacity  for  mischief,  the  common-law 
rule  that  the  master  is  not  liable  for  the 
tortious  acts  of  his  servant  committed  with- 
out the  scope  of  his  employment,  does  not 
apply  to  railroad  companies.  Nashville  &* 
C.  R.  Co.  v.  Starnes,  9  Heisk.  (Tenn.)  52. 

Railroad  corporations  only  act  through 
agents,  and  having  placed  in  their  hands 
such  deadly  instruments,  the  law  demands 
of  them  the  utmost  caution  in  the  selection 
of  agents,  and  holds  them  strictly  account- 
able. Xash7iille  &*  C.  R.  Co.  v.  Starnes,  9 
Heisk.  {Tenn.)  52.  19  Am.  Ry.  Rep.  280. 

78.  Vnauthorizc<l  nets.— A  corpora- 
tion is  not  bound  by  the  unauthorized  acts 
of  its  officers.  Reynolds  &*  H.  C.  Co.  v. 
Police  Jury,  44  La.  Ann.  863,  il  So,  Rep. 
236. 

The  master  is  not  liable,  in  an  action  of 
trespass,  for  the  act  of  his  servant,  where 
such  act  was  neither  expressly  ordered  nor 
authorized  to  be  done.  Thames  Steamboat 
Co.  V.  Housa tonic  R.  Co.,  24  Conn.  40. — Ap- 
proved IN  Porter  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  41  Iowa  358.  Not  followed  in  Gil- 
liam V.  South  &  N.  Ala.  R.  Co.,  15  Am. 
&  Eng.  R.  Cas.  138,  70  Ala.  268. 

A  company  is  not  liable  for  a  trespass 
committed  by  one  of  its  agents  who,  in  do- 
ing so,  acts  in  violation  of  the  company's 
instructions  as  to  the  very  thing  out  of 
which  the  trespass  grew.  McClung  v.  Dear- 
borne,  19  Phila.  {Pa.)  500. 

A  railroad  company  is  not  liable  for  a 
wrongful  conversion  committed  by  one  of 
its  agents,  where  the  company  did  not 
authorize  it  or  receive  any  benefit  from  it, 
and  which  was  outside  of  the  regular  em- 


ee 


a(;i:ncy,  7»,  8o. 


ploymeiit  of  the  nRcnt.     lVi7son  v.  Donaghy, 

One  wlio  has  been  injured  hy  the  servant 
o(  anoUicr  pcison  cannot  hold  ilie  lna^tl•r 
(or  the  injury,  if  tiic  injury  was  tin-  result  of 
arranj{cmcnis  made  by  liini  wilh  ihc  scrv.int, 
with  knowkd);i-  lliat  ihiy  were  in  contra 
vcnlicjii  of  prior  directions  from  the  master 
of  llie  servant.  Snidi-r  v.  Onrc/nr,/.  47  .l/o. 
A^fi.  8.  AlM'r.vrsc;  Farberi'.  Missouri  Pac. 
K.  Co.,  32  Mo.  Ap|).  378- 

After  the  delivery  of  j,'i)ods  to  the  owner,  a 
ba>{naf{c- master  or  w.ireliouseman  has  no 
authority  to  allow  the  ^'oods  to  remain  in 
the  warelioiisc,  and  the  company  is  not 
liat)le  to  the  owner  in  case  they  are  de- 
stroved.  Miil/i'gtvi  V.  iXorthcrn  Pac.  R.  Co. 
(Ihik),  29  A',  iv.  /iV/.  659. 

Defendants  agreed  with  a  contractor  for 
the  cr»nstruction  of  their  railway,  to  furnish 
a  construction  train  to  be  used  in  carrying 
materials  for  ballasting  and  layin){  the 
track  ;  defendants  to  provide  the  conductor, 
engineer  and  hreman;  the  contractor  fur- 
nishing the  brakeman.  After  work  was 
over  for  the  day,  and  the  train  was  re- 
turning; to  O.,  where  plainlilT,  one  of  the 
contractors  workmen,  lived,  pluintifT,  with 
the  permission  of  the  conductor,  but  with- 
out the  authority  of  the  defendants,  got  on 
the  train.  Throuf^h  the  negligence  of  the 
person  in  charge  of  tlic  train  plaintifT  was 
injured.  Hvlii,  that  defendants  were  not 
liable,  f<jr  their  contract  was  to  carry  mate- 
rials only,  not  passengers,  and  the  conduc- 
tor in  permitting  plaintifT  to  get  upon  the 
train  was  not  acting  as  defendants'  agent. 
Gra/tam  v.  Toronto.  G.  &^  /i.  A'.  Co.,  23  [/. 
C.  C.  P.  541.— Di.sTlN(;uiSHiNG  Torpy  v. 
Grand  Trunk  K.  Co,,  20  U.  C.  Q.  B.  446. — 
Revikwkd  I.N  Hoar  v.  Maine  C.  R.  Co.,  70 
Me.  65. 

71».  WiUiil  acts -General  rule  ot 
uoii-litil)ilit)'.*— A  corporation  is  liable 
for  the  tortious-  acts  of  its  employes  or  agents 
while  engaged  in  tlie  performance  of  their 
duties,  but  not  for  such  acts  as  in  their  nature 
are  wilful  or  criminal.  De  Oimfi  v.  Missis- 
sippt  &•  ,IA  A'.  Co.,  12  l.iuui  348.— Quoting 
Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How. 
(U.  S  )  468.  FoLi.owKu  IN  Cooke  v.  Illinois 
C.  R.  Co.,  30  Iowa  202;  Porter  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  41  Iowa  358.  Not  fol- 
lowed IN  Gilliam  v.  South  &  N.  Ala.  R. 

•  Company  not  liable  for  wilful  and  malicious 
acts  of  servants.  See  nott,  15  Am.  &  Eng.  R. 
Cas.  141. 


Co.,  IS  Am,  &  F.ng,  R.  Cas.  138.  70  Ala.  268; 
Marion  v.  Ciiicago,  R.  I.  &  P.  K.  Co.,  64 
Iowa  568.  Windrson  v.  Eighth  At'e.  A*. 
Co  ,  2  J/i/t  (X.  )'.)  389.  Wesson  v.  .Seaboard 
ilf  A".  A'.  Co.,  4  Jones  (A'.  C.)  I.,  yjf).  Not 
loi.Lowi'.l)  IN  Gilliam  v.  South  &  N.  Ala. 
R.  Co.,  15  Am.  &  Eng.  R.  Cas.  138,  70  Ala. 
268.  South  <S-  A'.  Ala.  A'.  Co.  v.  Chappell,  6 1 
Ala.  527.— Explaining  Owsley  v.  Mont- 
gomery &  W.  P.  R.  Co.,  37  Ala.  560. 

A  railroad  company  is  only  liable  for  the 
malicious  acts  ot  its  agents,  where  it,  with 
full  knowledge  of  the  facts,  ratifies  the  act. 
Gulf,  C.  >^  S.  /•'.  R.  Co.  V.  Moore,  69  Tex. 
i57,6.S'.  II'.  AV^  631.— Following  Hays  ». 
Houston  &  G,  N.  R.  Co.,  46  Tex.  272. 

Where  an  employ^  commits  a  crime,  or 
his  act  is  malicious  or  wilful,  the  law  pre- 
sumes that  the  company  did  not  authorize 
or  sanction  the  act,  but  this  is  only  a  pre- 
sumption and  may  be  rebutted.  Gulf,  C.  &* 
S.  F.  R.  Co.  V.  Rteil,  48  //;//.  <S-  Eng.  R.  Cas. 
423,  80  7'ex.  362,  15  .S',  II'.  Rip.  1 105. 

An  express  wilful  intent  to  do  an  injury 
resulting  in  damage  cannot  be  imputed  to 
the  principal  when  the  injury  was  inflicted 
by  an  employ^,  and  when  the  wrongful  act 
has  neither  been  authorized  nor  ratified. 
Houston  «S-  T.  C.  R.  Co.  v.  Cowser,  57  Tex. 

293- 

80.  U11IC88  act  (lone  is  in  line 

of  duty.— A  company  is  not  liable  for  the 
wilful  act  of  its  employ^  unless  he  is  engaged 
at  the  time  about  the  company's  business. 
Louisville,  N.  O.  &*  T.  R.  Co.,  v.  Douglass, 
69  Miss.  723, 1 1  .S().  Rep.  933.  Ryan  v.  Hudson 
River  R.  Co.,  i  /.  &*  S.  (A'.   Y.)  137. 

A  company  is  not  liable  for  damages  re* 
suiting  from  a  wilful  and  malicious  trespass 
committed  upon  a  stranger  to  the  company 
by  its  engineer  or  conductor,  outside  of  and 
beyond  the  scope  of  his  authority  or  line  of 
duty.  New  Orleans,  J.  &*  G.  N.  R.  Co.  v, 
Harrison,  48  Miss.  1 12.  — DISTINGUISHING 
Brown  v.  New  York  C.  R.  Co.,  32  N.  Y. 
597 ;  Lalor  v.  Chicago,  B.  &  Q.  R.  Co.  52  III. 
401. — Quoted  in  Darwin  t'.  Charlotte,  C.  & 
A.  R.  Co.,  23  S.  Car.  531,  55  Am.  Rep.  32. 

The  earlier  doctrine  that,  "  in  general,  a 
master  is  liable  for  the  fault  or  negligence 
of  the  servant,  but  not  for  his  wilful  wrong 
or  trespass,"  has  been  greatly  modified  in 
modern  jurisprudence,  which  places  the  test 
of  the  master's  liability,  not  in  the  motive  of 
the  servant  or  in  thecharacterof  the  wrong, 
but  in  the  inquiry  whether  the  act  done  was 
something  which    his  employment  content- 


AdIiNCY,  HI. 


67 


52  111. 


jilatcd,  and  which,  if  properly  and  lawfully 
tioiic,  would  have  been  within  the  scope  of 
Ills  fiini  lions.  IVilliants  v.  rullman  Paline 
Car  Co.,  33  Atn.  &*  Eu^.  A\  Cas.  407,  40  /,</. 
//««.  87,  3  So.  AV/.  631. 

K;iilroad  compunies  are  liable  for  the  wil- 
ful acts  of  their  employes  when  committed 
within  the  sc(tpe  of  their  employment.  /</- 
jirsimvillc  K.  Co.  v. /vVj^'^rj,  38  /«</.  116.— 
(Ji  nliNU  Ramsdcn  ?'.  Boston  &  A.  R.  Co., 
ro4  Mass.  117.  Iitiiiana,  Ji.  &•  II'.  A\  Co.  v. 
lltin/^e,  18  Am.  &•  Eng.  A'.  Cas.  192,  94  /«</. 
46.  Ar,is>nil/i  V.  Ttniplf,  11  ///.  App.  39. 
Cobb  V.  Columbia  «&-  G.  K.  Co.,  37  .V.  Car.  194. 

A  corporation  is  liable  for  the  wilful  acts 
and  torts  of  its  a^ctiis committed  within  tlie 
general  scope  of  their  employment,  as  well 
as  acts  of  nct;ligence,  although  the  particular 
acts  have  not  been  previously  authorized  or 
subsequently  ratified.  Indianapolis,  P.  &* 
C.  R.  Co.  V.  Anthony,  43  Ind.  183.— Dis- 
TiNCUl.SHlNd  Evansvillc  &  C.  R.  Co.  v. 
Baum,  26  Ind.  70.  QuoTiNi;  Jcffersonville 
R.  Co.  V.  Rogers,  38  Ind.  1 16.  Terre  Haute 
&*  I.  A\  Co.  \.  Jackson,  6  Atn.  &*  J'-ng.  K.  Cas 
178,  81  /«(/.  19.  Qiiij^^liy  V.  Central  Pac.  A'. 
Co.,  II  AVv.  350.— Not  Folluwino  Hagan 
7'.  Providence  &  W.  R.  Co.,  3  R.  1.88.— Ped- 
dinif  V.  SoutA  Carolina  A'.  Co.,  3  S.  Car.  i. 

\Vhcre  the  servants  of  a  railroad,  while  in 
the  discharge  of  their  duties,  pervert  the 
appliatices  of  the  company  to  wanton  and 
malicious  purposes  to  the  injury  of  others, 
the  company  is  liable  for  such  injuries. 
Chicago,  B.  &'  Q.  P.  Co.  v.  Dickson,  63  ///. 
151,7  Am,  Ky.  Pip.  45. — Folldwinc;  Toledo, 
W.  &  VV.  R.  Co.  V.  Harmon,  47  III.  298. 

The  agents  and  servants  of  a  railroad  com- 
pany while  engaged  in  running  a  train  of 
cars  are  in  the  line  of  their  duty,  and  for 
their  acts  wilfully  done  the  company  is  lia- 
ble. Terrc  Haute  &*  I.  P.  Co.  v.  Graham, 
46  Ind.  239,  6  Am.  Py.  Pep.  358. 

81. Hcope  and  extent   of  the 

rule.— A  railroad  corporation  is  not  liable 
for  a  trespass  committed  by  its  servants 
in  wilfully  expelling  a  passenger,  where  in 
doing  so  they  exceed  the  authority  given 
them  under  certain  regulations  of  the  com- 
pany. Hibbard  v.  New  York  &*  E.  P.  Co., 
\%  N.  Y.  455.— Following  Wright  v.  Wil- 
cox, 19  Wend.  (N.  Y.)  343.— APPROVKD  IN 
Cox  V.  Keahey,  36  Ala.  340.  Criticised  in 
Isaairs  7'.  Third  Ave.  R.  Co.,  47  N.  Y.  122. 
DlSTlNOUi.sHKD  IN  Higgins  V.  Watervliei. 
T.  &  R.  Co..  46  N.  Y.  23.  Not  Followed 
IN  Weed  V.  Panama  R.  Co..  17  N.  Y.  362. 


Corporations  are  not  bound  by  the  wanton 
and  wilful  trespasses  of  thciragents.  ^oheld, 
where  a  female  passenger  requested  the  con- 
ductor to  stop  a  street-car  and  let  her  off, 
but  on  the  contrary  he  violently  threw  her 
from  the  car  while  in  motion  with  such 
force  as  to  seriously  injure  her.  Isiiacs  v. 
Third  Ave.  P.  Co.,  47  A'.  >'.  122.— Ckiti- 
CI.SING  Ilibbard  v.  New  York  &  E.  R.  Co,, 
15  N.  Y.  455.  Following  Mali  7'.  Lord,  39 
N.  Y.  381.  Reviewing  Vanderbiii  7'.  Rich- 
mond Turnpike  Co.,  2  N.  Y.  479.— AlM'i.iEn 
IN  Mars  f,  Delaware  k  II.  C.  Co.,  54  Ilun 
(N.  Y.)62S.  DisTiNCULSHEi)  IN  Cohen  v. 
Dry  Dock,  E.  B.  &  B.  R.  Co.,  8  J.  &  S.  (N. 
Y.)368;  Shea  7'.  Sixth  Ave.  R.  Co.,  62  N. 
Y.  180.  Followed  in  Hughes  v.  New 
York  &  N.  H.  R.  Co.,  4  J.  &  S.  (N.  Y.)  222. 
Limited  in  Stewart  v.  Brooklyn  &  C.  T.  R. 
Co.,  90  N.  Y.  588,  43  Am.  Rep.  185.  Not 
Followed  in  Carter  7'.  Louisville,  N.  A.  & 
C.  R.  Co..  98  Ind.  552;  HolTman  v.  New 
York  C.  &  H.  R.  R.  Co.,  12  J.&S.  (N.  Y.)  i. 

The  owners  of  a  steamboat  ate  not  liable 
for  damages  resulting  from  a  collision 
caused  by  the  wilful  act  of  their  servants 
and  agents  in  charge  of  the  boat.  Cox  V. 
Keahey,  ^6  Ala.  340.— Ai'PRoviNc;  McManus 
V.  Crickelt,  i  East  106;  Hibbard  t>.  New 
York  &  E.  R.  Co.,  15  N.  Y.  455.  Distin- 
guishing Philadelphia  &  R.  R.  Co.  7'.  Derby, 
14  How.  (U.  S.)  468  ;  Vicksburg  &  J.  R.  Co. 
V.  Patton,  31  Miss.  156;  Cleveland,  C.  &  C. 
R.  Co.  7'.  Keary,  3  Ohio  St.  201  ;  Henderson, 
San  Antonio  &  M.  G.  v.  R.  Co.,  17  Tex.  560; 
Hegeman  v.  Western  R.  Co..  16  Barb.  (N.  Y.) 
353.  Following  Blackburn  v.  Baker,  i 
Ala.  173;  Lindsay  v.  GritHn,  22  Ala.  629; 
Walker  v.  Boiling,  22  Ala.  294;  Kirksey  v. 
Jones,  7  Ala.  622. 

A  railroad  company  is  not  liable  for  the 
act  of  an  engineer  in  purposely  and  wantonly 
backing  a  train  toward  a  street-car  for 
the  purpose  of  frightening  the  passengers 
therein,  whereby  a  passenger,  believing  him- 
self in  imminent  danger,  is  injured  by  jump- 
ing to  avoid  a  collision,  though  the  engineer 
did  not  mean  to  strike  the  car.  Stephenson 
v.  Southern  Pac.  P.  Co.,  93  Cal.  558,  29  Pac. 
Pep.  234. 

Plaintiff,  while  travelling  in  a  buggy  along 
a  street  in  the  city  of  New  York,  was  stopped 
by  a  blockade  of  vehicles  just  as  he  had 
crossed  defendant's  track.  The  rear  of 
his  buggy  was  so  near  the  track  that  a  car 
could  not  pass  without  hitting  it.  A  car 
came  up,  the  driver  of  which,  after  waiting 


I 


08 


ACiENCV,  H2. 


a  moment  or  two.  ordered  plaintiff  to  "get 
ort  tlie  track."  Plaintitl  was  unable  to  move 
either  way.  and  so  noiitiid  the  driver,  who 
replied  wiih  an  oath  ili.u  he  v.as  late,  and 
that  if  plainlill  did  not  nvi  o(T  he  would  put 
iiim  off.  and  immediately  thereafter  drove 
on.  slriki:!Rand  upseitiuK  plaintiff's  buggy 
and  injuring,'  him.  In  an  action  to  recover 
damages.  /iM,  that  the  evidence  did  not 
authorize  a  linding  as  mailer  of  l.iw,  that 
the  act  of  the  driver  was  with  a  view  to  in- 
jure plaintiff,  and  not  with  a  view  to  his 
master's  service;  but  that  this  question  was 
one  of  fact,  and  a  dismissal  of  the  complaint 
on  trial  was  error.  Co/irn  v.  /hj  />iu/:.  A'.  />'. 
v;~  />'.  A'.  C'f'..  69  .v.  )'.  170.  1 8  ^l//i.  Ay.  I\fp. 
109;  itffiy tiling  iSy.  e^  .s'.  368. 

82. il,«i  limits  and  «'\c«>|»tiniiM.— 

When  a  railroad  company  is  sued  for  a  delay 
ill  carrying  goods  it  cannot  e.xcusc  the  delay 
by  showing  that  it  was  the  resi'lt  of  a  wilful 
act  on  the  part  of  one  of  its  conductors. 
n\ed  V.  Pamima  A'.  t\>.,  17  iV.  1'.  362; 
ajfirming  5  Diur  193.— DiSTiNUUisHiNt; 
Kichmond  Turnpike  Co.  v.  Vanderbilt,  i 
Hill  (N.  Y.)  480.  Nor  Following  Hibbard 
V.  New  York  &  E.  R.  Co..  15  N.  Y.  455.— 
AlM'RovKi)  IN  Perkins  v.  Mi.ssouri,  K.  & 
T.  R.  Co.,  55  Mo.  201 ;  Milwaukee  &  M.  R. 
Co.  V.  Finney.  10  Wis.  388.  Distinguished 
IN  Geismer  %>.  Lake  Shore  &  M.  S.  R.  Co.,  26 
Am. »%  Eng.  R.  Cas.  287.  102  N.  .Y.  563,  7  N. 
K.  Rep.  828.  2  N.  Y.  S.  R.  514;  rci'crsiiig  34 
Uun  50 :  Gulf.  C.  &  S.  F.  R.  Co.  v.  Levi.  42 
Am.  &  Eng.  R.  Cas.  439.  76  Te.x,  337.  13  S. 
W.  Rep.  191.  8  L.  R.  A.  323;  reversed  in  40 
Am.  &*  /fz/.c.  A".  Gi.t.  1 15.  12  .S".  /F.  AV/>.677.  — 
Foi.LOWKi)  IN  Read  v.  St.  Louis.  K.  C.  &  N. 
R.  Co.,  60  Mo.  199 ;  Blackstock  v.  New  York 
&  E.  R.  Co..  20  N.  Y.  48  ;  Meyer  v.  Second 
Ave.  R.  Co.,  8  Bosw.  (N.  Y.)  305.  Revikweo 
IN  Goddard  v.  (Jrand  Trunk  R.  Co..  57  Me. 
202;  Pittsburg.  C.  .St  St.  L.  R.  Co.  v.  Shields. 
47  Ohio  St.  3S7  ;  Palmer  7>.  Charlotte,  C.  & 
A.  R.  Co.,  3  S.  Car.  580. 

While  the  master  is  not  responsible  for 
the  wilful  wrong  of  the  servant,  not  done 
w  .h  a  view  to  the  master's  service,  or  for 
the  purpose  of  executing  his  orders,  if  the 
servant  is  authorized  to  use  force  against 
another  when  necessary  in  executing  his 
master's  orders,  and  if.  while  executing  such 
orders,  through  misjudgment  or  violence  of 
temper  the  servant  uses  more  force  than  is 
necessary,  the  master  is  liable.  Koiiiuis  v. 
'hhiuwe.  I..  C'-  W  A'.  Co.,  O4  .\'.  1'.  \^^) 
31  Am.  Rip.  597  ,  lijliiming  3  Uun  329,  5  7'. 


&*C.  475.— Following  Higgins  v.  Water- 
vliet  Turnpike  Co.,  46  N.  Y.  23.  Reviewing 
McManus  ?-.  Crickett,  1  East  106.  —  Al'i'LlEU 
IN  Mars  7'.  Delaware^  ll.C.Co.,  54  Hun  (N. 
Y.)  625 ;  Lang  v.  New  York,  L.  E.  &  W.  R. 
Co..  22  N.  Y.  S.  R.  no.  Followed  in 
(■(ilun  V.  Drv  Do.  k.  E.  I?,  it  l{.  R.  Co..  69 
N.  V.  170;  Muri)liy  .'.  Central  Park,  N.  &  E. 
R.  R.  Co.,  16  J.  &  S.  (N.  Y.)  96.  Reviewed 
in  Carter  v.  Louisville,  N.  A.&C.  R.  Co.,  98 
Ind.  552  ;  Molloy  v.  New  York  C.  &  H.  R.  R. 
Co.,  10  Daly  (N.  Y.)  453. 

If  a  servant  is  authorized  to  use  force 
against  another  when  necessary  in  executing 
his  Piaster's  orders  the  mastcrcommits  it  to 
him  to  deci<le  what  degree  of  force  he  shall 
use.  and  if,  through  misjudgment  or  violence 
of  temper,  he  goes  beyond  the  necessity  of 
the  occasion  and  gives  a  right  of  action 
to  another,  he  cannot,  as  to  third  persons, 
be  said  to  have  been  acting  without  the  line 
of  his  duty  or  to  have  departed  from  his 
master's  bu.siness.  If.  however,  the  servant, 
under  guise  and  cover  of  executing  his 
master's  orders  and  exercising  the  authority 
conferred  upon  him,  wilfully  and  designedly, 
for  the  purpose  of  accomplishing  his  own 
indepetident.  malicious  or  wicked  purposes, 
does  an  injury  to  another,  then  the  master 
is  not  liable.  The  relation  of  master  and 
servant  as  to  that  transaction  does  nc^t  exist 
between  them.  It  is  a  wilful  and  wanton 
wrong  and  trespass,  for  which  the  master 
cannot  be  held  responsible.  Roundx\.  Dela- 
ware, L.  &*  IV.  K.  Co.,  64  A'.  Y.  129,  21  Am. 
i^''P-  597 ;   affirming  3  Hun  329,  ^  T.  ^^  C. 

475- 

Where  the  misconduct  of  an  agent  causes 
a  breach  of  the  obligation  or  contract  of  the 
principal,  then  the  principal  is  liable  in  an 
action,  whether  such  misconduct  be  wilful  or 
malicious,  or  merely  negligent ;  and  in  such 
case,  though  the  action  be  brought  nomi- 
nally m  tort,  it  will  be  treated  as^.v  contractu 
and  be  governed  by  the  same  rules,  unless 
the  malice  or  wantonness  of  the  agent  be 
brought  home  and  directly  charged  to  the 
principal.  Milwa,.'l'ee  &>  M.  A'.  Co.  v.  Fin- 
ney, 10  Wis.  388. —  Approving  Weed  v. 
F'anama  R.  Co.,  17  N.  Y.  362.— Reviewf^) 
IN  Goddard  v.  Grand  Trunk  R.  Co.,  57  Me. 
202;  Winncgar  v.  Central  Pass.  R.  Co..  34 
Am.  &  Eng.  R.  Cas.  462,  85  Ky.  547.  4  S.  W. 
Rep.  237. 

An  authority  given  by  the  board  of  direc- 
tor;; will  not.  in  all  cases,  be  the  authority  of 
the  corporation.    To  fix  the  liability  of  a 


il-i 


AGKNCY,  H;J,  H4. 


60 


lui  |»i)iiii  ion  lor  ilic  lot  lions  acl  of  one  of  its 
emi)loyes,  done  in  oljodicnce  to  the  coni- 
numds  of  its  oHiccrs,  ilic  act  must  be  con- 
nected with  tiic  transaction  of  the  business 
for  whicii  the  company  was  incorporated. 
A'rohiTV  V.  A't'7ti  Jcr:ny  R.  &»  T.  Co.,  yi  N. 
J.  I..  328.— yuoriNd  KailwayCo.  7^  Brown, 
0  ICxcli.  325;  Green  f.  London  Omnibus 
Co.,7  C.  H.  N.  S.  301 ;  Philadelphia.  VV.  & 
W.  K.  Co.  ?'.  yuiglcy,  21  How.  (U.  S.)  202. 
—  (JuoiKi)  i.\  Central  R.  &  B.  Co.  v.  Smith, 
76  Ala.  572. 

If  the  trespass  was  committed  by  the 
ajj;eiit  of  the  company,  wilfully,  or  of  his  own 
malice,  under  color  of  discharfring  the 
duties  of  his  employment,  or  if  he  has  de- 
parted beyond  the  line  of  his  duty  to  com- 
mit a  lrcs|>ass,  the  company  will  not  be  lia- 
l)li'.  But  if  the  act  of  the  agent  was  au- 
thorized by  the  rules  and  regulations  of  the 
i:i)m|)any,  or  was  necessary  to  accomplish 
the  i)urposes  of  his  employment,  the  coni- 
l)any  is  answerable,  even  for  the  unneces- 
sary violence  of  the  agent.  Brokaw  v.  AWt/ 
Jnsfy  R.  6-  T.  Co.,  32  N. /.  L.  328.— Rk- 
VII  WED   i.\  Vance  v.  Erie   R.  Co.,  32  N.  J. 

I-  334- 
H:1.  NcKlitfciit  acts— General  rule.* 

-  kailroad  companies  are  liable  for  theneg- 
litjcnt  acts  of  its  employes  or  agents  wherever 
individuals  would  be  liable  under  the  same 
circumstances.  Kiitg  v.  Ohio  &*  M.  R.  Co., 
S  .l//t.  &^  F.Hi^.  R.  C<rs.  119,  11  /J/ss.  { U.  S.) 
362,  14  Fid.  AV/.  277.— FoLLOWKD  IN  Little 
Kock  &  M.  R.  Co.  V.  Mosley,  56  Fed.  Rep. 
1009. — Cleveland,  C.  &*  C.  R.  Co.  v.  Keary,  3 
0///(>  .S'/.  201.— Quoting  Marshall  7^  Balti- 
more &  O,  R.  Co.,  16  How.  (U.  S.)  327. 

The  general  rule  of  respondeat  superior 
charges  the  master  with  liability  for  the  ser- 
vant's negligence  in  the  master's  business 
causing  injury  to  third  persons,  and  the  acts 
of  the  servant  may,  in  general,  l)e  treated  as 
the  acts  of  the  master.  Murray  v.  Usher, 
117  A'.  Y.  542.  23  A'.  E.  Rep.  564,  27  A^.  Y. 
S.  R.  928 ;  ajDirming  46  Huti  404,  1 1  A'.  Y. 
.S".  A".  789.  Kvansrille  &•  C.  R.  Co.  v.  Ihium, 
26  Ind.  JO.  Smith  v.  Memphis  &*  A.  C. 
Packet  Co.  ( Tenn.)  i  S.  IV.  Rep.  104.  //ous- 
toii  &^  T.  C.  R.  Co.  V.  Gorbett,  49  Tex.  573. 

As  cori)()rations  can  only  act  through 
agent.;,  where  a  complaint  charges  negli- 
gence against  the  company,  it  is  competent 
to  admit  evidence  showing  negligence  on 

*  Liability  oi  master  to  third  persons  for  in- 
juries Lauscd  by  negligence  of  servant.  See  note. 
8  L.  R.  A.  4O4. 


the  part  of  its  agents  who  are  charged  wiili 
the  duty  of  performing  the  act  complained 
of.  St.  Louis  &*  S.  F.  R.  Co.  v.  George,  85 
Te.x.  150,  19.S'.  IV.  Rep.  1036.  Houston  &•  /'. 
C.  R.  Co.  V.  Rand,  9 .'////.  &^  Fng.  R.  Cas.  399. 

The  negligence  of  the  agent,  of  whatsoever 
grade,  as  to  matters  within  the  scope  of  his 
employment  with  reference  to  passengers,  is 
the  negligence  of  the  corporation.  Gul/,C. 
&•  S.  /•'.  A'.  Co.  V.  McGowan,  26  Am.  &*  Fng. 
R.  Cas.  274,  65  7V.r.  640, 

The  duty  of  observing  the  greatest  care  in 
the  custody  and  use  of  dangerous  agencies 
cannot  be  shifted  by  a  master  to  his  servants, 
so  as  to  exonerate  him  from  the  negligence 
of  a  servant  in  the  use  and  custody  of  them. 
Pittsburg.  C.  l^'  St.  L.  R.  Co.  v.  Shields,  44 
Am.  &r'  I'lng.  R.  Cas.  647,  47  Ohio  St.  387,  8 
L.  R.  A.  464,  24  A'.  F.  Rep.  658. 

84.   its    seope    and    e.xteiit.— 

Where  the  business  of  two  roatls  at  a  junc- 
tion is  intrusted  to  one  agent,  the  fact  that 
the  agent  is  employed  and  paid  by  one  road 
will  not  relieve  the  other  from  liability  for 
damages  that  may  result  from  his  negli- 
geiicc.  Taylor  v.  Western  Pac.  R.  Co.,  45 
Cal.  323. 

The  Iowa  Code,  §  1307,  makes  railway 
corporations  liable  for  all  damages  resulting 
from  the  negligence  of  their  employes  or 
agent«.  npd  under  the  statute  no  special  con- 
tract kv' '.  exempt  the  company  from  liability, 
and  liu-  statute  applies  both  to  passengers 
and  servants  of  such  corporations.  Roses, 
Des  Moines,  Valley  R.  Co.,  39  hrwa  246. 

A  railroad  company  is  liable,  under  §  1307, 
for  the  gross  negligence  of  its  employes,  re- 
sulting in  an  injury  to  a  person  riding  upon 
its  cars,  though  without  right;  as,  in  this 
case,  one  riding  upon  the  non-transferable 
commutation  ticket  of  another.  Way  v. 
Chicago,  R.  I.  &*  I'.  R.  Co.,  34  Am.  &^  Fng. 
R.  Cas.  286,  73  Io7va  463,  35  N.    W.  Rep., 

525- 

A  railroad  company  is  liable  for  the  in- 
juries caused  by  a  fireman  who  was  tempo- 
rarily left  in  charge  of  an  engine  with  in- 
structions from  the  engineer  to  watch  it,  in 
negligently  blowing  off  steam  while  so  in 
charge.  Andnics  v.  Mason  City  &>  Ft.  />. 
A'.  Co.,  77  /o7t/a  669.  42  .V.   //'.  Rep.  513. 

It  is  a  part  of  the  course  of  employment 
of  a  brakeman  to  invite  and  assist  pas- 
sengers on  and  off  cars,  and  it  being  so,  the 
company  will  be  liable  for  his  negligen'.  or 
improper  act  while  so  engaged.  Dreii'  v. 
Sixth  Ave,  R.  Co.,  26  A'.  Y.  49.-  Followed 


74> 


AdKNCV,  «.".,  »«. 


IN  Drew  V.  Sixth  Ave.  K  Co..  i  Abb.  App. 
Uet:.  (N.  Y.)  556;  SiiiiDiiiti  7'.  New  York,  L. 
E.  &  W.  K.  Co.,  36  Hun  (N.  Y.)  214. 

Wiicn;  dangerous  ancncies  are  enlriisted 
to  a  servant,  ilie  pn)per  custody,  as  well  as 
the  use  of  tliein.  l>ecoMies  a  part  of  the  ser- 
vant's employinuni  ljy  the  master,  and  his 
ne^linence  in  either  regard  is  imputable  To 
the  master,  in  an  action  by  one  injured 
thereby.  And  where  the  injury  results  from 
the  ne),di«encc  of  the  serv.inl  in  the  custody 
of  the  instrument,  it  is  immaterial,  so  far  as 
the  liability  of  the  masier  is  concerned,  as 
to  what  use  may  l.ave  been  made  of  it  by 
the  servant.  J'itts/>ii>x,  C.  &^  St.  /..  A\  Co. 
V.  S/iuUs,  44  .tin.  ^"^  /ui^.  A".  C'<i.f.  647,  47 
O/i/,'  .SV.  387,  8  A.  A'.  .  /.  464,  24  A'.  /-:.  Rep. 
658. 

A  company  is  liable  for  damaj^es  caused 
by  the  neyliijent  firing  of  a  si(j;nal  gun  by  an 
a^;ent,  tlioui,'h  he  acts  contrary  to  his  in- 
structions as  to  the  manner  of  firing.  Oliver 
V.  AVr///  Pac.  Transp.  Co.,  3  Orei;.  84. 

Negliuence  of  the  agent  of  the  company 
having  the  raie  and  control  of  one  of  its 
yards  in  permitting  obstructions  to  accumu- 
late along  the  tracks  in  such  yard,  is  negli- 
gence of  the  company.  lifssex  v.  Chicago 
&- i\.  H''.  A'.  Co.,  45  fJV.v.  477.— Quoting 
Smith  V.  CAucAv.n,  M  fi  St.  P.  R.  Co.,  42 
Wis.  520  UisiTNiiUiSHKi)  IN  I'escliel  v. 
Chicago.  M.  &  St.  P.  R.  Co..  17  Am.  &  Eng. 
R.  Cas.  545.  62  Wis.  338.  Rkviewkd  in 
Flannagan  ?'.  (Iiu  ago  &  N.  W.  R.  Co.,  2 
Am.  &  Eng.  R.  Cas.  150.  50  Wis.  462. 

Where  a  i)assenger  is  injured  at  a  station 
by  the  negligence  of  a  porter  employed  on 
the  platform,  which  was  exclusively  allotted 
to  the  traffic  of  anuiher  company,  which 
had  running  arrangements  over  the  line  of 
the  company  owning  the  station,  and  which 
issued  the  ticket  under  which  the  passenger 
travelled,  the  passenger  may  recover  against 
the  company  owning  the  station.  Si//  v. 
Lomion,  A'.  6^  S.  C.  R.  Co.,  43  A.  T.  X.  .V. 
173- 

An  employ^  of  a  railroad  company,  after 
he  was  "oil  duty,"  negligently  left  bars  ad- 
joining the  track  down,  whereby  horses 
escaped  from  a  field  and  were  injured  by  a 
p.issing  train  in  the  night.  It  appeared 
that  at  the  time  the  bars  were  left  down  the 
employe  was  about  his  own  private  business, 
but  it  seemed  under  a  provision  of  his  em- 
ployment that  i(  the  employe  saw  anything 
amiss  at  any  time  wlien  he  was  not  on 
duty  he  was  required,  witliout  any  special 


direction,  to  give  it  pioper  attention.  J/cl<i, 
that  the  company  was  liable  for  the  loss  of 
the  stock.  Chapman  v.  Nfw  Vopk  C.  R. 
Co.,  33  A',  y.  369;  affirming  31  Barb.  399.— 
DisTiNGUlSHKU  IN  Morier  v.  St.  Paul,  M. 
&  M.  R.  Co..  15  Am.  &  Eng.  R.  Cas.  IJ5,  31 
Minn.  351,  47  Am  Rep.  793. 

Whilst  a  slave  was  in  the  employmt  it  of 
a  railroad  company  as  a  section-hand,  he 
was  directed  by  an  agent  of  the  company  to 
sleep  in  a  certain  house  which  had  (un- 
known to  the  company  and  to  himself)  an 
open  keg  of  powder  standing  under  one  of 
the  beds,  placed  there  a  day  or  two  before 
for  temporary  purposes  by  a  servant  of  a 
bridge  contractor  with  such  company.  The 
slave  was  killed  by  an  explosion  of  the 
powder,  caused,  as  was  supposed,  by  lire 
from  a  torch  whilst  he  was  -searchii'r.-  for  his 
hat.  Held,  that  the  ccjmpany  was  charge- 
able with  the  negligence  of  the  person  who 
placed  and  left  the  powder  in  such  a  posi- 
tion. Allison  v.  Wsstern  N.  C.  R.Co.,b\  A'. 
Car.  382. 

85. its  liinitN  and  cxceptioiiH.— 

In  cases  where  an  otFiccr  of  a  corporation 
is  intrusted  with  duties  which  the  corpora- 
tion cannot  perform  itself,  the  negligence 
of  such  officer  is  not  the  negligence  of  ilie 
corporation,  unless  it  has  been  negligent  in 
the  selection  of  the  officer.  Mobile  Sr'  M. 
R.  Co.  V.  Smith,  59  Ala.  245. 

As  against  the  public,  but  not  as  between 
fellow-servants,  railroad  companiesare  liable 
for  the  negligence  of  servants  in  their  busi- 
ness. Thayer  v.  St.  Louis,  A.  <S^»  T.  //.  A'. 
Co    11  Ind.  26. 

The  master  cannot  be  held  responsible 
for  the  negligent  act  of  his  servant,  unless 
done  in  and  about  the  business  of  the 
master,  or  unless  the  act  in  the  doing  of 
which  the  negligence  occurs  is  sanctionetl 
or  authorized  by  him.  Reilly  v.  Hannibal 
&*  St.  7.  A'.  Co.,  34  Am.  &-  Kng.  R.  Cas.  81, 
94  .Mo.  600.  13  West  Rep.  658. '7  .V.  II'.  R,p. 
407. 

In  Texas,  prior  to  the  Act  of  March  25. 
1887,  railroads  were  only  liable  for  the  gross 
negligence  of  their  servants.  Galveston,  H. 
t**  6'.  A.  R.  Co.  V.  Kittiu .  37  Am.  &^  I'-ng.  R 
Cas.  470,  76  1  ex.  473.  13  .S".    //'.  Rep.  327. 

8<t.  FraiKluloiit  ai'tH.*  —  A  <  orpora- 
tion  is  liable  for  the  fraud  of  its  agents  in 
coiiductiiig  its  business.  R(i>ij.;er  v.  Great 
Western  R.  Co.,  s  //•  of  L.  Cas.  72. 

"Liability  of  prii  tipal  for  fraud  of  ag^nt.  See 
n-jie,  15  Am.  &  Eni;.  R.  Cas,  ij?. 


AGENCY,  87-8». 


71 


Railway  corporations  are  bound  by  the 
fraudi'lent  acts  of  their  employes  wherever 
private  persons  would  be  bound  under  the 
same  circumstances.  Nugent  v.  Cincinnati, 
//.  &*  I.  S.  L.  R.  Co.,  2  Disney  (Ohio)  302.— 
yuoTiNG  Ranger  T'.  Great  Western  R.  Co., 
5  H.of  L.  Cas.  86. 

A  railroad  company  is  liable  to  persons 
desiring  to  become  stockholders,  for  the 
acts  of  its  agents  in  permitting  the  transfer 
of  spurious  stock  being  made  on  its  I  ooks, 
aiu!  for  issuing  false  certificates  of  stock, 
though  such  false  <;ntries  result  from  negli- 
„'CMce  only.  New  York  &•  N.  H.  R.  Co.  v. 
Schuyler,  38  Barb.  (N  V.)  534. 

VVliere  an  agent  of  a  railroad  corporation 
fraudulently  sells  stock  and  transfers  it  on 
the  corporation  books,  the  corporation  can- 
not take  advantage  of  the  fraud,  where  the 
agent  acts  within  the  scope  of  his  official 
powers.  Bridgeport  Bank  v.  New  York  &* 
N.  H.  R.  Co.  30  Conn.  231.— Distinguishf.d 
IN  Chicago  &  N.  W.  R.  Co.  z/.  James,  22 
Wis.  194.  QuoTKii  IN  New  York  &  N.  H. 
R.  Co.  V.  Schuyler,  34  N.  Y.  30. 

Where  an  agent  of  a  railroad  company  is 
intrusted  with  the  duty  of  inspecting  ice 
which  is  to  be  delivered  to  the  company,  the 
company  itself  will  b?  liable  where  he  rejects 
the  ice  either  fraudulently  or  in  bad  faith, 
and  the  motive  of  tlie  agent  in  doing  so  is 
immaterial,  whether  it  be  to  injure  the 
owner  of  the  ice  or  to  benefit  himse'.f  or  the 
company.  Lynn  v.  Baltimore  &*  C,  R.  Co., 
60  Md.  404.  45  Am.  Rep.  741. — Quoting 
Baltimore  &  O.  R.  Co.  :'.  Polly,  :4  Gratt. 
(Va  )  447. 

87.    illustrations.  —  Where  the 

roadmaster  was  autiiorized  to  contract  for 
the  entire  job  of  building  a  depot  to  com- 
pletion, including  the  painting  of  it,  and  did 
contract  with  a  contractor  for  the  entire 
work,  the  company  would  be  boumi  tiiereby  ; 
but  where  the  roadmaster  made  rcpiesenta- 
tioiis  to  a  subcontractor,  who  painted  the 
building,  to  the  effect  that  the  subcon- 
tractor need  not  record  his  lien  ;  that  the 
company  owed  the  contractor  largely  more 
than  the  latter  owed  the  subcontractor ; 
that  it  was  the  intention  of  the  roaflmaster 
not  to  settle  with  tiie  contractor  until  all 
debts  for  work  done  on  the  building  were 
brought  in  and  included  in  the  settlement; 
that  the  company  had  other  work  for  the 
contractor  to  do;  and  that  the  subcon- 
tractor was  certain  of  his  mo'iey ;  thereby 
causing  the  subcontractor  to  fail  to  record 


his  lien  ;  and  where  the  roadmaster  imme- 
diately thereafter  settled  with  the  main  con- 
tractor and  paid  him  in  full,  the  company 
was  not  liable  in  an  action  of  deceit ;  and  on 
a  suit  therefor  against  the  company,  a  non- 
suit was  properly  awarded.  Hamilton  v. 
Georgia  R.  Co.,  78  Ga.  328. 

A  party  acting  on  behalf  of  a  railrcid  pro- 
cured defendant,  who  could  neither  read  nor 
write,  to  execute  an  agreement  for  subscrip- 
tion, and  also  relating  to  the  right  of  way , 
and  such  party  signed  defendant's  name  to 
such  agreement  in  liis  presence  and  at  his 
request.  Held,  that  such  signing  did  not 
make  the  party  the  agent  of  defendant  so  as 
to  prevent  him  from  setting  up  the  misrep- 
resentations and  fraud  of  the  party  procur- 
ing his  signature,  in  avoidance  of  the  con- 
tract. Rockford.  R.  I.  S-  St.  L.  R.  Co.  v.  Shu- 
nick,  65  ///.  223,  2  Am.  \y.  Re/).  28. 

The  clerk  of  a  railroad  company  was  in- 
trusted by  the  president  and  treasurer  with 
the  duty  of  filling  up  and  issuing  certain 
certificates  to  the  holders  of  coupe  ns,  the 
certificates  being  signed  when  delivered  to 
the  clerk,  who  fraudulently  filled  them  up 
and  issued  them  to  persons  not  the  rightful 
holders.  Held,  that  the  company  was  liable 
on  such  <.ertificates  in  the  hands  of  innocent 
purchasers  for  value.  Western  Md.  R.  Co. 
v.  Franklin  Bank,  60  Afd.  36.— DISTIN- 
GUISHING Baltimore  &0.  R.  Co.  r/.  Wilkins, 
44  Md.  II.  Following  Tome  7A  Parkers- 
burg  Branch  R.  Co.,  39  Md.  36. 

A  wagoner  hauled  goods  from  a  depot  to 
his  employer's  mill >,  supposing  them  to  be 
his,  when  in  fact  they  belonged  to  a  third 
person.  The  mill-owner  used  them,  and 
the  railroad  company  brought  trespass  on 
the  case,  charging  they  were  obtained  by 
deceit.  Held,  that  no  recovery  could  be 
had  unless  the  taking  and  conversion  was 
fraudulent ;  that  the  act  of  the  wagoner  in 
itself  would  not  render  the  mill-owner  liable. 
Pennsylvania  R.  Co.  v.  Zug,  47  Pa.  St.  480. — 
AppRovK.n  in  Porter  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  41  Iowa,  358. 

88.  Error  of  jiidgiiioiit. — Where  a 
servant  acts  in  good  faith,  the  master  will 
not  be  liable  for  an  error  of  judgment  which 
causes  an  injury  to  a  persoi:  in  a  perilous 
position,  whom  the  serv  t  is  trying  to  ex- 
tricate. Riling  V.  Broadway  tSr'  S.  A.  R. 
Co.,  53  Hun  (N.  1'.)  321.  25  A'.  Y.S.  R.  563, 
6  A^  Y.  Supp.  64 1 . 

80.  Aols  of  iiu'on)|)<>ttMit  s<ervniits. 
— Where    a    railroad   conip.my  permits   its 


AGIiNCY,  «0-«2. 


engineers  to  allow  firemen  to  handle  en- 
gine:' and  an  incompetent  fireman  is  tem- 
porarily put  in  charge  of  a  train  and  an 
iiijuiy  results  from  such  incompetency,  the 
company  is  liable.  Harper  v.  Indianapolis  Sf 
St.  L.  K.  Co.,  47  Mo.  567.— Di.stinoui.shi:i) 
IN  Peterson  v.  Whitebreast  C.  &  M.  Co., 
JO  Iowa,  673.  Followed  in  Brothers  v. 
Cartter,  52  Mo.  372. 

00.  Criiiiiiml  acts.— The  master  is  not 
liable  (or  the  criminal  acts  of  his  servant, 
not  authorized  or  sanctioned  by  him,  nor 
for  his  acts  of  wilful  and  malicious  trespass. 
If  a  conductor  knowingly  and  wilfully  par- 
ticipates in  the  act  of  taking  and  tr.msport- 
ing  upon  the  cars,  against  li's  will,  one  wiioni 
he  had  no  right  to  receive,  ic,  and  not  the 
company,  will  be  liable  for  his  acts.  Jack- 
son V.  m.  Louis,  I.  M.  iS>»  S.  A'.  Co.,  ^ij  /h/i. 
&*  Lntr.  li.  Cas.  .,27,  87  Mo.  422. 

A  railroad  company  is  liable  in  damages 
for  the  wrongful  homicide  of  its  customer 
committed  by  its  depot  agent  in  his  oHice 
while  the  customer  was  lawfully  there  for 
the  transaction  of  business  with  such  agent 
appertaining  to  his  agency.  This  results 
from  the  Code,  §  3033,  which  renders  all 
railroad  companies  liable  for  damages  done 
by  any  person  in  their  employment  and 
service  unless  their  agents  have  exercised 
all  ordinary  care  and  diligence.  Christian 
V.  Columbus  &*  A'.  Ji.  Co.,  38  Am.  &*  Jinj;.  A'. 
Cas.  261,  79  Ga.  460,  7  S.  E.  Kep.  216. 

While,  as  a  general  rule,  any  mental  dis- 
ease or  infirmity  which  would  excuse  the 
agent  from  criminal  responsibility  would 
also  excuse  the  company  from  civil  respon- 
sibility, this  would  not  be  available  if  the 
company  employed  the  agent  and  assigned 
him  to  duty  with  knowledge  of  his  insane 
condition  or  of  his  being  subject  to  sudden 
fits  of  insanity.  Christian  v.  Columbus  &* 
A',  /i.  Co.,  38  Am.  &^  /£njr.  R.  Cas.  261,  79 
Ga.  460,  7  .S".  E.  Kep.  216. 

A  corporation  is  liable  for  the  penalty  i;n- 
posed  by  a  Pennsylvania  statute  for  paying 
out  bank  notes  of  a  less  denomination  than 
f ;,  where  it  appears  that  such  notes  were 
I  passed  by  its  agents  or  employes,  as  the  law 
presumes  that  the  officers  of  a  corporation 
know  what  its  agents  do.  Commonwealth  v. 
Pennsylvania  R.  Co.,  2  Phila.  (Pa.)  250. 

As  to  the  liability  of  railway  companies 
under  the  Carriers  Act  for  the  felonious  acts 
of  their  servants,  see  Vaughion  v.  London  &* 
N.  IV.  R.  Co.,  L.  R.  9  Exch.  93, 43  /..  J.  Exch. 
75.    McQueen  v.  Great  Western  R.  Co.,  /,.  A". 


10  Q.  B.   569,  44  L.  J.  Q.  B.  130.     Kirk- 
stall  Brewery  Co.  V.  Furness R.  Co.,  L.  R.  9 
Q.    B.  468.   42  L.    J.  Q.   B.  142.     Way  v 
Great  Eastern  R.  Co..  1   Q.  B.  D.  692.    45 
/..  7.  Q.  B.  874,  3  Ry.  &*  C.  T.  Cas.  XII. 

91.  Wliu  is  Hii  ag:<>iit  within  tiic 
rule.*— The  agent  of  an  express  company 
in  charge  of  an  express  car  is  not  the  agent 
of  the  railroad  company  that  runs  the  train, 
so  as  to  make  it  liable  for  his  conduct. 
Louisville,  N.  0.  &*  T.  R.  Co.  v.  Douglass, 
69  .Miss.  723,  II  .SV;.  Rep.  933. 

Several  railroad  companies  used  different 
crossings  in  common,  each  company  em- 
ploying and  paying  one  flagman.  At  the 
time  of  an  injury,  resulting  from  the  negli- 
gence of  one  of  such  flagmen,  he  was  en- 
gaged ii  flagging  a  train  belonging  to  an- 
other ro.'.d  than  the  one  that  employed  him. 
//<■/(/ that  this  did  not  at^ect  tlic  liability  of 
the  company  employing  him.  Buchanan  v. 
Chicago,  M.  &*  St.  P.  R.  Co.,  35  Am.  <S- 
Eng.  R.  Cas.  378,  75  foiva  393,  39  A'.  W. 
Rep.  663. 

A  railway  transit  conpany  engaged  in 
transferring  with  its  own  notive  power  and 
tiains  persons  ar-d  freights  over  the  Missis- 
sippi river  to  the  city  of  .St.  Louis,  under  an 
arrangement  with  a  bridge  company,  the 
two  companies  acting  together.  The  col- 
lector of  fares  for  the  bridge  company,  who 
was  permitted  to  control  the  movements 
of  trains,  was  on  the  trains  crossing  the 
bridge.  A  passenger,  as  the  train  was  ap- 
proaching the  bridge,  by  direction  of  the 
collector  of  fares,  was  put  oil  on  a  trestle, 
fell  through  and  Wiis  killed,  //eld,  that  the 
collector  of  fares  was  so  far  the  agent  of  the 
transit  company  as  to  make  that  company 
liable  for  the  death.  L'nion  A'.  &■»  /'.  Co.  v. 
Kallaher,  1 14  ///,  325,  2  N.  /:'.  Rep.  77. 

02.  When  iMinitivu  dtiinag:eN  arc 
recoverable  lor  torts  of  servant;,. +— 
The  master  i.-  rjspoiisible  in  punitive  dam- 
ages for  the  wilful  act  or  gross  negligence  of 
his  servant  engaged  in  his  business,  whether 
he  did  or  did  not  know  the  servant  10  be 
incompetent  or  luaiilied  for  the  service 
in  which  he  is  engaged.  Southern  /ixp.  Co, 
V.  Bro7vn,  67  Atiss.  260,  7  So.  Rep.  318. — 
Following  New  Orlcans.J.  A  G.  N.  R.  Co. 
V.  Bailey,  40  Miss,  3'j5 ;  Vickshurg  &  J.  R. 
Co.  7/.  Pation,  31  Miss.   156;  New  Orleans, 


*  See  also  nntr,  JI,  4. 

t  Liability  of  master  for  px(Tni)!arv  damages 
resulting  from  act  o(  servant.  See  note,  O2  Am, 
Dec.  379. 


ACiliNCY,  Uii,  »4. 


73 


J.  \'  (',.  N.  R.  Co.  7'.  Albriilon.  38  Miss.  242; 
New  Orleans,  J.  &  G.  N.  K.  Co.  ?/.  Hurst, 
36  Miss.  666. 

K.\emplary  damages  can  only  be  recovered 
against  corporations  for  the  wron^^fui  acts 
of  tiieir  ajjeiiis,  where  there  has  been  ncgli- 
f^L-nco  ill  selectinj;  the  agents,  or  wliere  the 
•.vnjnjjful  act  has  been  ratified,  Ntijs  v. 
//i>us/i)/i  &'(,'.  N.  A'.  Co.,  46  7't:r.  272.— FoL- 
i.owKD  IN  CJalvcsion,  il.  &  S.  A.  R.  Co.  v. 
Donahoe,  9  Am.  &  Eng.  R.  Cas.  287,  56 
Te.x.  162;  Gulf,  C.  &  S.  F.  R.  Co.  ?'.  Moore, 
69  Te.\.  157.  6  S.  W.  Rep.  631.  yuoiKD  IN 
Uillinghani  i'.  Anthony,  37  Am.  &  Eng.  R. 
Cas.  I,  73  Tex.  47,  3  L.  R.  A.  634,  11  S.  \V. 
Rc[).  139. 

Corporations  are  only  liable  for  exem- 
plary damages  when  individuals  would  be 
liabi.-;  under  like  circumstances  ;  and  their 
liability  for  the  malicious  acts  of  their 
agents  is  no  greater  than  that  of  individu- 
als, //ays  V.  Houston  o-*  6^.  A^.  R.  Co.,  46 
/>.r.  272,  13  ./w.  l\y.  Ri'fi.  281. 

1>.*1.  ami  \vli(>ii  not. — A  company 

is  not  liable  in  punitive  damages  for  the  tort 
of  its  servant,  unless  it  be  chargeable  witii 
misconduct  in  the  employment  or  retention 
of  the  seivant,  or  authorized  or  ratified  the 
ac.  Donrran  v.  Afuu/iattitn  A\  Co.,  i  ilft'sc. 
(A'.  V.)  368,  49  A',  y.  S.  A'.  722,  21  A',  y. 
.s////.  457- 

A  principal  is  not  liable  in  exemplary  dam- 
ages for  the  tort  of  his  agent,  unless  he  is 
derelict  in  connection  with  the  otlence  of  the 
agent.  Ridwooii  v.  Metropolitan  A'.  Co.,  6 
J).  C.  302. 

A  railroad  company  is  not  liable  in  pu- 
nitive damages  for  the  negligence  of  a 
servant,  though  it  be  gross  or  palpable,  un- 
less the  comjiany  is  also  chargeable  with 
gross  misconduct;  but  such  misconduct  may 
be  established  by  proof  that  the  act  of  the 
employe  was  auihori  ^d,  or  not  being  au- 
thori/i'd,  was  ratified,  or  that  the  employe 
was  em[)loyed  or  retainefl  after  knowledge 
to  the  company  that  he  was  incompetent  or 
unfit  tor  the  position.  C/ij{/iorn  v.  New 
y'orl'  C.  S-o  //.  A\  A".  Co.,  56  .V.  l.  j  ^,  6  ./;«. 
A'y.  A\/>.  179. — Ai'i'KDVKD  IN  Sullivan  -,•. 
Oregon  R.  it  X.  Co.,  21  Am.it  Kng.  R.  Cas. 
391.  12  Oicg.  392.  Foi.l.owKi)  IN  Louis- 
ville. N.  it  G.  S.  R.  Co.  '<•.  Fleming.  14  Lea 
(Tcnn.)  128.  yfoiKi)  IN  Donivan  t.  Man- 
liallan  R.  Co.,  i  Misc.  (N.  Y.)  368.  Rk- 
viKWK!)  IN  Fisher  ','.  Metropolitan  HI.  R. 
Co.,  34  Hun  (N.  V.)  43  J. 

It  is  well  settled  in  Texas  that  a  coiii|)aiiy 


is  not  liable  in  exemplary  or  punitive  dam- 
ages for  the  torts  of  its  employes  unless  the 
tort  was  authorized,  or  the  company  know- 
ingly adopts  or  ratifies  the  act.  Gulf,  C.  &- 
S.  /•'.  A'.  Co.  V.  A'eei/,  48  Aw.  &*  Etij;.  R.  Cas. 
423,  80  Tc.y.  362,  15  S.  W.  Rep.  1105.  Gal- 
I'eston,  H.  &*  S.  A.  R.  Co.  v.  Dona/we,  9 
Am.  &>  /^ntf.  R.  Cas.  287,  56  /'t'.r.  162. — 
Following  Hays  i\  Houston  &  G.  N.  K. 
Co.,  46 Tex.  280.— Approved  in  Dillingham 
V.  Anthony,  37  Am.  &  Eng.  R.  Cas.  i,  73 
Tex,  47.  3  L.  R.  A.  634,  11  S.  W.  Rep.  139, 

/>.  Various  Applications  of  the  Rules. 

t>4.  Arrcstiii{;,(letniiiiii(;  or  Neurcli- 
iug   persons  —  Coin paiiy    liable.*— A 

railroad  company  is  liable  for  the  act  of  its 
ticket  agent  in  falsely  charging  a  passenger, 
who  has  just  purchased  a  ticket,  with  pas- 
sing counterfeit  •money  and  for  procuring 
his  arrest  on  such  charge.  MuUi^^an  v. 
Lon}i  Island  R.  Co.,  39  A^.  Y.  S.  R.  20,  60 
Hun  579. — Applying  Lynch  v.  Metropoli- 
tan El.  R.  Co.,  90  N.Y.  77.— Furlong  v.  South 
L.  T.  Co.,  48/.  /'.  329,  I  C.  .S-  £".  316. 

A  company  employing  a  person  to  arrest 
and  prosecute  persons  who  place  obstruc- 
tions on  the  track,  will  be  liable  where  such 
person  arrests  an  innocent  man,  carries  him 
away  and  leaves  him  in  a  wood.  Evans- 
ville  &*  T.  H.  R.  Co.  v.  McKee,  22  Atn.  &* 
En^.  R.  Cas.  366,  99  I  ml.  519,  50  Am.  Rep. 
102.— Applying  Chicago  City  R.  Co.  ■<•.  Mc- 
Mahon,  103  111.  485, 42  Am.  Rep.  29.  Uisiin- 
GUISHING  Helfrich  v.  Williams,  84  Ind.  553. 
—  DlSTiN(;uiSHEU  IN  Cincinnati,  H.  &  I.  R. 
Co.  7'.  Carper,  31  Am.  &  Eng.  R.  Cas.  36,  112 
Ind.  26,  II  West.  Rep.  223,  13  N.  E.  Rep, 
122. 

Where  a  person  has  been  employed  to 
pursue  a  criminal,  the  company  so  employ- 
ing him  will  be  liable  for  his  illegally  arrest- 
ing a  mr-r  after  he  has  been  told  not  to  pur- 
sue the  criminal  further.  Harris  v.  Louis- 
ville, N.  O.  &*  r.  R.  Co.,  35  red.  Rep.  116. 

A  railway  company  is  liable  for  the  acts 
of  a  ticket  clerk  and  station  master  in  de- 
taining and  searching  a  person  whom  they 
erroneously  believed  to  have  stolen  a  ticket. 
Van  Den  Alynde  v.  Ulster  R.  Co.,  5  Ir.  A'.,  C. 
L.6;  affirmed  5  Ir.  A'.,  C.  L.  328. 

Plaintiff  purclia.sed  a  ticket  of  defendant's 
agent  at  one  of  its  stations,  and,  after  some 
altercation   about  the   amount   of  change 

*  Liability  fur  ;irrc>-l  by  ft^ilion  agent  of  pci 
son  in  waiting-room.  See  48  A.M.  &  Eno.  R.  Cas 
428,  iilislr. 


74 


ACiKNCV,  O.-.,  1M». 


passed  througli  the  gate  to  tukc  a  train.  Tue 
a^jcnt  followed  her  out  upon  the  plat  form, 
charged  her  witii  having  passed  upon  him 
a  counterfeit  twcnty-tive  cent  piece,  and  de- 
manded another  in  its  place.  She  refused, 
insisting  that  her  money  was  genuine,  and 
refused  to  give  hack  liie  ciiange  received. 
The  agent  called  her  a  counterfeiter  and  a 
coinuKjn  prostitute,  placed  his  hand  upon 
her,  and  Uild  Irt  not  to  stir  until  he  had  pro- 
cured a  policeman  to  arrest  and  search  her. 
lie  detained  her  on  the  platform  for  a  while, 
but,  not  getting  zn  olRcer,  let  her  go.  J/i/d, 
that  an  action  for  damages  was  maintaina- 
ble ;  that,  in  the  acts  complained  of,  the 
agent  was  engaged  about  the  <.>eiendant's 
allairs,  in  endeavoring  to  protect  and  re- 
cover its  property,  and  so  it  was  responsililo 
for  his  aits.  Palnii-ri  w.  Man/tat/an  A'.  Co., 
53  //w.  &^  Awi,'.  A'.  Ctis.  56,  133  N.  }'.  261, 
30  A'.  /■:.  Iu/>.  1001.  44  A'.  V.  S.  R.  894; 
iijfirmint;  60  ////«  579,  39  N.  Y.  S.  A'.  23, 
14  A'.  I'.  .S'«//. 468.  -UisiiN(;ui;?niN{i  Mul- 
ligan 7'.  New  York  &  \i.  U.  R.  Co.,  129  N.  V. 
506  ;  Mali  v.  Lord,  39  N.  Y.  jSr. 

05.  —  (*t»iiii>any  not  liublc— A  rail- 
way company  is  not  liable  for  the  a'  ;  of  a 
foreman  porter  who,  having  charge  of  a 
station  in  the  absence  of  the  station  master, 
^ivis  into  custody  an  innocent  person  whom 
he  su->pe(:ts  of  stealing  the  company's  ivv>p- 
trt\.  Juiwarits  w.  London  &*  X.  IV.  K.  Co., 
L.  A'.  5  C.  /'.  445,  39  A.  /.  C".  /'.  241,  18  IT- 
A'.S34.  22  L.  T.  N.  S.  656. 

A  railway  company  is  not  liable  for  the 
act  of  its  servant  in  giving  into  custody  a 
person  on  the  charge  of  assaulting  hini.  and 
obstructing  him  in  the  discharge  of  his  duty. 
I.umulcnw  London  &*  a.  IV.  A'.  Co.,  16  A. 
7".  A'.  .V.  609. 

A  railway  company  is  not  liable  for  the 
act  of  a  clerk  whose  duty  it  is  to  sell  tickets, 
in  giving  into  custodv  a  person  wliom  he 
suspects  of  an  attempt  to  roli  liie  till,  after 
the  attempt  has  ceased,  .-///e-w  v.  London  (S-» 
.v.  ir.  A'.  Co..  L.  A',  f)  Q.  It.  6^  40  L.J.  Q. 
li.  5S.  "  ^o.v  C.  C.  621,  33  L.  I .  N.  i.  612, 
19  W  .  R.  127. 

Wheie,  by  the  regulations  of  a  railway 
conijwny.  its  constables  are  authorized  to 
take  intii  .  .lody  any  one  they  see  commit- 
ting an  assault  at  a  st.uion,  but  \\\r  directed 
to  use  this  power  cautiously,  and  not  if  the 
light  is  at  an  end  before  they  interpose,  the 
company  is  not  lial)le  for  the  act  f  a  con- 
st.d)le  in  wrongfully  gi\in^r  inid  custody  at 
the  conclusion  of  the  scuffle  a  person  on  tlu> 


charge  of  assaulting  the  company's  servants. 
\V,ilk,r  v.  .V,»/////  Eiistcrn  R.  Co.,  L.  R.  5  C. 
I'.  640,  39  L.  J.  C.  /'.  346,  18  W  R.  1032,  23 
/,.   r.  X.  S.    14. 

A  railway  company  Is  not  liable  for  an  act 
of  its  station  master  in  arresting  a  passen- 
ger where  such  arrest  is  not  within  the  pow- 
ers conferred  on  railway  companies  by  sec- 
tions 103  and  104  of  the  Railways  Clauses 
Act,  1845.  Potiltonv.  London &^ S.  IV. R.  Co., 
17  L.  T.  N.  S.  1 1,  36  Z..  /.  Q.  /{.  294.  /..  R., 
2  Q-  ^>'-  534.  i  li.  &■*  S.  616,  16  IV.  R. 
309.— CoNsiUKRKi)  IN  liolingbroke  v.  Swin- 
don New  T(jwn  Local  Hd.,  30  L,  T.  N.  S.  723. 
A  railway  company  is  not  responsible  for 
the  acts  of  a  station  master  in  arresting  a 
passenger  under  the  erroneous  belief  that 
he  h.'id  not  paid  for  the  conveyance  of  a 
horse  which  he  had  with  him.  Ponlton  v. 
London  &^  S.  \V.  R.  Co.,  8  li.  6- .V.  616, 
L.   R.  2  (2.  li.  534.  36  /-.  J.  Q.  B.  294,  17 

/,.    7".  yV.  .v.  II,  16    (f.  A'.  309.— CON.SIDERED 

IN  Bolingbroke  v.  Swindon  New  Town  Local 
Hd.,  30  L.  T.  N.  S.  723. 
SMS.  A.sH]iiilt8  upon  passengers.*— A 

person  knocked  down  and  robbed  just  as  he 
was  about  to  enter  a  train  as  a  passenger 
cannot,  under  a  |)etition  charging  that  plain- 
till  was  assaalted  and  injured  bv  the  serv.iiit 
and  employes  operating  and  controlling  the 
train,  recover  against  the  company  without 
showing  that  the  jjerson  who  assaulted  him 
was  in  tlK'  empi  -y  of  the  company  and  that 
the  wrv>iigful  acts  were  done  by  tlie  servant 
oragtiit  of  the  company  in  the  cou'se  or 
with  M  the  scope  of  his  employment.  Sach- 
rm'ils  \.  Atchison,  T.  <S-  S.  F.  R.  Co.,  l\Am. 
<'^  Eng.  R.  Cas.  352,  37  Kan.  212,  15  Pac. 
Pep.  242. 

Where  a  porter  vhose  duty  it  is  to  pre- 
vent passengers  goiiigbywrongtrains.causes 
injiry  to  a  passe".jer  by  violently  pulling 
him  out  of  a  carriage  under  the  erroneous 
im|)'-ession  that  he  was  not  in  the  right  train, 
the  ict  is  within  the  scope  of  his  employ- 
mem  and  the  company  is  liable.  Bayley  v. 
Man.  h.slir,  .S.  <^  /,.  A'.  Co.,  L.  R.  8  C.  P. 
148,  42  L.  J.  C.  P.  78,  28  L.  T.  N.  S.  366  ; 
•I  flit  mini;  I..  R.  7  C.  /'.  415.  41  /.  /.  C.  /'. 
■78.  CoNsiDKRiii)  IN  HolinglMoke  7'. Swin- 
don New  Town  Local  Md     30  I,.  T.  723. 

A  pasfien^-er  on  ,1  street  car  to  wlmm  the 
driver,  who  was  also  conductor,  has  used 
profane    and     abusive    language,    replied ; 


*  Liability  of  company  lor  aBsaults  by  servants 
see  note    13  Am.  &  Esc.  R,  (as.  4 


AdliNCV,  »7. 


•  When  wc  y<l  to  tlie  uffxc.c  of  tlic  company 
I  will  report  vou, "  llic  ollki-  \)-iu\i  at  ilu- 
stables,  where  the  tar  stopjied  for  a  change 
of  horses.  Before  reaciiinf,'  the  stables  the 
passenger  ^ot  ofl,  inteii(lin>^,  as  he  said,  to 
go  to  the  office  of  the  company  and  report 
the  driver  while  the  horses  were  Ijcing 
changed  and  then  to  resume  his  seal  in  tlie 
car,  but  su  :li  iniention  was  not  communi- 
cated to  the  driver.  Tlie  driver  seeing  the 
passenger  going  towards  the  office  of  the 
company  stopped  the  car,  and  jumping  ofl 
went  across  the  street,  intercepted  the  pas- 
senger on  the  sidewalk  and  violently  as- 
saulted him.  In  an  action  against  the  rail- 
way company  by  the  passenger  to  rccovci 
damages  for  the  injuries  he  had  sustained, 
//</(/,  that  when  the  assault  was  committed 
the  contract  of  carriage  iiad  ceased ;  that 
the  wrongfid  act  of  the  driver  was  not 
within  the  line  and  scope  of  his  employment, 
and  the  railway  company,  his  employer,  was 
not  answerable  therefor.  L'fiilral  A'.  Co.  v. 
/'i-ticPci:6i)A/(f.  257,  14  Af/.  Rep.  709.— Dl.s- 
TINGUISHING  Ncw  Jersey  Steamboat  Co.  v. 
Hrockctt,  121  U.S. 645;  Keokuk  N.  L.  Packet 
Co.  V.  True.  88  111.  608;  Jellersonville,  M. 
&  I.  R.  Co.  V.  Riley,  39  Ind.  568;  State  v. 
Grand  Trunk  R.  Co,  58  Me.  176. 

After  purchasing  a  ticket  plaintifT  applied 
to  the  baggage-master  to  have  his  baggage 
checked,  and  by  certain  al)usive  language 
and  importunate  conduct  provoked  a  quar- 
rel, whereupon  the  baggage- master  struck 
him  with  a  hatchet  furnished  for  the  pur- 
poses of  the  baggage-master's  employment. 
Held,  thai  the  assault  could  not  be  regarded 
as  authorized  by  the  company,  nor  the  act 
in  the  line  of  the  baggage-master's  author- 
ity, the  fact  of  the  hatchet  being  used  not 
afTecting  the  case.  Little  Miami  R.  Co.  v. 
Wetmore,  19  Ohio  St.  1 10.  — Dl.sriNGUiSHKD 
IN  Pittsburg,  C.  &  St.  L.  R.  Co.  v.  Shields, 
47  Ohio  St.  387.  Rkvikwki)  in  Lakin  v. 
Oregon  Pac.  R.  Co.,  34  Am.  &  Eng.  R.  Cas. 
500.  I  5  Oreg.  220. 

.\  passenger  by  boat,  who  had  purchased 
a  round  trip  excursion  ticket,  claimed  the 
right  to  ri'tr.m  a  day  after,  under  an  agree- 
ment "ith  the  '•'•irsfr  wlio  hafl  taken  up  the 
ti(  ki't.  but  which  agreement  was  denied, 
whereupon  the  purser  directed  theporterto 
seize  the  passenger's  valise  and  hold  it  until 
the  fare  was  paid.  In  attempting  to  do  so  a 
scuffle  ei:  iii'd  and  the  pass<'iiger  was  in- 
jured. //(/,/,  that  the  jiorter,  in  attempting 
to  seize  the  valise,  was  acting  outside  of  the 


scope  of  his  employment,  and  the  naviga- 
tion company  was  n(»t  lialjle.  Kinerson  v. 
Xiiij^ant  Aitv.  Co.,  2  Out.  528.— Quoting 
Bayley  v.  Manchester,  S.  &  L.  R.  Co.,  L.  R. 
8  C.  P.  148. -Rkvikwing  (Joff  V.  Great 
Northern  R.  Co.,  3  K.  &  K.  672;  Moore  7>. 
Metropolitan  R.  Co..  L.  R.  8  Q.  B.  36. 
Rkvikwing  andQucjting  Poulton  ?'.  Lon- 
don &  S.  VV.  R.  Co..  L.  R.  2  g.  B.  534. 

1>7.  Oilier  turtiuiiM  aettt  tuwnrdM 
IMiMHCiiKcrM.* — A  common  carrier  of  pas- 
sengers is  responsible  for  the  wilful  miscon- 
duct of  his  servant  toward  a  passenger. 
(.ioiiiiard  V.  Crmni  Tnink  R.  Co.,  57  Me.  202. 
—  Rkvikwin(j  Brand  v.  Schenectady  &  T.  R. 
Co.,  8  Barb.  (N.  V.)  368  ;  Moore  v.  Fiichburg 
R.  Co.,  4  Gray  (Mass.)  465;  Seymour  v. 
Greenwood,  7  Hurl.  &  Nor.  354;  Milwaukee 
&  M.  R.  Co.  7A  Finney,  io  Wis.  388;  Penn- 
sylvania R.  Co.  7'.  Vandiver,  42  Pa.  St.  365; 
Weed  V.  Panama  R.  Co.,  17  N.  Y.  362; 
Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How. 
(U.  S.)  468;  Pittsburgh,  Ft.  W.  &  C.  R.  Co. 
V.  Hinds,  53  Pa.  St.  512;  Flint  v.  Nor- 
wich &  N.  Y.  Trans.  Co.,  34  Conn.  554; 
Landreaux  v.  Bell,  5  La.  275;  Chamber- 
lain V.  Chandler,  3  Mason  (U.S.)  242;  Nieto 
V.  Clark,  i  Cliff.  (U.  S.)  145.— .Api'Mkd  in 
Smith  V.  Maidiattan  R.  Co.,  45  N.  Y.  S.  R. 
865.  FoiJ.owKi)  in  Hanson  v.  Kuropean 
&  N.  A.  R.  Co.,62  Me.  84.  Qt'oiKi)  ani> 
DiSTlNGUl.SHEl)  IN  Williams  v.  Pullman 
Palace  Car  Co.,  33  Am.  &  Eng.  R.  Cas.  407, 
40  La.  Ann.  87,  3  So.  Rep.  631.  Reviewkd 
IN  Winnegar  v.  Central  Pass.  R.Co.,  34  Am. 
&  Eng.  R.  Cas.  462,85  Ky.  547,4  S.  W.  Rep. 

237- 

A  corporation  is  liable  for  the  acts  of  its 
employes  toward  passengers,  while  engaged 
in  carrying  out  what  they  mistakenly  sup- 
pose to  be  orders  of  the  corporation,  even 
though  such  acts  be  malicious  and  criminal. 
McKinley  v.  Clticii};o  &•  N.  //'.  A',  ft;.,  44 
lojva^x^.-  DisriNGULSHKl)  IN  Stone 7/. Chi- 
cago &  N.  VV.  R.  Co.,  47  Iowa  82.  Nor  fol- 
l.owKi)  IN  Marion  7/.  Chicago,  R.  L&  P.  R. 
Co.,  64  Iowa  568. 

.\  carrier  is  responsible  for  injuries  wil- 
fully or  carelessly  inflicted  upon  passengers 
by  servants  engaged  in  the  perf(jrinance  of 
duties  witliin  the  general  scope  of  their  em- 
ployment, whether  the  particular  act  was  or 
was  not  authorized  by  the  master.   I.ouiavilte 


\  1 


*  Liability  of  company  to  passengers  for  torts 
of  trainmen.  See  notes  41  Am.  Kf.f.  340,  43 
Id.  36. 


76 


A(iKNCV,  UH,  «». 


&*  N.  A'.   Co.    V.  Kelly,  13  Am.  &--  I:>i,k-  A'. 
Cas.  I,  92  In  J.  371.  47  -'"'•  AV/.  My. 

A  carrier  is  liable  (or  an  imlawdii  and  im- 
proper act,  and  (or  llie  natural  and  lenili- 
male  consequences  then;!)!,  whitli  is  roui 
milted  by  its  servant  towards  ils  passen^fr 
while  such  servant  isenf;aj,'ed  in  per(orn)iiiK' 
a  duty  which  the  carrier  owes  to  the  pas- 
senger, no  matter  what  the  motive  is  wliich 
incites  tlie  commission  o(  the  act.  Dwinelle 
V.  Nau  York  C.  &^  II.  A'.  A'.  Co.,  44  Am. 
Sf'Eiixi.  A'.  Cas.  384.  i2(i  .V.  )'.  117.  •!4  A'- 1-- 
h'ep.  319.  30  X.  V.  .S'.  A'.  57».  «  /-  A'.  ./.  Z2\ ; 
reTeruiii;i,^llun  I39,9.V.  )'.  .V. A'.838.— Al'- 
iM.viNi;  Stewart  V.  Brooklyn  &  C. T.  K.  Co., 
90  N.  Y.  588.— Rkvirwki)  in  Tinker  v.  New 
York.O.  &  VV.  U.Co.,  71  Hun  (N.Y.)  431.— 
I\ilmiri\.  M,iiiliotlitn  A'.  Co..  53  Am.&^/uijf. 

a:  c.ts.  56, 133  A',  r.  261, 30  A'.  /•;.  av/.  iooi, 

44  A".  )'.  .v.  A'.  894 ;  iiffirmini;  60  ////«  579, 
39  A^   )'.  .V.  A'.  23,  14  A'.   »'.  .S////i.  468. 

The  corporation,  there(ore,  is  liable  (or 
acts  o(  injury  and  insult  by  an  enjploye, 
allhoujjh  in  departure  (rom  the  authority 
conlerred  or  implied,  i(  they  occur  in  the 
course  o(  the  employment.  Paliiifiv.  .Man- 
/liillan  A'.  Co.,  53  Am.  &•  Kfij;.  A'.  Cas.  56, 
133  A'.  V.  261.  30  A'.  /■;.  A'ffi.  IOOI,  44  iV.  K. 
.S'.  A'.  894  ;  (iffirmint,^  (k>  Hun  579.  39  N.  Y. 
.S.  A'.  23.  14  iV.  Y.  'Siif>f>.  468. 

0«. illustrations.— A  railway  com- 
pany is  liable  (or  an  injury  to  a  |)assen>{er 
received  in  obeying  the  direction  o(  a  brake- 
man,  when  Icavin^r  a  train,  to  cross  a  certain 
bridj{c  over  the  company's  land,  which  had 
been  erected  by  third  persons.  Chance  v. 
S/.  Louis,  I.  M.  &'  .s'.  A".  Co..  10  Afo.  A  pp. 
351.— Al'i'ROVlNC.  McDonald  v.  Chica>;o  & 
N.  W.  R.  Co.,  26  Iowa  145.— Distinguishkd 
IN  Cincinnati,  It.  &  I.  K.  Co.  v.  Carper, 
31  Am.  &  En^.  R.  Cas.  36,  112  liid.  26,  ii 
West.  Rep.  223,  13  N.  E.  Rep.  122. 

A  brakeman  who  is  directed  to  noti(y 
gentlemen  not  accompanyinj^  ladies  not  to 
enter  certain  cars,  really  exceeds  his  author- 
ity in  ejecting  a  pa-sscnger  ader  he  has  been 
told  and  yet  entered  the  forbidden  car,  but 
as  he  does  no  more  than  the  company  had  a 
right  to  do,  he  is  acting  within  the  scope  of 
his  authority  in  so  doing,  and  it  is  proper  to 
re(use  a  nonsuit  on  the  ground  tiiat  he  was 
not.  Peck  v.  AVw  York  C.  i^  H.  R.  R.  Co., 
4  Hun  (iV.  1'.)  236,  6  T.  &^  C.  436. 

A  company  is  liable  for  the  tortious  act  of 
its  baggage- master  and  conductor  toward  a 
passenger  seeUng  to  have  baggage  checked, 
whether  such  act  be  in  the  cars  or  about  the 


b.iggagccar,  or  between  that  and  tl>c  pas- 
senger-car. necessary  to  be  traversed  by  the 
passenger  in  the  legitimate  business  of  travel; 
and  (or  a  stronger  reason  is  the  company 
liable,  when  it  appears  that  sucli  employes 
have  been  ret. lined  in  the  service  a(ter  such 
acts.  (Jtisit'iiy  v.  Atl(tn/a  &*  /('.  /'.  R.  Co., 
58  (/'</.  21^),  16  Am.  Ay.  Rep.  99. 

At  the  time  the  conductor  took  up  a  ticket 
he  told  the  passenger  that  the  train  did  not 
usually  stop  at  the  station  that  the  ticket 
was  (or.  but  on  that  day  he  thought  it  would 
stop  (or  water.  'I'he  train  did  not  stop,  and 
a(ter  the  station  was  passed  the  conductor 
asked  the  passenger  wliy  he  did  not  get  off, 
and  in  the  conversation  tliat  followed  he 
grew  angry  and  used  insulting  language  to 
the  passenger.  Held,  that  the  company  was 
not  liable.  Parker  v.  Erie  R.  Co.,  5  Hun 
(X.  Y.)  57.— RKViEWiNd  Hamilto.n  v.  Third 
Ave.  R.  Co.,  53  N.  Y.  25. 

Whether  or  not  the  conductor  had  the 
right  to  order  plaintiff  to  step  off  the  cars 
while  in  motion,  or  the  plaintiff  was  required 
to  obey  it,  the  formerdid  give  the  order  and 
the  latter  obeyed  it.  Under  the  facts,  the 
act  of  the  conductor  was  that  of  the  corpo- 
ration, and  the  latter  cannot  escape  respon- 
sibility on  account  of  its  own  wrong.  Cfn- 
tral  R.  Co.  v.  DeHray,7\  6a.  406.— APPLIED 
IN  Mason  v.  Richmond  &  D.  R.  Co.,  ill  N. 
Car.  482. 

1M>.  False  represeiitatlonH.— An  in- 
corporatec  company  cannot  be  called  on  to 
answer  in  damages,  in  its  corporate  capacity, 
for  the  false  and  fraudulent  representations 
of  its  agent,  unless  it  authorized  the  repre- 
sentations. Houston  &•  T.  C.  R.  Co.  v.  Mc- 
Kinnty,%Am.  &^  Eng.  R.  Cas.  7.3,  55  Tex. 
176. 

Where  an  agent  having  authority  to  pur- 
chase cross-ties  for  a  ra'iroad,  but  in  this 
case  really  acting  as  agewt  for  another  party, 
purchases  ties  which  aic  delivered  and  put 
on  the  cars  of  the  road  falsely  representing 
to  the  seller  that  the  railroad  wants  them  to 
lend  to  another  road,  the  company  will  be 
liable  for  the  price  of  the  ties.  South  Western 
R.  Co.  V.  A'«o//,48  Ga.  516. 

Alter  examining  the  accounts  of  a  station- 
agent,  an  auditor  of  the  defendant  company 
assured  plaintiff  that  there  was  a  shortage 
of  |6oo  only,  that  payment  of  that  amount 
would  make  the  accounts  straight  a. id  satis- 
factory, and  that  if  it  were  pai<l  the  station- 
agent  would  not  be  discharged.  Relying  on 
this    representation,    plaintiff    contributed 


AGICNCY,  lOO-loa. 


8200  to  make  up  the  said  amount  (the  bal- 
ance being  contributed  by  others),  which  was 
paid  directly  to  the  company.  The  station 
anent  took  no  part  in  this  neKotiaiion.  Af- 
terwards it  was  discovered  that  the  shortage 
was  about  $1200,  and  the  station-;igeiii  was 
discharged.  The  company,  however,  re- 
fused to  pay  the  plaintill  tiie  $200.  Held, 
that  tlie  money  was  obtained  by  the  com- 
pany by  the  false  representation  of  its  audi- 
tor as  to  the  amount  of  the  shortage,  and 
that  plaintifl  was  entitled  to  recover  it. 
although  the  auditor  believed  his  statement 
to  he  true  when  he  made  it.  liurke  v.  Mil- 
waukee, L.  S.  (S-  IV.  A'.  Co.,  83  Wis.  410.  S3 
A',   /r.  AV/.  692. 

KK).  Improper  Htartiiit;  ol*  trniii.— 
A  person  starting  a  train  that  is  lying  on 
tiic  track  with  the  fire  banked,  whether  it 
be  done  by  an  employe  of  the  company  or 
by  some  one  else,  does  not  represent  the 
company  in  so  doing,  and  it  will  not  be 
liable  for  any  damage  caused  thereby.  A/nrs 
V.  Delaumre  &>  //.  C.  Co.,  54  Hun{N.  Y.) 
625.  28  A'.  Y.  S.  A'.  228.  8  A'.  Y.  Supp.  107. 
— Applying  Rounds  v.  Delaware,  L.  &  W. 
R.  Co.,  64  N.  Y.  136;  Isaacs  v.  Third  Ave. 
R.  Co..  47  N.  v.  122. 

While  a  ccmipany  will  not  be  liable  if  a 
person  without  any  authority  should  cause 
injury  to  another  by  starting  a  train,  still  a 
brakeman  who  starts  a  train  in  the  absence 
of  an  engineer  by  the  consent  of  the  fireman, 
cannot  be  said  to  be  without  authority  so 
as  to  relieve  the  company  from  liability. 
Dillitij[fiam  v.   Parker,  80    7V.»-.  572,  16  S. 

IV.  Jiep.  335' 

101.  Placing  torpedoes  on  track. 

— Where  employes  of  a  railroad  company 
are  intrusted  with  torpedoes  to  be  placed 
upon  the  track  for  the  purpose  of  signaling 
trains,  the  company  will  be  liable  to  one 
injured  by  such  torpedoes,  when  they  are 
placed  on  the  track  with  no  necessity  for 
their  use,  and  contrary  to  the  company's 
orders,  Harriman  v  Pittsburgh,  C.  &*  St. 
I..  R.  Co.,  32  Am.  (j-»  Eng.  R,  Cas.  37,  45 
Ohio  St.  II,  12  A'.  E.  AV/.  451.— Revikwing 
Hoflman  v.  New  York  C.  &  H.  R.  R.  Co., 
87  N.  Y.  25. 

102.  Putting;  trespaNsers  ofl'traiiiH 
—Company  liable.— To  charge  a  railroad 
company  for  the  wilful  wrong  of  an  employe 
in  forcing  a  boy  from  a  freight  train  while 
in  motion,  whereby  he  is  injured,  it  must 
appear  that  the  act  was  in  the  course  of  the 
employe's  business  and  within  the  scope  of 


his  authority,  the  boy  being  a  trespasser, 
not  a  passenger,  liess  v.  Chesapeake  &»  O. 
R.  Co.,  53 ///«.  1^  Eiij;.  R.  Cas.  64,  35  IV.  I'a. 
492,  14  S.  E.  Rep.  234. 

Under  section  1307  of  the  Iowa  Code,  a 
railroad  company  is  liable  for  the  tort  of  a 
brakeman  committed  in  removing  a  tres- 
passer from  a  train,  whether  the  wrongful 
act  be  merely  one  of  negligence  or  a  wilful 
and  criminal  wrong.  Marion  \.  Chiia^o,  R. 
I.  &*  P.  R.  Co.,  64/o7t'a  568,  21  A'.  11 '.  Rep. 
86. — Noi  Toi-LowiNC.  Ue  Camp  r'.  Missis- 
sippi &  M.  R.  Co.,  12  Iowa  348;  Cooke  7/. 
Illinois  C.  R.  Co.,  30  Iowa,  202;  McKinley 
V.  Chicago  &  N.  W.  R.  Co.,  44  Iowa  314.— 
Adiikkkd  to  in  Marion  ?».  Chicago,  R.  I. 
&  V.  R.  Co.,  66  Iowa  585. 

A  corporation  is  liable  for  the  injury 
where  one  of  its  conduct(jrs  kicks  a  tres- 
passing boy  from  a  car  platform  while  it  is 
in  motion,  and  thus  injures  the  boy.  /A^- 
nianv.  Ne^v  York  C.  Gs^  II.  R.  R.  Co.,  12 
J.  &*  S.  (N.  K.)  I.— DisriNdiMsmNc;  Cohen 
V.  Dry  Dock,  E.  B.  k  H.  R.  Co.,  8  J.  &  S. 
368.  Nor  Following  Isaacs?'.  Third  Ave. 
R.  Co.,  47  N.  Y.  122;  Jackson  v.  Second 
Ave.  R.  Co.,47  N.  Y.  274. 

Though  an  engineer  acts  beyond  the  scope 
of  his  employment  in  asking  a  boy  to  ride 
with  him,  yet  as  it  is  his  duty,  under  the 
rules  of  the  company,  to  prevent  persons 
from  riding  on  the  engine,  the  company  may 
be  liab'e  for  his  wrongfully  putting  the  boy 
off  while  the  train  was  in  motion,  and  thus 
injuring  him.  Chicago,  M.  &•  St.  P.  R.  Co. 
V.  West,  125  ///.  320,  15  West.  Rep.  170,  17 
A'^.  E.  Rep.  788 ;  affirming  24  ///.  App.  44. 
— Distinguished  in  North  Chicago  St.  R. 
Co.  V.  Olds,  40  III.  App.  421. 

A  brakeman  engages  in  his  master's  busi- 
ness, and  within  the  general  scope  of  his 
employment,  when  removing  a  trespasser 
from  a  train,  and  the  company  is  liable 
for  his  tortious  act  while  so  engaged, 
though  the  wrong  committed  be  a  mistake 
of  judgment.  Eang  v.  Nenv  York,  L. 
E.  (S-  W.  R.  Co.,  51  //««  (A^.  1'.)  603,  22  N. 
Y.  S.  R.  no,  4  A^.  Y.  Supp.  565  ;  affirmed  in 
1 23  A^.  J'.  656,  mem. 

It  is  within  the  scope  of  the  general 
authority  of  a  brakeman  on  a  freight  train 
to  prevent  trespassers  from  getting  on  the 
train,  and  to  remove  such  persons  who 
wrongfully  get  thereon  ;  but  if,  in  sf)  doing, 
he  does  not  exercise  rare  and  rant  ion,  but 
.;rts  wantonly  or  maliciously,  and  an  injury 
results,  the  company  is  lialile.    Kansas  City, 


\  \ 


78 


AGIiNCV,  10:i. 


Ft.  S.  &-  U,  A'.  Co.  V.  AV//>',  34  //«/•  &^  /uix. 
A'.  Cix.  2H1.  }f>  A'<i«.  655,  14  /'<!(.  AV/.  172. 

Persons  wlio  liavo  <  liarKe  nf  a  swilchiiiB 
ni^iiiu  have  tlie  implied  aulliority  to  re- 
move trespassers  thcredom,  l)iil  i(  in  (loins 
so  siu;li  persons  act  in  a  reckless  manner, 
showing  indillerenee  as  to  consequences, 
llie  company  will  be  liable,  dut-rv.  Louis- 
villi'.  A'.  A.  &*  C.  A'.  Co..  22  Am.  ^  A'«c.  A". 
Ctis.  3(jo,  y«  ///</.  55:,  4y  •'"'•  A'<A  7S0- 
DlsriNtniMllNi;  'I'owand.i  Coal  Co,  v. 
Heeman,Sfi  I'a,  St.  418;  Marion  7'.  Chicago, 
R.  I.  &  V.  U.  Co.,  59  Iowa  42S,  44  .\m.  Uep. 
687.  Nor  Koi.i.owrNd  Isaacs?'.  Third  .Ave. 
R.  Co.,  47  \.  Y.  122,  7  Am.  Rpp.  418. 
ycuriNC.  jelTersoiiviile  R.  Co.  r'.  Rotters, 
3«  Ind.  1 16.  10  Am.  Rep.  103.  Rki UNc  ll.lNd 
IlolTm.iii  ■:  New  York  C.  iS;  11.  R.  R.  Co., 
87  N.  Y.  25,  41  Am.  Rep.  337;  Menion  t. 
Chican).  R.  I.  &  i'  l<-  ^'o.  55  ''>«;i  4'/': 
Caulev  ;•.  I'itishurgh,  C.  &  St.  L.  R.  Co..  4 
Am.  .S:  Ena.  R.  Cas.  533.  y8  I'a.  St.  49«. 
REVir.wiNd  Rounds  f.  Delaware,  L.  A  \V. 
R.  Co..^4  N.  Y.  129,  21  Am.  Rep.  597- — 
Dl.sriN(;tMsui;i)  in  Cin(  innaii,  II.  tSi  I.  R. 
Co.  V.  Carp  T,  31  Am.  \'  Knj;.  R.  Cas.  36, 
112  Ind.  26,  II  West.  Rep.  223.  13  N.  E.  Rep. 
122. 

A  street-car  company  will  be  liable  for 
the  tortious  wilful  act  of  its  driver  in  throw- 
in;,'  a  person  oil  the  car  and  injuring  him, 
where  it  appears  that  the  driver  has  the 
power  to  expel  disorderly  i)ersons.  /.jp)is  v. 
Bro,ulu;iy  6-  S.  A.  A\  Co.,  32  A'.  V.  S.  A'. 
232,  10  A'.  V.  Supp.  237.  —  FoM.owiNO 
Stewart  v.  lirooklyn  &  C.  T.  R.  Co.,  90  N. 
y.  588. 

If  the  driver  of  a  street-car  in  ordering  a 
trespasser  from  the  car  acts  in  such  a  way 
as  to  justify  the  person  in  believing  that  the 
driver  means  to  inflict  bodily  punishincnt, 
it  cannot  be  said  to  be  contributory  negli- 
gence on  the  part  of  such  person  to  jump 
from  the  car  when  in  a  position  of  danger, 
whereby  lie  is  injured,  and  the  company 
will  be  li.ible  for  the  injury,  Hoi:;an  v. 
Ctntnil  I'ark,  N.  6-  E.  A'.  A".  Co..  33  A^  V.  S. 
Jf.  702,  1 1  iV.  J'.  Su/>p.  588,  26  /.  ^  S.  322  ; 
ren'ets,;l  ill  1:4  ,V.  )'.  647.  mem.,  36  A^.  V.  S. 
R.  352.— .\iMM,vi\(;  McCann  v.  Si.xth  Ave. 
R.  Co..  1 17  N.  Y.  505,  27  N.  V.  S.  R.  834. 

KKl. com  puny  not  llal>h'.  — The 

act  of  an  einployt  of  a  railroad  company  in 
removing  a  trespasser  from  a  train  cannot 
be  considered  the  act  of  the  company  un- 
less he  was  employed  generally  to  remove 
trespassers,  or  specifically  to   remove  the 


particular  trespasser.  .Mtirion  v.  Chicago, 
A'.  I.  &^  /'.  A'.  Co.,  8  Am.  &»  A'wl,^  A".  Cas. 
177,  59  hnuii  428,  13  i\'.  W.  Kfp.  415— Re- 
Vli\vh;i)  IN  Farber  7'.  Missouri  Pac.  R.  Co., 
32  Mo.  App.  378. 

.\  street  car  company  is  not  liable  f«)r  the 
act  of  its  conductor  in  wilfully  putting  a  boy 
olT  a  car  in  such  a  way  as  to  injure  him. 
Murphy  v.  Central  Park.  A'.  cJ-  A".  A'.  A*.  Co., 
\(>J.  C-^  .S'.  (.\'.  r.)96.— Im)|,i,<i\vin(;  Rounds 
V.  Delaware.  L.  &  VV.  R.  Co..  64  N.  Y.  129. 

It  cannot  be  assumed,  in  the  absence  of 
proof,  that  a  brakcman  on  a  freight  train 
was  authorized  tr)  remove  a  trespasser. 
I'arber  v.  Missouri  Pac.  A'.  Co.,  116  Mo,  81, 
22  .s'.  W.  lifp.  631  ;  aJfirmiHii  32  .Mo.  App. 
378.  -yt'diiNi;  Mcliowan  v,  St.  Louis  &  I. 
M.  R.  Co..  61  Mo.  528. 

The  burden  to  show  such  authority  is  on 
plaintifT,  and  an  instruction  which  casts 
this  burden  on  the  company  is  erroneous. 
International  &^  li.  A,'.  A'.  Co.  v.  Anilerson, 
53  Am.  &^  luiii.  A".  Cas.  59,  82  Te.v.  516,  17 
.V.   /r.  A'ep.  1039. 

Where  it  is  not  the  duty  of  a  brakeman 
to  remove  trespassers  from  trains,  the  com- 
pany is  not  liable  to  one  injured  in  being 
removed  in  a  reckless  and  cruel  manner. 
Tinvanda  Coal  Co.  v.  //eeman.S6  /'a.  St.  418. 
— DisriNc.irisiiKi)  in  Carter  ta  Louisville, 
N.  A.  &C.  R.  Co.,  98  Ind.  552. 

A  railroad  company  is  not  I'abic  for  the 
tortious  act  of  a  brakeman  in  removing  a 
person  from  a  train  without  orders  from  the 
conductor,  where  it  appears  that  he  was  per- 
mitted to  remove  personsonly  where  he  had 
such  orders.  Marion  v.  Chicago,  A'.  I.  &* 
/'.  A'.  Co.,  8  Am.  &'  Eng.  A\  Cas.  177,  59 
/o^ua  428,  13  .V.  IF.  A'ep.  415.  — DISTIN- 
GUISHED IN  Carter  ta  Louisville,  N.  A.  &C. 
R.  C0..98  Ind.  552. 

Any  liability  of  a  railroad  company  for 
the  act  of  its  brakeman  in  forcing  from  a 
freight  train  one  who  got  on  to  steal  a  ride 
is  founded  on  the  law  of  agency,  and  not  on 
that  of  common  carriers.  Farber  v.  Mis- 
souri Pac.  A\  Co.,  1 16  Mo.  81,  22  S.  IV.  Rtp. 
631.— yuoTiNG  Snyder  v.  Hannibal  &  St. 
).  R.  Co.,  60  Mo.  413. 

After  ordering  plait  tifT,  a  boy  of  13,  and 
other  boys,  who  were  trespassing,  to  leave  a 
freight  train  while  in  motion,  the  brakeman 
threatened  to  kick  plaintifT  ofl,  and  thus 
acting  under  the  belief  that  he  would  be 
kicked  off,  he  jumped  and  was  injured. 
//('/(/.  iliat  the  art  of  the  brakcmali  was  not 
such   a  discharge  of  his  duty  lu  remove 


AGIiNCY,  104,  lOrt. 


trespassers  as  to  make  the  company  liable, 
Hu^^hcs  V.  Sew  York  &^  X.  //.  A\  Co..  4  / 
(S- J)'.  (A'.  )'.)  223.— AriM.YiNc;  Jucksun  v. 
Second  Ave,  R.  Co.,  47  N.  Y.  277.  Foi.- 
i.owiNO  Cosgrovc  V.  Ogden,  49  N.  Y.  258; 
Isaacs  V.  Third  Ave.  R.  Co.,  47  N.  Y.  137. 

104. UluMtratloiiH.— Proof  that  a 

hoy,  ei^lit  years  old,  jumped  upon  the  steps 
()(  a  passenger-car,  an<i  was  kicked  from  the 
car  by  the  conductor  or  brakeman,  while  the 
train  was  moving  ten  miles  per  hour,  and 
injured, — //M,  to  entitle  the  boy  to  a  ver- 
dict against  the  company.  Hoffman  \'.  Sew 
York  C.  (S-  N.  A'.  A',  Co.,  4  Afii.  &*  Etig. 
A'.  Cas.  537,  87  A'.  Y.  25,  41  Am.  A'<-/>.  337 ; 
iifirmin^  14  /.  Sf  S.  526.— Al'iM.iKU  in 
Kowii  t'.  Clirisiopher  &  T.  S.  R.  Co.,  34 
Iliin  (N,  Y.)  471 ;  Molloy  v.  New  York 
C.  &  H.  R.  R.  Co..  10  Daly  (N.  Y.)  453. 
Kixo.NCli.KU  IN  Carter  v.  Louisville,  N.  A. 
&  C.  R.  Co., 98  Ind.  552.  Rkvikwkd  in  Har- 
riinan  v.  I'iilsburgli,  C.  &  St.  L.  R.  Co.,  32 
Am.  &  ling.  R.  Cas.  37.  45  Ohio  St.  11. 

A  boy  of  1 1  was  stealing  a  ride  on  a 
freight  train  at  a  point  where  boys  were  in 
the  habit  of  riding  about  6  or  8  blocks  to  a 
station.  In  this  case,  after  telling  the  boy  to 
get  otT,  the  brakeman  ran  him  from  one  car 
to  the  other  by  throwing  coal  at  him. 
Finally  he  rolled  a  large  lump  of  coal 
against  him  and  knocked  him  from  the 
train,  which  was  mr>ving  at  the  rate  of  10 
miles  an  hour.  Ne/tf,  that  the  act  was  sutTi- 
( icntly  within  the  scope  of  employment  of 
the  brakeman  to  make  the  company  lia- 
ble.  Lang  v.  AVw  York,  L.  E.  <&«•  W.  R. 
Co.,  4  A^.  Y.  Supp.  565. 

105.  YiirioiiH  otlior  tortioiiH  actN.- 
VVhere  a  clerk  of  a  city  railway  company 
has  assigned  to  him  the  general  and  special 
duty  of  looking  for  and  arranging  the  evi- 
dence in  cases  where  the  company  is  sued 
by  persons  injured,  or  claiming  to  be  in- 
jured, by  the  carelessness  of  those  intrusted 
with  the  management  and  operation  of  its 
street  cars,  and  is  empowered  generally  to 
perform  that  duty  without  special  direc- 
tions, with  general  authority  to  use  his  own 
judgment  in  the  performance  of  his  duties, 
if  he,  in  looking  up  the  evidence  in  the  case, 
wrongfully  and  without  authority  oflers 
money  to  a  witness  to  keep  him  from  testi- 
fying against  the  company,  or  to  influence 
his  testimony,  the  company  must  be  held 
responsible  for  his  act,  and  it  is  proper  evi- 
dence against  the  company.  Chicago  City 
R.  Co.  V.  McMahon,  8  Am.  i5~»  Eng.  R.  Cas. 


68.  103  ///.  485.— Applied  in  Evansvillc  & 
T.  H.  R.  Co.  V.  McKec,  22  Am.  &  Eng.  R. 
Cas.  366,  99  Ind.  519,  50  Am.  Rep.  102. 

After  the  wreck  of  a  train  carrying 
cattle,  it  being  necessary  to  remove  them 
from  the  cars,  some  of  them  escaped,  and 
plaiiitill's  son  was  employed  by  a  section 
foreman,  who  was  instructed  to  reload  the 
cattle.  The  son  took  plaintitl's  horse  and 
used  it  in  driving  the  cattle  together  with- 
out plaintif!'s  knowledge  or  consent.  //M, 
that  the  company  was  liable  for  an  injury  to 
the  horse.  Atchison,  T.  iS^  ..V.  /•'.  A".  Co.  v. 
Randall,  38  Am.  &•  Eng.  R.  Cas.  255,  40 
Kan.  421,  19  Pac.  Rep,  783. 

A  street-car  company  may  be  liable  for 
double  the  amount  of  damages  sustained 
by  a  person  from  the  bite  of  a  dog  kept  by 
the  employes  of  the  company,  and  where  it 
is  sought  to  charge  the  company  for  such 
damages,  evidence  tending  to  show  that  the 
dog  was  kept  by  an  employe  about  the  com- 
pany's stables,  with  the  knowledge  and  im- 
plied consent  of  the  superintendent,  will 
justify  a  finding  that  the  dog  was  kept  by 
the  company.  Barrett  v.  Maiden  &*  At.  R. 
Co.,  3  Allen  {Mass.)  101. 

If  a  third  person  is  injured  by  an  employe 
while  using  a  derrick  in  the  manner  con- 
templated by  the  com|)any,  the  latter  is  lia- 
ble. Conlon  V.  Eastern  R.  Co.,  15  Am.  6>» 
Eng.  R.  Cas.  99,  135  Mass,  195, 

A  railroad  company  will  be  liable  for  the 
act  of  its  employes  acting  under  the  direc- 
tion of  its  general  superintendent,  for  forci- 
bly entering  upon  premises  and  expelling 
the  occu|>ant,  and  threatening  him  with  in- 
jury if  he  returns,  as  such  act  will  be 
deemed  the  official  act  of  the  company,  and 
ratified  where  the  company  retains  posses- 
sion. People  ex  rtl.  v.  New  York  C.  R.  Co., 
l\  N.  Y.  623. 

Plaintiff,  having  been  at  divers  times  em- 
ployed by  defendant  railroad  as  a  detective 
in  cases  of  property  stolen  from  its  cars, 
was  requested  by  its  agent,  duly  authorized 
for  that  purpose,  to  go  from  one  station  to 
another,  to  aid  in  discovering  persons  who 
had  stolen  property  from  its  cars  at  the 
latter  station,  and  the  means  of  conveyance 
furnished  was  a  hand-car.  Held,  that  the 
company  was  liable  for  any  injury  to  plain- 
tiflf  while  riding  thereon,  caused  either  by 
the  unfitness  of  such  means  of  conveyance, 
or  by  any  negligence  of  its  servants  in  run- 
ning the  same.  Pool  \ .  Chicago,  M.  6-«  St. 
P.  R.  Co.,  3  Am.  &^  Eng.  R.  Cas.,  332,  53 


IMAGE  EVALUATION 
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ScMioes 

Corporation 


23  WIST  MAIN  STRRET 

WnSTIR,N.Y.  145M 

(716)  •72-4503 


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AGENCY,  106,  107. 


lVts.6$7,  II  N.  If. /\V/.  15.— Distinguish- 
ing Hoar  V.  Maine  C.  R.  Co.,  70  Me.  65; 
Eaton  I/.  Delawaie,  L.  &  \V.  R.  Co.,  57  N.  Y. 
382.— Quoted  in  Cincinnati,  H.  &  I.  R. 
Co.  V.  Carper,  31  Am.  &  Eng.  R.  Cas.  36,  1  ■:; 
Ind.  26,  II  West.  Rep.  223, 13  N.  E.  Rep.  122. 
REVIEWED  IN  Dixon  v.  Chicago  &  A.  R. 
Co.,  109  Mo.  413. 

If  a  foreman  employed  by  a  corporation 
lias  authority  to  employ  and  discharge 
\v<jrkmen,  it  is  v;icliin  the  scope  of  his  au- 
tiiority  to  use  ;  h  .  .asonable  force  as  may 
be  necessary  to  iLmove  a  discharged  work- 
man from  the  shof ,  and  the  corporation  will 
be  liable  if  he  uses  .-Accssive  force  for  that 
pur[),jse.  A  coirp.  ■"  -vhich  charges  the 
use  of  e.\'jessivc  x  .  •  ■  y  the  foreman,  and 
injury  caused  ihertby  i?>  such  a  workman, 
states  a  cause  of  action  against  the  corpora- 
tion. Koji^ahn  v.  Moore  Mfg.  &*  F.  Co.,  79 
Wis.  S73.  48  A^.   ;F.  A'ep.  669. 

A  cloak-room  clerk  accustomed  to  take 
parcels  for  passengers  to  a  train  when  there 
is  no  porter,  *hile  running  back  from  the 
train  to  which  he  has  taken  a  passenger's 
parcel,  is  acting  within  the  scope  of  his  em- 
ployment, and  if  he  runs  against  and  upsets 
a  woman,  causing  her  death,  the  company 
is  liable.  Mi'/ner  v.  Great  Northern  Ji.  Co., 
SO  L.  T.  367. 

4.  Ratification. 

106.  General  rules.  —  A  contract 
signed  by  an  authorized  agent  may  be  rati- 
fied by  the  company,  and  for  this  purpose 
its  acts  are  sufficient.  Taylor  v.  Albemarle 
S.  Nav.  Co.,  105  A^.  Car.  484,  \o  S.  E.  Rep. 
897. 

A  railway  company  may  ratify  the  act  of 
its  iO'-vant  in  assaulting  and  imprisoning  a 
passei  ger  to  compel  hini  to  pay  his  fare. 
EastCi  n  Counties  R.  Co.  v.  Broom,  6  Exch. 
314,  15/wr.  297,  20  Z.  7.  E.\ch.  \<^,6Railw. 
Cas.  743.— Not  followed  in  GofT  v.  Great 
Northern  R.  C(>.,  3  El.  &  El.  672,  30  L.  J. 
Q.  B.  148,  7  Jur.  N.  S.  286,  3  L.  T.  850. 

The  same  rule  of  construction  must  apply 
with  reference  to  ratifying  contracts  made 
by  agents,  whether  the  contract  is  favorable 
to  the  principal  or  not ;  so  a  railway  cor- 
poration cannot  claim  the  benefit  of  favor- 
able contracts  made  by  its  agent:;,  where  a 
liberal  construction  does  not  place  such 
contracts  entirely  beyond  the  corporate 
powers  of  the  company,  but  shields  itself  by 
a  more  limited  construction  when  the  con- 
tracts are  unfavorable.    Noj'es  v.  Rutland  &* 


B.  R.  Co.,  27  Vt.  no.— Followed  in  Mid- 
dlebury  Bank  v.  Rutland  &  VV.  R.  Co.,  30 
Vt.  159;  Sturges  v.  Knapp,  31  Vt.  i. 

107.  What  aiiiouuts  to  u  ratifica- 
tion, generally.* — In  case  of  railway  cor- 
porations the  rule  is,  that  to  amount  to  a 
ratification  the  adoption  or  confirmation  of 
the  wrongful  act  of  the  servant  must  be 
shown  to  be  the  act  of  some  chief  otiicer, 
vice-principal,  or  alter  ego  of  the  company, 
who  must  be  proved  to  possess  under  the 
company  sufficient  authority  and  discretion 
to  act  and   speak   for  the  company.     Gulf, 

C.  &•  S.  F.  R.  Co.  V.  Reed.  48  Am.  <3-  Eng. 
R.  Cas.  423,  80  Te.i:  362,  155.  IV.  Rep.  1105. 

Where  a  railroad  takes  and  applies,  to  its 
own  benefit,  ties  delivered  upon  the  line  of 
its  road,  it  will  be  liable  in  indebitatus  as- 
sumpsit for  their  value;  and  it  matters  not 
whether  the  person  who  procured  their  de- 
livery was  the  agent  of  the  company  or  its 
contractor.  Toledo,  IV.  <&*  W,  R.  Co.  v. 
C/tew,  67  ///.  378. 

Where  a  railroad  corporation  receives 
railroad  material  bought  upon  its  credit  and 
for  its  use  by  one  of  its  officers,  without  au- 
thority, and  uses  it  for  the  corporate  pur- 
poses for  which  it  was  designed,  this  is  an 
adoption  and  ratification  of  the  act  of  the 
officer.  The  directors  using  the  material  so 
purchased  are  bound  to  inquire,  and  are 
presumed  to  know,  whether  it  was  paid  for 
or  not ;  it  is  not,  therefore,  essential  to  an 
adoption  of  the  act  of  the  officer  that  the 
directors  should  know  the  terms  of  the  con- 
tract. Scott  V.  Middletown,  U.  6-  IV.  G.  R. 
Co.,  4  Am.  6-  Eng.  R.  Cas.  114,86  A^.  V. 
200;  affirming  21  Hiin.  231. — DISTIN- 
GUISHED IN  Holmes  v.  Board  of  Trade,  81 
Mo.  137. 

Where  the  general  manager  of  an  associa- 
tion of  railway  companies  has  notice  of  the 
existence  and  terms  of  a  special  contract 
for  transporting  grain  at  a  reduced  rate, 
made  by  an  agent  of  one  of  the  associated 
companies,  and  afterward  furnishes  cars 
and  transports  the  grain,  this  is  evidence 
from  which  a  ratification  of  the  special  con- 
tract may  be  found.  Erie  &*  P.  Dispatch 
V.  Cecil,  112  ///.  180. 

Proof  that  a  committee  of  the  direc- 
tors of  a  railroad  company  had  examined 
certain  notes  issued  by  tlie  treasurer  and 
had  pronounced  them  genuine,  and  that  re- 

*  Ratification  of  unauthorized  act  by  corpora- 
tion, see  note,  13  Am.  &  Eng.  R.  Cas.  651.- 


wm 


AGENCY,  108. 


81 


ports  had  been  made  showing  that  interest 
had  been  made  on  them,  and  had  been  ac- 
cepted, is  sufficient  to  show  a  ratification  of 
the  act  of  the  treasurer  in  attaching  the 
corporate  seal  to  the  notes.  St.  James 
Parish  v.  Newburyport  &*  A.  H.  R.  Co.,  141 
Mass.  500,  6  N.  E.  Rep.  749.  —  DISTIN- 
GUISHING Kelley  v.  Newburyport  &  A.  H. 
R.  Co.,  141  Mass.  496. 

If  an  agent  of  a  railroad  company  sub- 
mits a  controversy  to  arbitration,  subse- 
quent appearance  by  the  company  without 
objection  to  the  act  of  the  agent  in  making 
the  references,  is  a  ratification  of  the  act  of 
the  agent  and  estops  the  company  from 
making  objection  to  the  award,  so  far  as 
the  act  of  the  agent,  touching  the  submis- 
sion, is  concerned.  Memphis  &*  C.  R.  Co. 
V.  Scrttggs,  50  Miss.  284. 

Where  a  municipal  corporation  is  author- 
ized to  appoint  commissioners  to  issue  its 
bonds  in  aid  of  a  railroad,  and  such  commis- 
sioners have  apparently  been  appointed, 
and  have  issued  what  purport  to  be  the 
obligations  of  the  municipality,  if  such  ob- 
ligations be  treated  by  the  muiicipality  as 
valid  through  a  number  of  years  by  both 
affirmative  and  negative  acts,  then  both  the 
municipality  and  its  taxpayers  cannot  raise 
an  objection  to  tlie  validity  of  the  bonds, 
based  upon  an  irregularity  in  the  appoint- 
ment of  the  commissioners,  or  in  issuing 
the  bonds.  Calhoun  v.  Delhi  &>  M.  R.  Co., 
28  Hun.  (N.  y.)  379,  64  ffow.  Pr.  291.— 
Quoting  New  York  &  N.  H.  R.  Co.  v. 
Schuyler,  34  N.  Y.  30.— Distinguished  in 
Craig  V.  Andes,  15  Am.  &  Eng.  R.  Cas. 
662,  93  N.  Y.  405. 

The  managers  of  a  railroad  company  are 
presumed  to  know  as  much  about  the  con- 
duct of  their  agents  as  is  known  to  every- 
body else ;  and  if  they  know  that  their 
agents  are  accustomed  to  pay  out  illegal 
notes  in  making  change  to  passengers,  this 
is  an  approval  of  the  acts  done,  and  the  cor- 
poration is  responsible.  Commonwealth  v. 
Ohio  <&^  P.  R.  Co.,  I  Grant  Cas.  (Pa.)  329. 

108.  llliistrntions. — In  an  action 

against  a  company  to  recover  damages  for 
its  failure  to  deliver  cotton,  the  receipt  for 
which  wos  signed  by  a  subagent,  wlio  testi- 
fied that  he  was  appointed  as  such  subagent 
by  the  local  agent ;  that  the  president  and 
superintendent  of  the  road  knew  that  he 
was  acting  as  subagent  and  made  no  objec- 
tion ;  that  the  officers  of  the  road  iiad  fre- 
quently given  him  directions  about  the 
I  D.  R.  0—6. 


business,  and  that  freight  had  been  delivered 
on  at  least  two  occasions  on  receipts  similar 
to  the  one  in  question,  hM,  that  the  evi- 
dence was  admissible  as  tending  to  prove  a 
ratification  of  the  agency.  Alabama  &^  T. 
R.  R.  Co.  v.  Kidd,  29  Ala.  221. — Quoted 
in  Alabama  G.  S.  R.  Co.  v.  Hill,  76  Ala. 

303- 

Where  plaintifl  did  work  for  a  railroad 
and  the  company  afterwards  made  a  bene- 
ficial use  of  it,  and  one  claiming  to  act  as 
an  agent  of  the  company  made  the  contract 
for  the  work,  and  where  the  company's  en- 
gineer promised  to  make  out  a  voucher  for 
it,  and  the  chief-engineer  laid  out  the  work, 
and  an  assistant  engineer  signed  a  voucher 
therefor  with  plaintiff's  name  therein  as  con- 
tractor, held,  that  the  agency  might  be 
presumed  and  a  promise  to  pay  what  the 
work  was  reasonably  worth  might  be  in- 
ferred. Roc  A/or  d.  R.  I.  6<»  St.  L.  R.  Co.  v. 
Wilcox,  ee  III.  417. 

Language  used  by  the  superintendent  of  a 
company  admitting  and  justifying  an  assault 
by  one  of  its  drivers  was  held  to  bind  the 
company.  Malccck  v.  Tower  Grove  &•  L,  R. 
Co.,  57  Mo.  17,  9  Am.  Ry.  Rep.  i. 

The  treasurer  of  a  company  notified  the 
company  that  he  would  be  absent  tempo- 
rarily, and  directed  that  remittances  be 
made  to  the  firm  of  which  he  was  a  mem- 
ber. An  account  was  kept  of  the  corpora- 
tion funds  with  the  firm,  and  while  the  funds 
were  in  the  firm's  hands  it  appeared  that  a 
report  had  been  made  to  the  stockholders 
that  the  funds  were  in  the  hands  of  the  firm 
as  "financial  agents."  Held,  that  this  was 
a  sufficient  ratification  of  the  act  of  the 
treasurer  in  selecting  the  firm  as  the  proper 
depositories,  and  relieved  him  from  liability. 
New  York,  P.  &•  B.  R.  Co.  v.  Dixon,  114 
N.  y.  80,  21  N.E.  Rep.  no,  22  N.  F.  5.  R. 
684 ;  reversing  47  Hun,  634,  13  A'^.  Y.  S.  R. 

445. 

A  company  when  sued  for  a  balance  due 
for  constructing  its  road  denied  the  author- 
ity of  certain  officers  to  make  the  contract 
under  which  the  work  was  performed.  It 
appeared  that  after  the  work  was  commenced 
a  large  number  of  thedirectors  were  present, 
and  in  their  presence  the  president,  who  had 
made  the  contract,  pointed  out  plaintifl  as 
the  contractor,  and  that  the  company  recog- 
nized him  thereafter  as  the  contractor; 
furnished  him  with  materials  and  made  pay- 
ments on  the  work.  Held,  a  sufficient  rati- 
fication of  the  contract  to  bind  the  company. 


:l:; 


VW''. : 


* 


^} 


i:  m: 


8-Z 


AGENCY,  100-111. 


Cunningham  v.  Massena  Springs  (S-  Ft.  C. 
K.  Co.,  44  ^V.   y.  S.  R.  723,  63  Hun  439. 

Plaintiff  sued  defendants,  who  manufac- 
tured apparatus  for  heating  cars,  to  recover 
compensation  for  mai<ing  sales,  claiming 
that  he  had  a  contract  with  the  president, 
but  the  company  denied  the  authority  of 
the  president  to  make  such  contract.  It 
appeared  that  after  plaintiff  had  procured 
certain  propositions  he  submiiied  the  same, 
anil  that  the  vice-president  and  the  superin- 
tendent marked  the  same  "approved,"  after 
some  slight  changes.  HeU,  that  this  was  a 
sufficient  ratilicaiion  of  the  services  of  the 
plaintiff  to  make  the  company  liable.  6  aih 
v.  Martin  A.  F.  Car  Heater  Co.,  47  A  /. 
5.  A'.  26,  64  Hun  639,  19  A^.  V.  Supp.  285. 

The  judge  charged  the  jury  that  if  the 
assumed  agent  "  received  the  cotton,  and 
the  plaintiffs  assented  to  or  ratified  the  act 
afterwards,  the  plaintiffs  could  not  recover 
the  value  of  the  cotton  ;  but  the  proof  must 
satisfy  you  that  he  was  such  agent,  or  that 
his  act  in  receiving  the  cotton  was  ratified 
or  acquiesced  in  by  the  plaintiffs."  Held, 
the  charge  was  not  accurate,  nor  full  enough 
under  the  circumstances.  He  should  have 
explained  what  would  be  considered  a  rati- 
fication, and  should  have  told  the  jury  that 
if  after  the  acts  of  the  assumed  agent  were 
known  to  the  plaintiffs,  they  did  not  in  a 
reasonable  time  repudiate  them  they  would 
be  bound  by  thf^m.  Western  &*  A.  R.  Co. 
V.  McElwee,  6  Heisk.  {Tenn.)  208. 

100.  What  acts  do  not  amount  to 
a  ratification. — Where  a  party,  without 
authority,  signs  the  name  of  another  as  a 
subscriber  to  so  much  corporate  stock,  tlie 
subsequent  declaration  of  the  party  that  he 
had  subscribed  to  that  amount  of  stock  is 
not  a  ratification  of  the  act.  Rutland  &>  B. 
R.  Co.  v.  Lincoln,  29  Vt.  206. 

The  fact  that  a  solicitor  of  a  railway  com- 
pany conducts  iroceedings  against  a  pas- 
senger taken  into  custody  and  charged  with 
refusing  to  pay  his  fare  and  assaulting  the 
company's  inspector,  is  no  evidence  of  rati- 
fication by  the  company.  Eastern  Counties 
R.  Co.  V.  Broom,  6  Exch.  314,  x^Jur.  297,  20 
L.J.  Exch.  196,  6  Railw.  Cas.  743. — NOT 
Followed  in  Goff  v.  Great  Northern  R. 
Co.,  3  El.  &  E1.672,3oL.  J.Q.  B.  i48,7jur. 
N.  S.  286,  3  L.  T.  850. 

110.  When  ratification  may  be 
Inferred,  generally, — Where  there  was 
evidence  tending  to  show  that  a  party,  bar- 
gaining for  railroad  ties,  was  acting  as  tlie 


agent  of  a  company,  and  it  appeared  that 
the  company  when  it  accepted  the  road 
from  its  contractors  used  the  remaining 
ties,  left  by  the  seller  upon  the  road,  held, 
that  it  might  be  inferred  that  the  agent's 
contract  was  approved  by  the  conipany. 
Toledo,  IV.  &>  ly.  R.  Co.  v.  Chew,  67  ///.  378. 

Where  an  agent  of  a  railroad  contracts  to 
carry  goods  beyond  the  initial  carrier's  line, 
if  it  appear  that  the  agent  has  been  making 
such  contracts  for  several  years,  then  the 
assent  of  the  railroad  thereto  niay  be  pre- 
sumed, and  it  will  be  estopped  from  deny- 
ing his  authority  so  to  contract,  though  as 
a  matter  of  fact  the  agent  had  no  direct 
authority  to  do  so.  Perkins  v.  Portland,  S. 
(S-  P.  R.  Co.,  47  Me.  573. 

An  open  and  notorious  custom  of  all  the 
ticket  agents  and  conductors  employed  by  a 
railroad  company,  to  pay  out  illegal  notes 
in  making  change  to  passengers,  is  evidence 
that  should  be  left  to  a  jury,  to  enable  them 
to  determine  whether  the  custom  was 
authorized  by  the  company.  Commonwealth 
V.  Ohio  <3-  P.  R.  Co.,   i    Grant  Cas.   (Pa.) 

329- 

Where  a  clerk  of  a  railway  engineer 
agrees  for  the  purchase  of  ties  on  special 
terms,  and  the  ties  are  afterwards  delivered 
and  used  by  the  company,  there  is  evidence 
from  which  a  jury  may  infer  a  special  con- 
tract by  the  directors  on  behalf  of  the  com- 
pany which  would  be  valid  under  8  &  9 
Vict.  c.  16,  s.  97,  on  the  terms  agreed  to 
by  the  clerk.  Pauling  v.  London  6-  AK  IV. 
R.  Co.,  7  Railw.  Cas.  816,  8  Exch.  867,  23  Z. 
7.  Exch.  105. 

1 1 1. from  acquiescence.— Where 

a  railroad  station  agent  eng;iges  a  surgeon 
to  attend  an  employe  injured  in  the  service 
of  the  company,  although  such  act  is  un- 
authorized, yet  the  company  will  be  liable 
if,  upon  due  notice  given  to  the  general 
superintendent,  the  act  is  not  repudiated. 
Toledo,  IV.  <S-  IV.  R.  Co.  v.  Prince,  50  ///. 
26.— Following  Toledo,  W.  &  W.  R.  Co.  v. 
Rodrigues,  47  111.  188. 

Where  a  railroad  company  denies  the 
authority  of  its  vice-president  to  appoint 
local  agents  to  look  after  the  company's 
timbered  lands,  and  it  is  sought  to  repudi- 
ate a  contract  made  by  a  local  agent,  a  jury 
is  warranted  in  finding  that  the  company 
knew  of  and  acquiesced  in  the  authority  of 
the  vice-president,  and  was  consequently 
bound  by  a  contract  made  by  a  local  agent, 
upon  proof  that  such  agents  for  a  number 


'. . 


AGENCY,  112; 


83 


'.. .-' 


of  years  had  acted  for  the  company  in  sell- 
ing stumpage  and  timber;  that  the  com- 
pany at  one  time  had  brought  suit  on  a  con- 
tract made  by  one  of  these  agents  and  had 
recovered  money  which  was  paid  to  the 
local  agent;  that  such  agents  were  in  the 
habit  of  making  annual  reports  to  the  vice- 
president  and  to  pay  ihe  moneys  in  their 
hands  inio  the  treasury  of  the  company. 
Chicago  &^  N.  IV.  Ji.  Co.  v.  James,  24  IVis. 

388. 

Certain  parties  went  upon  the  right  of 
way  of  a  railroad  company  and  rented  an 
office  and  put  up  a  sign,  styling  it  the  office 
of  the  railroad,  and  without  giving  any 
notice  that  they  were  representing  other 
parties  than  the  company,  and  with  the 
knowledge  of  the  company,  bought  goods. 
Held,  that  the  company  was  bound,  though 
it  might  afterward  turn  out  that  such  parties 
were  in  fact  representing  a  foreign  corpora- 
of  the  same  name.  Florida,  M.  &"  G.  A". 
Co.  V.  Varnedoa.Sx  Ga.  175,  7  S.  E.  Rep. 
129. 

Where  a  conductor  brought  a  brakeman, 
who  had  received  a  serious  injury  while  in 
defendant's  service,  to  plaintiff's  house  to 
be  cared  for,  and  immediately  telegraphed 
to  the  officers  of  the  company  the  facts,  and 
they  never  notified  plaintiff  that  the  com- 
pany should  not  be  responsible,  held,  that 
the  company  was  liable  to  plaintiff  what  his 
services  were  reasonably  worth.  Indian- 
apolis &*  St.  L.  R.  Co.  v.  Morris  67  ///. 
295. 

113. from  silence.  —  If    local 

agents  of  a  company  have  represented 
it  as  being  a  common  carrier  beyond 
its  own  line  for  a  sufficient  length  of 
time  to  raise  the  presumption  that  the 
corporation  has  knowledge  of  such  repre- 
sentations, and  has  assented  to  them,  then 
the  company  will  be  estopped  from  denying 
the  truth  of  such  representations.  Perkins 
v.  Portland.  S.  6-  P.  R.  Co.,  Ar7  ^^e-  573-— 
Not  followed  in  Nashua  Lock  Co.  v. 
Worcester  &  N.  R.  Co.,  48  N.  H.  339. 

If  an  agent  was  entering  into  contracts 
for  work  upon  the  road,  employing  men 
and  purchasing  supplies  in  the  name  of  the 
defenilant  and  upon  its  credit,  and  its  offi- 
cer; knew  of  this  fact,  or  had  been  advised 
of  instances  of  like  conduct,  and  remained 
silent,  the  defendant  cannot  now  be  heard 
to  say  that  the  agent  was  acting  without 
authority,  even  though  the  same  had  been 
originally  limited    by    secret    instructions. 


Hirschmann  v.  Iron  Range  (S-  //.  D.  R.  Co., 
97  Mic/i.  384. 

A  master-mechanic  for  a  particular  divi- 
sion of  the  company's  road  employed  a 
physician  to  attend  an  employe  who  was 
injured  while  in  the  performance  of  his 
duties,  and  while  under  the  immediate 
order  of  said  master-mechanic,  and  stated 
that  he  would  see  that  the  company  paid 
said  physician  for  his  services.  The  physi- 
cian performed  his  services,  looking  to  the 
company  for  his  pay  and  giving  to  it  the 
credit  (although  at  the  same  time  he 
charged  upon  his  books  said  services  to  the 
employe,  and  made  no  charge  upon  his 
books  against  the  company).  While  he 
was  so  performing  his  services  he  made  out 
a  bill  for  the  same  against  the  railroad  com- 
pany and  inclosed  it  in  a  letter  which  stated 
his  employment  by  the  master-mechanic, 
and  asked  that  the  company  pay  the  bill, 
and  sent  the  letter  and  bill  to  the  assistant- 
superintendent  >f  the  company  for  said 
division,  but  1  her  said  division-superin- 
tendent nor  the  jompany  ever  paid  any  at- 
tention to  the  bill  or  letter.  Held,  sufficient 
to  uphold  a  finding  by  the  jury  that  said 
division-superintendent  ratified  the  employ- 
ment of  the  physician  by  the  master- 
mechanic.  Pacific  R.  Co.  V.  Thomas,  19 
Kan.  256,  17  Am.  Ry.  Rep.  483. 

A  director  of  a  railroad  company  em- 
ployed an  attorney,  and  authorized  him  to 
employ  local  counsel  to  attend  to  a  su't  in 
which  the  company  was  interested.  Held. 
that  the  report  of  the  original  attorney,  of 
his  employment  of  the  local  counsel,  co  the 
director,  was  legal  notice  to  the  corporatif)n, 
and  the  continued  silence  of  the  director 
amounted,  in  law,  to  the  ratification  by  him 
and  through  him  by  the  corporation,  of  the 
action  of  the  original  attorney  in  the  prem- 
ises. Pittsburgh,  C.  &>  St  L.  R.  Co.  v. 
Wooley,  12  Bush  {Ky.)  451. 

A  director  of  a  railroad,  financially  em- 
barrassed, to  relieve  the  company,  subscribed 
for  additional  shares  in  the  name  of  a  non- 
resident stockholder,  and  immediately  noti- 
fied him,  who  made  no  replj'.  The  dividends 
on  his  original  stock,  for  the  next  seven 
years,  were  applied  to  paying  up  this  new 
stock,  when  the  stockholder  demanded  his 
dividends,  claiming  that  the  director  was  not 
authorized  to  make  the  subscription.  Held, 
that  the  director  could  not  be  regarded  as 
an  intermeddler  in  making  the  subscription, 
and  that  the  silence  of  tlie  stockholder  for 


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1 


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84 


AGENCY,  lia,  114. 


so  long  a  time  was  evidence  of  a  ratification. 
Philadelphia,  IV.  6-  B.  A'.  Co.  v.  Cowell,  28 
Pa.  Si.  329. 

113.  from  reteutiou  of  em- 
ployee iu  service  of  company.— Where 
a  company  is  sued  for  the  misconduct  of  an 
employe,  and  a  verified  copy  of  the  com- 
plaint is  served  upon  it  which  charges  such 
misconduct,  this  is  notice  to  the  company  ; 
and  proof  that  the  employe  was  retained  in 
service,  and  promoted  thereafter,  may  be 
given  as  tending  to  prove  ratification  of  his 
act.  Bliss  V.  Chicago  &>  N.  IV.  R.  Co.,  42 
Wis.  654.  1 5  Am.  Ry.  Rep.  45. 

Immediate  notice  to  a  conductor  that  a 
brakeman  has  been  guilty  of  misconduct 
toward  a  passenger  is  the  same  as  notice  to 
the  company,  and  though  the  charge  against 
the  brakeman  may  be  disbelieved,  yet  the 
company  retains  him  in  its  service  at  its  peril. 
Bass  V.  Chicago  6-  N.  W.  R.  Co.,  42  JVis. 
654,  1 5  Aw.  Ry.  Rep.  45. 

Where  the  issue  is  made  as  to  whether  a 
company  has  ratified  the  tortious  acts  of  a 
brakeman  toward  a  passenger,  for  which  he 
would  be  liable  in  exemplary  damages,  proof 
that  the  brakeman  had  been  retained  and 
promoted  is  not  conclusive  as  to  the  ques- 
tion of  ratification,  but  the  question  may  be 
left  to  the  jury.  Bass  v.  Chicago  S^  N,  IV, 
R.  Co.,  42  Wis.  654.  15  Am.  Ry.  Rep.  45. 

The  retention  of  an  employe  who  has  been 
guilty  of  negligence  is  not  a  sufficient  rati- 
fication of  his  act  to  subject  his  employer  to 
liability  for  exemplary  damages.  Interna- 
tional &*  G.  A''.  R.  Co.  V.  McDonald,  42  Am. 
&*  Eng.  R.  Cas.  211,  75  Tex.  41,  12  S.  W. 
Rep.  860.  Dillingham  v.  Ant/tony,  37  Am.  &* 
Eng.  R.  Cas.  I,  73  Tex.  47,  3  L.  R.  A.  634, 
II  5.   W.Rep.  139. 

The  mere  retention  of  a  servant  after  his 
wilful  tort,  without  proof  of  knowledge  of 
the  tortious  quality  of  the  act  on  the  part  of 
the  master,  is  insufficient  to  authorize  an 
"nference  of  a  ratification  of  the  tort.  Doni- 
van  V.  Manhattan  R,  Co.,  i  Misc.  (N.  V.) 
368,  49  N.  Y.  S.  R.  722,  21  N.  y.  Supp.  457. 

The  retaining  of  a  servant  through  whose 
alleged  negligence  injuries  were  caused  in 
its  service  by  a  railway  company, after  it  has 
been  sued,  when  the  alleged  acts  of  negli- 
gence are  denied  by  the  servant,  does  not  of 
itself  constitute  a  ratification  of  the  alleged 
act.  McGown  v.  International  &^  G.  N.  R, 
Co.,  8s  Tex.  289,  20  S.  W.  Rep,  80. 

Ratification  of  an  unauthorized  and  un- 
lawful act  can  only  be   inferred   from  acts 


which  evince  clearly  and  unequivocally  the 
intention  to  ratify,  and  not  from  acts  which 
may  be  readily  and  satisfactorily  explained 
witnout  involving  such  intention.  In  this 
case,  there  being  no  witness,  and  plaintiff 
and  tLr  porter  giving  very  different  accounts 
of  the  affair,  ratification  of  the  misconduct 
imputed  by  plaintiff  cannot  be  inferred  from 
the  retention  of  the  porter,  when  the  defend- 
ant so  acted  because  it  honestly  believed  the 
latter,  and  thought  it  just  to  maintain  the 
status  quo,  at  least  until  judicial  determina- 
tion of  the  conflict.  Nor  is  the  case  affected 
by  the  fact  that  the  porter  was  criminally 
convicted  of  assault  and  battery,  when,  in 
such  a  trial,  thf  porter  was  not  heard  as  a 
witness  in  hi  ^wn  defence,  and  when  he 
might  have  been  so  convicted  on  evidence 
falling  far  short  of  the  outrage  charged  by 
the  plaintiff.  Williams  v.  Pullman  Palace 
Car  Co. ,  33  Am.  &*  Eng,  R.  Cas.  407,  40  La. 
Ann.  87,  3  So.  Rep.  631. 

114.  Principal  must  knovtr  tke 
facts.— A  railroad  company  will  not  be  held 
to  have  ratified  an  unauthorized  contract 
made  by  the  foreman  of  a  gang  of  construc- 
tion men  to  pay  for  goods  furnished  the 
men,  upon  proof  that  it  paid  for  a  certain 
part  of  the  goods  in  ignorance  of  the  true 
terms  of  the  contract,  and  that  it  was  in  the 
habit  of  collecting  accounts  against  its  em- 
ployes, in  favor  of  third  parties, by  retaining 
their  wages.  Steunkle  v.  Chicago,  S.  F.  &^ 
C.  R.  Co.  42  Mo.  App.  73. 

The  ratification  of  an  unauthorized  con- 
tract by  an  agent  of  a  railroad  company,  to 
pay  $50  per  day  damages  for  hindering  the 
use  of  a  certain  logging  road  by  the  con- 
struction of  the  railroad's  right  of  way  across 
same,  cannot  be  shown  by  proof  that  the 
contractors  for  the  railroad  raised  the  tracks 
of  the  logging  road  and  put  in  a  crossing,  in 
the  absence  of  any  showing  that  the  work 
was  done  in  pursuance  of  such  agreement, 
and  with  knowledge  thereof  by  the  party 
and  its  agents  sought  to  be  charged.  Haynes 
V.  Tacoma,  O.  Sr'  G.  H.  R.  Co.,  7  Wash.  211, 
34  Pac.  Rep.  922. 

The  agent  of  a  railroad  company  agreed 
with  a  landowner  that  a  railroad  should  be 
located  across  his  lands  on  a  particular  lo- 
cation, where  the  damages  would  be  less 
than  where  the  surveyors  had  located  it, 
which  agreement  was  ratified  by  the  man- 
aging officers  of  the  company  ;  but  by  some 
oversight  the  road  was  not  located  as  agreed 
upon,  and  the  landowner  filed  a  bill   In 


AGENCY,  115,110. 


86 


equity  to  have  the  location  reformed  to  cor- 
respond to  the  agreement.  It  appeared  that 
such  managing  officers  and  the  agent  had 
no  power  to  enter  into  such  an  agreement. 
}leld,  that  the  bill  could  not  be  sustained 
unless  it  appeared  that  the  directors  had 
had  notice  of  the  agreenient.  Central  Mills 
V.  New  York  <S>»  A'.  E.  R.   Co.,  127  Mass. 

537- 

In  an  action  against  a  railway  company 
for  a  breach  of  contract  in  failing  to  receive 
stone  it  appeared  that  the  company's  fore- 
man was  authorized  to  contract  for  400 
yards  of  stone  to  be  used  at  a  certain  place, 
which  was  delivered  and  paid  for.  Plain- 
tiff claimed  that  the  foreman  contracted  for 
1200  yards  additional,  to  be  used  at  another 
place,  which  he  was  ready  to  deliver,  and 
which  the  company  refused  to  receive, 
claiming  that  such  amount  had  never  been 
contracted  for.  Plaintiff's  evidence  tended 
to  show  that  the  foreman  did  contract  for 
1200  yards  in  the  name  of  the  company. 
The  evidence  on  behalf  of  the  company 
tended  to  show  liiat  the  foreman  was  only 
authorized  to  contract  for  the  400  yards; 
the  chief  engineer  and  other  officers  had  no 
knowledge  that  he  had  undertaken  to  con- 
tract for  any  other  stone.  Held,  that  the 
question  of  the  foreman's  authority  to  con- 
tract for  the  1200  yards  should  have  been 
left  to  the  jury.  Gano  v.  Chicago  &^  N.  W. 
Ji.  Co.,  49  Wis.  57,  5  N.  W.  Rep.  45. 

115.  Eifect  of  ratification,  gener- 
ally.—Where  a  railroad  company  has  rec- 
ognized a  person  as  its  agent  by  adopting 
and  ratifying  his  acts  in  dealing  with  third 
persons,  then  the  company  is  estopped  from 
denying  the  agency  of  the  party,  so  far  as  it 
would  tend  to  injure  the  paiiies  that  he  had 
dealt  with.  Summerville  v.  Hannibal  >>»  St. 
J.  R.  Co.,  62  Mo.  391. 

If  a  party  who  has  contracted  with  a  per- 
son representing  a  proposed  corporation, 
ratifies  a  portion  of  the  contract,  it  binds 
him  to  a  performance  of  all  other  material 
parts  of  the  contract.  Titus  v.  Catawissa 
R.  Co.,  5  Phila.  (Pa.)  172 

One  will  be  bound  by  the  contract  made 
in  his  name  by  another,  as  his  agent,  when 
such  other  has  been  accustomed  to  make 
similar  contracts  for  him,  as  his  agent,  with 
his  knowledge  and  approbation,  and  which 
have  been  recognized  and  ratified  by  him. 
Texas  Pac.  R.  Co.  v.  Nicholson,  21  Am.  6- 
Eng.  R.  Cas.  133,  61  Tex.  491. 

Where  the  superintendent  of  a  railroad 


company  has  formerly  directed  an  under- 
taker to  look  after  employes  who  had  been 
killed,  and  the  company  had  paid  for  such 
services,  the  authority  of  the  superintendent 
to  make  further  orders  cannot  be  disput.d 
by  the  company.  Missouri  Pac.  R.  Co.  v. 
Turner,  2  Tex.  App.  {Civ.  Cas.)  720. 

While  the  Alabama  Code  provides  that 
an  answer  for  a  corporation  as  garnishee 
cannot  be  made  by  any  person  unless  he 
shall  make  affidavit  that  he  is  the  duly  au- 
thorized agent  of  the  corporation,  yet  the 
defect  of  s\icli  answer  without  the  pre- 
scribed affidavit  is  waived  by  a  subsequent 
appearance  of  the  corporation,  and  recog- 
nizing the  authority  of  the  agent  to  answer, 
and  any  recitals  in  the  record  to  the  effect 
that  the  parties  appeared  by  attorney  and 
consented  to  continuances,  is  sufficient  to 
show  appearance  by  the  corporation.  Mem- 
phis  &'  C.  R.  Co.   V.  Whorley,  74  Ala.  264. 

Ratification  by  a  railroad  company  of  the 
act  of  its  agent  in  selling  and  conveying 
lands,  where  such  ratification  is  only  claimed 
to  result  from  the  company  having  knowl- 
edge of  the  acts  of  the  agent,  will  only 
operate  as  an  equitable  estoppel,  and  is  not 
available  in  a  court  of  law  where  the  legal 
title  to  the  land  is  involved.  Standifer  v. 
Swann,  78  Ala.  88. 

A  corporation  is  liable  as  for  conversion, 
where  its  agent  receives  property  from  a 
debtor  to  the  company  and  sells  it  toward 
payment  of  the  debt,  if  the  company  re- 
ceives and  retains  the  proceeds  of  the  sale, 
though  it  appear  that  the  agent  acted  in  his 
own  name  and  without  authority.  Dunn  v. 
Hartford  &*  W.  H.  R.  Co.,  43  Conn.  434. 

Where  the  keeper  of  a  boarding-house  of 
a  railroad  company  has  been  in  the  habit  of 
purchasing  provisions  from  the  plaintiff,  for 
the  use  of  the  boarding-house,  and  the  bills 
for  such  provisions  had  been,  from  time  to 
time,  paid  by  the  company,  the  plaintiff' 
might  properly  regard  him  as  an  agent  pro 
iantootthe  company,  and  would  be  justi- 
fied, in  the  absence  of  any  notice  to  the  con- 
trary, in  dealing  with  him  as  such.  Phila- 
delphia, W.  &■*  B.  R.  Co.  V.  Weaver,  34  Md. 

431- 

116.  Retroactive  effect.— A  ratifica- 
tion of  an  act,  done  b'^  one  assuming  to  be 
an  agent,  relates  bad,  and  is  equivalent  to 
a  prior  authority.  When,  therefore,  the 
adoption  of  any  particular  form  or  mode  is 
necessary  to  confer  th«"  authority  in  the  first 
instance,  there  can  be  no  valid  ratification, 


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Adl'NCY,    117-1  lO-AC.RliKMliNT. 


except  ill  tlie  suniu  iiiiiuitci.  I>c>piitch Line 
of  Packets  v.  Bellamy  M/^.  Co.,  12  N.  H. 
205. 

Wliere  a  corporation  has  recognized  and 
ratified  the  acts  of  its  agents,  it  cannot 
afterward  impeach  their  authority  by  show- 
ing that  they  were  not  reguhirly  appointed 
under  a  vote  of  the  directors.  Flynn  v. 
Des  Moines  &•  St.  L.  K.  Co.,  63  Iowa  490, 
19  A'.  W.  Hep.  312. 

Where  a  person  employs  an  attorney  to 
represent  a  railroad  company,  the  power  of 
the  person  so  employing  the  attorney  will 
be  implied  from  the  subsequent  act  of  the 
company  in  adopting  or  recognizing  the  em- 
ployment. Southgate  v.  Atlantic  <S>*  P.  R. 
Co.,  61  Mo.  89. 

The  agent  of  corporation  contracted  with 
the  Secretary  of  the  Treasury  to  manufact- 
ure and  furnish  the  department  a  large 
number  of  seal-locks  for  cars  carrying 
merchandise  througli  the  United  States  and 
Canada.  The  department  refused  to  accept 
the  goods,  and,  when  sued,  set  up  the  de- 
fence that  the  agent,  not  being  formally  au- 
thorized to  contract,  his  act  could  not  be 
considered  the  contract  of  the  corporation. 
Held,  that  the  previous  authority  of  the 
agent  was  a  matter  of  no  consequence  after 
the  corporation  accepted  the  contract  and 
manufactured  the  goods ;  that  it  was  not  a 
matter  that  the  government  could  take  ad- 
vantage of.  International  S.  &*  R.  Supply 
Co.  v.  United  States,  11  Ct.  of  CI.  209. 

IV.  PUBLIC  AGENTS. 

117.  Power  to  contract.— Where,  by 

certain  work  done  by  the  government  rail- 
way authorities  in  the  city  of  St.  John  the 
pipes  for  the  water  supply  of  the  city  were 
interfered  with,  the  claimants  are  entitled  to 
recover  for  the  cost  reasonably  and  properly 
incurred  by  their  engineer  in  good  faith,  to 
restore  their  property  to  its  former  safe  and 
serviceable  condition,  under  an  arrange- 
ment made  with  the  chief  engineer  of  the 
government  railway,  and  upon  his  under- 
taking to  indemnify  the  claimants  for  the 
cost  of  said  work.  Reg.  v.  St.  John 
Water  Com'rs,  19  Can.  Sup.  Ct.  125;  affirm- 
ing 2  Can,  Exch.  78. 

Where  the  suppliant  contracted  with  the 
Crown  for  the  construction  of  certain  public 
works,  to  be  done  in  a  certain  manner  to 
the  satisfaction  of  the  proper  officer  of  the 
department  of  railways  and  canals,  the  con- 


tract stipulating  that  the  express  covenants 
contained  therein  should  be  the  only  ones 
binding  upon  the  Crown,  held,  that  said 
officer  had  no  power  to  vary  or  add  to  the 
terms  of  the  contract  so  as  to  bind  the 
Crown  by  any  new  promises.  Mayes  v. 
Reg.,  2  Can.  Exch.  403. 

A  person  who  had  a  contract  to  grade  the 
station  grounds  on  the  line  of  a  govern- 
ment road  that  was  being  constructed,  was 
told  by  one  of  the  commissioners  having 
charge  of  the  construction  to  fill  a  cellar 
which  was  on  the  railway  grounds,  but 
which  was  not  included  in  the  contract 
for  grading  the  grounds.  It  appeared  that 
it  was  necessary  to  have  the  filling  done  at 
once.  The  commissioner  said  that  he  would 
pay  for  the  extra  work,  and  being  applied 
to  afterward  said  that  he  would  see  the  en- 
gineer and  have  the  amount  put  in  the  esti- 
mates, to  be  paid  by  the  government.  On 
the  failure  of  the  government  to  pay,  suit 
was  brought  against  tiie  commissioner  for 
the  amount.  A  nonsuit  was  allowed,  and 
a  rule  to  set  aside  the  nonsuit  was  dis- 
missed by  a  divided  court.  Sumner  v. 
Chandler,  18  New  Brun.  175. 

118.  to    waive    forfeitures.— 

While  the  law  is  that  the  Crown  is  not  bound 
by  estoppels,  and  no  laches  can  be  imputed 
to  it,  and  there  is  no  reason  why  it  should 
suffer  by  the  negligence  of  its  officers,  yet 
forfeitures  may  be  waived  by  the  acts  of 
ministers  and  officers  of  the  Crown.  Peter- 
son v.  Reg.,  2  Can.  Exch.  67. 

119.  liiability  for  uegrligeiice  of.-— 
The  Crown  is  liable  for  an  injury  to  the 
person  received  on  a  public  work  resulting 
from  negligence  of  which  its  officer  or  ser- 
vant, while  acting  within  the  scope  of  his 
duty  or  employment,  is  guilty.  Martin  v. 
Reg.,  2  Can.  Exch.  328. 

AGREEMENT. 

Between  connecting  lines,  see  Connecting 
Lines,  4,  5. 

—  connecting  passenger  carriers,  see  Car- 

riage OF  Passengers,  IV,  2. 

Effort  to  make  before  condemnation  proceed- 
ings, see  Emi.nent  Domain,  X,  4. 

To  furnish  cars,  see  Station  Agents,  5. 

—  pay  interest  on   stock   subscription,  see 

Subscriptions  to  Stock,  1, 5. 
What  necessary  to  give  right  to  conventional 

subrogation,  see  Subrogation,  1. 
See  also  Contracts,  and  the  places  there  re- 
ferred to. 


ALEXANDRIA  &  W.  R.  CO.,    l,ti— ANDROSCOGGIN  R.  CO.,  1,  2.  87 


ALABAMA. 
Aid  to  railroads   by  the  state,  see   State 
Aid,  1. 


ALEXANDRIA  &  WASHINGTON 
B.  CO. 

1.  Comprises  two  distinct  corpora* 
tioiis. — The  Alexandria  &  Washington  R. 
Co.,  incorporated  by  the  act  of  Feb.  27, 
1854,  of  the  Legislature  of  Virginia,  though 
the  same  in  name  with  the  company  incor- 
porated by  the  act  of  Congress  of  March  3, 
1863,  is  another  and  distinct  company. 
IVashington,  A.  &•  G.  R.  Co,  v.  Martin,  7 
D.  C.  120. 

The  Virginia  Company  can  exercise  no 
control  or  ownership  over  that  portion  of 
♦.he  road  which  extends  north  of  the  Vir- 
ginia line.  Washington,  A.  &■*  G.  /i.  Co.  v. 
Martin,  7  Z>.  C.  120. 

The  railroad  which  extends  from  the 
depot  of  the  Baltimore  &  Ohio  Railroad  in 
Washington  to  Alexandria,  Va.,  is  made  up 
of  two  roads,  each  owned  by  a  diflerent 
company,  though  both  companies  may  have 
the  same  name  and  style  in  both  jurisdic- 
tions, and  consist  of  the  same  natural  per- 
sons. Washington,  A.  &'  G.  R.  Co.  v.  Martin, 
7  D.  C.  1 20. 

2.  Privileges  conferred  by  act  of 
Congress.— The  act  of  Congress  of  1863 
may  have  intended  to  confer  the  privileges 
it  contains  upon  the  Virginia  corporation 
known  as  the  Alexandria  &  Washington  R. 
Co.,  yet  that  company  never  accepted  the 
act,  nor  did  it  construct  either  the  bridge 
or  the  road  extending  from  Washington  to 
tlie  boundary  line  of  Virginia.  Washington, 
A.  &'  G.  R.  Co.  V.  Martin,  7  D.  C.  120. 

Whatever  doubt  there  may  have  been  as 
to  what  company  the  act  of  1863  was  in- 
tended to  benefit,  all  doubt  was  removed  by 
the  act  of  Congress  of  July  26,  1866,  where 
It  was  expressly  affirmed  that  the  Washing- 
ton, Alexandria  and  Georgetown  R.  Co.  was 
the  company  intended  to  be  referred  to. 
Washington,  A.  <S>»  G.  R.  Co,  v.  Martin,  7 
D.  C.  120. 


ALTEPATION. 
Of  bonds,  see  Ronos,  29. 
—  by-laws,  see  By-laws,  1, 


AMENDMENT. 

Curing:   misnomer  by,  see    Name   of  Rail- 
road, 4. 


In  iction  for  injury  to  animals,  see  Animals, 
V.  5. 

Of  bill  of  particulars,  see  Bills  of  Particu- 
lars, 5. 

—  by-laws,  see  By-laws,  1. 

—  charters,  see  Charter,  II,  3. 

—  creditors'  bill,  see  Creditor's  Bill,  8. 

—  injunction  bill,  see  Injunction,  16« 

—  judgment,  see  Judgment,  V. 

—  pleadings,  see  Pleading,  V. 


I 


AMOUNT. 

Jurisdiction   at.  dependent  on,  see  Appeal, 

etc.,  2;  Jurisdiction,  8. 
Of  compensation  for  carrying  the  mails,  see 

Carriage  of  Mails,  15. 

—  damage,  competency  of  witnesses  to  tes> 

tify  to,  see  Witnesses,  V,  i. 

—  goods  carried,  discrimination  as  to,  see 

Discrimination,  III. 
Right   to   costs   as   dependent    upon,    see 

Costs,  1. 
Statutory  limit  of,  in  actions  for  causing 

death,  see    Death   by  Wrongful   Act, 

XIII,  I. 
What  necessary  to  make  tender,  see  Tender, 

4. 


ANDROSCOGGIN  R.  CO. 

1.  Construction  of  charter  — Ob- 
struction of  highway. — A  provision  in 
the  charter  to  the  effect  that  the  railroad 
shall  be  so  constructed  as  not  to  obstruct 
the  safe  and  convenient  use  of  a  highway, 
imposes  a  continuing  obligation  upon  the 
company,  requiring  it  not  only  to  construct 
but  to  keep  its  road  in  a  condition  so  as  not 
to  obstruct  the  use  of  the  highway.  Well- 
come V.  Leeds,  51  Me.  313. 

2.  Power  to  mortgage— Extension 
ot  road. — Under  the  Maine  Statutes  of 
i860,  chs.  450  and  475,  which  authorize  the 
railroad  to  extend  from  Leads  to  Topshan, 
the  original  road  and  the  extension  are 
treated  as  distinct  roads,  and  while  the 
statutes  authorize  a  mortgage  of  both,  they 
are  to  be  mortgaged  as  distinct  roads,  with 
distinct  franchises,  and  do  not  authorize  a 
mortgage  of  both  the  original  line  and  the  ex- 
tension as  a  unit.  Bath  V.Miller,  51  Me.y^x. 


ANIMALS. 

Carriage  of,  see  Carriage  of  Live  Stock. 

on  ferries,  see  Ff.rries,  lO. 

Cattle-pens  as  nuisances,  see  Nuisances,  7. 
Cruelty  to,  see  Criminal  Law,  III. 
Destruction  of,  by  fire,  see  Fires,  II,  la 


•!  ■ 


. 


-¥■■■ 


68 


ANIMALS,  INJUKILS   TO,    I. 


Injuriet  to  cars  by,  see  Injuries  to  Cars  nv 

Cattle. 
Obligationt  of  atock-yard   to   receive,  see 

Stock-yards,  2. 


ANIMALS,  INJURIES  TO. 
Power  of  Agents  to  compromise  claims  for, 
see  Agency,  00. 
See  also  Flooding  Lands,  5  ;  Stock-yards, 
4 ;  Sunday,  8. 

I.  8TATUTBB 88 

1.  Constitutionality 88 

2.  Interpretation  and  Effect,  . .     93 

3.  Repeal 96 

II.  LIABILITY  IBSESPEOTIVE  OF  COM- 

PANY'S DUTY  TO  FENCE 97 

1.  In  General 97 

2.  Animals  Trespassing  or  Straying 

upon  Track 103 

a.  Irrespective  of  Owner's  Duty 

to  Inclose  Stocic 103 

b.  As  Dependent  upon  Owner's 

Duty  to  Inclose  Stock.  114 

c.  Lookout;    Signals;    Speed; 

Stopping  Train,  etc. .    118 

3.  Necessity  for  Actually  Touching 

Animal. 131 

4.  Injuring  or  Killing  Dogs. ..   138 

III.  LIABILITY   AS   DEPENDENT    UPON 

COMPANY'S  DUTY  TO  FENCE...   138 

1.  Duty  to  Fence  Track 138 

a.  In  General 138 

b.  Against       Whom        Must 

Fence 142 

c.  Where     Fences     Must     be 

Built 143 

d.  Sufficiency  of  Fences. . .   149 

2.  Effect   of  Performance   of  this 

Duty 151 

3.  Injuries  Caused  by  a  Breach  of 

this  Duty 1 54 

a.  Duty  Imposed  by  Statute  154 

b.  Duty     Imposed     by    Con- 

tract    166 

4.  Failure   to   Repair   or  Rebuild 

Fences 168 

5.  Animals  Trespassing,  Running  at 

Large,  or  Coming  from  Lands 
not  Belonging  to  Owner.,..   175 

6.  Cattle-guards. 183 

7.  Duty  with  Respect  to  Farm  Cross- 

ings, Gates,  etc 186 

8.  Injuries  at  Public  Crossings.  193 

9.  Injuries  at    Station  Grounds — 

Yards 208 


10.  Injuries      in     Cities,     Villages, 
etc 204 

IV.  GONTBIBUTOBY  NEOLIOENOE 208 

1.  In  General. 208 

a.  What  is,  and  its  effect..  208 

b.  What  is  not 215 

c.  Comparative  Negligence.  217 

2.  Animals  Rttnning  at  Large.  2 1 8 

a.  Owner  May  Recover.  ..   218 

b.  Owner  May  Not  Recover  222 

3.  Proximate  Cause 227 

4.  Liability  Notwithstanding  Own- 

er's Negligence 229 

5.  Burden  of  Proof. 233 

6.  Question  of  Law  or  Fact. .. .  234 

V.  PBOCEDUBE 236 

1 .  Jurisdiction — Process 236 

2.  Right  of  Action — Form  of  Action 

—Demand. 238 

3.  Parties 244 

4.  Pleadings 246 

a.  Declaration,         Complaint, 

etc 246 

b.  Other    Matters    of    Plead- 

ing   269 

5.  Defenses 276 

6.  Evidence 278 

a.  In  General 278 

b.  Sufficiency 287 

c.  Prima  Facie  Evidence — Pre- 

sumptions   301 

d.  Burden  of  Proof 311 

7.  Matters  Relating  to  Trial...  319 

a.  In  General 319 

b.  Instructions 331 

8.  Amount  of  Recovery 345 

9.  Double  Damages 351 

10.  Procedure  injustices'  Courts.  354 

VI.  EFFECT  OF  OFEBATION  OF  BOAD  BY 

LESSEES,  BECEIVEBS,  ETC 368 

I.  STAIUTES.* 
I.  Constitutionality. 
1.  Generally. —The  provisions  of  the 
Indiana  act  of  March  4,  1863  (Acts  1863,  p. 
25),  for  the  enforcements  of  judgments 
against  railroad  companies  for  stock  killed, 
are  not  repugnant  to  sections  22  and  23  ot 
article  4  of  the  constitution  of  Indiana. 
Toledo,  L,  <S-  B.  R.  Co.  v.  Nordyke,  27  Ind. 

95- 

Chapter  94  of  the  Kansas  laws  of  1874, 
relating  to  the  killing  or  wounding  of  stock 

*  Statutes  making  railroad  companies  prima 
facie  flable  for  killing  stock,  see  56  Am.  ft  Eno. 
R.  Cas.  143,  abstr. 


ANIMALS,  INJURIES   TO,  2-5. 


89 


by  railroails,  is  valid.  A'tr/iMix  I'lW.  A'.  Cd.v, 
Mtnver,  i6  Kiin.  573,  y  Am,  Ry.  Rep.  400. 

The  legislature  of  Indiana  did  not  trans- 
cend its  powers  or  violate  private  rlRlits  in 
enacting  that  railroad  companies  shall  fence 
their  roads,  or  pay  for  the  cattle  they  kill  or 
injure.  Maiiison  &^  I.  R.  Co.  \.  VVhiteneck, 
•6  Iihl.  2 1 7.+ 

Texas  Rev.  St.  An.  4245,  providing  that  a 
railroad  company  failing  to  fence  its  track 
shall  pay  for  stock  killed,  is  constitutional, 
as  a  valid  exercise  of  the  police  power  of  the 
state.  Texas  C.  R.  Co.  v.  Childress,  64  Tex. 
346.— Approving  Zeiglerz^.  South  &  N.  Ala. 
R.  Co.,  58  Ala.  594— Followed  in  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Hudson,  77  Tex.  494, 
14  S.  W.  Rep.  158. 

2.  Special  or  local  laws.  —  Section 
2835  of  the  Rev.  Stat,  of  Missouri  is  not  in 
violation  of  arfcle  4,  section  53,  subdivi- 
sion 17,  of  the  constitution  of  Missouri, 
prohibiting  the  general  assembly  from  pass- 
ing "  any  local  or  special  law  regulating  the 
jurisdiction  of  justices  of  the  peace,"  nor  is 
it  a  special  act  because  directed  against  rail- 
roads alone.  Phillips  V.  Missouri  Pac.  R.  Co., 
24  Am.  Q^  Eng.  R.  Cas.  368,  86  Afo.  540.— 
Quoting  Humes  v.  Missouri  Pac.  R.  Co., 
82  Mo.  221. 

The  Tennessee  act  of  1891,  ch.  loi,  mak- 
ing unfenced  railroads  liable  for  all  dam- 
ages to  owners  of  live  stock  injured  by 
trains  in  motion  is  not  unconstitutional,  as 
being  class  legislation,  on  account  of  apply- 
ing only  to  unfenced  railroads,  since  the 
end  sought  by  this  act  is  the  prevention  of 
accidents  on  railroads  by  compelling  the  in- 
closure  of  the  track  in  such  manner  as  to 
prevent  live  stock  from  going  on  the  roads, 
the  duty  being  imposed  not  so  much  in  the 
interest  of  the  owners  of  the  animals  as  in 
the  interest  of  the  general  public,  under  the 
police  power  of  the  state.  Illinois  C.  R.  Co. 
V.  Crider,  ^6  Am.  &>  Eng.  R.  Cas.  157,91 
Tenn.  489,  19  S.  W.  Rep.  618. 

3.  Recitals  in  caption  or  title  of  the 
act.— The  Tennessee  act  of  1891,  ch.  loi, 
making  railroads  liable  for  all  damages  to 
live  stock  caused  by  moving  trains  is  not  in- 
valid because  it  amends  in  part  another 
statute  without  reciting  or  otherwise  men- 
tioning the  amended  law,  since  the  provi- 
sion of  the  constitution  requiring  such  re- 
cital does  not  apply  to  repeals  or  amend- 

*  Constitutionality  of  fence  law,  see  note,  22 
Am.  &  Eng.  R.  Cas.  564. 


inents  resulting  from  necessary  i.-nplication. 
Illinois  C.  R.  Co.  v.  Crider,  56  Am.  &*  Eng. 
R.  Cas.  157,  91   Tenn.  489,  19.V. /F.  Rep.  618. 

4.  liicoiisisteucy  between  act  and 
title. — Where  the  subject  expressed  in  the 
title  of  a  statute  is  the  provision  of  "a 
means  for  the  collection  of  claims  for  cattle 
and  other  stock  destroyed  by  railroad,"  and 
the  body  of  the  statute  declares  or  creates 
an  absolute  liability  which  did  not  exist 
prior  to  its  passage,  such  new  liability  is  not 
within  the  subject  expressed  in  the  title, 
and  to  this  extent  the  statute  is  inoperative 
under  section  14  of  article  4  of  the  Consti- 
tution of  Florida.  Savannah,  F,  &*  W, 
R.  Co.  v.  Geiger,  29  Am.  6-  Eng.  R.  Cas. 
274,  21  Fla.  669,  58  Am.  Rep.  697. 

The  Indiana  act  of  March  i,  1853,  en- 
titled "  an  act  to  provide  compensation  to 
the  owners  of  animals  killed  or  injured  by 
the  cars  of  any  railroad  company,"  is  not 
void  for  inconsistency  with  its  title,  on  the 
ground  that  it  excepts  railroads  that  are 
fenced,  nor  because  the  act  is  special;  but 
the  third  section  is  unconstitutional,  so  far 
as  it  inflicts  a  penalty  for  appealing  a  suit 
and  failing  to  reduce  the  judgment  20  per 
cent,  Madison  &*  I.  R.  Co.  v.  IVhiteneck, 
8  Ind.2  17.— Distinguished  in  Jefferson- 
ville  R.  Co.  V,  Martin,  10  Ind.  416.  Fol- 
lowed IN  Lafayette  &  I.  R.  Co.  v.  Mar- 
tin, 8  Ind.  251  ;  Madison  &  I.  R.  Co.  v. 
Burnett,  8  Ind.  277;  Jeflersonville  R.  Co. 
V.  Hardy,  9  Ind.  495. 

5.  Embracing  more  than  one  sub- 
ject.— The  Kentucky  act  to  amend  the 
charter  of  the  Louisville  and  Frankfort  Rail- 
road Company,  approved  Feb.  23, 1856,  pro- 
vided in  section  6  that  for  all  damages  done 
to  stock  or  other  property  injured  or  killed 
by  its  locomotives  or  trains  of  cars  running 
on  its  road,  when  the  same  is  done  by  its 
carelessness  or  the  carelessness  of  its  agents 
and  employes,  and  in  section  7,  that  "  ac- 
tions for  injuries  to  stock  and  other  prop- 
erty on  said  road  by  the  company  or  its 
agents  must  be  brought  within  six  months 
after  such  injury."  Said  act,  defining  the 
liability  and  limitation,  is  constitutional, 
and  relates  to  but  one  subject,  and  that  is 
clearly  expressed  in  the  title.  O'Bannon  v. 
Louisville,  C.  &*  L.  R.  Co.,  8  Bush  {Ky.)  348. 

When  the  object  of  an  act  is  to  subject 
railroad  companies  operating  unfenced 
tracks  to  absolute  liability  for  al!  damages 
resulting  from  their  unfenced  condition, 
there  can  be  no  constitutional  objection  to 


00 


ANIM.\I<S,  INJIJKIKS  TO,  «. 


tinbodyinn  in  llie  saini;  ;u:t  llic  iiifaiis  liy 
wliicli  iliis  liiibiliiy  iniiy  l)o  asccruiiiR-d  and 
enforced,  and  if  tin;  means  arc  in  tlieni- 
Hclvcs  valid  their  inciu^iun  in  the  act  would 
not  subject  it  to  the  inhibition  o{  the  con- 
stitution concerning  bills  contuiniii^  more 
than  ont!  subject.  IIUnotH  C.  A'.  Co.  v. 
Criiler,  56  Ant.  is^  Ktit;.  A'.  Cus.  157.  yi  J'eHti. 
489,  19.V. //'.  A',/>.  618. 

The  title  of  the  VVashiii>,'ton  act  of  1883, 
being  "  An  act  to  secure  to  the  owners  of 
live  stock  payment  of  the  full  value  of  all 
animals  killed  or  maimed  by  railroad 
trains,"  sections  i  and  8  are  not  invalid,  as 
embracing  more  than  one  object  not  suf- 
liciriitly  expressed  in  the  title.  Dacres  v. 
Oregon  A'.  &^  N.  Co.,  i  IVits/i.  525,  20  Pac. 
Ki'p.  601. 

KS.  Iiii|mm1ii(;  ahsoliito  liability.'*'— 
(1)  Generally. — The  Indiana  statute  mak- 
ing railroad  companies  absolutely  liable  for 
injuries  to  animals,  withoi  t  proof  of  negli- 
gence, where  the  road  is  not  fenced,  is  in 
the  nature  of  a  police  regulation  for  the 
security  of  the  public  and  the  preservation 
of  human  life.  Indianapolis  &^  C.  R.Co.  v. 
rarktr,  29  I  ml.  471. 

(2)  What  have  been  held  constitutional. — 
The  fact  that  the  statute  makes  railroad 
companies  liable  for  losses  not  resulting 
from  their  negligence,  and  thus  imposes 
upon  them  a  liability  that  is  not  imposed 
upon  other  citizens,  does  not  render  it  un- 
constitutioi'.al.  Since  extraordinary  rights 
and  privileges  are  granted  such  corpora- 
tions, they  cannot  complain  of  the  liabilities 
which  attach.  Louisville  &*  N.  R.  Co.  v. 
Belcher,  40  Am.  <S^  Eng.  K.  Cas.  228,  89  A/. 
193,  12  S.  VV.  Rep.  195. 

Act  of  Tennessee,  1891,  ch.  loi,  fixing 
upon  unfenced  railroads  absolute  liability 
for  injuries  done  to  live  stock  by  their  mov- 
ing trains,  is  constitutional  and  valid,  both 
as  a  whole  and  in  its  details,  when  its  scope 
and  purpose  are  ascertained  by  a  correct 
construction.  This  act  should  not  be 
treated  as  a  mere  scheme  for  the  speedy 
collecti<jn  of  damages  for  injuries  to  live 
stock,  although  that  is  incidentally  provided 
for.  Its  chief  purpose  is  to  prevent  acci- 
dents on  railroads,  and,  viewed  from  this 
higher  ground,  it  is  a  proper  and  legitimate 
exercise  of  the  police  power  of  the  state. 

*  Constitutionality  of  statute  imposing  abso- 
lute liability  {or  killing  stock,  see  38  Am.  &  Eno. 
R.  Cas.  279,  ahstr. ;  56  Id.  228,  ahstr.  See  also 
post  20,  31,  120,  238,  230,  281. 


Illinois  C.  R.  Co.  v.  Crider,  56  Am,  &^  Kng. 
R.  Cas,  157,  91  Tenn.  489,  H)  S.  IV,  Rip, 
618. 

It  is  competent  for  the  Legislature  of 
Utah  to  prescribe  certain  things  that  shall  be 
done  by  railroad  companies  to  prevent  in- 
juries to  stock,  a  failure  to  do  which  will 
make  the  company  absolutely  liable.  Stimp' 
son  v.  Union  I'ac.  R.  Co  9  Utah  1 23,  33  J'ae, 
Rep,  369. 

A  statute  imposing  an  absolute  liability 
for  injuries  resulting  from  a  failure  to  fence 
a  railroad,  and  excluding  the  defence  of 
contributory  negligence,  is  within  the  police 
power,  and  is  constitutional.  (Juackenhush 
v.  Wisconsin  &^  M.  R.  Co.,  62  Wis.  411,  22 
N.  W.  AV/.  519. — DisTiNOUisuKii  IN  Holum 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  80  Wis.  299. 
Indianapolis  (^  C.  R,  Co.  v.  Parker,  29  Ind. 

47". 

(3)  What  have  been  held  unconstitutional. — 
The  Alabama  act  of  1877  (§§  1710-1715, 
Code  of  1876),  leaving  to  the  jury  to  deter- 
mine whether  damage  to  stock  caused  by 
trains  is  chargeable  to  negligence  on  the 
part  of  the  railroad  employes,  repeals  §§ 
1704-1709  of  the  same  Code,  making  cor- 
porations absolutely  liable  for  stock  killed, 
which  is  unconstitutional,  as  taking  property 
without  due  process  of  law.  Zeigler  v. 
South  (S-  A^.  Ala.  R,  Co.,  58  Ala.  594.— A p- 
PROVKD  IN  Denver  &  R,  G.  R.  Co.  v.  Out- 
calt,  2  'Colo.  App.  395  ;  Texas  C.  R.  Co.  v, 
Childress,  64  Tex.  346.  Criticiskd  and 
DISTINGUISHED  IN  Gri.ssell  V.  Housatonic 
R.  Co.,  32  Am.  &  Eng.  R.  Cas.  349,  54  Conn. 
447,  9  Atl.  Rep.  137.  Distinguished  in 
Sullivan?'.  Oregon  R.&  N.  Co.,  I9  0reg.  319. 
Followed  in  South  &  N.  Ala.  R.  Co.  v. 
Morris,  65  Ala.  193;  Cateril  v.  Union  Pac, 
R.  Co.,  2  Idaho  540,  21  Pac.  Rep.  416; 
Bielenberg  v.  Montana  Union  R.  Co.,  38 
Am.  &  Eng.  R.  Cas.  275,  8  Mont.  271  ;  Jen- 
sen V.  Union  Pac.  R.  Co.,  6  Utah  253. 

Section  3712,  Mills  Ann.  St.  of  Colorado, 
fixing  upon  railroad  companies  absolute 
liability  for  damages  for  all  stock  killed 
or  injured,  is  unconstitutional.  Denver  &* 
R,  G.  R.  Co.  v.  Outcalt,  2  Colo.  App.  395,  31 
Pac.  Rep.  177.  Denver  &-  A'.  G.  R.  Co.  v. 
Davidson,  2  Colo,  App.  443,  31  Pac.  Rep. 
181. 

The  Montana  Comp.  St.  §  713,  making 
railroad  companies  liable  for  injuring  or 
killing  live  stock,  is  unconstitutional,  so  far 
as  it  attempts  to  make  such  companies  ab- 
solutely liable,  without  regard  to  any  actual 


ANIMALS,  INJUKII'S    TO,  7,  H. 


in 


ncgli(;cnc(',  and  in  llic  iil>sfii(«:  of  iniy  law 
rc(iuiiing  siitli  roads  to  fence  their  tracks. 
liulenht'r^;  v.  Mo/.tiuiii  Union  A'.  Co.,  j8  ///«. 
&^  Iji^.  A'.  Ciis.  275,  8  il/rw/.  271,  2  /..  A'. 
A.  813,  20 /'<«(.  AV/.  J14.  — DisriNtiuisuiNc; 
Thorpe  7'.  Rutland  fi  \\.  R.  Co.,  27  Vt.  140, 
62  Am.  Dec.  625  ;  Riiiiemacher?',  Milwaukee 
&  St.  P.  R.  Co.,  41  luwa  302;  Ohio  &  M.  R. 
Co.  7',  McClelland,  25  111.  123;  Uiamoiid  v. 
Northern  Vac.  R.  Co.,  6  Mont.  580.  Fol- 
lowing Cairo  it  F.  R.  Co.  v.  Parks,  32  Ark. 
131  ;  Zeigler?'.  South  &  N.  Ala.  R.  Co.,  58 
Ala.  595;  Ohio  &  M.  R.  Co.  7-.  Lackey,  78 
111.  55,  20  Am.  Rep.  259.— FoLLowKU  in 
Jensen  T.  Union  Pac.  R.  Co.,  6  Utah  253. 

I.  lah  Coinp.  Laws  of  1888,  §  2349,  mak- 
ing railroad  companies  absolutely  liable  fur 
all  live  stock  killed,  is  in  conflict  with  the 
lUih  amendment  of  the  constitution  of  tlie 
United  Stales,  as  taking  property  without 
due  process  of  law.  Jensen  v.  Union  Pac. 
M,  Co.,  6  Utah  253,  21  Pac,  A\f>.  994.— F<iL- 
LOWING  Zeigler  v.  South  &  N.  Ala.  R.  Co., 
58  Ala.  594;  Bielenberg  z/.  Montana  Union 
R.  Co.,  8  Mont.  271,  20  Pac.  Rep.  314;  Cateril 
V,  Union  Pac.  R.  Co.,  2  Idaho  540,  21  Pac. 
Rep.  416.  Reviewing  East  Kingston  v. 
Towlc,  48  N.  H.  57.— Approved  in  Denver 
&  \K.  G.  R.  Co.  V.  Outcalt,  2  Colo.  App.  395. 
DiSTlNGULSHED  IN  Sullivan  7^  Oregon  R.  & 
N.  Co.,  19  Orcg.  319. 

The  act  of  Washington  Territory,approved 
Nov.  28,  1883  (Laws  of  18*^3,  p.  51),  making 
railroad  companies  liable  lor  stock  killed 
where  theii  tracks  have  not  been  fenced,  re- 
gardless of  any  questions  of  negligence  on 
the  part  ofthecompanies.is  unconstitutional 
because  it  imposes  a  penalty  where  no  duty 
to  fence  is  imposed,  and  would  be  taking 
property  without  due  process  of  law.  Ore- 
gon R.  &*  N.  Co.  v.  Smalley,  42  Am.  &»  Eng, 
R.  Cas.  550,  I  IVas/t.  206,  23  Pac.  Rep.  ioc8. 
—Approving  Bielenberg  w.  Montana  Union 
R.  Co.,  8  Mont.  271.  Following  Dacres 
V.  Oregon  R.  &  N.  Co.,  i  Wash,  195,  525,  20 
Pac.  Rep.  601. 

Sections  i  and  8  of  the  Washington  Ter- 
ritory act  of  1883  (Laws  of  1883,  p.  51)  are 
interdependent  with  sections  2  and  7  of  the 
same  act.  which  have  been  declared  uncon- 
stitutional and  must  fall  with  them.  Ore- 
gon R.  <S«»  A^.  Co.  v.  Stnalley,  42  Am.  &*  Eng. 
R.  Cas.  550,  I  lVas/i.2o6.  23  Pac.  Rep.  1008. 
—Overruling  Dacres  v.  Oregon  R.  &  N. 
Co.,  I  Wash.  525,  20  Pac.  Rep.  601  ;  Oregon 
R.  &  N.  Co.  V.  Dacres.  i  Wash.  195. 

Sections  1  &  8  of  the  Washington  Terri- 


tory act  (Laws  1883,  \\.  51),  making  railroad 
(:oinpani<'s  liable  for  all  slock  killed  upon 
tr.ick  unless  ii  is  fenced,  are  constitutional 
and  not  so  connected  with  the  rest  of  the 
act  as  to  become  invalid  therewith.  Danes 
v.  Origon  R.  u^  A'.  Co.,  i  ll'ns/i.  195,  525 ;  20 
J'ac.  Rep.  6oi.--UisriNGUisiiiNG  Timm  t. 
Northern  Pac.  R.  ilu.,  3  Wash.  T.  299.— 
OVKRRULEI)  IN  Oregon  R,  &  N.  Co.  v. 
Smal.i  V'.  I  Wash.  206,  23  I'ac.  Rep.  1008. 

7.  J'l'ovidhiu:  lor  tlio  colUH'tioii  of 
clainii,    {jeiuMMlly.  —  Hy  the  Colorado 

tock-k'lling  stat'itc  of  '885,  §;!  13  and  14, 
relating  to  the  .  vjlleclion  of  claims  for  stock 
killed  1".'  railroad  trams,  a  railway  company 
miplit  i;i:  denied  "the  equal  protection  of 
tlio  laws,"  and  deprived  of  its  property 
"without  due  process  of  law."  Such  a 
statute  is  unconstitutional.  Waifswort/i  v. 
Union  Pac.  R.  Co.,  ;6  Am.  (S>»  Eng.  R.  Cas. 
145,  18  Co/o.  600;  33  J'ac.  Rep.  515.— Re- 
viewing Denver  &  R.  G.  R.  Co.  v.  Hen- 
derson, 10  Colo.  I. 

The  meaning  of  sections  i  and  2  of  "An 
act  to  provide  ;\  means  for  the  collection  of 
claiujs  for  cattle  and  other  stock  destroyed 
by  railroads"  (chapter  2060,  Acts  of  Florida, 
1875),  is  that  the  "affidavit  of  the  owner  or 
some  other  person  acquainied  with  the 
stock  killed  or  maimed  "  shall  be  conclusive 
evidence  of  the  amount  of  damages  sus- 
tained by  the  owner,  and  such  provision  is 
void  as  not  providing  due  process  of  law. 
Savannah,  F.  &*  IV.  R.  Co.  v.  Geiger,  29 
Am.  Sf  Eng.  R.  Cas.  274,  21  J'7a.  669,  58 
Am.  Rep.  697. 

8.  appraiseiiicnt    of   damages 

without  a  jury.— Where  the  failure  to 
fence  a  railroad  is  made  conclusive  evidence 
of  negligence  whenever  live  stock  is  killed 
upon  such  unfenced  road,  the  statute  is  not 
unconstitutional  by  reason  of  making  the 
valuation  fixed  by  a  board  of  appraisers 
prima  facie  evidence  of  the  value  of  the 
stock  killed,  since  the  report  of  the  apprais- 
ers might  be  contradicted  and  set  aside. 
Illinois  C.  R.  Co.  v.  Crider,  56  Am.  &'  Eng. 
R.  Cas.  157,  91  Tenn.  489.  19  S.  IV.  Rep.  618. 

But  a  statute  making  such  an  appraisement 
conclusive  evidence  as  to  damages  is  uncon- 
stitutional. Graves  v.  Northern  Pac.  R.  Co., 
19  Am.  &•  Eng.  R.  Cas.  436,  5  Mont.  556,  51 
Am.  Rep.  81. 

A  law  which  imposes  a  liability  for  stock 
killed  provides  for  notice  of  the  claim,  the  ap- 
praisal of  dainay;es  and  action  for  the  amount 
awarded,  contains  conditions  wliich  are  not 


, 


i, 


ANIMALS,  INJUKIKS    TO,  ». 


m 


sepanible,  ihc  right  conferreil  bcitig  depend- 
ent upon  notice  and  appraisal,  and  when 
such  statute  violates  the  constitution  by  de- 
nying a  trial  by  jury  the  wh<jle  act  must  fall, 
and  the  provisions  of  the  statute  conferiing 
a  cause  of  action  for  the  killing  of  stock 
cannot  be  enforced.  Oregon  R.  d^  A'.  Co. 
V.  Smallty,  42  Am.  «S>»  Eng.  R.  Cas.  550,  i 
iras//.  206,  23  Pac.  Rep.  1008.— OVERRUi.- 
IN(;  Dacres  v.  Oregon  R.  &  N.  Co.,  i  Wash. 
525,  20  Pac.  Rep.  60!. 

Act  Washington  Territory  1883,  §§  2-7, 
providing  that  when  stock  is  killed  on  a 
railroad  the  value  shall  be  ascertained  by 
appraisers  in  a  prescribed  manner,  and  the 
amount  shall  thereupon  become  due  and 
payable,  are  unconstitutional  as  denying  the 
right  of  jury  trial.  Dacres  v.  Oregon  R.  &* 
N.  Co.,  I   IVas/i.  525,  20  /'tie.  Rep.  601. 

O.  Allowing  a  reasonable  attor- 
ney's lee.— (I)  What  have  been  held  con- 
stitutional. Statutes  allowing  such  fees  are 
constitutional.  Peoria,  D.  (S^  E.  R.  Co.  v, 
Diiggan,  20  Am.  &»  Eng.  R.  Cas.  489,  109  ///. 
537,  50  Am.  Rep.  619.  Perkins  v.  St.  Louis, 
I.  M.  &•  S.  R.  Co.,  103  Mo.  52,  IS  5.  IV.  Rep. 
320. — Not  following  Wilder  v.  Chicago 
&  W.  M.  R.  Co.,  70  Mich.  382;  Rinear  v. 
Grand  Rapids  &  I.  R.  Co.,  70  Mich.  620. — 
Wabash,  St.  L.  &*  P.  R.  Co.  v.  Lavieux,  14 
///.  App.  469. — Followed  in  Wabash,  ?c. 
L.  &  P.  R.  Co.  V.  Murphy,  14  111.  App.  472. 

A  provision  making  a  company  liable  for 
an  increase  of  damages  to  the  extent  of  all 
reasonable  attorneys'  fees,  in  the  event  that 
it  shall  unsuccessfully  litigate  its  liability  for 
such  "prima  facie  value  established  by  the 
said  appraisers,"  is  not  unconstitutional  as 
imposing  a  burden  upon  one  class  of  liti- 
gants in  favor  of  another,  since  this  leg- 
islation is  intended  to  a  nipel  railroad 
companies  to  fence  their  tracks  and  is  within 
the  police  power  of  the  state.  Illinois  C.  R. 
Co.  V.  Crider,  56  Am.  S-»  Eng.  R.  Cas.  157,  9! 
Tenn.  489,  19  S.  W.  Rep.  618. 

Texas  act  of  1889,  ch.  107,  §  i,  providing 
that  where  a  claim  not  exceeding  $50  for 
stock  killed  by  a  railway  is  not  paid  within 
30  days  after  being  presented,  the  plaintiff 
may  recover,  in  addition  to  the  damages,  an 
attorney  fee  not  exceeding  $10,  if  an  attor- 
ney be  employed,  does  not  violate  the  state 
constitution  (art.  3,  §  56)  prohibiting  special 
laws  relating  to  the  collection  of  debts,  or  in 
all  cases  where  a  general  law  is  applicable ; 
nor  does  it  violate  the  provision  of  the 
constitution,  that  property,  etc.,  shall  not  be 


taken  without  due  process  of  law.  Gulf. 
C.  (^  S.  F.  R.  Co.  V.  Ellis  (7V.r.),  49  Am.  d~ 
Eng.  R.  Cas.  509.  18  S.  W.  Rep.  723.— RE- 
VIEWING International  cS:  G.  N.  R.  Co.  v. 
Cocke,  64  Tex.  151  ;  International  &  G.  N. 
R.  Co.  V.  Dunham,  68  Tex.  231. 

Neither  is  such  law  so  opposed  to  the 
principles  of  republican  government,  and  so 
discriminating  in  its  character,  as  to  take 
away  from  the  legislature  the  power  to  pass 
it.  Gulf,  C  &*  S.  F.  R.  Co.  V,  Ellis  (7V.r.), 
49  Am.  Sa*  Eng.  R.  Cas.  509,  18  S.  IV.  Rep. 

723- 

Texas  act  of  April  5,  1889,  allowing  the 
recovery  of  an  attorney's  fee,  not  to  exceed 
$10,  in  addition  to  the  other  damages,  in  ac- 
tions against  railroads  for  the  killing  of  live 
stock,  where  the  claim  does  not  exceed  $50, 
is  not  unconstitutional,  as  discriminating 
unjustly  against  railroads ;  neither  is  it  un- 
constitutional as  discriminating  between  liti- 
gants. Gulf,  C.  &*  S.  F.  R.  Co.  V.  Ellis  ( Te.r. 
Civ.  App.),  21  S.  W.Rep.g^:^. — Explaining 
Minneapolis  &  St.  L.  R.  Co.  v.  Beckwith, 
129  U.  S.  26,  9  Sup.  Ct.  Rep.  207. 

(2)  What  have  been  held  unconstitutional. 
— The  Alabama  act  of  Feb.  3,  1877,  §  6, 
allowing  an  attorney  fee  not  to  exceed  $20, 
to  be  taxed  as  part  of  the  costs  against 
the  unsuccessful  appellant  in  every  suit 
against  a  railroad  for  stock  killed,  is  un- 
constitutional. South  &>  N.  Ala.  R.  Co.  v. 
Morris,  65  Ale.  193.— REVIEWED  IN  Chi- 
cago, St.  L.  &  N.  R.  Co.  V.  Moss,  20  Am.  & 
Eng.  R.  Cas.  555,  60  Miss.  641. 

An  act  of  the  legislature  providing  that 
where  stock  is  killed  or  injured  by  railroads 
the  damages  shall  be  assessed  by  arbitration, 
and  if  either  party  refuses  to  abide  by  the 
award,  and  takes  the  case  before  the  courts, 
and  shall  not  recover  a  more  favorable  judg- 
ment than  the  award,  such  party  shall  be 
assessed  a  reasonable  attorney's  fee  for  the 
opposing  litigant,  is  unconstitutional.  St. 
Louis,  I.  M.  iS«»  S.  R.  Co.  v.  Williams,  49 
Ark.  492,  31  Am.  &*  Eng.  R.  Cas.  555,  5  S. 
W.  Rep.  883.— D1STINGUI.SHED  IN  Illinois 
C.  R.  Co.  v.  Crider,  91  Tenn.  489. 

A  law  which  provides  for  recovery  of  a 
reasonable  attorney's  fee  in  case  of  failure  to 
pay  the  appraised  value  within  the  time  pre- 
scribed, is  void.  Denver  &^  R.  G.  R,  Co.  v. 
Outcalt,  2  Colo.  App.  395.  3'  !'<'<■'•  I^^P-  I77-— 
Approving  Ziegler  v.  Alabama  R.  Co.,  58 
Ala.  594;  Rinear  v.  Grand  Rapids  &  I.  R. 
Co.,  70  Mich.  620;  Cairo  &  F.  R.  Co.  v. 
Parks,  32  Ark.  131 ;  Ohio  &  M.  R.  Co.  v. 


ANIMALS,  INJURIES   TO,  10-12. 


93 


Lackey,  78  111.  55;  Jensen  z>.  Union  Pac.  R. 
Co.,  6  Utah  253,  21  Pac.  Rep.  994;  Bielen- 
burg  V.  Montana  Union  R.  Co.,  8  Mont.  271, 
Distinguishing  Union  Pac.  R.  Co.  v.  De 
Busk,  12  Colo.  294.  Quoting  Denver  &  R. 
G.  R.  Co.  V.  Henderson,  10  Colo.  i. — Denver 
H^  R.  G.  R.  Co.  V.  Davidson,  2  Colo.  App.  443, 
31  Pac.  Rep.  181.  Lafferty  v.  Chicago  &*  W. 
.]/.  R.  Co.,  71  Mic/i.  35.  Sc/iiif  V.  Chicago  &* 
IF.  M.  R.  Co.,  70  A/ich.  438.  IFiMer  v.  Chi- 
cago  &'  IV.  M.  R.  Co.,  35  Am.  &>  Eng.  R.  Cas. 
162,  70i1//Vr//.  382, — Distinguished  in  Illi- 
nois C.  R.  Co.  V,  Crider,  91  Tenn.  489.  Not 
FOLLOWED  IN  Pcfkins  V.  St.  Louis,  I.  M.  & 
S.  R.  Co.,  103  Mo.  52. 

The  Railroad  Stock  Killing  act  of  Colo- 
rado (Gen.  Sts.  §§  ?3  &  14,  ch.  93)  and  the 
amendments  thereto,  allowing  an  attorney's 
fee  in  actions  for  live  stock  killed  or  injured 
by  railroad  trains  is  unconstitutional.  Rio 
Grande  &>  N.  R.  Co.  v.  Vaughn,  3  Colo.  App. 

465. 
10.  Allowing    double    damages.— 

Statutes  allowing  double  damages  for  killing 
or  injuring  stock  are  void.  Atchison  &•  N, 
R.  Co.  V.  Ba/y,  6  IVeb.  yj. — Distinguished 
IN  Cairo  &  St.  L.  R.  Co.  v.  Peoples,  92  111. 
97  ;  Harnett  v.  Atlantic  &  P.  R.  Co.,  68  Mo. 
56.  Referred  to  in  Burlington  &  M.  R. 
Co.  V.  Webb,  23  Am.  &  Eng.  R.  Cas.  617,  18 
Neb.  215.  Denver  &^  R.  G.  R.  Co.  v.  Outcalt, 
2  Coh.  App.  395,  31  Pac.  Rep.  177. — Approv- 
ing Zeigler  7/.  Alabama  R.  Co.,  58  Ala.  594; 
Cairo  &  F.  R.  Co.  v.  Parks,  32  Ark.  131 ; 
Ohio  &  M.  R.  Co.  V.  Lackey,  78  111.  55  ;  Jen- 
sen v.  Union  Pac.  R.  Co.,  6  Utah  253,  21  Pac. 
Rep.  994 ;  Bielenburg  v.  Montana  Union  R. 
Co.,  8  Mont.  271 ;  Schut  v.  Chicago  &  W.  M. 
R.  Co.,  70  Mich.  433 ;  Rinear  v.  Grand  Rap- 
ids &  I.  R.  Co.,  70  Mich.  620.  Distinguish- 
ing Union  Pac.  R.  Co.  v.  DeBusk,  12  Colo. 
294.  Quoting  Denver  &  R.  G.  R.  Co.  v. 
Hi^nderson,  loColo.  i.  Reviewing  Wilder 
V.  Chicago  &  W.  M.  R.  Co.,  70  Mich.  382. 
Denver  &*  R.  G.  R.  Co.  v.  Davidson,  2  Colo. 
App.  443,  31  Pac.  Rep.  iSi.  — Following 
Denver  &  R.  G.  R.  Co.  v.  Outcalt,  2  Colo. 
App.  395.  3'  Pac.  Rep.  i"-'.  Rio  Grande  &^ 
N.  R.  Co.  V.  Vaughn,  3  Coir.  App.  465. 

A  statute  requiri.ig  all  railroads  to  main- 
tain fences  and  cattle-guards  along  the  line 
of  their  roads,  and  making  them  liable  for 
double  damages  for  stock  killed  by  reason 
of  a  failure  to  do  so,  does  not  deprive  a  com- 
pany of  its  property  without  due  process  of 
law.  nor  deny  it  the  equal  protection  of  the 
law,  within  the  meaning  of  the  14th  amend- 


ment of  the  U.  S.  Constitution.  Missouri 
Pac.  R.  Co.  V.  Humes,  22  Am.  &>  Eng.  R.  Cas. 
557,  115  U.  S.  512,  6  Sup.  Ct.  Rep.  no. — 
Applied  in  Goodridge  v.  Union  Pac.  R. 
Co.,  35  Fed.  Rep.  35 ;  Marshall  v.  Wabash 
R.  Co.,  46  Fed.  Rep.  269.  Approved  in 
Illinois  C.  R.  Co.  v.  Ciider,  91  Tenn.  489. 

It  is  competent  for  a  legislature  to  make 
railroads  liable  to  owners  of  stock  killed  by 
reason  of  the  company's  failing  to  fence,  in 
damages  double  the  value  of  the  stock.  The 
damages  above  the  actual  value  of  the  stock 
are  regarded  as  a  penalty,  and  it  rests  in  the 
discretion  of  the  legislature  to  say  that  they 
shall  go  to  the  property  owner  instead  of  the 
state.  Missouri  Pac.  R.  Co.  v.  Humes,  22  Am. 
<&-  Eng.  R.  Cas.  557,  115  U.S.  1x2,6  Sup.  Ct. 
Rep.  1 10. — Following  Milwaukee  &  St.  P. 
R.  Co.  v.  Arms,  91  U.  S.  489. 

Such  laws  held  constitutional.  Memphis 
&*  L.  R.  Co.  V.  Horsfall,  36  Ark.  65 1 ;  Mackie 
V.  Central  R.  Co.,  54  Iowa  540. — Followed 
in  Mundhenk  v.  Central  R.  Co.,  1 1  Am.  & 
Eng.  R.  Cas.  463,  57  Iowa  718.  Welsh  v. 
Chicago,  B.  6^  Q.  R.  Co.,  53  Iowa  632,  6  N. 
W.  Rep.  13.  Tredway  v.  Sioux  City  6>»  St. 
P.  R.  Co.,  43  Iowa  527.  Jones  v.  Galena  &* 
C.  U.  R.  Co.,  16  ^ywad.  P/iillipsw.  Missouri 
Pac.  R.  Co.,  24  Am.  &^  Eng.  R.  Cas.  368,  86 
Mo.  540.  Hines  v.  Missouri  Pac.  R.  Co.,  28 
Am.  &*  Eng.  R.  Cas.  382, 86  Mo.  629.  Humes 
v.  Missouri  Pac.  R.  Co.,  82  Mo.  221.— Fol- 
lowed IN  Meyers  v.  Union  Trust  Co.,  82 
Mo.  237  ;  Burkholderz/.  Union  Trust  Co.,  82 
Mo.  572  ;  Steele  v.  Missouri  Pac.  R.  Co.,  84 
Mo.  57.  Spealman  v.  Missouri  Pac.  R.  Co., 
71  Mo.  43.  Cummings  v.  St.  Louis,  I.  M.  <&» 
S.  R.  Co.,  70  Mo.  570.  Kaes  v.  Missouri  Pac. 
R.  Co.,  6  Mo.  App.  397.  Barnett  v.  Atlantic 
&^  P.  R.  Co.,  68  Mo.  56.  Minneapolis  6-  St. 
L.  R.  Co.  V.  Beckwith,  i%Am.  &*Eng.R.  Cas. 
267,  129  U.  S.  26,  9  Sup.  Ct.  Rep.  207. 

11.  Iiiiposiug  a  criminal  liability 
for  killing  stock.— The  North  Carolina 
Code,  §§  2327-2330,  making  killing  of  live 
stock  by  railroads  in  certain  counties  a 
crime,  and  subjecting  the  president  and 
other  officers  of  roads  to  indictment,  for  a 
refusal  to  pay  for  or  arbitrate  claims  for 
stock  killed,  is  unconstitutional.  State  v. 
Divine,  31  Am.  &^  Eng.  R.  Cas.  574,  98  A", 
Car.  778,  4  5.  E.  Rep.  477.— Quoting  San 
Mateo  w.  Southern  Pac.  R.  Co.,  8  Am,  &  Eng, 
R.  Cas.  10,  13  Fed.  Rep.  145. 

2.  Interpretation  and  Effect. 

12.  Legislative  intent.— In  the  en- 


I 


•i 


m 


94 


ANIMALS,  INJURIES   TO,   13-15. 


actment  of  the  statute  touching  animals  at 
large  (i  R.  S.  of  Indiana,  p.  102),  the  legis- 
lature contemplated  the  promotion  of  agri- 
cultural interests  rather  than  the  protection 
of  railroad  property.  New  Albany  &•  S.  R. 
Co.  V.  Tilton,  12  Ind.  3.— Quoting  United 
States  V.  Brig  Neurea.  19  How.  (U.  S.)  95. 
^-FOLLOVVKU  IN  New  Albany  &  S.  R.  Co.  v. 
Mead,  13  Ind.  258. 

The  Indiana  statute,  making  railroad 
companies  liable  for  animals  killed  or  in- 
jured by  reason  of  a  track  not  being  prop- 
erly fenced,  is  a  police  regulation,  and  is 
not  intended  merely  (or  the  protection  of 
owners  of  live  stock  along  the  line  of  the 
road,  but  is  intended  also  as  a  security  to 
the  persons  and  property  being  transported 
over  the  road.  Jeffersonville,  M.  Of  I.  R.  Co. 
V.  Nichols,  30  Inil.  32 1 . 

The  Indiana  act  of  March  i,  1853  (Acts, 
p.  113),  providing  compensation  to  the 
owners  of  animals  killed  or  injured  by  the 
cars,  etc.,  of  railroad  companies,  is  more  for 
the  benefit  of  the  public — to  guard  against 
injury  to  passengers — than  for  the  benefit  of 
the  owners  of  the  animals.  Ne7u  Albany  &• 
S.  R.  Co.  V.  Maiden,  12  Ind.  10.— Applied 
IN  Indianapolis,  P.  &  C.  R.  Co.  v.  Thomas, 
II  Am.  &  Eng.  R.  Cas.  491,  84  Ind.  194. 
FOLLOWKD  IN  Hart  v.  Indianapolis  &  C.  R. 
Co,  12  Ind.  478;  Indianapolis  &  C.  R.  Co. 
V.  McAhrcn,  12  Ind.  352  ;  Baltimore,  P.  &  C. 
R.  Co.  V.  Johnson,  59  Ind.  188.  Not  Fol- 
lowed IN  Locke  V.  St.  Paul  &  P.  R.  Co., 
15  Minn.  350.  Reconciled  in  Terre  Haute 
&  R.  R.  Co.  V.  Smith,  16  Ind.  102. 

The  Indiana  act  of  1863,  relating  to  the 
liability  of  railroads  for  stock  killed,  where 
the  road  is  not  fenced,  must  be  construed  as 
having  been  passed  with  reference  to  the 
decisions  of  the  courts  construing  the  act  of 
1853  upon  the  same  subject,  and  the  court 
must  construe  the  latter  act  with  reference 
to  the  construction  placed  upon  the  former, 
and  therefore  hold  that  the  act  extends  to 
cases  where  the  owner  of  the  stock  killed 
contributes  to  the  injury  by  permitting  his 
stock  to  wander  upon  the  track,  unless  it 
appear  that  the  owner  desired  the  injury  to 
happen.  Jeffersoiwille,  M.  &*  I.  R.  Co.  v. 
Dunlap,  2<)Iiid.  426. 

13.  Construing  entire  statute  to- 
gether.—The  liabilities  of  railroad  com- 
panies in  Alabama  for  the  killing  or  injury 
of  stock  by  their  cars  or  locomotives  are 
governed  by  the  statute  on  "  Railroads " 
found  in  the  Revised  Code.     (Rev.  Code,  ^§ 


1 399-1416,  both  inclusive.)  This  statute  is 
to  be  taken  and  construed  as  one  law. 
Nashville  &^D.  R.  v.  Cowans,  45  Ala.  437. — 
Reconciled  in  Nicholson  v.  Mobile  &  M. 
R.  Co.,  49  Ala.  205. 

Under  this  law  a  railroad  company,  in 
order  to  exonerate  itself  from  such  liabili- 
ties as  are  imposed  by  the  statute,  must 
show  that  the  injury  complained  of  did 
not  result  from  the  failure  on  the  part 
of  its  servants  to  comply  with  the  require- 
ments of  §  1399  of  the  Revised  Code,  or 
from  any  negligence  on  the  part  of  the 
company  or  its  agents.  Rev.  Code,  §1401. 
Nashville  &^  D.  R.  Co.  v.  Conians,  45  Ala. 
437.— Distinguishing  Nashville  &  C.  R, 
Co.  V.  Peacock,  25  Ala.  229. 

14.  Statutes  iu  pari  materia.— What 
are  known  as  the  stock  laws,  embodied  in 
Georgia  Code,  §§  1449-54,  are  not  in  pari 
materia  with  §§  3033-4,  and  do  not  modify 
or  alter  the  rule  of  diligence  to  be  observed 
in  the  running  of  trains;  but  the  existence 
of  a  stock  law  in  any  locality  is  a  fact  which 
the  jury  may  consider,  in  ascertaining  the 
amount  of  care  and  diligence  exercised  by 
each  of  the  parties  to  the  transaction,  and 
in  apportioning  the  extent  of  the  liability  of 
the  company,  if  any.  Central  R.  Co.  v. 
Hamilton,  23  Am,  &»  Eng  R.  Cas.  207,  71 
Ga.  461. 

15.  Retrospective  statutes.  —  The 
Georgia  act  of  1843,  amending  the  act  of 
Dec.  3,  1840,  defining  the  liability  of 
the  railroad  companies  of  the  state  for 
damages  for  stock  killed  or  injured,  and  to 
regulate  the  mode  of  proceedings  in  such 
cases,  is  prospective  in  its  operation,  and 
cannot  be  applied  to  cases  arising  before  its 
passage.  Girtman  v.  Central  R.  &*  B.  Co. ,  i 
Ga.  173. 

The  Indiana  act  of  1853,  providing  for  ac- 
tions against  railroads  for  killing  stock,  au- 
thorized suit  to  be  brought  before  a  justice 
of  the  peace  only,  which  limited  the  recov- 
ery to  $100,  but  by  the  amendatory  act  of 
1859,  if  the  damage  exceeds  $50,  suit  may  be 
brought  in  the  circuit  or  common  pleas 
court  to  recover  the  value  of  the  stock 
killed  or  the  amount  of  the  injury  thereto; 
but  the  act  of  1859  only  applies  to  suits  for 
animals  killed  or  injured  after  its  passage. 
Indianapolis  &'  C.  R.  Co.  v.  Kercheval.  16 
Ind.  84 —Quoting  Indianapolis  &  C.  R. 
Co.  V.  Kinney,  8  Ind.  402. 

The  Indiana  act  of  1859  (Acts  1859,  p.  105) 
is  prospective  only  in  its  operation,  and  ap- 


ANIMALS,  INJURIES   TO,  JO-21. 


95 


plies  to  animals  killed  or  injured  after  the 
taking  effect  of  the  law.  Indianapolis  &»  C. 
R.  Co.  V.  Elliott,  20  Ittil.  430. 

In  Wisconsin,  prior  to  i860,  railroads  were 
not  required  to  fence,  but  the  cost  of  fenc- 
ing was  to  be  assessed  as  part  of  the  dam- 
ages when  the  right  of  way  was  taken  ;  and 
the  act  of  i860,  ch.  268,  making  it  the  duty 
of  railroads  to  fence,  did  not  change  the 
liability  of  railroads  as  to  those  whose  lands 
were  taken  prior  thereto,  and  such  owner 
cannot  recover  for  stock  killed  by  reason  of 
a  failure  of  the  company  to  fence.  Johnson 
V.  Milwaukee  &*  St.  P.  Ji.  Co.,  19  IVis.,  137. 

The  Indiana  act  of  1853,  making  railroads 
liable  for  stock  killed,  and  the  amendment 
thereto  of  March  4,  1859,  are  constitutional 
and  binding  as  to  corporations  chartered 
before  the  passage  of  the  acts.  Indianapolis 
&•  C  K.  Co.  V.  Kercheval,  16  Ind.  84.— 
Followed  in  Toledo,  W.  &  W.  R.  Co.  v. 
Brown,  17  Ind.  353. 

New  York  Laws  1854,  ch.  282,  amending 
the  general  railroad  act,  which  requires 
every  railroad  corporation  whose  line  is 
open  for  use  to  erect  and  maintain  fences 
on  the  sides  of  its  road,  and  declaring  it 
liable  for  damages  to  cattle  in  case  its  fences 
are  not  made  or  are  out  of  repair,  applies  to 
a  foreign  corporation  wliich  had,  prior  to 
the  passage  of  said  act,  under  and  by  virtue 
of  an  act  of  the  legislature  wherein  was  re- 
served a  right  to  alter  or  repeal,  extended 
its  road  within  this  state,  so  far  as  such  road 
is  opened  for  use  within  the  state  ;  and  it  is 
liable  for  cattle  killed  which  came  upon  its 
track  through  a  defective  fence,  although 
trespassing.  Purdy  v.  Neiv  York  &>  N.  it. 
R.  Co.,6i  N.  y.  353,  12  Am.  Ry.  Rep.  138. 

16.  Extraterritorial  effect.  —  The 
statute  of  Arkansas,  which  changed  the 
common  law  rule  by  providing  that  the 
mere  fact  of  injury  or  killing  of  stock  by  a 
railroad  company  shall  be  prima  facie  evi- 
dence of  negligence,  was  not  put  in  force  in 
the  Indian  Territory  by  Act  Congress,  May 
2, 1 890,  §  3 1  (26  St.  p.  8 1 ) .  Eddy  V.  Lafayette, 
49  Fed.  Rep.  798,  4  U.  S.  App.  243,  I  C.  C. 
A.  432. 

The  Kansas  act  of  Feb.  27,  1874,  entitled 
"  An  act  relating  to  killing  or  wounding 
stock  by  railroads,"  is  in  force  within  the 
territory  of  the  Ft.  Leavenworth  military 
reservation,  notwithstanding  the  act  of  Feb. 
22,  1875,  ceding  »o  the  United  States  juris- 
diction over  saia  reservation  for  military 
purposes.      Chicas^o,  R.  I.  &^  P.  R.  Co.  v. 


McGlinn,  1 1  Am.  &^  Eng.  R.  Cas.  435,  28 
Kan.  274;  affirmed  in  ig  Am.  &^  Eng  R.  Cas. 
522.  114  U.  S.  542,  5  Sup.  Ct.  Rep.  1005. 

17.  Particular  words  eoustriiecl.— 

A  statute  giving  a  remedy  for  horses  and 
cattle  killed  by  a  •  lilroad  construed  to  in- 
clude mules.  Toledo,  IV.  <&*  IV.  R.  Co.  v. 
Cole,  50  ///.  184.— Following  Ohio  &  M.  R. 
Co.  V.  Brubaker,47  III.  462. 

Where  the  statute  declares  that  the  said 
reasonable  attorney's  fees  "  shall  be  fixed  by 
the  court  trying  the  case,"  the  word  "  court " 
must  be  construed  to  mean  judge  and  jury. 
Illinois  C.  R.  Co.  v.  Cridcr,  56  Am.  &>  Eng.  R. 
Cas.  157.  91  Tenn.  489,  19  Ji".  W.  Rep.  618. 

18.  Particular  statutes— Alabama. 
— The  Alabama  act  of  April  23,  1873,  pro- 
viding a  method  of  selecting  three  disinter- 
ested citizens  to  apjiiaise  the  value  of  live 
stock  killed  on  any  railroad,  and  the  method 
of  payment  of  the  damages  assessed  is  not 
binding  on  either  the  railroads  or  the  owners 
Ml  stock,  and  docs  not  increase  the  liability; 
c.nd  if  that  mode  of  ascertaining  the  value 
is  not  pursued  tlu'  statute  is  inoperative.* 
Soutk  <S-  ^V.  Ala.  R.  Co.  v.  Hagood,  53  Ala. 
647,  lyAm.  Ry.  Rep.  161. 

The  Albama  act  of  Feb.  3,  1877.  making 
railroad  companies  absolutely  liable  for 
stock  killed,  which  was  declared  unconsti- 
tutional in  58  Ala.  594,  did  not  apply,  to 
stock  injured  through  negligence. t  Simpson 
v.  Memphis  &*  C.  R.  Co.,  66  Ala.  85. 

19.    California — The    California 

act  of  1861,  p.  169.  §  30,  providing  that 
railroad  companies  shall  not  be  compelled 
to  fence  until  the  owner  has  fenced  his 
lands  'butting  the  road,  does  not  exempt 
the  company  from  liability  for  animak 
killed  on  unfenced  portions  of  its  road,  as 
provided  by  §  40  of  the  act.  Fontaine  v. 
Southern  Pac.  R.  Co.,  \  Am.  &*  Eng.  R. 
Cas.  159,  54  Cal.  645.— Quoting  Tracy  v. 
Troy  and  B.  R.  Co.,  38  N.  Y.  437. 

20. Florlda.-The  act  of   1887.  ch. 

3740.  Laws  of  Florida,  making  the  killing 
of  live  stock  by  a  railroad  company /rmrt 
facie  evidence  of  negligence,  operates  upon 
the  remedy  and  does  not  change  the  basis 
of  liability  in  such  cases.  Jacksonville,  T. 
&*  K.  IV,  R.  Co.  V.  Garrison,  30  Fla.  557, 
1 1  So.  Rep.  929. 

21. Georgia. — Section  2972,  Georgia 

Code,  is  limited  in  terms  to  personal  injuries 
and  does  not  apply  to  stock  killing  cases. 

*  Sec  iinU,  8.         f  See  ifw/c,  ^i. 


■'^^ 


!  ; 


!    1 


t 


^'i 


:, 


96 


ANIMALS,  INJURIES   TO,  22-28. 


Georgia  R.  &*  B.  Co.  v.  Neely,  56  Ga. 
540. 

22. ludiana. — The  sections  of  the 

Indiana  statutes  concerning  decedents'  es- 
tates relating  to  appeals  are  applicable  only 
to  appeals  from  decisions  rendered  in  pro- 
ceedings provided  for  in  that  statute,  and 
have  no  relation  to  a  case  prosecuted  to  re- 
cover damages  for  injury  to  stock.  Lout's- 
ville,  N.  A.  6*  C.  R.  Co.  v.  Etzler,  4  Ind. 
App.  31,  34  A^.  E.  Rep.  669. 

The  Indiana  act  of  1853,  in  relation  to  the 
liability  of  railroad  companies,  whose  roads 
are  not  fenced,  for  killing  stock,  does  not 
apply  to  actions  in  the  courts  of  common 
pleas  and  circuit  courts,  but  only  to  such 
as  are  brought  in  justices'  courts.  Evans- 
ville  6-  C.  R.  Co.  v.  Ross,  12  /fid.  446. 
ToUdo,  IV.  &-  W.  R.  Co.  V.  Hibbert,  xi^Ind. 
509.— Distinguishing  Whiteneck?/.  Madi- 
son &  I.  R.  Co.,  8  Ind.  217.  Jeffersonville 
R.  Co.  V.  Martin,  10  Ind.  416.  Indianapolis, 
P.  &"  C.  R.  Co.  V.  Fisher,  15  Ind.  203.— Fol- 
lowing Jeflersonville  R.  Co.  v.  Martin,  10 
Ind.  416. 

The  Indiana  act  of  1859  extended  the  rule 
established  by  the  act  of  1853  for  the  de- 
cision of  causes  brought  in  justices'  courts 
against  railroad  companies  for  killing  stock, 
to  actions  of  the  same  class  brought  in 
courts  of  common  pleas  and  circuit  courts. 
hvansville  (&*  C.  R.  Co.  v.  Ross,  1 2  Ind.  446. 

23.  Maryland.— By  Maryland  acts 

of  1838  and  1846,  relating  to  stock  injured  or 
killed  by  train,  the  legislature  did  not  in- 
tend to  interfere  with  the  time-tables  of  the 
company,  or  to  limit  the  rate  of  speed  for 
the  trains ;  while  the  act  leaves  the  company 
in  the  full  exercise  of  its  rights  in  this  re- 
spect, it  imposes  upon  them  the  duty  of  ex- 
ercising the  highest  degree  of  care  and  cau- 
tion. Keech  v.  Baltimore  &>  IV.  R.  Co.,  17 
Md.  32. 

24.  Tennessee.— An  association 

to  secure  to  its  members  compensation  for 
their  live  stock  killed  by  railroad  com- 
panies, where  the  members  are  to  share 
jointly  all  expenses  of  litigation,  including 
attorneys'  fees,  is  not  illegal  under  Tennes- 
see Code,  §  2450,  to  the  effect  that  a  plain- 
tifl  shall  not  agree  to  give  any  greater  sum 
of  money,  or  any  greater  or  less  portion  of 
the  property  in  litigation,  upon  ay  con- 
tingency based  on  the  result  of  the  suit. 
Mobile  6-  O.  R.  Co.  v.  Etherid^e,  16  Lea 
(7'^««.)398. 

26.  Texas.  —  Under    the    Texas 


statutes  the  liability  of  a  railroad  company 
for  killing  or  injuring  stock  in  operating 
their  trains  is/r/;«a/(i«>  absolute.*  Hous- 
ton &»  T.  C.  R.  Co.  V.  Loughbridge,  1  Tex. 
App.  {Civ.  Cas.)  754. 

26.  Wasliingtou.— Section    i    of 

the  Washington  act,  which  makes  the  rail- 
road company  liable  for  stock  killed  on  the 
railroad,  is  not  merely  declaratory  of  the 
common  law,  but,  as  shown  by  §  8,  which  re- 
moves the  liability  if  a  proper  fence  is  main- 
tained, the  statute  makes  failure  to  fence 
evidence  of  negligence.  Dacres  v.  Oregon 
R.  &*N.  Co.,  I  Wash.  525,  20  Pac.  Rep.  601. 

3.  Repeal. 

27.  What  operate  as  repealing 
statutes.— (i)  Alabama.  —  The  Alabama 
Code  of  1876,  §§  1 704-1 709,  relating  to  the 
liability  of  railroads  for  damages  for  injuries 
to  live  stock,  are  repealed  by  a  later  statute 
embraced  in  §§  1710-1715.  Georgia  Pac. 
R.  Co.  V.  Fullerton,  79  Ala.  298. 

(2)  Georgia. — The  Georgia  act  of  1847,  §  5, 
defining  the  liability  of  the  various  railroad 
companies  of  the  state  for  injuries  to  live 
stock,  is  repealed  by  the  act  of  1854.  Jones 
V.  Central  R.  &»  B.  Co.,  21  Ga.  104. 

(3)  Missouri. — The  Missouri  act  of  1879 
(Re\'.  Stat.  ch.  1 59),  provides  for  the  restrain- 
ing of  swine.  In  1883  (Laws  of  Mo.  1883, 
p.  26),  the  legislature  adopted  an  act  which 
provides  for  the  restraining  "  of  an  animal 
of  the  species  of  horse,  mule,  ass,  swine, 
sheep,  or  goat."  This  latter  act  was  intended 
to  regulate  the  whole  subject ;  and,  on  the 
principle  that  "a  subsequent  statute  revis- 
ing the  whole  subject-matter  of  a  former  one, 
and  evidently  intended  as  a  substitute  for  it, 
although  it  contains  no  express  words  to  that 
effect,  must  operate  to  repeal  the  former," 
it  repealed  the  act  of  1879.  Berkshire  v. 
Missouri  Pac.  R.  Co.,  28  Mo.  App.  225. — 
Quoted  in  Crumley  v.  Kansas  City,  C.  & 
S.  R.  Co.,  32  Mo.  App.  505. 

(4)  Tennessee.  —  The  provisions  of  the 
Tennessee  Code  declaring  the  liability  of 
railroads  for  injury  to  live  stock  by  moving 
trains  are  modified,  if  not  superseded,  by 
the  provisions  of  the  Acts  of  i89i,ch.  loi. 
Cincinnati,  N.  O.  &*  T.  P.  R.  Co.  v.  Russell, 
92  Tinn.  108,  20  S.  W.  Rep.  784. 

28.  What  do  not  operate  as  re- 
pealing statutes.— (I)  Illinois. — The  Illi- 
nois  act   of    1867   "to  prevent   domestic 

*  See  ante  6. 


ANIMALS,  INJURIES   TO,  29. 


VI 


animals  from  running  at  large  in  certain 
counties"  is  not  so  far  inconsistent  vvitli  and 
repugnant  to  the  general  railroad  law,  re- 
quiring railroad  companies  to  fence  their 
roads,  as  by  necessary  implication  to  repeal 
tlie  latter ;  and  where  animals  escape  from 
their  inclosure  within  such  counties,  without 
the  fault  or  knowledge  of  the  owner,  and 
stray  upon  a  railroad  track  at  a  point  where 
the  company  have  failed  to  comply  with  the 
law  requiring  them  to  fence,  and  are  killed 
by  collision  with  trains,  the  company  are 
responsible.  O/i/'o  &•  M.  R.  Co.  v.  Jones,  63 
///.  472,  7  Am.  Ry.  Rep.  477. 

(2)  Indiana. — The  Indiana  acts  of  April  8 
and  13,  1885,  relating  to  the  fencing  of  rail- 
road rights  of  way,  do  not  assume  to  remove 
the  pre-existing  liability  of  railroad  corpora- 
tions for  the  failure  to  fence  their  roads,  and, 
except  so  far  as  farm  crossings  and  gates  are 
co.cerned,  the  liability  of  railroad  companies 
for  injuring  animals  on  account  of  the  un- 
fenced  condition  of  the  track  remains  as  it 
was  before  said  acts  of  1885  were  passed. 
Louisville,  E.  &*  St.  L.  R.  Co.  v.  Hart,  2  Ind. 
App.  130,  28  N.  E.  Rep.  218.— Quoting 
Jeffersonville,  M.  &  I.  R.  Co.  v,  Dunlap,  112 
Ind.  93  —Quoted  in  Toledo,  St.  L.  &  K.  C. 
R.  Co.  V.  Jackson,  5  Ind.  App.  IM.—Jeffer- 
sonville,  M.  &*  I.  R.  Co.  v.  Dunlap,  31  Am. 
&>  Eng.  R.  Cas.  512,  112  Ind.  93,  13  TV.  £■. 
Rep.  403. — Followed  in  Pennsylvania  Co. 
V.  McCarty,  ti2  Ind.  322.  Quoted  in 
Louisville,  E.  &  St.  L.  R.  Co.  v.  Hart,  2  Ind. 
App.  130;  Wabash  R.  Co.  v.  Williamson, 
3  Ind.  App.  190. 

The  act  of  April  8,  1885  (Indiana  Acts 
1885,  p.  148),  providing  for  the  construction 
s:A  maintenance  of  farm  crossings  by  the 
owners  of  tracts  of  land  separated  by  a  rail- 
road, and  the  erection  and  maintenance  of 
gates  if  the  road  is  fenced,  does  not  repeal 
the  law  rendering  railroad  companies  liable 
for  stock  killed  or  injured  by  their  cars 
where  they  do  not  securely  fence  in  their 
railroads.  Louisville,  N.  A.  <S«"  C.  R.  Co,  v. 
Hughes,  2  Ind.  App.  68.  28  N.  E.  Rep.  158. 
—Quoted  in  Wabash  R.  Co.  v.  William- 
son, 3  Ind.  App.  190. 

The  Indiana  acts  of  1885  do  not  repeal  the 
law  rendering  railroad  companies  liable  for 
stock  killed  or  injured  by  their  locomotives 
and  cars,  where  they  do  not  securely  fence 
in  their  railroads  and  properly  maintain  the 
fences.  Louisville, N.A.&'C.R.  Co. v.  Cott' 
solidated  Tank  Line  Co. ,  4  Ind.  App.  40,  30 
N.E.Rep.  159. 

I  D.  R,  D.— 7. 


(3)  ^//wtfw/-/'.  — The  Missouri  stock  law 
(Rev.  Stats.  1879,  p.  1550)  does  not  repeal 
the  statute  which  requires  railroad  com- 
panies to  fence  their  road  i.  Holland  \.  West 
End  N.  G.  R.  Co.,  16  Mo.  App.  172. 

(4)  Wisconsin. — The  Wisconsin  act  of 
1872,  ch.  1 19.  §§  30  &  31,  requiring  railroads 
to  be  fenced,  and  prescribing  liabilities  for 
injuries  to  live  stock  by  reason  of  a  failure 
to  fence,  are  not  repealed  by  the  act  of  1875, 
ch.  248,  the  remedy  under  the  latter  act  be- 
ing cumulative.  Curry  \.  Chicago  &*N.  W, 
R.  Co.,  43  Wis.  665.— Quoting  Attorney- 
General  V.  Chicago  &  N.  W.  R.  Co.,  35  Wis. 
425.— Distinguished  in  Heller  v.  Abbot, 
79  Wis.  409. 

II.  LIABILITY  IRBE8PECTIYE  OF  COMPAHT'S 
BUTT  TO  FENCE. 

I.  In  General.* 

29.  Necessity  of  showing  negli- 
gence  on    part    of  company.  —  In  a 

common-law  action  there  can  be  no  recov- 
ery against  a  railroad  company  for  injuring 
or  killing  live  stock  unless  there  is  proof  of 
negligence.  Turner  v.  St.  Louis  &*  S.  F, 
Jt.  Co.,  76  Mo.  261.  Jcyner  v.  South  Carolina 
R.  Co.,  29  Am.  &»Eng.  R.  Cas.  258,  26  So.  Car. 
49.  I  6.  E.  Rep.  52. 

There  can  be  no  recovery  against  a  rail- 
road company  on  mere  proof  of  the  killing 
of  cattle,  without  proof  of  negligence. 
Brown  v.  Hannibal  &>  St.  J.  R.  Co.,  33  Mo, 
309.— Approved  in  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Walton,  3  N.  Mex.  319.  Followed 
in  Dyer  z/.  Pacific  R.  Co.,  34  Mo.  127 ;  Cal- 
vert V.  Hannibal  &  St.  J.  R.  Co.,  38  Mo.  467. 

The  leading  principle  of  the  numerous 
cases  in  reference  to  the  liability  of  railroad 
companies  for  injuries  to  domestic  animals, 
is  that  such  liability  is  founded  only  upon 
negligence  or  omission  of  duty  on  tlie  part 
of  the  company.  Walsh  v.  Virginia  &*  T. 
R.  Co..SNev.  no. 

Where  the  owner  of  live  stock  sues  a  rail- 
road company  for  an  injury  thereto,  and  the 
issue  is  made  whether  the  injury  is  the  re- 
sult of  the  carelessness  or  negligence  of  the 
con-ipany,  there  must  be  sufficient  evidence 
to  establish  this  issue  before  the  jury  can 
find  a  verdict  for  the  plaintiff.   New  Orleans, 

*  See  important  notes  on  injuries  to  animals 
on  track,  19  Am.  &  Eng.  R.  Cas.  465;  31  /</. 
496. 

Negligence  of  railroad  company  in  killing 
live  stock  generally,  see  56  Am.  &  Eng.  R.  Cas. 
aai,  abstr.;  see  also  note,  49  Am.  Dec.  261. 


98 


ANIMALS,  INJURIES  TO,  iW32. 


J.  &*  G.  N.  R.  Co.  V.  Enochs,  42  Miss.  6034— 
Approved  in  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Walton,  3  N.  Mex.  319. 

A  company  is  not  liable  for  stock  killed 
on  the  track  unless  the  evidence  shows  that 
they  were  there  through  some  fault  or 
neglect  of  the  company,  and  that  the  com- 
pany was  wanting  in  care  at  the  time  tliey 
were  killed.  Lyndsay  v.  Connecticut  &*  P. 
R.  R.  Co.,  27  r/.  643.— Approved  in  Atchi- 
son, T.  &  S.  F.  R.  Co.  V.  Walton,  3  N.  Mex. 

3'9- 

In  an  action  for  a  cow  killed,  it  not  ap- 
pearing that  the  engineer,  from  the  time  he 
first  saw  the  cow,  neglected  his  duty,  there 
should  be  no  recovery.  Johnson  v.  Minne- 
apolis &•  S/.  L.  R.  Co.,  43  Minn.  207,  45  N. 

IV.  Rep.  152. 

30. or  of  company's  agents.*— 

In  order  to  recover  from  a  railroad  com- 
pany for  killing  live  stock,  the  owner  must 
show  affirmatively  that  the  injury  resulted 
through  the  carelessness,  mismanagement 
or  gross  neglect  of  the  company  or  its 
agents.  Georgia  R.  &•  B.  Co.  v.  Anderson, 
33  Ga.  1 10. 

Where  stock  get  upon  a  track  without 
the  fault  of  the  company,  the  law  requires 
evidence  beyond  mere  proof  that  they  were 
injured  by  the  engine  of  the  company; 
there  must  be  proof  of  negligence  on  the 
part  of  tlie  agents  and  servants  of  the  com- 
pany in  charge  of  the  train  at  the  time  the 
injury  occurred.  Chicago  &*  N.  W.  R.  Co. 
V.  Barrie,  55  ///.  226,  2  Am.  Ry.  Rep.  451.— 
Distinguished  in  Quincy,  A.  &  St.  L.  R. 
Co.  V.  Well"hoener,  72  111.  60. 

In  order  to  recover  damages  from  a  rail- 
road company  for  injuries  to  live  stock  while 
on  the  track,  under  the  Mississippi  Rev. 
Code,  it  must  appear  that  the  injury  was 
the  result  of  mismanay;ement  or  negligence 
of  the  railroad  company  or  its  agents. 
Memphis  &*  C.  R.  Co.  v.  Blakeney,  43  Miss.^ 
218.— Followed  in  Memphis  &  C.  R.  Co. 

V.  Orr,  43  Miss.  279. 

In  the  absence  of  fault  or  negligence  on 
the  part  of  the  plaintiff,  the  exemption  of 
the  company  depends  upon  its  being  proved 
that  the  collision  with  the  animal  took 
place  without  any  fault  or  negligence  on 
the  part  of  its  agents.  Keech  v.  Baltimore 
&*  W.R.  Co.,  \7  Md.  32. — Distinguished 
in  Baltimore  &  O.  R.  Co.  v.  Mulligan,  45 
Md.  486. 

Stt  post,  37*  214. 


31.  Ncoessity  of  showing  negli- 
gence under  the  statutes."* — To  entitle 
the  pluintiil  to  a  recovery  against  a  railroad 
compuny  under  the  Alabama  act  of  1852,  it 
is  only  necessary  for  him  to  prove  property 
in  the  stock  or  cattle  killed,  tlieir  value,  and 
that  they  were  killed  by  defendant's  cars  or 
locomotives.  Nashville  6-  C.  R.  Co.  v.  Pea- 
cock,  25  Ala.  229. 

In  order  to  render  a  railroad  company 
liable  for  killing  stock  on  the  track,  there 
must  be  proof  of  negligence,  unless  the 
action  be  under  the  Illinois  act  of  1855. 
Great  Western  R,  Co.  v.  Morthland,  30  m. 
451. 

Section  2  of  the  Indiana  act  of  1853  to 
provide  compensation  to  the  owners  of 
animals  killed  or  injured  by  t'  i  cars,  etc., 
of  any  railroad  company,  etc.,  excludes  from 
the  consideration  of  t  he  jury,  in  a  suit  against 
any  such  company  for  the  destruction  of 
stock  by  their  cars,  any  consideration  of  the 
question  whether  the  injury  was  the  result 
of  wilful  misconduct  or  negligence,  or  of 
unavoidable  accident.  Lafayette  &^  I.  R. 
Co.v.  Shriner,6  Ind.  141.— Distinguishing 
Marsh  v.  New  York  &  E.  R.  Co.,  14  Barb. 
(N.  Y.)  364— Distinguished  in  Indiana  C. 
R.  Co  V.  Leamon,  18  Ind.  173.  Followed 
in  Smith  V.  Terre  Haute  &  R.  R.  Co.,  7  Ind. 

553- 

The  statutory  liability  for  killing  live 
stock  in  Kansas  is  independent  of  negli- 
gence. Hopkins  v.  Kansas  Pac.  R.  Co.,  18 
Kan.  462,  16  Am.  Ry.  Rep.  41. — LiMi'i  ^'t>  t.\ 
Central  Branch  R.  Co.  v.  Lea.  20  •  ,    .    ,,-; 

A  railroad  company,  under  8  i'  -  :,  of 
the  Missouri  railroad  act,  is  liubl.  'V*v  a 
failure  to  perform  statutory  duties,  .arrf- 
less  of  any  other  proof  of  negligence.  Cal- 
lins  V.  Atlantic  &*  P.  R.  Co.,  65  Mo.  230. 

32.  Necessity  of  showing  negli- 
gence in  tlie  absence  of  statutory 
duties.— Prior  to  the  Indiana  act  of  1859 
railroad  companies  were  not  liable  for  kill- 
ing stock,  except  where  the  killing  was 
through  negligence  and  without  immediate 
fault  on  the  part  of  the  plaintiff.  Wright  v. 
Indianapolis  &*  C.  R.  Co.,  \%  Ind.  168. 

In  the  absence  of  laws  requiring  railroad 
companies  to  fence  their  tracks,  there  must 
be  proof  of  negligence  in  order  to  charge 
the  company  for  injuries  to  live  stock. 
Robinson  v.  Si.  Louis,  I.  M.  &*  S.  R.  Co.,  2t 
Mo.  App.  141. 

*  See  ante,  6  ;  post,  126,  238,  281. 


ANIMALS,  INJURIES   TO,  33,  U4. 


99 


33. OP  where  statutory  duties 

have  beeu  pcrforined.— If  the  company 
or  its  agents  are  not  guilty  of  any  negli- 
gence, and  comply  with  the  requirements  of 
section  1399  of  Ala.  Rev.  Code,  then  the 
company  will  not  be  liable  for  stock  killed 
or  injured  by  its  trains  or  locomotives  while 
engaged  in  its  legitimate  business.  Nash- 
ville  &*  D.  R.  Co.  v.  Comans,  45  Ala.  437.— 
Overruled  in  Gothard  v.  Alabama  G.  S. 
R.  Co..  67  Ala.   1 14. 

Two  of  plaintiff's  horses  having  by  some 
means  got  on  defendants'  track  were  killed 
by  a  locomotive,  for  which  plaintiff  brought 
his  action.  Held,  that  the  legislature  having 
appointed  certain  measures  to  be  adopted 
for  the  protection  of  property  from  the  loco- 
motives of  defendants,  and  those  measures 
having  been  fulfilled  by  defendants,  they 
were  not  liable  for  the  damage  done  with- 
out showing  something  more  than  ordinary 
in  the  running  of  the  train.  Auger  v.  On- 
tario, S.  &>  H.  R.  Co.,  9  U.   C.  C.  P.  164. 

34.  Proximate  cause,  generally.*— 
(I)  Company's  negligence  must  be  the  cause. 
— A  railroad  company  is  not  liable  for  injur- 
ing live  stock,  on  proofs  showing  that  those 
in  charge  of  the  train  were  guilty  of  some 
negligence,  if  it  appear  that  such  negligence 
did  not  in  any  way  contribute  to  the  injury. 
East  Tenn.,  V.  &-  G.  R.  Co.  v.  Bayliss,  22 
Am.  <S-  Eng.  R.  Cas.  596,  75  Ala.  466.— Ad- 
hered TO  IN  Alabama.  G.  S.  R.  Co.  v. 
McAlpine,  80  Ala.  73. 

The  owner  of  live  stock  killed  by  a  train 
cannot  recover  on  mere  proof  that  the 
brakemen  at  the  time  were  not  at  their 
proper  places  on  the  train,  unless  it  appears 
that  this  contributed  to  the  injury.  Vicks- 
burg  &*  M.  R.  Co.  v.  Hart,  19  Am.  &*  Eng. 
R.  Cas.  521,  61  Afiss.  468. 

To  authorize  a  recovery  for  the  loss  of 
cattle  alleged  to  have  resulted  from  such 
negligence,  it  is  incumbent  upon  the  plain- 
tiff to  show  by  substantial  evidence  that 
the  negligence  was  the  cause  of  the  injury 
sued  for,  though  such  evidence  may  be  cir- 
cumstantial. Burger  v.  St.  Louis,  K.  &•  N. 
IV.  R.  Co.,  ^2  Afo.  App.  119. 

The  bare  fact  that  a  railway  is  uninclosed, 
there  being  no  statute  requiring  it  to  be 
fenced,  does  not,  in  general,  render  the  com- 
pany liable  to  pay  for  animals  straying  upon 
the  track  and  killed  by  a  train — such  want 


•See  post  06,   136,  188,  194,  277- 
27». 


of  fencing  being  in  general  (5nly  a  remote 
cause  of  the  loss.  Blaine  v.  Chesapeake  &* 
O.  R.  Co.,  9  IV.  Fa.  252.— Followed  in 
Layne  v.  Ohio  River  R.  Co.,  35  W.  Va.  438, 
14  S.  E.  Rep.  123. 

At  the  trial  of  an  action  against  a  railroad 
company  for  killing  a  cow  between  the  sig- 
nal-posts, required  by  the  Georgia  Code, 
§  708,  and  the  railroad  crossing,  it  is  proper 
to  instruct  the  jury,  after  repeating  the  Ian- 
gu  >ge  of  the  section,  that  the  company  is 
not  liable  because  the  train  might  be  run- 
ning in  a  manner  forbidden  by  law,  but  that 
the  injury  might  be  shown  to  have  been 
caused  by  a  failure  to  comply  with  the  law. 
Western  &*  A.  R.  Co.  v.  Main,  64  Ga.  649. 
—Distinguished  in  Smith  v.  Central  R. 
&  B.  Co.,  41  Am.  &  Eng.  R.  Cas.  490,  82 
Ga.  801,  10  S.  E.  Rep.  in. 

(2)  niustrations. — "The  death  of  cattle 
is  the  proximate  result  of  the  negligence  of 
a  railway  company  if,  owing  to  such  negli- 
gence, they  are  separated  from  the  drovers, 
become  frightened,  and  rush  down  a  road 
through  a  defective  fence  into  an  orchard, 
and  from  thence  on  to  the  track,  ."Ithough 
it  was  the  duty  of  a  third  person  to  keep 
the  orchard  fence  in  repair.  Sneesby  v. 
Lancashire  &*  V.  R.  Co.,  L.  R.  i  Q.  B.  Div. 
42.  33  L.  T.  N.  S.  372,  45  L.  /.  Q.B.  I  ; 
affirming  L.  R.  9  Q.  B.  263,  43  L.  /.  Q.  B. 
69,  30  L.  T.  N.  S.  492. 

Where  a  train  wrongfully  obstructed  a 
street-crossing  and  thereby  prevented  live 
stock  from  passing,  such  obstruction  was 
not  the  proximate  cause  of  the  injury  which 
resulted  from  another  train  which  injured 
the  stock,  standing  on  another  track. 
Brown  v.  Wabash,  St.  L.  <S-  P.  R.  Co.,  20 
Mo.  App.  222— Reviewing  Schmidt  v. 
Chicago  &  N.  R.  Co.,  83  111.  405. 

In  the  absence  of  any  statute  requiring 
any  railroad  company  to  fence  its  track,  the 
fact  that  the  track  is  unenclosed  is  not  such 
an  immediate  cause  of  killing  of  cattle  on 
the  track  as  to  make  the  company  liable,  in 
the  absence  of  anything  to  show  negligence 
in  the  management  of  the  train.  Cleveland, 
C.  &>  C.  R.  Co.  V.  Elliott,  4  Ohio  St.  474-— 
Followed  in  Central  Ohio  R.  Co.  v.  Law- 
rence, 13  Ohio  St.  66. 

A  team  of  horses  was  killed  by  a  moving 
locomotive  on  a  railroad  track  about  a  mile 
from  the  highway  and  about  five  miles  from 
where  they  took  fright,  by  the  sleigh  to 
which  they  were  hitched  being  overturned 
by  an  ash-heap  in  the  highway.    In  an  action 


i 


i 


100 


ANIMALS,  INJURIES   TO,  35-38. 


by  tlie  owner  of  the  liorses  against  the  town- 
ship to  recover  the  value  of  the  horses, — 
held,  that  the  negligence  of  the  township, 
if  any,  was  not  the  proximate  but  tlie  remote 
cause  of  the  killing  of  tlie  horses,  and  there- 
fore there  could  be  no  recovery.  Township 
of  West  Mahanoyy.  W'ntson,  112  Pa.  St.  574, 
3  Atl.  Rep.  866. 

The  fi  iyhteniiig  of  a  horse  at  laigc  in  a 
highway,  so  that  he  jumps  over  the  cattle- 
guards  and  runs  along  a  railroad  track,  gets 
tangled  in  a  bridge,  and  is  thereby  injured, 
is  not  the  proximate  cause  of  the  injury  or 
a  basis  of  recovery.  Lynch  v.  Xorthern  I'ac. 
K.  Co.,  84  It'/s.  34S,  54  ^V.   IV.  Kep.  610. 

3.N  Failure  to  v^\^^  .sif^iials  as  the 
|>ru.\iiuute  cause.*— The  liability  of  a 
r,iilrf>;ul  company  for  stock  killed  cannot  be 
csiai/lishcd  by  proof  that  the  whistle  was 
nut  sounded  and  tlie  bell  not  rung,  unless  it 
a;)pear  that  the  killing  was  caused  by  such 
l.iilure.  Peoria,  D.  Ssf  E.  li.  Co.  v.  Aten, 
43  ///.  App.  68.  St.  Louis,  V.  <S>.  T.  H.  P. 
Co.  v.  Hurst,  25  ///.  App.  181.  C u'cago,  B. 
&*  Q.  P.  Co.  v.  /ones,  19  III.  App.  648.  Terre 
Haute  6-  /.  P.  Co.  v.  Jenuine,  16  ///.  App. 
209.  Terre  Haute  &»  I.  P.  Co.  v.  Tuter- 
wiler,  16  ///.  App.  197.  Quincy,  A.  (S>»  St.  L. 
P.  Co.  V.  VVellhoencr,  72  ///.  60.— DlSTiN- 
<;uiSHiNG  Chicago  «&  N.  W.  R.  Co.  v. 
llarrie,  55  111.  226. — Leavitt  v.  Terre  Haute 
G^  /.  A'.  Co.,  s  Ind.  App.  513,  31  iV.  E.  Pep. 
860,  32  N.  E.  Pep.  866.— Following  Penn- 
sylvania Co.  V.  Hensil,  70  Ind.  569;  Stone*- 
man  v.  Atlantic  &  P.  R.  Co.,  58  Mo.  503. 

30.  Illc{;al  rate  of  .speed  as  the 
proximate  cause.t— It  is  not  enough  to 
constitute  negligence  that  the  speed  of  a 
running  train  sliould  be  greater  than  the 
prohibited  rate,  unless  it  also  appears  that 
such  illegal  and  negligent  speed  was  the 
cause  of  the  injury  complained  of.  Harlan 
v.  IVabask,  St.  L.  <S-  P.  P.  Co.,  18  Mo.  App. 
483.— Distinguishing  Goodwin  v.  Chicago, 
R.  I.  &  P.  R.  Co  ,  75  Mo.  73;  Alexander  v. 
Hannibal  &  St.  J.  R.  Co.,  76  Mo.  494;  Apiiz 
V.  Missouri  Pac.  R.  Co.,  17  Mo.  App.  419. 
Following  Holman  v.  Chicago,  R.  I.  & 
1'.  R.  Co.,  62  Mo.  562  ;  Stoneman  v.  Atlan- 
tic &  P.  R.  Co.,  58  Mo.  503. 

37.  Effect  of  negliifence  of  com- 
pany's servants  t  —  Wilful  acts.  —  A 

*  See/w/.  65,  1»2,  208,  20». 

tSee/w/,  09-73.. 
\  See  post,  «0,  00. 

Liability  of  company  for  killing  live  otock 
hioujih  negligence  of  engineer,  see  note,  i  L. 
U.  A.  449- 


railroad  company  is  responsible  for  cattle 
killed  by  its  trains  through  the  negligence 
and  carelessness  of  its  employes.  Day  v. 
A'ew  Orleans  Pac.  P.  Co.,  35  La.  Ann.  694. 

A  company  is  not  liable  for  the  wilful  act 
of  those  in  charge  of  its  trains  in  injuring 
or  killing  live  stock.  Cooke  v.  Ulinois  C.  P. 
Co.,  30  /owa  202.— Following  De  Camp  v, 
Mississippi  &  M.  R.  Co.,  12  Iowa  348.— Fol- 
lowed IN  Porter  v.  Chicago,  R.'  I.  &  P.  R.  Co. 
41  Iowa  358.  Not  Followed  in  Marion  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  64  Iowa  568. 

38.  Duty  as  carrier  Uistinguishetl 
from  duty  to  animals  ou  or  near 
track.* — As  a  choice  between  an  injury  to 
passengers,  and  live  stock  on  the  track, 
tiiose  in  charge  of  the  train  owe  the  greater 
duty  to  the  passengers.  IVit/ierell  v.  Mil- 
waukee &•  St.  P.  P.  Co.,  24  Minn.  410. — 
Approving  Locke  7/.  First  Div.  St.  Paul 
&  P.  R.  Co.,  15  Minn.  350.  Distinguish- 
ing Donaldson  v.  Milwaukee  &  St.  P. 
R.  Co.,  21  Minn.  293.— Distinguished 
IN  Watier  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  13  Am.  &  Eng.  R.  Cas.  582,  31 
Minn.  91.  Followed  in  Palmer  7'. 
Northern  Pac.  R.  Co.,  31  Am.  &  Eng.  R. 
Cas.  544,  37  Minn.  223,  33  N.  W.  Rep.  707, 
S  Am.  St.  Rep.  839;  O'Connor  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  27  Minn.  166,  36  Am. 
Rep.  829,  note. 

The  law  recognizes  and  makes  a  clear  dis- 
tinction between  the  care  required  of  rail- 
road companies  with  respect  to  persons  or 
property  in  course  of  transportation,  and 
with  respect  to  persons  or  property  coming 
upon  the  railroad  track  without  the  inter- 
vention of  the  companies.  Central  M.  T, 
P.  Co.  V.  Pockafellffw,  17  ///.  541. 

Necessary  efforts  made  by  the  agents  of  a 
railroad  after  the  discovery  of  cattle  on  the 
track,  ^o  save  the  train  and  passengers  from 
threatened  danger,  would  not  render  the 
:ailroad  company  liable  even  though  they 
might  result  in  injury  to  the  cattle.  Owens 
v.  Hannibal  &*  St.  J.  R.  Co.,  58  Mo.  386.— 
Distinguished  in  Drew  v.  Red  Line  Tran- 
sit Co.,  3  Mo.  App.  ^'^^.—Carlton  v.  Wil- 
mington &>  IV.  P.  Co.,  40  Am  &•  Eng.  P. 
Cas.  178,  104  A^.  Car.  365,  10  S.  E.  Pep.  516. 

The  first  and  paramount  object  of  the  at- 
tention of  the  agents  of  a  company  is  due 
regard  for  the  safety  of  the  persons  and 
property  in  their  charge  on  tlie  train,  for 
which  they  are  held  to  a  high  degree  of 

*See/w/,  60,07. 


ANIMALS,  LNJUKltS  TO,  3I>. 


101 


care;  and,  su  fur  as  consistent  with  this  par- 
amount duty,  they  are  bound  to  the  exercise 
of  what,  in  that  peculiar  business,  would  be 
ordinary  and  reasonable  care  to  avoid  un- 
necessary injury  to  animals  casually  coming 
upon  the  uninclosed  road;  and  fur  any  in- 
jury to  animals  arising  from  a  neglect  of 
such  care  the  company  is  liable  in  damages 
to  the  owner.  Kerwhacker  v.  Cleveland, 
C.  &-  C.  A'.  Co.,  3  0/uo  S/.  172. 

The  first  duty  liiat  an  engineer  has  to 
consider  when  observing  trespassing  stock 
on  the  track  is  tlie  safety  of  the  passengers 
and  property  that  he  may  be  transporting, 
and  the  next  is  to  secure  the  property 
of  the  company  from  damage,  and  sub- 
ordinate to  these  duties  he  is  required  to 
use  ordinary  means  to  prevent  injuries  to 
the  stock ;  but  the  owner  of  trespassing 
stock  has  no  right  to  expect  that  it  will 
be  protected,  unless  it  can  be  done  consist- 
ently with  these  higher  obligations.  Bemis 
v.  Connecticut  6-  P.  R.  R.  Co.,  42  Vt.  375. 

The  employes  of  a  railroad  company  in 
charge  of  a  passenger  train  have  the  legal 
rijjht  to  pursue  such  a  course,  in  respect  to 
cattle  found  on  tlie  track,  without  right,  as 
a  proper  regard  for  the  safety  and  protec- 
tion of  the  persons  and  property  in  their 
cluirge  may  require.  The  owner  has  no 
ri)j;lit  to  expect  his  property  to  be  protected, 
unless  it  can  be  done  consistently  with  the 
higher  obligations  resting  on  the  company  ; 
and  that  railroad  companies  may  be  left  to 
a  full  and  proper  discretion  in  pursuing  the 
course  which  will  best  fulfil  their  important 
duties  to  the  public,  their  acts  in  this  respect 
should  receive  a  favorable  construction. 
Cranston  v.  Cincinnati,  H.  &*  D.  R,  Co.,  i 
Handy  (Ohio)  193. 

In  the  running  of  a  railroad  train,  the  em- 
ployes must  regard  the  safety  of  the  passen- 
gers and  the  property  of  the  company,  as 
well  as  dangers  to  cattle  and  persons  on  the 
track,  and  the  question  of  negligence  is  in- 
fluenced by  these  considerations;  but  it 
cannot  be  said  that  a  railroad  company  is 
liable  only  for  gross  negligence  in  the  kill- 
ing of  a  horse  on  its  track  by  a  train  of  cars, 
or  for  wanton  negligence  or  wilful  miscon- 
duct. Simkins  v.  Columbia  &*  G.  R.  Co.,  19 
Am.  dr'  Eng.  R.  Cas.  467,  20  So.  Car.  258.— 
Quoted  in  Harmon  v.  Columbia  &  G.  R, 
Co.,  32  So.  Car.  127,  10  S.  E.  Rep.  877. 

In  an  action  against  a  railroad  company 
for  killing  live  stock,  an  instruction  is  erro- 
neous which  exacts  the  same  degree  of  care 


from  railroads  to  avoid  injuries  to  live  stock 
that  ihey  arc  required  to  exercise  in  the  pro- 
tection of  passe nge'<«  Railroad  companies 
are  only  bound  to  exercise  ordinary  care  as 
toward  live  stock,  but  are  bound  to  extraor- 
dinary care  for  the  protection  of  passengers. 
Sandham  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  38 
loTva,  88. 

The  operators  of  a  railroad  train  have  an 
unqualified  right  to  carry  a  headlight  upon 
the  train  at  night,  when  necessary  for  th; 
safety  of  the  lives  and  property  embarked 
upon  the  train,  and  it  is  error  to  instruct  a 
jury  that  such  right  depends  upon  its  exer- 
cise not  endangering  cattle  that  stray  u^on 
the  track.  Bellefontaine  &*  I.  R.  Co.  v. 
Schruyhart,  10  Ohio  St.  116.— R:  viewed  IN 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.  v.  Maurer, 
21  Ohio  St.  421. 

39.  Duty  with  respect  to  iiiaclii- 
uery,  uiipUaiices,  etc.— (1)  Generally. — 
Railroad  companies  are  only  held  to  reason- 
able care  for  a  prevention  of  injuries  to  live 
stock,  and  an  instruction  is  erroneous  which 
tells  the  jury  that  such  companies  are  liable 
for  stock  killed  through  lack  of  the  "  best 
appliances  "  for  the  management  of  trains. 
Natchez  <S-  %  R.  Co.  v.  McNeil,  19  Am.  &> 
Eng.  R.  Cas.  518,  61  Miss.  434. 

(2)  Brakes. — A  failure  on  the  part  of  a 
company  to  provide  its  cars  with  proper 
brakes  will  make  it  liable  for  stock  killed, 
by  reason  of  the  use  of  such  brakes.  Forbes 
v.  Atlantic  «S«»  X.  C.  R.  Co.,  76  A'.  Car.  454,  14 
Am.  Ry.  Rep.  313. — Followed  in  Winston 
V.  Raleigh  &  G.  R.  Co.,  19  Am.  &  Eng.  R. 
Cas.  516,  90  N.  Car.  66. 

A  railroad  company  is  not  liable  for  kill- 
ing live  stock  while  a  train  is  on  a  descend- 
ing grade,  where  the  employes  use  all  proper 
diligence  to  avoid  it,  by  reason  of  the  com- 
pany failing  to  have  air-brakes.  Bartley  v. 
Georgia  R.  Co.,  60  Ca.  182. 

Railroad  companies  are  only  required  to 
use  that  reasonable  care  that  a  prudent  man 
would  use  under  the  same  circumstances 
to  avoid  injuring  animals ;  therefore 
companies  are  not  required  to  provide 
air-brakes  and  a  larger  corps  of  em- 
ployes and  to  exercise  the  "  utmost  care  "  to 
prevent  injuries  to  the  animals.  Cantrellv. 
Kansas  City,  M.  <S-  B.  R.  Co.,  69  Miss.  435, 
10  So.  Rep.  580.— Following  Mississippi 
C.  R.  Co.  z/.  Miller,  40  Miss.  45. 

The  fact  that  a  train  which  ran  over  and 
killed  stock  had  no  air-brakes  is  not  of  itself 
sufficient  proof  of  negligence  to  make  the 


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ANIMALS,  INJUKIliS   TO,  40-43. 


1 

Hi 

il 

company  liable,     sinim/y  v.  Louisville  ^ 
X.  A'.  Co.  (Ay.).  2  i'.   W.  AV/.  899. 

The  pluiiiiitl  s  cuw  was  killed  by  delend- 
aiu's  freight  iraiii,  uiid  in  a  suit  for  dam- 
ayes  for  ilic  injury  llic  enj{ineer  tesii- 
licd  iliat  the  train  was  running  I'lfteun  miles 
an  hour,  at  night,  and  hy  means  of  the  iiead- 
light  a  cow  could  be  seen  seventy-live  yards 
in  advance ;  that  he  discovered  the  animal 
at  that  distance,  i)lew  on  brakes,  but  could 
not  possilily  stop  the  train  and  avoid  the 
accident.  Tiie  judge  charged  the  jury  that 
the  company  should  provide  such  appliances 
as  would  enable  the  engineer  to  stop  the 
train  within  the  distance  mentioned  ;  and  if 
not  furnished,  then  it  was  the  defendant's 
duty  to  so  slacken  the  speed  that  the  train 
could  be  stopped  within  that  distance. 
'/lid,  error.  The  company  cannot  he  lield 
to  so  rigid  a  rule  of  accountability  where,  as 
here,  every  reasonable  precaution  was  usefl. 
ll'inslon  V.  Kaleigh  Gr»  G.  R.  Co.,  19  Am.  Sr* 
Kiig.  R.  Ciis.  516,  90  A^.  Car.  66.— Follow- 
ing Montgomery  7'.  Wilmington  &  W.  R.  Co., 
6  Jones  464;  Proctors.  Wilmington  &  W. 
R.  Co.,  72  N.  Car.  579;  Forbes  ?'.  Atlantic 
&  N.  C.  R.  Co.,  76  N.  Cir.  454.  Quoting 
D  )g,'(;tt  7A  Richmond  &  D  R.  Co.,  Si  N.  Car. 
459.  -F.)i,i,owKii  IS  Sciuvell  7'.  Raleigh  &  A. 
R.  C  ).,  lo'i  N.  Car.  272,  lo  S.  E.  Rep.  1045. 

(3)  Siimbcr  an  I  skifl  of  iii,'i.>  in  c/iar^f  of 
train.  —Trains  shiuld  be  provided  with  nien 
of  reasonable  skill  an!  jiuigmcnt,  and  they 
are  required  to  exercise  that  skill  and  judg- 
ment to  avoid  injuring  cattle  on  the  track, 
but  they  are  always  to  act  with  n;ference  to 
the  safctv  of  the  train  and  p;'ssenj:;ers.  Par- 
ker V.  Dubuque  S.  IV.  R.  Co.,  34  /owa  399,  5 
.////.  Ry.  Rep.  513. 

But  companies  are  only  required  to  man 
and  equip  their  trains  with  trainmen  in  such 
a  manner  and  by  the  use  of  such  care  as  a 
pr.ident  man  would  use  under  like  circum- 
stances. Cantrell  v.  Kansas  City,  M.  iS^  B. 
R.  Co.,  69  Miss.  435,   10  So.  Rep.  580. 

4kO.  Effect  of  leaving:  cotton  seed, 
salt,  etc.,  on  or  near  track.— (i)  Cotton 
seeii.—U  a  railroad  company  permits  cotton 
seed  to  accumulate  about  its  track  it  must 
use  ordinary  care  to  prevent  injuring  stock 
that  may  be  attracted  to  the  track  by  the 
seed.  Little  Rod  <S»  Ft.  S.  R.  Co.  v.  Dick, 
42  Atn.&*  Eng.  R.  Cas,  591,  52  Ark.  402, 
12  .v.  IV.Rep.  785. 

(2)  Hay. — A  railroad  company  loaded  a 
car  with  hay  in  the  afternoon  and  left  it 
standing  on  a  side-track  until    the    next 


morning.  FlainiiU's  cuw  was  seen  eating 
from  the  hay  in  the  evening,  and  was  after- 
ward found  dead,  liie  presumption  being 
tliat  she  had  been  run  over  by  a  passing 
train  while  eating  tlie  hay.  held,  that  it 
was  not  negligence /tr  se  lu  leave  the  hay 
mat  length  of  time.  Harlan  v.  ll'adas/i,  St. 
L.iir'  J'.  R.  Co.,  1 8  Mo.  App.  483. 

(3)  Molasses, — Where  the  hogs  of  liie 
plaintitl  were  attracted  to  the  warehouse  of 
the  defendants  by  the  drippings  of  molasses 
from  defendants'  cars,  and  were  killed  by 
the  trains  »f  defendants,  which  were  sud- 
denly started  without  the  usual  alarm, — 
held,  (hat  this  was  such  negligence  as  en- 
titled the  plaintifl  to  damages.  Page  v. 
North  Carolina  R.  Co.,  71  N.  Car.  222. 

(4)  Salt. — It  is  negligence  for  a  railway 
company  to  permit  salt  to  remain  exposed 
on  its  tracks,  or  on  its  right  of  way  near 
them,  so  as  to  attract  cattle,  after  it  has  be- 
come chargeable  with  notice  that  salt  is 
thus  exposed ;  and  this,  though  it  did  net 
place  the  salt  there,  it  being  held  guilty  of 
negligence  in  such  cases  on  the  theory  that 
its  duty  is  to  so  police  its  right  of  way  as  to 
prevent  and  remove  all  attractive  dangers 
placed  on  its  tracks  or  rigiit  of  way  by  its 
servants  or  others.  Burger  v.  St.  Louis,  K. 
6-  A^.  \V.  R.  Co.,  52  Mo.App.  119.— FoL- 
LOWING  Crafton  v.  Hannibal  &  St.  J.  R. 
Co.,  55  Mo.  580. — Schooling  v.  St.  Louis,  K. 
C.  &>  N.  R.  Co.,  75  Mo.  518.  Brfftvn  v.  Han- 
nibal &-  .!>•/.  /.  R.  Co.,  27  Mo.  App.  394. 
Morrow  v.  Hannibal  &*  St.  J.  R.  Co.,  29  Mo. 
A  '>p.  432.  Crafton  v.  Hannibal  St*  St.  J.  R. 
Co.,  55  Mo.  580. 

Where  salt  has  been  left  exposed  under  a 
warehouse  on  the  right  of  way  of  a  railway 
company  and  near  its  tracks,  the  company 
cannot  avoid  liability  in  consequence  thereof 
by  mere  proof  that  the  warehouse  belongs 
to  a  third  party.  Burger  v.  St.  Louis,  K.  &* 
N.  IV.  R.  Co.,  52  Mo.  App.  1 19. 

41.  Lialiility  where  froiinded  ani- 
mal is  killed  by  its  owner.— A  railroad 
company  is  liable  as  for  killing  an  animal, 
where  it  is  wounded  so  badly  by  the  train 
that  It  cannot  recover,  and  the  owner  kills 
it  to  put  it  out  of  sufTering.  Atchison,  T. 
St*  S.  F.  R.  Co.  V.  Ireland,  19  Kan.  405. 

42.  Liability  where  company  is 
itself  a  trespasser.* — Where  a  railroad 
company,  without  acquiring  the  right  of 
way,    constructs   and     operates     its   road 

*See/<'^/,  43-60,  134,  152,  150. 


ANIMALS,  INJURIES   TO,  43,44. 


103 


thruugli  the  land  oi  aiiuthcr,  and  one  of  its 
engines  runs  against  and  injures  one  of  his 
cows  on  such  land,  it  is  prima  facie  a  tres- 
passer, and  liable  for  killing  the  cow. 
Mathews  v.  St.  Paul  &*  S.  C.  R.  Co.,  i8 
Minn.  434. 

2.  Animals  Trespassing  or  Straying-  upon 
Track.* 

a.  Irrespective  of  Owner's  Duty  to  Inclose 
Stock. 

43.  What  auiiiialH  are  considered 
U8  treHimMHiiitf.t— A  vote  of  a  town  in  pur- 
suance of  statutory  authority,  making  live 
stock  free  commoners,  does  not  authorize 
the  grazing  of  such  stock  on  the  grounds  of 
a  railway  company,  such  grounds  not  being 
a  public  highway  nor  a  public  common. 
Williams  v.  Michigan  C.  K.  Co.,  2  Mich. 
259. 

Where  cattle  enter  from  a  highway,  where 
it  crosses  a  railroad,  on  to  the  track  of  such 
railroad,  such  entry  is  a  trespass,  although 
there  is  no  obstacle  to  prevent  such  entry, 
and  the  town  has  made  regulations  requir- 
ing fences  of  a  particular  kind,  and  allow- 
ing cattle  to  run  at  large  on  the  highways. 
Tonawanda  R.  Co.  v.  Munger,  5  Den.  {N.  V.) 
255. 

A  railroad  company  is  not  liable  for  neg- 
ligently running  an  engine  upon  and  killing 
the  cattle  of  the  plaintitT,  which  had  come 
from  the  highway  upon  the  track  of  the 
railroad,  though  there  was  no  physical  ob- 
stacle to  prevent  their  entry,  such  entry  be- 
ing held  to  be  a  trespass.  TonawanJa  R. 
Co.  v.  Munger,  5  Den.  (N.  Y.)  255.— Dis- 
tinguished IN  Bostwick  V.  Minneapolis  & 
P.  R.  Co.,  2  I*.  Dak.  440.  Followed  in 
Louisville  &  F.  R.  Co.  v.  Ballard,  1  Mete. 
(Ky.)  177;  Williams  v.  Michigan  C.  R. 
Co.,  2  Mich.  259;  Corwin  7/.  New  York  &  E. 
R.  Co.,  13  N.  Y.  42 ;  Clark  v.  Syracuse  &  U 
R.  Co.,  II  Barb.  (N.  Y.)  112.  Not  Fol- 
lowed IN  Washington  v.  Baltimore  &  O. 
R.  Co.,  17  W.  Va.  190.  Quoted  in  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Johnson.  8  Am.  & 
Eng.  R.  Cas.  225, 103  III.  512  ;  Pittsburgh,  C. 

*  Obligation  of  company  to  avoid  injuring 
and  liability  for  killing  stock  trespassing  on 
track,  see  notes,  40  Am.  &  Eng.  R.  Cas.  173  ;  i 
I..  R.  A.  449  ;  49  Am.  Dec.  261. 

i  'ability  for  trespasses  of  animals  at  com- 
mon law,  and  as  affected  by  agreement,  by  pre- 
scription, and  by  statutes  requiring  fences,  see 
very  full  note,  49  Am.  Dec.  248. 

tSee/o^/.  54,  134,  152-159. 


&  St.  L.  K.  Co.  V.  Stuart,  71  Ind.  500; 
Louisville  &  N.  R.  Co.  v,  McCoy,  81  Ky. 
403.  Reviewed  in  Terry  v.  New  York 
C.  R.  Co.,  22  Barb.  (N.  Y.)  574;  Bow- 
man V.  Troy  &  B.  R.  Co.,  37  Barb.  (N.  Y.) 
516;  Tower  V.  Providence  &  W.  R.  Co.,  2 
R.  I.  404- 

When  animals  get  upon  the  track  away 
from  any  public  crossing,  and  at  a  point 
where  defendant's  servants  were  not  re- 
quired to  anticipate  the  presence  of  stock, 
they  are  mere  trespassers,  and  defendant 
is  only  bound  to  use  ordinary  care  to  pro- 
tect them  after  discovering  their  perilous 
condition,  and  the  burden  of  proving  want 
of  such  care  rests  upon  the  plaintiff.  Jcwett 
V.  Kansas  City,  C.  &•  S.  R.  Co.,  so  Mo.  App. 

547. 

Railroad  companies  are  not  required  to 
fence  where  their  tracks  pass  through  un- 
occupied lands,  and  cattle  entering  the 
track  from  such  unoccupied  lands  are  tres- 
passers, and  the  company  will  not  be  liable 
for  an  injury,  where  it  was  without  negli- 
gence on  the  part  of  those  in  charge  of  the 
trains.  McMillan  v.  Manitoba  &*  N.  JV,  R. 
Co.,  4  Man.  220. 

In  the  absence  of  recklessness  a  railroad 
company  is  not  liable  for  a  horse  killed 
which  has  gone  from  a  highway  to  the  track 
by  reason  of  there  not  being  a  cattle-guard, 
though  the  corporation  is  bound  10  main- 
tain one  at  the  place,  as  such  horse  is  a 
trespasser.  Darling  v.  Boston  &*  A.  R.  Co., 
121  Mass.  118.— Distinguished  in  Bost- 
wick V.  Minneapolis  &  P.  R.  Co.,  2  N.  Dak. 
440.  Quoted  in  Boyle  v.  New  York,  L.  E. 
&  W.  R.  Co.,  39  Hun  (N.  Y.)  171. 

Where  a  railroad  maintains  proper  fences 
and  cattle-guards  the  owner  of  cattle  that 
go  upon  the  track  from  adjoining  lands  will 
be  charged  with  negligence,  and  the  cattle 
treated  as  trespassing,  though  there  is  no 
actual  carelessness  on  the  part  of  the  owner 
in  allowing  them  to  go  upon  the  track. 
Fisher  v.  Farmers'  L.  6-  T.  Co.,  21  Wis. 
73. — Distinguishing  Dunnigan  v.  Chicago 
&  N.  W.  R.Co.,  18  Wis.  28;  Brown  v.  Mil- 
waukee &  P.  du  C.  R.  Co.,  21  Wis.  39. 

44. aud  what  are   not.  —  The 

owner  of  cattle  is  not  rendered  liable  for 
trespass  by  allowing  them  to  go  upon  a  rail- 
road where  it  is  unfenced,  at  private  cross- 
ings or  at  other  places  where  such  right 
arises  by  a  general  use,  with  the  implied  as- 
sent of  the  company  resulting  from  the  clear 
knowledge  of  such  use  and  the  failure  to 


4 


104 


ANIMALS,  INJUKiliS   TO,  45,40. 


object.  Kvans  v.  Burlhigton  ir*  M.  A'.  A. 
Co.,  ai  Iowa  374.  — Foi.U)WiNU  Alger  v. 
Mississippi  &  M.  K.  Co.,  10  luwa  268  ;  Bart- 
lett  V.  Dubuque  &  S.  C.  K.  Co.,  20  Iowa 
188;  Russell  I'.  Hunley,  2o  Iowa  219.  — DlS- 
TINUUISKKU  IN  Coimycrs  v.  Sioux  City  & 
P.  R.  Co..  78  Iowa  410,  43  N.  W.  Rep.  267. 

Ill  Mississippi  cattle  pasturing  upon  un- 
inclosed  lands  arc  not  trespassing  by  going 
upon  an  unfenccd  railroad  track,  so  as  to  de- 
prive the  owner  from  recovering  from  a  rail- 
road company  which  kills  tlieni.  VicisbiiPif 
&*  J.  A'.  Co.  V.  /'a//,)fi,  31  M/ss.  156. 

A  horse  found  upon  a  railroad  track  in 
South  Carolina  is  not  a  trespasser,  not  even 
under  the  terms  of  the  slock  law,  where  the 
horse  is  in  its  owner's  inclosed  pasture, 
through  which  the  railroad  has  only  a  right 
of  way.  Si/)tAw'/is  v.  Coliiiii/iia  &*  G.  A'.  Co., 
19  ///«.  <S^  /i»if.  A'.  Cits.  467,  20  ^0.  Car.  258. 

According  to  the  laws  of  South  Carolina 
cattle  should  be  fenced  out,  and  not  fenced 
in.  The  entry,  therefore,  of  cattle  or  a 
horse  on  an  uninclosed  railroad  track  is  no 
tresi)ass.  Murray\.  South  Carolina  K.  Co., 
10  Ric/i.  {.So.  Car.)  227. 

The  owners  of  domestic  animals  straying 
on  an  uninclosed  road  of  a  railroad  com- 
pany are  not  trespassers,  and  such  company 
has  no  right  to  presume  the  owners  will 
not  suffer  them  to  roam  on  the  track  of  a 
railway.  Johnson  v.  IhiHimore  (S»  O,  R.  Co., 
25  W.Va.  570.— Follow  I  NuRlaine  7/.  Ches- 
apeake &  O.  R.  Co.,  9  W.  Va.,  252  ;  Baylor 
V.  Baltimore  &  O.  R.  Co.,  9  W.  Va.,  270; 
Washington  7/.  Baltimore  &  O.  R.  Co.,  17 
W.  Va.  190.— Followed  in  Layne  v,  Ohio 
River  R.  Co.,  35  W.  Va.  438. 

45.  Itinrlit  to  iiHe  truck,  and  how 
exorcised.— The  right  of  a  railroad  com- 
pany to  the  use  of  its  track  is  nothing  more 
than  the  right  of  every  other  land  proprietor 
in  the  actual  use  and  occupancy  of  his  land, 
and  does  not  exempt  the  company  from  the 
duty  enjoined  by  law  upon  every  person  so 
to  use  his  own  property  as  not  to  do  any 
unnecessary  injury  to  another.  Savannah, 
F.  &*  IV.  k.  Co.  V.  Geiger,  29  Am.  &^  Eng. 
I R.  Cas.  274,  21  F/a.  669,  58  Am.  Rep.  697. 

A  railroad  company  maintaining  and 
operating  a  railway  upon  plaintiff's  land,  by 
his  consent,  is  nevertheless  bound  to  pre- 
vent such  permissive  use  of  the  land  to 
work  injury  to  the  plainiiflf's  cattle  ;  and  it 
is  immaterial  that  the  company  was  not 
bound  to  fence  its  track,  or  that  it  could  not 
have  avoided  striking  the  animal  after  ii 


was  seen.  Mathiws  v.  St.  Paul  ^  S.  C. 
R.  Co.,  18  Minn.  434  {Gi7.  392J.— Disiin- 
(iUisHKU  IN  Day  v.  New  Orleans  Fac.  R, 
Co,,  36  La.  Ann.  244. 

Where  a  railroad  runs  through  a  farm  and 
so  divides  it  that  it  is  necessary  (or  the  owner 
to  pass  from  one  side  to  the  other,  to  drive 
his  live  stock  across  the  track,  an  instruction, 
in  a  suit  to  recover  damages  from  the  rail- 
road for  injuries  to  such  live  slock,  correctly 
states  the  law,  which  is  to  the  ellect  ihat 
the  company  held  its  casement  subject  to 
the  plaintiff's  right  to  cros«  and  recross  the 
track  from  the  different  parts  of  his  farm, 
provided  the  same  was  reasonably  exercised ; 
that  it  was  the  duty  of  the  jury  u>  ascertain 
if  either  party  had  been  guilty  of  negligence. 
If  the  plaintiff  saw  his  cow  on  the  track 
about  train  time,  or  if  his  cattle  were  turned 
upon  the  lands  adjoining  the  track  and 
were  loitering  along  when  near  the  track, 
such  facts  might  be  evidence  of  negligence 
which  it  was  proper  for  them  to  consider; 
and  it  was  proper  for  the  court  to  refuse  to 
instruct  the  jury  that  the  company  had  the 
exclusive  right  to  use  and  occupy  its  track 
through  the  farm.  Jloiisatonic  R.  Co.  v. 
IVaterbttry,  23  Conn,  loi.  — Reviewed  in 
Richmond  v,  Sacramento  Valley  R.  Co.,  18 
Cal.  351, 

The  rule  that  railroad  companies  have  a 
right  to  a  clear  track  and  the  exclusive  use 
of  their  properly  is  subject  to  the  qualifica- 
tion which  rests  upon  all  property  owners, 
that  they  may  so  use  it  as  not  to  injure  other 
persons  or  their  property,  if  it  can  be 
avoided  by  the  exercise  of  reasonable  care. 
New  Orleans  &*  N.  E.  R.  Co.  v.  Bourgeois, 
66  Af/ss.  3,  5  So.  Rep.  629. 

The  rule  that  railroad  companies  are  en- 
titled to  the  exclusive  use  of  their  tracks 
must  be  taken  subject  to  the  qualification 
that  they  are  required  to  use  reasonable 
skill  and  care  to  avoid  injuring  stock  that 
may  go  upon  the  track.  Vicksburg  <S»  /.  R. 
Co.  V.  Patton,  31  Miss.  156. — Followed  in 
Memphis  &  C.  R.  Co.  v.  Orr,  43  Miss.  279. 

The  rule  that  railroad  companies  are  en- 
titled to  the  exclusive  use  of  their  tracks  is 
subject  to  the  qualification  that  they  are 
liable  for  any  wanton  injury  that  may  occur 
to  trespassing  cattle  thereon,  or  through 
gross  negligence  of  their  servants.  Pritch- 
ard  V  La  Crosse  6^  M.  R.  Co  ,  7  IVis.  232. 

40.  Uespcctive  riHks  ussunied  by 
company  and  owner.— When  at  the  date 
of  the  suit  there  was  no  law  in  Ohio  requir- 


ANIMALS,  INJUKILS   TO,  47,  4». 


105 


^1' 


iii;^  I'ailruud  conipunicH  tu  fuiicu  tlieir  trucks, 
tlii:  company  takes  tlic  risk  of  uiiiinulsi 
getting  upon  the  niad  witliout  any  remedy 
ajiainst  the  owner,  and  the  owner  of  the 
unimalii  takes  the  risk  of  their  loss.  Ker- 
•u'hiuker  v.  LUviland,  C.  iS"*  C,  A'.  Co.,  3  U/tto 
.sy.  172  — UisriNUiMSHKU  IN  Sinram  v, 
I'liisburKli,  V.  VV.  &  C.  R.  Co.,  28  Ind.  244.— 
rdahw  V.  L'/ifSti/iiiU-r  ij^  O.  A'.  Co.,  9  /K  Fa. 
25J.  — FdM.owku  in  Johnson  v.  Baltimore 
iV  ().  U.  Co.,  25  W.  Va.  570;  I^aync  v.  Ohio 
Kivcr  K.  Co.,  35  W.  Va.  438.  U  S.  E.  Rep. 
123.  yuoTED  IN  Moses  V.  Southern  Pac. 
R.  Co.,  42  Am.  &  En^.  R.  Cas.  555,  18  Ort-^ 

3»5. 

Wiiiie  an  owner  of  live  stock  is  not  re- 
quired to  keep  tlieni  on  his  own  premiseH, 
yi  I  il  lie  jiermiis  lliem  to  go  at  hirfje,  and 
llicy  stniy  upon  the  railroad  track  and  are 
injured,  wiili  no  want  (jf  care  on  tiie  part  of 
tlie  company  or  its  aj^enls,  tlie  owner  can- 
ncjt  recover  from  tlie  company.  Gorman  v. 
I'luijic  R.  Co.,  26  Mo.  441.  —  AlM'ROViNU 
Cincinnati,  II.  &  U.  R.  Co.  v.  Walerson,  4 
Ohio  St.  430;  Kerwacker  v.  Cleveland,  C.  & 
C.  R.  Co.,  3  Ohio  St.  172;  Uanner?'.  South 
Carolina  R.  Co.,  4  Rich.  (So.  Car.)  334. 

The  ordinary  rules  as  t(j  trespassing  stock 
have  l)cen  modilied  as  to  railroads,  so  that 
while  tiie  owners  may  lawfully  permit  their 
cattle  to  run  at  large,  they  assume  the  risk 
of  the  killing  or  injuring  of  the  cattle  by  a 
train,  while  trespassing  upon  the  track. 
J/ciutt-n  V.  Rust,  39  ///.  186. 

47.  Liability  lor  iitt{rlit;eiicc,(;euer- 
ally.*  — Where  stock  intrudes  upon  a  rail- 
road track  and  is  injured,  the  liability  of  the 
com|)any  depends  upon  whether  the  injury 
was  the  result  of  mismanagement  or  negli- 
gence. Mobile  &•  O.  R.  Co.  v.  Hudson,  50 
Miss.  572.— Approvi'.d  in  Atchison,  T.  & 
S.  V.  R.  Co.  V.  Walton,  3  N.  Mc.\.  319. 

If  cattle  go  upon  the  track  at  points 
where  the  company  has  no  rij^ht  to  fence, 
and  are  injured,  the  liability  of  the  company 
depends  upon  whether  there  was  negligence 
or  not.  Indianapolis,  C.  &^  L.  R.  Co.  v. 
IVarner,  35  Ind.  515,  4  Am.  Ry.  Rep.  537.— 
Followed  in  Indianapolis,  C.  &  L.  R.  Co. 
V.  Johnson,  36  Tnd.  267. 

Railroad  companies  that  knowingly  run 
their  trains  under  conditions  rendering  it 
impossible  for  those  in  charge  to  prevent 
injuring  stock  straying  on  their  tracks,  are 
accountable  for  the  loss  when  injury  results. 

*  See  ante,  29-:t2  ;  po$t,  57,  187,  200, 
204. 


Birmtii^^ham  Mineral  R.  Co.  v.  Harris,  98 
Ala.  326. 

Where  a  domestic  animal,  running  at 
large  by  the  suHerancc  of  the  owner,  gets 
upon  u  track  where  the  company  is  not  re- 
quired to  fence,  and  is  injured,  the  com- 
pany is  not,  in  general,  liable,  unless  its 
servants,  after  they  discover  the  animal, 
might,  by  the  exercise  of  proper  care  and 
prudence,  have  prevented  the  injury.  Jo- 
ledo,  ir.  &*  11:  R.  Co.  V.  Uarlmv,  71  ///.  640. 
— yuuTKl)  IN  Illinois  C.  R.  Co.  -'.  Noble, 
142  111.  5/8;  Chicago*  A.  R.Co.  v.  Hill,  24 
III.  App.  619;  Chicago  &  A.  R.  Co.  v.  Legg, 
32  III.  App.  218. 

The  fact  that  the  cattle  injured  wr  .  per- 
mitted to  run  at  large  will  not  shield  the 
company  from  the  c^>nsequcnces  of  the  fail- 
ure of  its  agents  to  observe  proper  care  and 
vigilance.  Kentucky  C.  R.  Co.  v.  Lebus,  14 
Bush  (A>.)  518.— FoLLowiNO  Padncah  & 
M.  R.  Co.  V.  Hoehl,  12  Hush  (Ky.)  43. 

If  cattle  on  the  roadbed  of  a  railway 
were  trespassers,  and  while  so  trespassing 
are  negligently  injured,  nevertheless  the 
owner  of  such  cattle  would  be  entitled  to 
recovcr  from  the  railroad  company  damages 
for  the  injury  so  done.  Jones  v.  Columbia 
&*  G.  R.  Co.,  19  Am.  &•  En};.  R.  Cas.  459,  20 
So.  Car.  249;  to  the  contrary,  see  Talmadge 
v.  Rensselaer  &•  S.  R.  Co.,  13  Barb.  {N.   V.) 

493- 

48.  Degree  of  care  required  of 
conipaiiy.*— (1)  Generally.  — Where  stock 
are  properly  runningat  large  upon  commons, 
and  this  fact  is  known  to  operatives  of 
trains,  they  must  be  held  to  a  higher  degree 
of  care  than  when  they  have  their  road  fenced 
and  have  no  reason  to  expect  stock  will  be 
found  on  their  track.  Chicat^o  6r^  A.  R.  Co. 
v.  Enf^le,  84  ///.  397,  16  Am.  Ry.  Rep.  490. 

The  fact  that  defendant's  track  was  not 
fenced,  the  law  not  requiring  it,  did  not  im- 
pose on  it,  as  to  cattle  unlawfully  on  its 
track,  the  duty  of  any  greater  care  than  if  it 
had  been  fenced.  Locke  v.  First  Div.  St. 
Paul  Gf  P.  R.  Co.,  1 5  it! inn.  350,  {Gil.  283). 
— Not  following  New  Albany  &  S.  R. 
V.  Maiden,  12  Ind.  10. 

Though  railroad  companies  do  not  owe 
the  same  care  to  trespassing  stock  that  they 
owe  to  others,  yet  they  are  liable  where  such 

•  See/w/,  58,  «2,  110,  141,  180. 

Measure  of  care  required  for  animals  on  the 
track,  see  note,  19  Am.  &  Eno.  R.  Cas.  480. 

Servants  must  use  ordinary  care  to  prevent  in- 
jnry,  sec  note,  19  Am.  &  Eno.  R.  Cas.  500. 


H 


■i 


I 


106 


ANIMALS,  INJURIES   TO,  -kH. 


stock  is  killed  through  the  negligence  of 
their  agents,  lyalkiir  v.  Columbia  &•  G,  R. 
Co.,  25  So.  Car.  141. 

The  law  exacts  of  railroad  companies, .  nd 
other  common  carriers,  in  their  use  of  steam 
power,  extraordinary  diligence,  or  "  that  de- 
gree of  diligence  which  very  careful  and 
prudent  men  take  of  iheir  own  affairs ;"  and 
while  there  are  authorities  wuich  confine 
this  rule  of  diligence  to  the  transportation 
of  passengers,  sucli  is  not  the  law  in  Ala- 
bama. Alabama  (J.  S.  Ji.  Co.  v.  Mc Alpine, 
15  Am.  &>  Eiii^.  R.  Cas.  544,  71  -^^<'-  545-— 
Followed  in  Alabama  G.  S.  R.  Co.  v.  Mc- 
Alpine,  22  Am.  &  Eng.  R.  Cas.  602,  75  Ala. 

"3- 

(2)  Ordinary  and  reasonable  care. —  The 

servants  of  a  railroad  company,  in  operating 
its  trains,  are  bound  to  use  ordmary  care  to 
avoid  injury  to  domestic  aninials  trespassing 
on  their  railroad.  Cincinnati  &*  Z.  R.  Co. 
V.  Smil/i,  22  0/iio  St.  227. 

The  want  of  ordinary  care  and  diligence 
will  make  a  railroad  company  liable  for  kill- 
ing live  stock  on  the  track,  and  it  is  not  nec- 
essary to  show  that  the  killing  was  wilful  or 
wanton.  S/iuman  v.  Indianapolis  &"  St.  L. 
R.  Co.,  II  ///.  App.  472. 

In  order  to  make  railroad  companies  lia- 
ble for  injuries  to  stock,  the  facts  must  show 
either  gross  negligence  or  wilfulness  or  ma- 
liciousness. Railroad  companies  are  not 
held  to  the  highest  possible  degree  of  care 
to  avoid  injuring  stock  trespassing  on  the 
track.  Great  Western  R.  Co.  v.  Thompson, 
17  ///.  131. 

A  railroad  company  will  be  liable  to  the 
owner  of  live  stock  killed  on  the  track  if  it 
appears  that  those  in  charge  of  the  train 
co'-ild  have  avoided  the  accident  by  the  exer- 
cise of  reasonable  vigilance  and  care.  JCen- 
dig  V.  Chicago,  R.  I.  &•  P.  R.  Co.,  igAm.  &* 
Eng.  R.  Cas.  493,  79  Mo.  207. 

Railroad  companies  are  required  to  exer- 
cise ordinary  care  in  the  management  of 
their  trains,  so  as  to  prevent  injuring  stock 
though  it  may  be  trespassing  on  the  track. 
Bostiuick  V.  Minneapolis  &*  P.  R.  Co.,  49  Am. 
^  Eng.  R.  Cas.  '^rj,  2  A^.  Dak.  440,  51  N. 
W.  Rep.  781.— Distinguishing  Tonawanda 
R.  Co.  V.  Munger,  5  Den.  255;  affirmed, 
4  N.  Y.  349;  Van  Horn  v.  Burlington,  C.  R. 
&  N.  R.  Co.,  59  Iowa  33,  12  N.  W.  Re|). 
752;  Eames  7/.  Salem  &  L.  R.  Co.,  98  Muss. 
5(10;  Darling  v.  Boston  &  A.  R.  Co.,  121 
Mass.  118;  Wright  v.  Boston  &  M.  R.  Co., 
2  Am.  &  Eng.  R.  Cas.  121,  129  Mass.  440; 


Pittsburgh, C.  &  St.  L.  R.  Co.  v.  Stewart,  71 
Ind.  500;  Schittenhelms  v.  Louisville  &  N. 
R.  Co.  (Ky.),  19  Am.  &  Eng.  R.  Cas.  in  ; 
Maynard  v.  Boston  &  M.  R.  Co.  115  Mass. 
458;  Cincinnati,  W.  &  M.  R.  Co.  v.  Stanley 
(Ind.),  27  N.  E.  Rep.  316;  Bennett  v.  Chi- 
cago &  N.  W.  R.  Co.,  19  Wis.  145 ;  Vande- 
grift  V.  Rediker,  22  N.  J.  L.  189.  yuoriNG 
Isbell  V.  New  York  &  N.  H.  R.  Co.,  27  Conn. 
393;  Needham  v.  San  Francisco  &  S.  J.  X. 
Co.,  37  Cal.  409.  Reviewing  Davis  v.  Mann, 
10  Mees.  &  VV.  549. 

In  California,  where  cattle  are  permitted 
to  run  at  large,  railroad  companies  are  only 
required  to  use  reasonable  exertions  to  pre- 
vent injuring  them  if  they  stray  upon  tfie 
track.  Richmond  v.  Sacramento  Valley  R. 
Co.,  18  Cal.  351.— Quoting  Beers  v.  Housa- 
tonic  R.  Co.,  19  Conn.  566.  Reviewing 
Corwin  v.  New  York  &  E.  R.  Co.,  13  N.  Y. 
42;  Housatontc  R.  Co.  v.  Waterbury,  23 
Conn.  loi. 

Those  in  charge  of  moving  trains  are  re- 
quired to  exercise  ordinary  care  and  pru- 
dence to  avoid  injuring  stock  on  the  tracks, 
but  if  the  track  is  properly  enclosed,  then 
the  company  will  only  be  liable  for  gross 
negligence.  Alger  v.  Mississippi  <S>»  M.  R. 
Co.,  10  Iowa  268.— Reviewing  Bees  v. 
Housatonic  R.  Co.,  19  Conn.  566.— Dis- 
tinguished IN  Bartlett  v.  Dubuque  &  S. 
C.  R.  Co.,  20  Iowa  188. 

Railroad  companies  are  required  to  use 
reasonable  and  ordinary  care  to  avoid  in- 
juries to  live  stock  on  the  portions  of  their 
tracks  which  cannot  be  fenced,  and  if  they 
fail  in  such  care  they  are  liable  to  the 
owner  of  the  stock,  if  it  be  injured  without 
negligence  on  his  part.  Whitbeck  v.  Du- 
buque &>  P.  R.  Co.,  21  Iowa  103.— Reviewed 
IN  Davis z/.  Burlington  &  M.  R.  Co.,  26  Iowa 
549 ;  Moses  v.  Southern  Pac.  R.  Co.,  42  Am. 
&  Eng.  R.  Cas.  555,  18  Oreg.  385. 

In  an  action  to  recover  the  value  of  a  cow 
alleged  to  have  been  killed  by  an  engine 
on  defendant's  road, — held,  that  although 
the  accident  occurred  at  a  place  where  the 
company  were  not  bound  to  fence  their 
track,  and  defendants  were  not  guilty  of 
any  wanton  or  wilful  neglect,  yet  if,  by  the 
exercise  of  ordinary  care  and  skill  upon  their 
part,  they  could  have  prevented  the  injury, 
they  were,  nevertheless,  liable  for  the 
damages  sustained.  Rockford,  R.  I.  &^  5/. 
L.  R.  Co.  V.  Lewis,  58  ///.  49. 

A  railroad  company  is  liable  for  any 
damage  done  to  persons,  stock,  or  other 


ANIMALS.  INjUKIliS   TO,  49. 


107 


property  by  the  running  u(  Us  uuins,  unless 
ihe  company  sliiill  make  it  appear  that  their 
agents  exerciiseil  all  orilinary  and  reasonable 
care  and  diligence  to  prevent  such  damage; 
but  where,  in  an  action  for  killing  a  horse, 
the  court,  aiict  charging  this  principle, 
added,  "that  is,  I  might  say,  a  full  measure 
of  care  and  diligence— all  that  could  be 
expected,"  such  charge  was  error,  the  effect 
of  it  being  to  require  extraordinary  diligence 
of  the  company.  VVeshrti  &'  A.  li.  Co.  v. 
King,  19  Am.  &'  Eng.  A".  Cas.  255,  70  Ga. 
261. 

The  employes  of  a  railroad  company  are 
bound  to  use  ordinary  care  and  diligence,  so 
as  not  unnecessarily  to  injure  the  properly  of 
(Others  on  the  track.  Coyie  v.  Baltimore  &>  O. 
R.  Co.,  II   W.  Va.  94,   18  Am.  Ry.  Rep.  487. 

(3)  Th(  care  which  would  be  used  by  a 
prudent  man. — The  only  thing  that  will 
justify  an  injury  to  cattle  by  moving  trains 
is  proof  that  the  company,  at  the  time,  was 
engaged  in  its  ordinary  and  lawful  business, 
and  that  the  injury  could  not  have  been 
avoided  by  the  use  of  such  skill,  prudence 
and  care  as  a  discreet  man  would  have  used 
under  the  same  circumstances.  New  Or- 
leans, J.  &*  G.  N.  R.  Co.  V.  Field,  46  Miss. 

573- 

Railroad  companies  are  required  to  use 
that  reasonable  care  . .  prevent  injuries  to 
live  stock  on  the  track  that  a  prudent  man 
would  exercise  under  the  same  circumstances 
in  the  management  of  his  own  property. 
Mississippi  C.  R.  Co,  v.  Miller,  40  Miss.  45. 
-Followed  in  Cantrell  v.  Kansas  City,  M. 
&  B.  R.  Co.,  69  Miss.  435. 

Railrjad  companies  are  only  held  to  such 
diligence  to  avoid  killing  stock  as  a  prudent 
man  would  bestow  on  his  own  business. 
The  absence  of  such  diligence  is  negligence 
which  will  render  a  company  liable.  Molair 
v.  Port  Royal  6-  A.  R.  Co.,  35  Am.  &^  Eng. 
R.  Cas.  13s,  29  So.  Car.  152,  7  S.  E.  Rep. 
60. 

In  considering  the  question  of  negligence 
of  the  agents  of  a  railroad  company,  all 
their  duties  must  be  considt  red— their  first 
and  higher  duties  to  the  passengers  and 
property  in  their  charge,  and  their  subor- 
dinate duties  to  avoid  injury  to  live  stock 
spraying  on  the  road  in  front  of  them  ;  and 
such  agents  and  employes  will  be  guilty  of 
actionable  negligence  whenever  the  injury 
complained  of  is  the  result  of  their  failure 
to  observe  that  care,  vigilance,  and  foresight 
that  ordinarily  prudent  men,  skilled  and  en- 


gaged in  a  like  perilous  service,  should  or 
uuglit  tvj  observe.  Kentucky  C.  R,  Co,  v. 
Led  us,  14  Bush  (h'y.)  518. 

49.  Degree  of  care  required  after 
discovery  of  auiinal.*— (i)  Generally. — 
If  live  stock  is  seen  on  the  track  at  such 
places  as  would  make  it  impossible  for  it  to 
get  oflf,  as  in  cuts,  or  where  the  track  is 
fenced  on  either  side,  it  is  the  duty  of  the 
company  to  use  necessary  care  to  prevent 
injuries  thereto,  and,  failing  in  this,  it  is 
liable  for  any  injury.  Nashville  &■»  C.  R. 
Co.  V.Anthony,  \  Lea  {Tenn.)ii6. — EXPLAIN- 
ING Memphis  &  C.  R.  Co.  v.  Smith,  9  Heisk. 
(Tenn.)  860.— Followed  in  EastTenn.,  V. 
&  G.  R.  Co.  V.  Selcer,  7  Lea  (Tenn)  557. 

(2)  Ordinary  and  reasonable  rarf.— Ordi- 
nary care  in  the  management  of  their  trains 
is  the  measure  of  vigilance  which  the  law 
exacts  of  railroad  companies  to  avoid  injury 
to  domestic  animals;  and  this  means,  prac- 
tically, that  the  company's  servants  are  to 
use  all  reasonable  efforts  to  avoid  harming 
an  animal  after  it  is  discovered,  or  might, 
by  proper  watchfulness,  be  discovered,  on 
or  near  the  track.  Li*:Ie  RockQ^  Ft.  S.  R. 
Co.  v.  Holland,  19  Am.  &=  Eng.  R.  Cas.  479, 
40  Ari'.  336.— Approved  in  Atchison,  T,  & 
S.  F.  R.  Co.  V.  Walton,  3  N.  Mex.  319.  Fol- 
lowed IN  Gulf,  C.  &  S.  F.  R.  Co.  V.  Johnson, 
54  Fed.  Rep.  474, 10  U.  S.  App.  629, 4  C.  C.  A. 
447.  Quoted  in  Gulf,  C.&  S.  F.  R.  Co.  v. 
Washington,  49  Fed.  Rep.  347,  a.  U.  S.  App. 
121,  I  C.  C.  A.  286. 

Those  in  charge  of  a  train  must  use  ordi- 
nary or  reasonable  care  to  prevent  injury  to 
trespassing  stock  on  the  track  after  the 
same  is  discovered.  St.  Louis,  I.  M.  &*  S. 
R.  Co.  V.  Ferguson,  57  Ari.  16,  20  5.  IV.  Rep. 
545.— Following  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Roberts,  56  Ark.  387,  19  S.  W.  Rep. 
loss;  Atlanta  &  W,  P.  R.  Co.  v.  Hudson, 
62  Ga.  679. 

After  stock  is  discovered  on  a  railroad 
track  it  is  the  duty  of  those  in  charge  of 
trains  to  use  reasonable  care  to  prevent  in- 
juring the  same,  but  it  cannot  be  said  to  be 
the  duty  of  the  company's  employes  to  keep 
a  lookout  for  stock.  Kansas  City,  Ft.  S.  &* 
M.  R.  Co,  V.  Shaver,  {Ark.)  14  S.  IV.  Rep, 
864.— Following  Memphis  &  L.  R.  R.  Co. 
V.  Kerr,  $2  Ark.  162,  12  S.  W.  Rep.  329. 

While  by  the  use  of  extraordinary  dili- 
gence the  company  might  have  saved  the 

*  See  ante,  48 ;  fost,  68,  02,  116,  141, 


108 


ANIMALS,  INJURIES   TO,   40. 


life  of  a  horse  by  adopting  <lillerent  means 
of  releasing  him  from  his  confinement 
in  the  trestle,  yet  the  evidence  showing 
clearly  that  the  company  used  all  ordinary 
and  reasonable  diligence,  both  to  avoid 
driving  him  upon  the  trestle  and  to  release 
him  therefrom  after  he  fell  and  became  con- 
fined between  the  cross-ties,  the  court  erred 
in  not  granting  a  new  trial  for  this  reason. 
Richmond  &*  D.  R.  Co.  v.  Buice,  88  Ga.  i8o, 
14  S.  E.  Rep.  205. 

A  railroad  company  is  liable  only  for  a 
failure  on  the  part  of  its  employes  to  make 
reasonable  exertion  to  avoid  injuries  to  ani- 
mals that  may  be  trespassing  on  the  track, 
after  discovering  the  stock  in  a  perilous 
condition.  Memphis  (S>»  L.  R.  R.  Co.  v.  Kerr, 
40  Am.  (S~»  Eng.  R.  Cas.  171,  52  Ark.  162,  5  L. 
R.  A.  429,  12  S.  IV.  Rep.  329. 

It  is  the  duty  of  those  in  charge  of  mov- 
ing trains  to  use  reasonable  diligence  to 
avoid  injuring  cattle  as  soon  as  they  are 
discovered  to  be  in  a  position  of  danger, 
whether  they  be  on  the  track  or  near  to  it. 
Cleveland,  C,  C.  &*  St,  L.  R.  Co.  v.  Ahrens, 
42  ///.  App.  434. 

Persons  in  the  management  of  a  train, 
after  discovering  a  horse  on  the  track,  are 
only  required  to  use  ordinary  care  and  pru- 
dence to  avoid  injuring  the  horse,  and  the 
burden  is  on  the  owner  suing  for  damages 
to  show  such  want  of  care  or  proof  of  negli- 
gence. An  engineer  is  not  required  to  stop 
his  train  and  send  a  man  ahead  to  prevent  a 
frightened  horse  from  running  on  a  bridge 
and  injuring  himself.  Chicago  &^  N.  IV.  R. 
Co.  V.  Taylor,  8  ///.  App.  108.— Quoting 
Peoria,  P.  &  J.  R.  Co.  v.  Camp,  75  111.  577. 
Reviewing  Toledo,  P.  &  W.  R.  Co.v.  Bray, 

57  111-  S«4- 

It  is  the  duty  of  persons  in  charge  of 
trains  to  avoid  injuring  cattle  seen  on  the 
track,  if  this  can  be  done  with  ordinary  care, 
and  failing  in  this  the  company  is  liable  for 
any  injury,  regardless  of  the  condition  of 
the  fences  or  gates.  Baker  v.  Chicago.  B. 
&*  Q.  R.  Co.,  73  Iowa  389,  35  A^  IV.  Rep.  460. 

In  an  action  against  a  railroad  company 
for  injuries  to  live  stock,  an  instruction  to 
the  jury  to  the  effect  that  if  the  company's 
employes  saw  the  stock  so  near  the  track  as 
to  justify  the  reasonable  inference  that  it 
was  in  danger,  and  by  the  exercise  of  ordi- 
nary care  they  could  have  avoided  th?  injury 
and  did  not  do  so,  they  were  neglige  it ;  but 
if  after  discovering  the  stock  they  w  're  un- 
able to  avoid  the  injury  by  the  exerc'se  of 


ordinary  tare,  they  were  not  negligent,  cor- 
rectly states  the  law.  Edson  v.  Central  R, 
Co.,  40  /owa  47,  8  Am.  Ry.  Rep.  412. 

Where  an  animal,  through  no  fault  of  the 
railroad  company,  gets  upon  the  track  at  a 
point  where  the  defendant  is  not  required  to 
anticipate  its  presence,  the  company's  lia- 
bility is  confined  to  a  failure  on  the  part  of 
its  servants  to  use  ordinary  care  to  avoid  the 
injury  after  discovering  the  peril  in  which 
the  animal  is.  Brooks  v.  Hannibal &*  St./.  R. 
Co.,  27  Mo.  App.  573.— Following  Wallace 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  74  Mo.  594. 

Where  stock  are  trespassing,  and  come 
upon  the  defendant's  track  neither  at  a  pub- 
lic nor  private  crossing,  but  at  a  point  where 
defendant's  servants  were  not  required  to 
anticipate  the  presence  of  stock,  defendant 
is  only  required  to  use  ordinary  care  to  pro- 
tect them  after  in  fact  discovering  their  peril; 
and  it  is  error  to  instruct  the  jury  that  de- 
fendant was  required  to  use  such  care,  after 
it  might  have  discovered  such  peril  by  the 
exercise  of  reasonable  diligence.  Jewett  v. 
Kansas  City,  C.  &*  S.  R.  Co.,  38  Mo.  App.  48. 

Where  a  horse  got  upon  defendant's  track 
through  no  fault  of  defendant,  and  at  a 
point  where  defendant  was  not  required  to 
anticipate  the  presence  of  live  stock,  the 
railroad  company's  liability  is  confined  to  a 
failure  on  the  part  of  its  servants  to  use 
ordinary  care  to  avoid  the  injury  after  hav- 
ing discovered  the  peril  in  which  the  animal 
was.  The  defendant's  servants  were  not 
bound,  at  all  hazards  and  in  any  event,  to 
avoid  an  injury  to  the  horse.  Hoffman  v. 
Missouri  Pac,  R.  Co.,  24  Mo.  App.  546.— NOT 
FOLLOWED  IN  Hill  V.  Missouri  Pac.  R.  Co., 
49  Mo.  App.  520. 

Having  left  its  railroad  uninclosed  through 
a  country  where  domestic  animals  are  al- 
lowed to  be  at  large,  and  thus  exposed  to 
the  casualties  of  the  animals  accidentally 
getting  upon  the  railway  track,  it  is  the 
duty  of  the  railroa'd  company,  acting  through 
its  agents,  to  use  at  least  ordinary  and  reason- 
able care  and  diligence  to  avoid  unnecessary 
injury  to  the  animals  when  found  in  the 
way  of  a  train  on  the  road.  Kerwhacker  v. 
Cleveland,  C.  &*  C.  R.  Co.,  3  Ohio  St.  172.— 
Quoting  Trow  v.  Vermont  C.  R.  Co.,  24 
Vt.  488.  Reviewing  Quimby  v.  Vermont 
C.  R.  Co..  23  Vt.  388. 

A  railroad  company  cannot  justify  either 
recklessness  or  want  of  common  care  at  the 
lime  and  after  cattle  are  discovered,  or  wan- 
ton injury  thereto;  but  short  of  that  it  is 


ANIMALS,  INJURIES  TO,  50. 


100 


not  liable.  Jackson  \ .  Rutland  Or*  B.  R.  Co., 
25  Vt.  150.— Disapproving  Clark  z/.  Syra- 
cuse &  U.  R.  Co.,  II  Barb.  (N.  Y.)  112; 
Williams  v.  Michigan  C.  R.  Co.,  2  Mich.  259 ; 
New  York  &  E.  R.  Co.  v.  Skinner,  i  Am. 
Law  Reg.  97.  Quoting  Ricketts  v.  East  & 
W.  India  Docks  &  B.  J.  R.  Co..  12  Eng.  Law 
&  Eq.  520.— Quoted  in  Trout  v.  Virginia 
&  T.  R.  Co.,  23  Gratt.  (Va.)  619. 

{3)  The  degree  of  care  which  is  used  by  a 
prudent  man. — Where  the  railroad  company 
discovered  an  animal  on  the  track,  it  was 
bound  to  make  the  same  eflfort  to  avoid  in- 
juring it  as  a  prudent  person  would  do  if  he 
owned  both  cow  and  train.  Locke  v.  First 
Div.  St.  Paul  &>  P.  R.  Co.,  15  Minn.  350. 
(Gil.  283).— Approved  in  Witherell  v.  Mil- 
waukee &  St.  P.  R. Co.,  24  Minn. 410.  Fol- 
lowed in  Palmer  ».  Northern  Pac.  R.  Co., 
31  Am.  &  Eng.  R.  Cas.  544,  37  Minn.  223, 
33  N.  W.  Rep.  707,  5  Am.  St.  Rep.  839; 
O'Coimor  v.  Chicago,  M.  &  St.  P.  R.  Co., 
27  Minn.  166,  36  Am.  Rep.  829,  note. 

50.  Eft'ect  of  gross  ueffliKeucc  of 
coiiiimiiy—Wilfiil  acts.*— At  common 
law  railroad  companies  were  not  liable  for  in- 
juries committed  by  their  trains  upon  stock 
straying  upon  the  road,  unless  the  injuries 
were  the  result  of  wilful  and  reckless  negli- 
jjence  on  the  part  of  the  company  or  those  in 
its  employ.  O'Bannon  v.  Louisville,  C.  &*  L. 
R.Co.,  8  Bush  {Ky.)  348.— Following  Louis- 
ville &  F.  R.  Co.  V.  Ballard,  2  Mete.  (Ky.)  183. 

Mere  proof  of  killing  of  stock  upon  the 
railroad  track  will  not  make  the  company 
liable.  It  must  appear  that  it  was  wantonly 
done,  or  that  there  was  wilful  or  gross  neg- 
ligence. Chicago  &*  M.  R.  Co.  v.  Patchin, 
16  ///.  198.— Approved  in  Atchison,  T.  & 
S.  F.  R.  Co.  V.  Walton,  3  N.  Mex.  319.  Dis- 
tinguished IN  Toledo,  W.  &  W.  R.  Co.  v. 
Furgusson,  42  111.  449,  Followed  in  Great 
Western  R.  Co.  v.  Thompson,  17  III.  131 ; 
Illinois  C.  R.  Co.  v.  Reedy,  17  111.  580; 
Louisville  &  F.  R.  Co.  v.  Ballard,  2  Mete. 
(Ky.)  177.  Overruled  in  Illinois  C.  R.Co. 
V.  Middlesworth,  46  111.  494.  Quoted  in 
Galena  &  C.  U.  R.  Co.  v.  Jacobs,  20  111.  478. 

Railroad  companies  are  not  liable  for  in- 
juries to  cattle  unless  they  be  wilfully  or 
maliciously  done,  or  done  under  circum- 
stances exhibiting  gross  negligence.    These 

*See  ante,  37;  /of/.  OO,  187,  200, 
217,  284. 

Liability  of  railroads  for  wilfully  or  negli- 
gently killing  or  injuring  stock  trespassing  on 
track,  see  note,  96  Am.  Dec.  681, 


companies  are  not  bound  to  use  the  highest 
possible  degree  of  care  towards  animals 
coming  in  the  way  of  their  trains.  Great 
Western  R.  Co.  v.  Thompson,  17  ///.  131. — 
Distinguished  in  Toledo,  W.  &  W.  R.  C(j. 
V.  Furgusson,  42  111.  449.  Overruled  in 
Illinois  C.  R.  Co.  v.  Middlesworth,  46  111. 
494.  Quoted  in  Galena  &  C.  U.  R.  Co.  v. 
Jacobs,  20  111.  478. 

If  an  animal  is  wrongfully  on  the  truck  of 
a  railroad,  but  is  injured  while  on  the  same 
by  the  gross  negliyc^  ce  or  wilful  miscon- 
duct of  the  company's  agents,  the  company 
is  liable.  Lafayette  &^  /.  R.  Co.  v.  Hhrincr, 
t  hid.  141. 

In  such  a  case  the  conipany  cannot  avoid 
liability  by  showing  that  tlie  animals  were  at 
large,  where  the  law  made  them  trespassers, 
or  where  they  were  running  at  large  by  the 
fault  of  the  owner.  Leavenworth,  T.  &*  S. 
IV.  R.  Co.  v.  Forbes,  31  Am.  &'Fng.  R.  Cas. 
522,37  Kan.  445,  15  Pac.  Rep.  595.— Fol- 
lowed IN  St.  Louis  &  S.  F.  R.  Co.  v, 
Sanders,  40  Kan.  469. 

In  an  action  brought  to  recover  the  value 
of  cattle  killed  on  a  railroad  track  by  the 
cars,  the  plaintiff  is  as  much  bound  to  prove 
the  fact  of  gross  negligence  and  want  of  care 
on  the  part  of  the  company  or  its  igcnts,  as 
he  is  to  prove  the  fact  of  the  killing. 
Knight  V.  New  Orleans,  O.  &>  G.  IV.  R.  Co., 
15  La.  Ann.  105. 

Proof  that  stock  was  killed  through  mere 
want  of  those  in  charge  of  the  train  to  use 
ordinary  care,  is  not  sufficient  to  make  the 
company  liable;  it  must  appear,  where  the 
animals  were  trespassing  upon  the  track,  that 
the  injury  was  the  result  of  either  reckless- 
ness or  wantonness.  Maynard  v.  Boston  &» 
M.  R.  Co.,  115  Mass.  458. — Distinguishing 
Eames  v.  Salem  &  L.  R.  Co.,  98  Mass.  560. 
—Distinguished  in  Bostwick  v.  Minne- 
apolis &  P.  R.  Co.,  2  N.  Dak.  440.  Re- 
viewed IN  Boyle  V.  New  York,  L.  E.  &  W. 
R.  Co.,  39  Hun  (N.  Y.)  171;  Moses  v. 
Southern  Pac.  R.  Co.,  42  Am.  &  Eng.  R. 
Cas.  555,  18  Oreg.  385. 

The  owners  of  cattle  that  are  killed  while 
trespassing  upon  a  railroad  track  cannot  re- 
cover, even  where  the  killing  is  due  to  the 
gross  negligence  of  those  in  charge  of  the 
train.  Clarh  v.  Syracuse  <&*  U.  R.  Co.,  11 
Barb.  (N.  V.)  112.  StucA-e  v.  Milwaukee  &* 
M.  R.  Co.,  9  Wis.  20.1.— Following  Tona- 
wanda  R.  Co.  v.  Munger.  5  Den.  (N.  Y.) 
255.— DlSAPPRovKl)  IN  Jackson  v.  Rutland 
&  B.  R.  Co..  25  Vt.  150. 


110 


ANIMALS,  INJURIES   TO,  51. 


Railroad  companies  having  the  fee  in  the 
lands  on  which  their  roads  are  built  are  only 
liable  for  damages  to  cattle  trespassing  on 
the  track  where  the  injury  is  wilful  or  ma- 
licious. C/ticai^o  &•  M.  R.  Co.  v.  Patchin, 
i6  ///.  198— Quoted  in  Illinois  C.  R.  Co.  v. 
^Houghton,  126  111.  233,  18  N.  E.  Rep.  301,  i 
*L.  R.  A.  213.  Reviewed  in  Vermilya  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  66  Iowa  606. 

In  an  action  to  recover  the  value  of  cattle 
alleged  to  have  been  killed  on  defendants' 
road  by  their  locomotive  and  train,  it  ap- 
peared the  cattle  could  have  been  seen  on 
the  track  by  the  engineer,  if  he  had  been  on 
the  lookout,  for  a  distance  of  more  than 
half  a  mile,  yet  he  made  no  effort  to  slacken 
the  speed  of  the  train.  Held,  it  was  gross 
negligence,  for  which  the  company  should 
be  held  responsible,  even  though  the  cattle 
were  upon  the  track  without  the  fault  of 
the  company.  Chicago  Sf*  N.  IV.  R.  Co.  v. 
Barrie,  55  ///.  226,  2  Am.  Ry.  Rep.  451. 

Where  a  railroad  company  is  not  bound  to 
fence  its  track,  it  will  only  be  liable  for  in- 
juries to  live  stock  that  stray  upon  the 
track,  where  the  injury  is  the  result  of  reck- 
lessness or  wantonness.  Louisville  &*  F. 
R.  Co.  V,  Ballard,  2  Mete.  {Ky.)  \77.— 
Changed  by  statute  in  Kentucky  C. 
R.  Co.  V.  Lebus,  14  Bush  (Ky.)  518.  Dis- 
tinguished IN  Robinson  v.  Flint  &  P.  M. 
R.  Co.,  45  Am.  &  Eng.  R.  Cas.  496,  79 
Mich.  323.  Followed  in  O'Bannon  v. 
Louisville,  C.  &  L.  R.  Co..  8  Bush  (Ky.)  348. 
Quoted  in  Washington  v.  Baltimore  &  O. 
R.  Co.,  17  W.  Va.  190. 

A  railroad  company  is  not  liable  for  an 
animal  killed  on  the  track  at  a  point  where 
the  company  was  not  bound  to  fence,  unless 
it  was  killed  by  the  gross  negligence  or  wil- 
ful misconduct  of  the  company's  agents. 
Indianapolis  &■»  C,  R.  Co.  v.  McClure,  26 
Ind.  370. 

It  is  the  duty  of  owners  of  live  stdck  to 
keep  them  off  railroad  tracks,  and  if  they 
fail  to  do  so,  companies  will  only  be  liable 
for  injuries  thereto  which  result  from  the 
reckless,  wanton,  and  wilful  acts  of  their 
agents.  Louisville  Sf  F.  R.  Co.  v.  Ballard, 
2  Mete.  i^Ky.)  177.— Following  Louisville 
&  F.  R.  Co.  v.  Milton,  14  B.  Mon.  (Ky.)  61. 

Where  hogs  are  killed  while  on  a  railroad 
track,  at  places  where  the  Texas  stock  law 
is  in  force,  which  prohibits  hogs  and  other 
stock  from  running  at  large,  in  order  to  re- 
cover from  the  company  tiiere  must  be  evi- 
dence that  the  killing  was  the  result  of  gross 


negligence.  Missouri  Pac.  R.  Co.  v.  Law- 
ler,lTex.  App.  {Civ.  Cas:)  38.— QUOTING 
International  &  G.  N.  R.  Co.  v.  Cocke,  64 
Tex.  151. 

51.  Unavoidable  accidents,  {;euer- 
ally.*  — (i)  Company  need  not  attempt  the 
impossible. — It  is  not  necessary  that  the 
company's  employes  shall  attempt  the  im- 
possible; and  hence,  if,  without  fault  o^ 
such  employes,  a  danger  is  not  and  cannot 
be  discovered  until  all  appliances  known  to 
the  best- regulated  railroad  motive  power 
are  clearly  powerless  to  avert  or  mitigate  the 
injury,  then  a  failure  to  apply  such  useless 
agencies  imposes  no  liability;  and  particu- 
larly would  this  be  the  case  if,  by  attempt- 
ing the  impossible,  the  chances  of  another 
or  greater  peril  would  be  increased.  Fast 
Tenn.,  V.  (S-  G.  R.  Co.  v.  Bayliss,  22  Am.  (&>» 
Eng.  R.  Cas.  596,  75  Ala.  466. 

The  law  does  not  require  that  those 
charged  with  the  management  of  railroad 
trains  should  attempt  the  impossible  in 
order  to  prevent  injuries  to  live  stock,  yet 
so  long  as  there  is  hope  of  avoiding  an  ac- 
cident they  must  use  the  necessary  appli- 
ances to  do  so;  and  when  the  company  is 
sued  for  damage  to  live  stock,  the  burden  is 
on  it  to  show  that  any  attempt  to  avoid  in- 
jury that  might  have  been  made  would  have 
been  fruitless.  Alabama  G.  S.  R.  Co.  v. 
Mc Alpine,  22  Am.  &*  Eng.  R.  Cas.  602,  75 
Ala.  113.— Distinguishing  South  &  N. 
Ala.  R.  Co.  V.  Jones,  56  Ala.  507. 

(2)  Accident  notwithstanding  use  of  care. 
— A  railroad  company  is  not  liable  for 
killing  live  stock  in  a  cut  where  it  could  be 
seen  only  a  short  distance  ahead,  where  the 
evidence  shows  that  every  precaution  that 
could  have  been  exercised  was  taken  to  pre- 
vent a  collision.  Gay  v.  Fremont,  E.  &>  M. 
V.  R.  Co.,  5  Dak.  514.  41  N.  W.  Rep.  757. 

A  railroad  company  has  the  undoubted 
right  to  the  free,  unmolested,  and  exclusive 
use  of  its  road  for  the  purposes  for  which  it 
is  appropriated ;  and  if  under  all  the  cir- 
cumstances ordinary  and  reasonable  care 
and  diligence  are  exercised  to  avoid  injury 
to  domestic  animals  found  upon  the  road, 
the  duty  to  which  it  is  subject  is  performed ; 
and  for  injuries  which  are  unavoidable  it 
cannot  be  made  liable.  Alabama  G.  S.  R. 
Co.  V.  Jones,  1 5  Atn.  &*  Eng.  R.  Cas.  549, 
71  Ala.  487.— Quoted  in  Alabama  G.  S.  R. 

*  Liability  for  killing  stock  where  accident 
was  unavoidable,  see  note,  45  Am.  &  Eng.  R. 
Cas.  537. 


ANIMALS,  INJURIES  TO,  51. 


Ill 


Co.  V.  McAlpine,  22  Am.  &  Eng.  R.  Cas. 
602,  75  Ala.  113. 

Where  under  the  circumstances  of  the 
killing  or  injury  it  could  have  been  avoided 
by  the  exercise  of  ordinary  or  reasonable 
care  upon  the  part  of  the  agents  operating 
the  train,  and  such  care  has  not  been  exer- 
cised, the  company  will  be  liable;  but  if, 
MOtwithstanding  the  exercise  of  such  care, 
the  killing  or  injury  would  be  unavoidable, 
the  company  is  not  liable.  Savannah,  F.  &* 
IV.  R.  Co.  V.  Geiger,  29  Am.  <&>•  Eng.  R  Cas. 
274,  21  Fla,  669,  58  Am.  Rep.  697.— DISAP- 
PROVING Danner  v.  South  Carolina  R.  Co., 

4  Rich.  (So.  Car.)  329. 

A  railroad  company  i"  lot  liable  for  kill- 
ing a  mule  by  a  train  running  23  miles  an 
hour,  where  the  engineer  did  not  see  it  till 
within  30  feet,  when  he  blew  the  alarm  and 
did  all  in  his  power  to  avoid  a  collision. 
Louisville,  N.  O.  &*  T.  R.  Co.  v.  Smith,  67 
Miss.  15,  7  So.  Rep.  212. 

A  railroad  company  is  not  liable  for  kill- 
ing stock  on  the  track,  where  it  admits  the 
killing,  but  shows  that  there  was  no  negli- 
gence on  the  part  of  those  in  charge  of  the 
train  and  that  the  killing  was  unavoidable. 
Chicago,  St.  L.  &*  N.  O.  R.  Co.  v.  Packwood, 
7  Am.  &>  Eng.  R.  Cas.  584,  59  Miss.  280. — 
Following  Young  v.  Wilson,  24  Miss.  694. 
— Approved  in  Volkman  v.  Chicago,  St.  P., 
M.  &  O.  R.  Co.,  35  Am.  &  Eng.  R,  Cas.  204, 

5  Dak.  69,  37  N.  W.  Rep,  731.  Distin- 
guished IN  New  Orleans,  M,  &  T.  R.  Co. 
w.  Toulme,  59  Miss.  S4;  Mobile  &  O.  R. 
Co,  V.  Gunn,  68  Miss.  366.  Limited  in 
Tyler  v.  Illinois  C.  R.  Co.,  19  Am.  &  Eng. 
R.  Cas.  519,  61  Miss.  44s. 

A  railway  company  is  not  liable  for  cattle 
killed  where  it  appears  that  the  night  of  the 
accident  was  dark  and  foggy ;  that  the  en- 
gineer did  not  see  the  animals  on  the  track 
until  a  collision  was  inevitable,  and  then  did 
everything  in  his  power  to  avert  the  acci- 
dent. New  Orleans  &*  N.  E.  R.  Co.  v.  Bur- 
kett,  (Miss.)  2  So.  Rep.  253. 

(3)  Where  care  could  not  have  prevented 
accident. — Under  statutory  provisions,  it  is 
made  the  duty  of  the  engineer  of  a  railroad 
train,  on  perceiving  any  obstruction  on  the 
track,  to  use  all  means  in  his  power  to  stop 
the  train,  and,  if  any  stock  is  killed  or  in- 
jured, the  onus  is  on  the  company  to  show  a 
compliance  with  this  requirement;  but  this 
duty  does  not  arise  unless  the  obstruction  is 
on  the  track  and  is  perceived  by  the  engi- 
neer; and  a  compliance  with  it  is  not  re- 


quired when  it  is  shown  that  the  animal  was 
not  discovered  in  time  to  avoid  the  injury, 
and  that  this  was  not  owing  to  any  want  of 
due  care  and  watchfulness.     Savannah  &^ 

IV.  R.  Co.v./arvis.gs  ^^c-  •49- — Quoiing 
Nashville,  C.  &  St.  L  R.  Co.  v.  Hcmbrce,  85 
Ala.  48 1 .    To  nearly  same  effect,  see  Hawker 

V.  Baltimore  <&*  O.  R.  Co.  1 5  W.  Va.  628. 

If  a  proper  lookout  were  kept,  and  the  ani- 
mal was,  when  discovered,  so  near  the  engine 
that  the  accident  could  not  be  prevented  by 
the  prompt  use  of  all  proper  appliances,  the 
presumption  of  negligence  is  overcome,  and 
no  liability  for  damages  is  incurred ;  nor  can 
negligence  be  imputed  to  the  engineer,  as 
matter  of  law,  because  he  did  not  sound  the 
cattle-alarm,  if  he  promptly  signalled  the 
brakeman,  and  could  not  at  the  same  time 
sound  the  cattle-alarm  ;  but  the  sufficiency 
of  this  excuse  for  the  failure,  as  disclosed  by 
the  facts  in  evidence,  is  a  question  for  the 
jury.  Modile  &>  G.  R.  Co.  v.  Caldwell,  83 
Ala.  196,  3  So.  Rep.  445. 

Under  the  Maryland  statutes  railroad 
companies  are  liable  for  stock  killed  that 
stray  upon  the  track  without  fault  on  the 
part  of  the  owner,  unless  it  appear  to  the 
satisfaction  of  the  jury  that  the  injury  was 
entirely  due  to  unavoidable  accident  on  the 
part  of  the  company.  Keech  v.  Baltimore 
&*  IV.  R.  Co.,  i7Md.'2,2. 

A  railroad  company  is  not  liable  for  kill- 
ing animals  on  the  track  if  it  appears  that 
they  are  first  discovered  so  near  the  engine 
that  a  collision  could  not  have  been  pre- 
vented by  the  use  of  all  proper  train  appli- 
ances. New  Orleans  &>  N.  E.  R.  Co.  v. 
Bourgeois,  66  Miss.  3,  5  So.  Rep.  629. 

Unless  it  appears  that  those  in  charge  of 
the  train  could,  after  discovering  the  animal 
in  front  of  the  engine,  by  reasonable  exer- 
tion have  checked  the  train,  having  regard 
to  the  safety  of  the  cars  and  passengers,  in 
time  to  have  avoided  the  collision,  there 
can  be  no  recovery  on  the  ground  of  neg- 
ligence. Judd  V.  Wabash,  St.  L.  &•  P.  R. 
Co.,  23  Mo.  App.  56.  Savannah,  F.  &*  W. 
R.  Co.  V.  Gray,  77  Ga.  440,  3  5.  E.  Rep.  1 58. 
—Distinguishing  Gainesville,  J.  &  S.  R. 
Co.  V.  Wall,  75  Ga.  282;  East  Tenn.,  V. 
&  G.  R.  Co.  V.  Culler,  75  Ga.  704;  Davis  v. 
Central  R.  Co.,  75  Ga.  645. 

In  an  action  against  a  railroad  company 
for  killing  stock,  an  instruction  to  the  jury 
correctly  states  the  law  which,  in  effect,  tells 
them  that  if  the  train  was  running  at  a  law- 
ful speed  and  had  the  customary  force  of 


112 


ANIMALS,  INJURIES  TO,  52. 


men  and  appliances,  and  the  stock  was  so 
close  that  the  train  could  not  be  stopped  in 
lime  to  avoid  a  collision  when  it  was  first 
seen  by  the  engineer,  or  might  with  due  care 
have  been  seen,  then  the  company  was  not 
liable.  Joyner  v.  South  Carolina  R.  Co.,  29 
Am.  6-  Eng.  R.  Cas.  258,  26  So.  Car.  49,  i  i. 
E.  Rep.  52. 

The  court  committed  no  error  in  refusing 
to  charge  the  jury  "that  if  it  appear  that  a 
liorse  killed  or  injured  by  a  train  was  first 
discovered  or  was  first  discoverable  on  the 
track  at  such  a  short  distance  from  the  place 
where  he  was  killed  or  injuretf  that  the  train 
could  not  have  been  stopped  in  time  to  pre- 
vent running  over  or  against  the  horse,  it 
was  not  necessary  that  the  persons  running 
ilie  train  should  have  seen  the  liorse,  or, 
having  seen  him,  that  they  should  have  at- 
tempted to  slop  the  train."  Simkins  v. 
Columbia  &>  G.  R.  Co.,  19  Am.  <&>•  Eng.  R. 
Cas.  467,  20  So.  Car.  258. 

(4)  JllusOalious.—A  railroad  company  is 
not  liable  for  the  loss  or  injury  of  live  stock 
on  the  track,  if  it  appears  that  by  reason  of 
the  weather  the  animal  was  not  seen  until  it 
was  too  late  to  save  it  by  using  the  appli- 
ances provided  for  stopping  the  train,  and 
that  the  train  at  the  time  was  provided  with 
a  proper  headlight,  good  brakes,  and  was 
properly  officered,  and  running  at  a  moder- 
ate rate  of  speed,  and  those  in  charge  were 
guilty  of  no  negligence.  Alabama  G.  S.  R.  Co. 
v.  McAlpine,  22  Am.  &^  Eng.  R.  Cas,  602,  75 
Ala.  113.— Modifying  Memphis  «&  C.  R. 
Co.  V.  Lyon,  62  Ala.  71.  Quoting  Alabama 
G.  S.  R.  Co,  V.  Jones,  71  Ala.  487.— Fol- 
lowed in  Alabama  G.  S.  R.  Co.  v.  Moody, 
92  Ala.  279. 

The  engineer  saw  the  mule  which  was 
'<i'V"i  as  it  came  upon  the  track,  about  sixty 
■)  '^.%  in  front  of  the  engine,  and  imme- 
..;ar.':ly  caused  the  brakes  to  be  put  on,  re- 
1  his  engine,  and  sounded  the  alarm 
s  .  '!e,  but  it  was  impossible  in  so  short 
a  distance  to  stop  the  train  and  avoid  the 
collision.  Held,  no  negligence.  Little  Rock 
&*  Ft.  S.  R.  Co.  V.  Turner,  19  Am.  ^  Eng. 
K.  Cas.  491,  41  Ark.  161.  — Explaining 
Davis  V,  Mann,  10  Mees.  &  W.  545.  Quot- 
ing Kentucky  C.  R.  Co.  v.  Talbot,  78  Ky. 
621. — Followed  in  St.  Louis  &  S.  F.  R. 
Co.  V.  Basham,  47  Ark.  321. 

A  railroad  will  not  be  liable  for  the  killing 
of  a  mule,  at  night,  in  a  field  which  was  a 
common  inclosure  of  the  plaintifi 's  land  and 
the  railroad  track,  where  there  was  no  neg- 


ligence in  running  the  train,  but  the  killing 
was  an  unavoidable  accident.  Macon  St*  A. 
R.  Co.  V.  Vaughn,  48  Ga.  464.— Followed 
in  Woulfolk  V.  Macon  &  A.  R.  Co.,  56  Ga. 
457.— Quoted  in  Little  Rock  &  Ft.  S.  R.Co. 
V.  Payne,  33  Ark.  816. 

Where  a  team  of  horses  ran  away  from 
their  driver  and  got  upon  a  railroad  track, 
where  the  company  was  not  required  to 
fence,  and  ran  along  tlie  track  until  they  fell 
into  a  cattle  guard  and  were  injured  by  a 
freight  train  after  the  engine-driver  did  all 
that  he  could  to  stop  his  \.X2i\\\,—hcld,  that 
tliere  was  no  negligence  on  the  part  of  the 
company,  and  that  a  recovery  could  not  be 
maintained.  Chicago  &*  A.  R.  Co.  v.  Rice, 
71  ///.  567. 

A  train,  having  just  left  the  station,  mov- 
ing at  the  rate  of  4  miles  per  hour,  against 
the  headlight  of  which  the  rain  was  beat- 
ing so  as  to  hinder  the  light  from  being 
properly  thrown  forward  upon  the  track,  ran 
upon  and  killed  a  horse  on  a  bridge  where 
the  tracks  were  properly  fenced  and  the 
cattle-guard  was  such  as  in  ordinary  use.  A 
verdict  for  defendant  was  proper.  Vincent 
V.  Chicago  &*  N.  IV.  R.  Co.,  29  /owa  592. 

Where  the  engine  running  on  a  railroad 
killed  a  steer,  under  such  circumstances  as 
showed  that  the  killing  was  accidental,— 
held,  that  the  company  were  not  responsible 
for  the  loss.  Garris  v.  Portsmouth  &•  R.  R. 
Co.,  2  /red.  (N.  Car.)  324. 

Where  a  horse  feeding  near  a  railroad 
track  became  frightened  at  the  noise  of  an 
approaching  train,  and  jumping  upon  the 
track  ran  along  ahead  of  the  train  until  he 
fell  into  an  open  culvert  over  which  the  road 
passed,  and  was  killed,  and  all  proper  means 
were  used  by  the  engineer  to  prevent  a  col- 
lision,— held,  that  the  company  was  not  lia- 
ble. Brothers  v.  South  Carolina  R.  Co.,  5  So. 
Car.  ;$.— Quoting  Murray  v.  South  Caro- 
lina R.  Co.,  10  Rich.  (So.  Car.)  232. 

The  owner  of  a  horse  cannot  recover  from 
a  railroad  company  where  it  appears  that 
the  horse  is  trespassing  on  the  track  in  the 
night-time,  and  where  it  is  run  over  within 
100  yards  of  the  place  where  it  is  first  seen. 
Campbell  v.  Atlantic,  M.  &>  O.  R.  Co.,  4 
Hughes  ( U.  S.)  1 70. 

52.  Uiiuvuidable  accident  where 
animal  comes  suddenly  upon  track. 
— (I)  Generally. — Under  Ala.  Code,  §  1144, 
the  engineer,  seeing  an  animal  on  the  track, 
is  required  to  use  all  the  means  in  his  power 
known  to  skilful  engineers,  in  order  to  stop 


ANIMALS,  INJURIES  TO,  52. 


113 


the  train ;  and  when  he  sees  un  animal  in 
dangerous  proximity  to  ihe  track,  or  by 
proper  care  and  diligence  could  have  seen 
it,  the  common-law  duty  rests  on  him  to  use 
proper  efforts  to  frighten  it  away,  and,  if 
necessary,  to  stop  the  train  ;  but,  when  the 
animal,  though  near  the  track,  is  not  dis- 
covered in  fact,  nor  discoverable  by  the  use 
of  proper  care  and  attention  until  it  sud- 
denly leaps  un  the  track  in  front  of  the  en- 
gine, so  near  that  no  appliances  can  stop  the 
train  in  time  to  prevent  a  collision,  the  en- 
gineer is  not  required  to  attempt  to  do  so. 
Kansas  City,  A/.  6-  B.  R.  Co.  v.  Watson,  91 
Ala.  483,  8  So.  Rep.  793- 

It  is  a  complete  defence  to  an  action 
against  a  railroad  company  for  killing  or  in- 
juring a  horse  or  cow  that  the  animal  was 
not,  and  could  not  be  seen,  until  it  sprang 
on  the  track  about  fifty  yards  ahead  of  the 
engine,  and  that  all  the  appliances  known  to 
skilful  engineers  could  not  then  stop  the 
train  in  time  to  prevent  the  injury.  Ala- 
bama  G.  S.  R.  Co.  v.  Smith,  l^Am.  &*Eng. 
R.  Cas.  1  so,  85  Ala.  208,  3  So.  Rep.  795. 

An  action  cannot  be  maintained  against  a 
railroad  company  to  recover  for  live  stock 
killed,  where  the  evidence  shows  that  the 
engineer  was  keeping  a  sharp  lookout  but 
did  not  see  the  stock  in  time  to  stop  the 
train  and  avert  a  collision.  Afoye  v.  VVrights- 
ville  &*  T.  R.  Co.,  83  Ga.  669,  10  S.  E.  Rep. 
441. 

An  engineer  seeing  an  animal  upon  the 
track  cannot  presume  that  it  will  get  out  of 
danger  as  he  might  if  it  was  a  human  being, 
but  must  take  such  measures  as  are  neces- 
sary to  avoid  injury  thereto;  but  this  rule 
applies  only  to  cases  where  the  danger  is 
apparent,  and  if  an  animal  comes  suddenly 
upon  the  track,  so  near  the  train  as  to  make 
it  impossible  to  stop  before  reaching  it,  the 
company  will  not  be  liable  for  killing  it. 
Terre  Haute  &*  J.  R.  Co.  v.  Jenuine,  16  ///. 
App.  209. 

A  railroad  company  is  not  liable  for  in- 
juries to  stock  suddenly  coming  upon  the 
track  at  a  point  where  no  fence  is  required, 
where  the  engineer  could  not  be  charged 
with  negligence  in  failing  to  avoid  a  colli- 
sion. Judd  V.  Wabash,  St.  L.  *•  P.  R.  Co., 
23  Mo.  App.  56. 

A  railroad  company  will  not  be  liable  for 
failing  to  comply  with  all  the  provisions  of 
Tennessee  Code,  §  1 166,  as  to  whistle,  brakes, 
etc.,  where  a  person  or  animal  so  suddenly 
appears  on  the  track  as  to  make  it  impossi- 
1  D.  R.  D  -  8. 


ble,  for  want  of  time,  to  comply  with  the 
statute.  East  Tenn. ,  V.Sr*G.  R.  Co.  v.  Scales, 
2  Lea  {Tenn.)  688.— Disapproving  Nash- 
ville &  C.  R.  Co.  V.  Thomas,  5  Heisk. 
(Tenn.)  262 ;  Memphis  &  C.  R.  Co.  v.  Smith, 
9  Heisk.  (T«inn.)  860.— Applied  in  Holder 
V.  Chicago,  St.  L.  &  N.  O.  R.  Co.,  1 1  Lea 
(Tenn.)  176.  APPROVED  IN  East  Tenn.  & 
V.  R.  Co.  zi,  Swancy,  5  Lea  (Tenn.)  119. 

(2)  Illustrations. — A  railroad  company 
will  not  be  liable  for  killing  a  horse  that 
suddenly  comes  upon  the  track  so  near  the 
engine  as  to  make  it  impossible  to  check 
the  train  in  time  to  avoid  the  injury,  where 
it  is  shown  that  the  engineer  kept  a  proper 
lookout  and  could  not  have  seen  the  horse, 
even  by  the  exercise  of  the  diligence  ex- 
acted by  his  situation ;  and  in  determining 
whether  the  engineer  kept  a  proper  lookout, 
the  jury  must  take  into  consideration  his 
other  duties  which  prevent  his  constantly 
looking.  East  Tenn.,  V.  &*  G.  R.  Co.  v. 
Bayliss,  19  Am.  &*  Eng.  R.  Cas.  480,  74 
Ala.  150. 

Where  the  evidence  in  an  action  against  a 
railroad  company  for  injuring  stock  tends  to 
show  that  the  engineer  was  keeping  a  proper 
lookout,  but  did  not  know  that  stock  was 
near  until  his  fireman  warned  him  that  the 
stock  was  coming  near  the  track,  and  im- 
mediately one  of  the  animals  jumped  upon 
the  track  too  near  the  engine  to  make  it 
possible  for  the  engineer  to  have  averted  a 
collision,  but  that  he  did  put  on  the  air- 
brakes and  reversed  his  engine  and  did 
what  he  could  to  avoid  injury,  the  company 
is  entitled  to  an  instruction  to  the  jury  to 
the  effect  that  the  jury  must  return  a  verdict 
in  favor  of  the  company  if  they  believe  the 
evidence.  Nashville,  C.  &«•  St.  L.  R.  Co.  v. 
Hembree,  38  Am.  &•  Eng.  R.  Cas.  300,  85 
Ala.  481,  5  So.  Rep.  173.— Quoted  in  Sa- 
vannah &  W.  R.  Co.  V.  Jarvis,  95  Ala.  149. 

In  an  action  against  a  railroad  company 
for  killing  a  horse  it  appeared  that  the 
horse  suddenly  jumped  on  the  track  from 
underbrush  and  immediately  the  engineer 
used  all  means  in  his  power  to  stop  the 
train,  but  it  appeared  that  the  horse  entered 
the  track  so  near  the  train  that  it  could 
not  have  been  stopped  in  time  to  avoid  a 
collision  by  any  known  appliances.  Held, 
that  there  was  no  negligence  which  would 
make  the  company  liable.  Little  Rock  &* 
Ft.  S.  R.  Co.  V.  Holland,  19  Am.  &^  Eng.  R. 
Cas.  479,  40  Ark.  336. 
Where  an  animal  came  suddenly  upon  the 


114 


ANIMALS,  INJURIES  TO,  53,  54. 


railroad  track  and  was  killed  by  a  train, 
which  was  running  through  a  town  and 
within  the  depot  grounds  ut  the  usual  rate 
o(  speed  with  its  bell  ringing,  and  the  evi- 
dence shows  that  it  came  upon  the  track  so 
near  a  building  alongside  the  road  that  the 
en>;ineer  could  not  see  it  in  time,  by  the 
use  of  ordinary  and  reasonable  care,  to  pre- 
vent the  accident,— //t'A/,  that  ihe  company 
was  not  liable,  notwithstanding  the  fact  that 
the  track  was  not  fenced  at  that  place. 
Galena  «S-  C.  U.  Ji.  Co.  v.  Griffin,  31  ///.  303. 

The  owner  of  a  trespassing  hog  cannot 
recover  from  a  railroad  company  for  killing 
it  on  a  switch  where  the  company  was  not 
required  to  fence,  where  it  appears  that  the 
train  was  being  slowly  backed  in  a  careful 
manner,  and  that  the  hog  stepped  in  front 
of  the  train  and  was  killed.  0/u'o  &*  M.  R. 
Co.  V.  Gross,  41  ///.  App.  561. 

If  a  horse  is  killed  by  a  train  at  a  public 
road  crossing,  and  the  evidence  shows  that 
the  train  was  running  at  the  rate  of  twelve 
miles  an  hour,  and  the  horse  walked  on  to 
the  track  twenty-five  or  thirty  yards  in  front 
of  the  approaching  train,  and  the  engineer 
at  once  gave  two  sharp  whistles,  and  the 
evidence  further  shows  tliat  it  was  impossi- 
ble to  stop  tlie  train,  considering  its  speed, 
after  the  horse  got  on  the  track,  the  killing 
of  the  horse  must  be  regarded  under  the 
circumstances  as  an  inevitable  accident,  and 
the  railroad  company  is  not  responsible 
therefoi.  Toudy  v.  Norfolk  &*  W.  R.  Co., 
38  W.   Va.  694,  \ZS.E.  Rep.  896. 

b.  As  Dependent   upon    Owner's  Duty  to 
Inclose  Stock. 

53.  Duty  of  owner  to  keep  his 
stock  witliiu  inclosures.*-  (1)  At  com- 
mon law. — The  common  law  imposes  on  the 
owner  of  domestic  animals  the  duty  of  keep- 
ing them  on  his  own  lands,  or  within  in- 
closures,  and  he  becomes  a  wrongdoer  if 
any  of  them  escape  or  stray  off  upon  the 
lands  of  another;  but  this  common-law  rule 
is  not  in  force  in  West  Virginia,  it  being  in- 
consistent with  the  legislation  of  the  state, 
subject  to  the  qualifications,  however,  that 
animals  which  are  unruly  or  dangerous  are 
required  to  be  restrained.  Baylor  v.  Balti- 
more &*  O.  R.  Co.,  9  W.  Va.  276.— Fol- 
lowed IN  Johnson  v.  Baltimore  &  O.  R. 
Co.,  25  W.  Va.  570. 

*  Obligations  of  owner  to  keep  stock  confined, 
sec  noie,  I  L.  R.  A.  430. 


In  Maryland  owners  of  live  stock  are  re- 
quired to  keep  them  on  their  own  lands,  and 
are  responsible  if  they  trespass  upon  lands 
in  the  possession  of  the  railroad  company, 
as  well  as  upon  lands  of  private  persons. 
Baltimore  &>  O.  R.  Co.  v.  Lamborn,  12  Md. 

257. 

The  common-law  rule  is  in  force  in  In- 
diana, and  the  owner  must  keep  up  his 
cattle,  in  the  absence  of  an  order  from  the 
county  commissioners  permitting  them  to 
run  at  large.  Michigan  S.  6-  N,  I.  R.  Co. 
v.  Fisher,  27  Ind.  96. 

The  owner  of  cattle  is  bound  to  keep 
them  in  an  inclosure  or  in  custody  at  his 
peril,  for  every  entry  by  them  on  another's 
possession  is  a  trespass,  and  this  principle  ap- 
plies as  well  to  the  intrusion  of  cattle  and 
horses  upon  the  land  over  which  a  railroad 
company  is  entitled  to  its  franchise  as  to  the 
property  of  a  private  owner.  Baltimore  &» 
O.  R.  Co.  V.  Lamborn,  12  Md.  257. 

It  is  the  duty  of  the  owners  of  cattle  to 
keep  them  within  inclosures,  so  as  to  pre- 
vent them  from  trespassing  upon  the  lands 
of  others.  Laws  v.  North  Carolina  R.  Co., 
7  /ones  (N.  Car.)  468.— DISTINGUISHING 
Aycock  V.  Wilmington  &  W.  R.  Co.,  6 
Jones  (N.  Car.)  231. 

(2)  Under  statute  or  ordinance,  —  The 
statute  prohibiting  stallions  from  running 
at  large  was  not  intended  to  apply  to  colts 
until  they  were  c'  such  an  age  as  to  be 
troublesome  to  mares  or  dangerous  to  be  at 
large.  Aylesworth  v.  Chicago,  R.  I,  &*  P. 
R,  Co.,  30  /oTva  459. 

An  ordinance  of  an  incorporated  city  pro- 
hibiting stock  from  running  at  large  within 
its  corporate  limits  cannot  be  held  to  pre- 
vent the  citizen  from  turning  his  stock  out 
on  the  commons, beyond  the  limits  of  the 
city.  Fail  v.  /Kansas  City,  C.  6-  S.  R,  Co., 
28  Mo.  App.  372. 

54.  Animals  escaping^  from  owner's 
control  are  trespassers.* — In  an  action 
against  a  railroad  company  to  recover  for 
injuries  to  a  horse  it  appeared  that  the  horse 
escaped  from  the  owner's  stable  and  passed 
over  intermediate  lands  wliich  belonged  to 
plaintiff,  but  which  were  in  the  possession  of 
a  city  for  the  purpose  of  making  certain  im- 
provements, and  passed  upon  a  railroad 
track  through  an  opening  made  by  the  city. 
//eld,  that  it  was  error  in  the  trial  court  to 
refuse  to  rule,  that  the  railroad  company 

•  See  ante,  43,  44. 


ANIMALS,  INJURIES  TO,  55,50. 


115 


was  not  liable  for  an  injury  to  the  horse,  and 
in  holding  that  the  horse  was  not  trespass- 
ing on  the  land  in  the  possession  of  the  city, 
as  it  only  had  an  easement  therein.  Conklin 
V.  Old  Colony  R,  Co.,  \l\Mais.  155. 28  N.  E. 
Rep.  143- 

A  railroad  corporation  is  not  liable  for 
damages  done  to  the  cattle  which  escape  to 
the  railroad  from  the  highway,  or  through 
fences  between  the  railroad  and  land  of  the 
owner,  such  cattle  being  considered  as  tres- 
passing. Woolson  V.  Northern  R.  Co.,  19 
A'.  H.  267. 

It  seems  that  a  railroad  corporation,  by 
proceedings  duly  taken  under  its  charter, 
acquires  the  title  to  lands  appropriated  for 
the  use  of  the  road.  And,  therefore,  where 
cattle  escape  from  the  inclosure  of  the 
owner  and  stray  upon  the  track  of  a  rail- 
road, they  are  to  be  regarded  as  trespassing 
upon  the  lands  of  the  railroad  company. 
Munger  v.  Tonawanda  R.  Co.,  4  N.  Y.  349. 
—Reviewed  in  Vermilya  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  66  Iowa  606. 

The  plaintiff,  as  constable,  seized  a  horse 
under  a  distress  warrant,  and  put  him  in  the 
stable  of  an  inn.  The  horse  escaped  to  the 
road,  and  having  got  upon  the  railway  ow- 
ing to  defects  in  the  cattle-guards,  was  killed 
some  distance  from  the  point  of  intersec- 
tion. Held,thax  under  the  20  Vic.  ch.  12 
the  horse  was  unlawfully  upon  the  highway, 
and  having  got  thence  upon  the  track  the 
company  were  not  responsible,  notwith- 
standing the  defect  in  the  cattle-guards. 
Although  the  horse  was  upon  the  road  with- 
out the  plaintiff's  knowledge  or  permission, 
yet  he  was  nevertheless  there  unlawfully, 
for  the  statute  obliged  the  plaintiff  to  pre- 
vent him  from  being  there.  Simpson  v. 
Great  Western  R.  Co.,  17  U.  C.  Q.  B.  57.— 
Quoting  Sharrod  v.  London  &  N.  W.  R. 
Co.,  4  Exch.  580. — Followed  in  Cooley  v. 
Grand  Trunk  R.  Co.,  18  U.  C.  Q.  B.  96. 

55.  Right  to  allow  stock  to  riiu  at 
large.* — The  common-law  rule  requiring 
the  owner  of  live  stock  to  keep  them  on  his 
own  lands,  and  making  them  trespassers  if 
they  go  upon  the  lands  of  another,  whether 
such  lands  are  inclosed  or  not,  has  never  been 
recognized  in  Arkansas,  Florida,  Mississippi, 
Missouri  or  Oregon.  Little  Rock  &•  Ft.  S.  R. 
Co.  V.  Finley,  1 1  Am.  <S-  Eng.  R.  Cos.  469,  37 

*  Generally,  the  common-law  rule  requiring 
owners  of  stock  to  keep  them  on  their  own 
ground  not  in  force  in  United  States,  see  note, 
22  L.  R.  A.  55. 


Ark.  562.— Followed  in  Gulf,C.&  S.  F.  R. 
Co.  V.  Johnson,  54  Fed.  Rep.  474,  10  U.  S. 
App.  629,  4  C.  C.  A.  447.  Quoted  in  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Washington,  49  Fed. 
Rep.  347,  4  U.  S.  App.  121,  I  C.  C.  A.  286. 
Reviewed  in  Moses  v.  Southern  Pac.  R. 
Co.,  42  Am.  &  Eng.  R.  Cas.  555,  18  Oreg. 
1%^.— Savannah,  F.  <S»  VV.  R.  Co.  v.  Geiger, 
29  Atn.  &*  Ettg.  R.  Cas.  274,  21  Fla.  669,  58 
Am.  Rep.  697.— Distinguished  in  Jackson- 
ville, T.  &  K.  W.  R.  Co.  V.  Garrison,  30  Fla. 
557. — McPheeters  v.  Hannibal  &•  St.  J.  R, 
Co.,  45  Mo.  22.~Applied  in  Miller  v. 
Wabash  R.  Co.,  47  Mo,  App.  630. — Moses  v. 
Southern  Pac.  R.  Co.,  42  Am.  &•  Eng.  R.  Cas. 
555,  \&- Oreg.  385,  23  Pac.  Rep.  498. — Re- 
viewing Munger  v.  Tonawanda  R.  Co.,  4 
N.  Y.  349.— A^tw  Orleans,/.  &>  G.  N.  R.  Co. 
V.  Field,  46  Miss.  573,  2  Am.  Ry.  Rep.  439. 

Though  owners  of  cattle  and  other  live 
stock  in  Florida  have  the  legal  right  to  turn 
them  out  to  range,  yet  in  doing  so  they  as- 
sume the  risk  of  any  danger  which  may  re- 
sult to  the  stock  from  their  going  upon  the 
railroad  track  and  being  run  upon  by  a  train, 
when  the  circumstances  are  such  as  to  ren- 
der running  upon  them  unavoidable,  not- 
withstanding the  use  of  reasonable  care  by 
the  persons  operating  the  train  to  avoid  it. 
Savannah,  F.  &•  W.  R.  Co.  v.  Geiger,  29  Am. 
&•  Eng.  R.  Cas.  274,  21  Fla.  669,  58  Am. 
Rep.  697. 

Persons  in  Mississippi  may  permit  their 
stock  to  run  at  large  on  uninclosed  lands  of 
railroad  companies,  as  well  as  others,  with- 
out incurring  any  liability  as  trespassers,  and 
this  is  so  if  they  go  upon  enclosed  lands 
without  breaking  a  lawful  fence.  New  Or- 
leans, J.  6-  G.  N.  R.  Co.  V.  Field,  46  Miss. 
573,  2  Am.  Ry.  Rep.  439. 

In  Missouri  the  owners  of  stock  are  not 
required  to  keep  them  up  or  restrain  them 
from  going  about  railroad  tracks.  Davis  v. 
Hannibal  &»  St.  J.  R.  Co.,  19  Mo.  App.  425. 

A  by-law  enacting  that  certain  animals 
shall  not  run  at  large  does  not  impliedly 
allow  others  not  named  to  do  so,  contrary  to 
the  common  law.  Jack  v.  Ontario,  S.  &*  H. 
R.  Co.,  14  6^.  C.  Q.  B.  328. 

56.  When  stock  are  deemed  to  be 
mulling  at  large.* — (i)  Generally.— Q^x- 
tleare  not  to  be  presumed  as  lawfully  going 
at  large.  There  must  be  proof  that  the  town 

*  A  steer  temporarily  separated  from  rest  of 
herd  is  running  at  large,  see  35  Am.  &  Eno.  R. 
Cas.  134,  abstr.  See  also  post,  152-1 5f>, 
187,  205,  20G. 


116 


ANIMALS,  INJURIES  TO,  flfl. 


gave  permission.  Perkins  v.  Eastern  R. 
Co.,  29  Me.  307. 

When  the  owner  of  a  farm,  by  an  arrange- 
ment with  the  occupant  of  an  adjoining 
farm,  allows  his  stock,  with  which  is  a  bull 
more  than  a  year  old,  to  run  across  the  line 
on  the  latter  farm  to  graze,  and  both  farms 
are  otherwise  inclosed,  such  bull  is  nut  run- 
ning at  large  within  the  meaning  of  |).  6725, 
Gen.  Stat,  of  Kansas,  1889.  Missouri  /'ac. 
Ji.  Co.  V.  Shumaker,  46  Kan,  769,  27  Pac. 
Rep.  126. 

Plaintifl's  colt,  5  weeks  old,  was  following 
its  dam,  which  was  being  led,  when  it  ran 
against  a  barb-wire  fence  maintained  by  a 
railroad  company  and  was  killed.  Held, 
that  it  being  the  universal  custom  to  allow 
colts  of  that  age  to  follow  their  dams,  the 
colt  could  not  be  said  to  be  "running  at 
hirge"  within  the  meaning  of  the  statute. 
Hillyard  v.  Grand  Trunk  R.  Co.,  23  Aw.  &* 
Eng.^R.  Cas.  154,  8  Ont.  583— DISTIN- 
GUISHING Markham  v.  Great  Western  R. 
Co.,  25  U.  C.  Q.  B.  572 ;  Cooley  v.  Grand 
Trunk  R.  Co.,  18  U.  C.  Q.  B.  96. 

Plaintifl's  son,  as  it  was  getting  dark,  was 
taking  three  horses  along  a  road  which 
crossed  defendant's  railway,  riding  one,  lead- 
ing another,  and  driving  the  third.  This 
last  horse,  being  from  sixty  to  one  hundred 
feet  in  front,  attempted  to  cross  the  track  as 
a  train  approached,  and  was  killed.  Held, 
that  the  horse  was  not  "  in  charge  of "  any 
person  within  Consol.  Stat.  ch.  66,  §  147,  and 
that  the  plaintiff  could  not  recover.  Mark- 
ham  V.  Great  Western  R.  Co.,  25  U.  C.Q.  D. 
572. —  Reviewing  Thompson  v.  Grand 
Trunk  R.  Co.,  18  U.  C.  Q.  B.  94.— Distin- 
guished IN  Hillyard  v.  Grand  Trunk  R. 
Co..  8  Ont.  583. 

In  the  following  cases  animals  have  been 
held  not  to  be  "  running  at  large,"  within  the 
meaning  of  the  statutes  : 

Cows  left  in  a  highway  for  the  temporary 
purpose  of  milking  them,  and  with  the  in- 
tent to  put  them  within  inclosures.  Bulkley 
v.  Atw  York  St*  N.  H.  R.  Co.,  27  Conn.  479. 
—Approved  in  Rehman  v.  The  Railroad 
Co.,  5  Phila.  (Pa.)  450.  Disapproved  in 
North  Pennsylvania  R.  Co.  v.  Rehman.  49 
Pa.  St.  loi.  Followed  in  Pearson  v.  Mil- 
waukee &  St.  P.  R.  Co.,  45  Iowa  497. 

Cattle  grazing  upon  inclosed  lands  which 
have  a  railroad  track  running  through  them. 
Gooding  v.  Atchison,  T.  &>  S.  F.  R.  Co.,  20 
Am.  &*  Eng.  R.  Cas.  466.  32  Kan.  150,  4 
Pac.  Rep.    136.— Distinguishing    Kansas 


Pac.  R.  Co.  V,  Landen,  24  Kan.  406.  Fol- 
lowing Atchison,  T.&  S  7.  R.  Co.  v,  Riggs, 
31  Kan.  632. 

Stock  in  charge  of  a  herder  subject  to  his 
control.  Keeney  v.  Oregon  R.  &•  jV.  Co.,  42 
Am.  »S-  Eng.  R.  Cas.  619,  24  Pac.  Rep.  233, 
19  Oreg.  291. 

A  cow  escaping  from  a  boy  who  was 
driving  her.  Phillips  v.  Canadian  Pac.  R. 
Co.,  I  Man.  1 10. 

(2) /«  /o^vii.—  l'he  words  "running  at 
large,"  as  applied  to  live  stock,  imply  that 
the  stock  so  at  laij;L'  is  not  under  the  control 
of  tiic  owner.  Hammond  v.  Chicago  (jr*  N. 
\V.  l\.  Co.,  43.  loii'a  168,  14  Am.  Ry.  Rep.  41 2. 
— Following  Hinman  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  28  Iowa  491. 

A  sucking  colt  which  left  its  mother,  who 
was  being  led  by  her  owner,  and  wandered 
upon  the  track  at  the  depot  grounds  and 
was  injured,  was  running  at  large  within  the 
meaning  of  the  Iowa  statutes.  Smith  v. 
Kansas  City,  St.  J.  &•  C.  B.  R.  Co..  58  Iowa 
622,  12  A^.  IV.  Rep.  619. 

Within  the  meaning  of  §  1289  of  the  Iowa 
Code,  a  horse  which  has  escaped  from  his 
owner's  control  and  stillhas  a  bridle  upon  it 
is  "  running  at  large."  Welsh  v.  Chicago,  li. 
&-  Q.  R.  Co.,  53  Iowa  632,  6  A^.  IV.  Rep.  13. 

Cattle  escaping  while  being  driven  in 
charge  of  their  owner  along  a  highway  and 
rnnning  on  to  a  railroad  track  are  running 
at  large,  within  the  meaning  of  the  Iowa 
statutes.  Smith  v.  Chicago,  R.  I.  &<•  P.  R. 
Co.,  34  Iowa  96.— Quoting  Hinman  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  28  Iowa  491. 

A  team  of  horses  which  are  harnessed  to 
a  wagon,  and  which  have  escaped  from  the 
control  of  their  owner  or  driver,  are  "  live 
stock  running  at  large,"  as  used  in  §  1289  of 
the  Iowa  Code.  Inman  v.  Chicago,  M.  &• 
St.  P.  R.  Co.,  60  Iowa,  459.— Reviewing 
Welsh  V.  Chicago,  B.  &  Q.  R.  Co.,  53  Iowa 
632. 

Horses  hitched  to  a  sleigh  in  charge  of  a 
driver  who  is  intoxicated  and  in  a  drunken 
stupor,  are  not  running  at  large.  Grove  v. 
Burlington,  C.  R.  &*  N.  R.  Co.,  75  Iowa,  163, 
39  N.  IV.  Rep.  248. 

(3)  In  Minnesota — Missouri. — The  court 
erred  in  charging  that  cattle,  when  on  a 
highway  upon  their  owner's  premises,  are 
not  going  at  large  within  the  purview  of  the 
statute,  fohnson  v.  Minneapolis  Sr*  St.  L. 
R.  Co.,  43  Minn.  207.  45  N.   IV.  Rep.  1 52. 

Under  tlie  Missouri  statutes  providing 
that  any  county  may  by  a  vote  render  oper- 


ANIMALS,  INJURliiS   TO,  57  <M). 


117 


& 


ativc  a  law  to  prevent  cattle  from  ru lining 
ut  large,  and  making  it  the  duty  of  tlic 
county  clerk  to  give  notice  tljcrcof,  when 
the  people  have  voted  in  favor  of  enforcing 
the  law,  a  railroad  company  is  liable  for 
stock  killed  between  the  date  of  the  vote 
and  thedate  of  the  publication  of  such  notice 
by  the  clerk.  n\L/t  v.  Hanni/ni/  &*  St.  J. 
A'.  Co.,  26  Mo.  App.  358. 

57.  CoiiiimiiyN  lialiility  I'or  iii'^li- 
Ifciiec,  ifeiicrally.* — In  Alabama,  where 
the  owner  of  live  stock  has  a  right  to  per- 
mit them  to  run  at  large,  a  company  is  liable 
if  stock  IS  killed  through  negligence  while 
on  the  track.  Mobile  &'  O.  A'.  Co.  v.  f(7//- 
/aws,  53  A/a.  595,  13  Am.  Ry.  R,'f>.  153. 

In  Alabama,  where  It  is  lawful  for  the 
owner  of  stock  to  permit  them  to  run  at 
large,  such  owner  is  not  thereby  precluded 
from  recovering  injuries  done  to  the  stock 
by  trains  while  stock  may  be  trespassing  on 
the  track.  Alabama  G.  S.  R.  Co.  v.  Powers, 
19  .\m.  (S-  Eng.  R.  Cas.  502,  73  Ala.  244. — 
Distinguishing  Mungerz/.  Tonawanda  R. 
Co.,  4  N.  Y.  349;  Jackson  v.  Rutland  &  B. 
R.  Co.,  25  Vt.  150;  Pittsburg,  C.  &  St.  L.  R. 
Co.  V.  Stuart,  71  Ind.  500;  Price  v.  New 
Jersey  R.  &  T.  Co..  31  N.  J.  L.  229,  32  N.  J. 
L.  19;  South  &  N.Ala.  R.  Co.  ?-«.  Williams,  65 
Ala.  74;  Alabama  G.  S.  R.  Co.  v.  McAlpine, 
71  Ala.  545. 

The  fact  that  the  "  stock  law  "  makes  it 
unlawful  for  the  plaintifT  to  permit  his  cow 
to  run  at  large  affords,  no  excuse  for  an  in- 
jury to  her  resulting  from  the  defendant's 
negligence.  Roberts  v.  Richmond  &*  D.  R. 
Co.,  20  Am.  &»  Eng.  R.  Cas.  473,  88  N.  Car. 
560. 

58.  Degree  of  care  required  of 
eoiiipaiiy,  generally.t— If  a  person  per- 
mits his  stock  to  run  in  a  field  through 
which  an  unfenced  railroad  runs,  the  com- 
pany is  only  required  to  exercise  ordinary 
care  and  prudence  to  prevent  injuring  the 
cattle.  Peoria,  D.  &•  E.  R.  Co.  v.  Dugan,  10 
///.  App.  233. 

If  those  in  charge  of  a  moving  train  fail 
to  exercise  ordinary  care  to  avoid  injuring 
live  stock  on  the  track, the  company  will  be 
liable,  though  the  stock  has  escaped  from 
the  owner's  premises  and  gone  on  the  track, 

»See  ante,  29-3i£,  ^7  ;  post,  187,  200, 
204. 

Injury  to  cattle  running  at  large  in  violation 
of  statue,  see  notes,  20  Am.  &  Eng.  R.  Cas.  480, 
23  /d.  210,  49  /</.  504,  abstr. 

t  See  ante,  48,  4» ;  post.  62,  1 16,  141, 

1  clO. 


if  it  appears  th.it  it  escaped  without  his 
fault.  Atiliison,  J'.  &^  .V.  /•.  R.  Co.  v.  Davis, 
1 1  Am.  1^  Eng,  R.  Cas.  521,  31  h'an.  645, 
3  Pac.  Rip.  301.— DisiiN(;i;isHiNG  Union 
Pac.  R.  Co.  r.  Rollins,  5  Kan,  167. 

It  is  the  duty  of  a  railroad  company  to 
exercise  reasonable  care  to  avoid  injury  to 
cattle  or  stock  found  on  its  road,  though 
such  cattle  and  stock  may  be  there  through 
the  negligence  of  the  owner.  Paltimore  &* 
O.  R.  Co.  V.  Mulligan,  45  Md.  486.— A F- 
PLIEU  IN  Central  R.  Co.  v.  Smith,  74  Md. 
212. 

A  railroad  company  is  entitled  to  the  ex- 
clusive and  unmolested  use  of  its  road,  and 
it  is  the  duty  of  owners  to  keep  cattle  within 
their  inclosures;  but  the  failure  to  do  so 
will  not  justify  persons  in  the  charge  and 
management  of  a  railway  train  in  running 
over  them  if  by  the  exercise  of  ordinary  care 
this  can  be  avoided.  liallimore  &•  O.  R.  Co, 
v.  Mulligan,  45  Md.  486. 

50. under  the  South  Carolina 

8toclc  law. — Railroad  companies  in  South 
Carolina  arc  not  required  to  use  the  same 
care  as  to  live  stock  that  may  go  upon  the 
tracks  where  the  stock  law  is  in  force,  as  in 
other  localities  where  it  is  not  in  force. 
Harley  v.  Eutawville  R.  Co.,  3 1  So.  Car.  151, 

9  S.  E.  Rep.  782.— Applying  Simkins  v. 
Columbia  k  G.  R.  Co.,  20  So.  Car.  258; 
Joiner  v.  South  Carolina  R.  Co.,  26  So.  Car. 
49 ;  Jones  v.  Columbia  &  G.  R.  Co.,  20  So. 
Car.  249;  Molair  v.  Port  Royal  &  A.  R.  Co., 
29  So.  Car.  159.— Distinguished  in  Molair 
V.  Port  Royal  &  A.  R.  Co.,  31  So.  Car.  510, 

10  S.  E.  Rep.  243. — Molair  v.  Port  Royal  6>» 
A.  R.  Co.,  35  Am.  &^  Eng.  R.  Cas.  135,  29 
So.  Car.  152,  7  S.  E.  Rep.  60.— Quoting 
Simkins  v.  Columbia  &  G.  R.  Co.,  20  So,  Car. 
258.— Applied  in  Harley  v.  Eutawville  R. 
Co.,  31  So.  Car.  151. 

Much  less  care  is  required  of  railroad 
companies  in  South  Carolina  since  the  pass- 
age of  the  stock  law,  in  providing  against 
stock  on  the  track,  than  was  required  before 
its  passage.  Joyner  v.  South  Carolina  R.  Co. , 
29  Am.  6r»  Eng.  R.  Cas.  258,  26  So.  Car.  49,  i 
S.  E.  Rep.  52.~FoLLOWiNG  Jones  v.  Colum- 
bia &  G.  R.  Co.,  20  So.  Car.  258 ;  Simkins  v. 
Columbia  &  G.  R.  Co.,  20  So,  Car.  265.— Ap- 
plied IN  Harley  v.  Eutawville  R.  Co.,  31 
So.  Car.  151. 
60.  Liability  for  gross  negligence.* 
A  company  is  not  liable  except  for  gross 

*Seea»i/<r,  37,  ^9%  post,  187,  200,  217, 
218.  284. 


IH 


ANIMALS,  INJURIES   TO,  <H,oa. 


or  wilful  negligence  wliere  uii  aninial  run- 
ning at  large,  contrary  to  a  municipal  ordi- 
nance, is  run  into  and  killed.  Utnver  Hr*  A', 
(j.  R.  Co.  V.  Ohen,  4  Colo.  239. 

In  those  jurisdictions  in  which  the  cum- 
mon-law  rule  prevails  tliat  the  owner  of 
cattle  is  bound  to  keep  iheni  in  his  own  in- 
closure,  it  is  generally  held,  though  with 
some  exceptions,  that  if  he  sutlers  them  to 
go  at  large,  and  the  cattle  stray  upon  the 
railroad  track,  and  arc  injured  or  killed,  the 
company  is  not  liable,  unless  the  conduct  of 
its  agents  in  the  management  of  the  train 
was  wanton  or  wilful.  Moses  v.  Southern 
Pac.  R.  Co.,  42  A»t.  &•  Eng.  R.  Cos.  555,  18 
Ureff.  385,  23  Riic.  Rep.  498.— Revikwing 
Bowman  v.  Troy  &  B.  R.  Co.,  37  Barb. 
(N.  Y.j  519;  Maynard  v.  Boston  &  M.  R. 
Co.,  115  Mass.  460;  Little  Rock  &  S.  F,  R. 
Co.  V.  Finley,  37  Ark.  569;  Balcom  v.  Du- 
buque &  S.  C.  R.  Co.,  21  Iowa  103;  Searles 
V,  Milwaukee  &  St.  P.  R.  Co.,  35  Iowa  491 ; 
Cincinnati  &  Z.  R.  Co.  v.  Smith,  22  Ohio 
St.  227. 

In  a  suit  against  a  railway  company  for 
an  injury  inflicted  by  its  engine  on  animals 
running  at  large,  it  is  competent  for  the 
company  to  prove  that,  under  a  local  law, 
stock  were  not  permitted  to  run  at  large 
at  the  place  where  the  injury  was  in- 
flicted. Where  such  a  law  exists  the  com- 
pany would  only  be  liable  when  guilty  of 
gross  negligence.  International  &*  G.  N.  R. 
Co.  V.  Dunham,  31  Am.  <3-  Eng.  R,  Cas.  530, 
68  Tex.  231,  4  S'.  W.  Rep.  472. 

c.  Lookout ;  Signals ;  Speed  ;  Stopping 
Train,  Etc. 

61.  Duty  to  comply  with  statutory 
requirements,  generally.— Under  stat- 
utory provisions  making  a  railroad  com- 
pany liable  "  for  all  damages  to  persons, 
jtock,  or  other  property,  resulting  from  a 
failure  to  comply  with  "  statutory  require- 
ments (Alabama  Code,  §  1144),  it  is  not 
necessary  that  this  failure  shall  be  the  sole 
or  immediate  cause  of  the  injury,  but  only 
that  it  contributed,  with  other  concurring 
and  efficient  causes  (not  including  plaintiff's 
own  fault)  to  produce  the  injury.  Western 
R.  Co.  V.  Sistrunk,  85  Ala.  352,  5  So.  Rep. 
79- 

Under  the  Alabama  Code  railroad  com- 
panies are  liable  for  killing  or  injuring  live 
stock,  if  those  in  charge  of  their  trains  fail 
to  comply  with  certain  requirements  pro- 


vided for  in  the  statute ;  but  where  com- 
pliance with  these  requirements  is  impossi- 
ble, the  company  may  escape  liability  by 
showing  that  their  trainmen  used  all  the 
means  in  their  power  and  known  to  skilful 
engineers  to  prevent  the  injury  complained 
of.    Mobile  &•  O.  R.  Co.  v.  A f alone,  46  Ala. 

391. 

In  carrying  out  the  provisions  of  Mill.  & 
V.  Tennessee  Code,  §  1298,  railroad  en- 
gineers are  not  required  to  observe  the  pre- 
cautions mentioned  in  the  statute  to  avoid 
injuries  to  persons  or  animals  in  the  way  in 
which  they  arc  named,  but  may  do  so  in  any 
manner  which  is  best  calculated  under  the 
circumstances  of  the  particular  case  to  pre- 
vent an  injury.  Memphis  &r*  C.  R,  Co.  v. 
Scott,  87  7V«M.  494,  II  S.   IV.  Rep.  317. 

Section  1166  of  the  Tennessee  Code 
means  that  if  the  company  prove  that  when 
it  occurred  all  the  statutory  precautions 
were  observed,  then  the  accident  was  un- 
avoidable, and  the  company  is  not  liable. 
But  if  the  company  fail  to  prove  that  the 
several  statutory  precautions  were  literally 
obeyed  it  is  responsible  for  all  damages  oc- 
casioned by  the  accident,  whether  resulting 
from  its  own  negligence  or  not.  Memphis 
<S-  C.  R.  Co.  V.  Smith,  9  Heisk.  {Tenn.)  860. 

To  exonerate  itself,  the  company  must 
show  not  only  that  the  precautions  specified 
were  observed,  but,  in  addition,  that  "every 
possible  means  was  employed  to  stop  the 
train  and  prevent  the  accident."  In  resort- 
ing to  the  additional  means,  it  was  not  in- 
tended that  the  company  should  use  means 
which  would  probably  endanger  the  lives 
and  property  of  those  on  the  train  ;  but  that 
unless  each  and  all  the  statutory  precautions 
were  observed  it  is  no  excuse  that  an  attempt 
to  reverse  the  engine  might  have  ditched 
the  train.  Memphis  &*  C.  R.  Co.  v.  Smith,  9 
Heisk.  {Tenn.)  860,  20  Am.  Ry.  Rep.  861. 

02.  Duty  to  keep  a  lookout.*— (i) 
Generally. — A  locomotive  engineer  is  re- 
quired to  keep  a  lookout  for  stock  on  the 
track.  Gulf,  C.  &>  S.  F.  R.  Co.  v.  Ellis,  54 
Fed.  Rep.  481,  10  U.  S.  App.  640,  4  C.  C.  A. 
454— Following  Gulf,  C.  &  S.  F.  R.  Co. 
V.  Washington,  49  Fed.  Rep.  347  ;  4  U.  S. 
App.  121,  I  C.  C.  A.  286,  Gulf,  C.  &  S.  F.  R. 
Co.  V.  Johnson,  54  Fed  Rep.  474. 

*  Duty  of  company's  employes  to  keep  look- 
out for  stock  on  track,  see  note,  11  L.  R.  A.  460; 
or  on  right  of  way,  see  note,  56  Am.  &  Eng.  R. 
Cas,  192;  or  in  proximity  to  the  track,  see  40 
Am.  &  Eng.  R.  Cas.  176,  abstr.  See  also /m/, 
60,  187,  200,  218,  284. 


ANIMALS,  INJURIES  TO,  02. 


110 


Under  the  Arkansas  l.iw,  as  enforced  in 
the  Indian  Territory,  an  engineer  running  a 
train  is  required  to  l<eep  a  lool<out(or  stocic 
on  the  track,  and  when  it  is  discovered  he 
is  required  to  use  reasonable  care  to  avoid 
injuries  thereto.  Gulf,  C.  6-5.  F.  R,  Co,  v. 
Johnson,  54  Fed.  Rtp.  474.  10  U.  S.  App,  629, 
4  c".  C,  A,  447.— Imji.lowing  Little  Rock  & 
Ft.  S.  R.  Co.  V.  Finley,  37  Ark.  562 ;  Little 
Rock  &  Ft.  S.  R.  Co.  V.  Holland.  40  Ark. 
336;  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Mon- 
day, 49  Ark.  257.— Followed  in  Gulf,  C. 
&  S.  F.  R.  Co.  V.  Ellis,  54  Fed.  Rep.  481. 10 
U.  S.  App.  640,  4  C.  C.  A.  454. 

Though  stock  may  be  wrongfully  upon  a 
railroad  track,  yet  in  order  to  excuse  the 
railroad  company  from  liability  for  injuries 
thereto,  it  must  appear  that  the  engineer 
was  not  negligent  in  keeping  a  lookout  for 
such  stock  or  for  danger  signals,  and  that 
reasonable  care  was  exercised  to  avoid  the 
injury  after  the  stock  was  discovered.  Mem- 
phis &*  L.  R,  R.  Co,  v.  Sanders,  19  Am,  «S>» 
Eng.  R.  Cas.  497,  43 /ir*.  225, 

It  is  the  duty  of  an  engineer  in  charge  of 
a  moving  train  of  cars  to  maintain  a  look- 
out, as  continuously  as  his  other  duties  will 
permit,  for  obstructions  on  the  track,  and 
when,  in  an  action  against  a  railroad  com- 
pany for  the  killing  of  a  mare  by  a  moving 
train,  the  evidence  is  in  conflict  upon  the 
question  as  to  whether  such  lookout  was 
maintained,  a  charge  stating  the  duty  owing 
by  the  defendant  in  the  operation  of  its 
trains  to  the  owners  of  stock  is  faulty  in  ig- 
noring the  inquiry  as  to  the  engineer's  ob- 
servance of  the  duty  to  maintain  a  proper 
lookout.  Mobile  &>  B.  R.  Co.  v.  Kim- 
brough,  96  Ala.  1 27,  11  So.  Rep.  307. 

It  being  the  duty  of  the  servants  of  the 
railroad  company,  so  far  as  consistent  with 
their  other  and  paramount  duties,  to  use 
ordinary  care  to  avoid  injuring  cattle  on  the 
track,  they  are  bound  to  adopt  the  ordinary 
precautions  to  discover  danger,  as  well  as  to 
avoid  its  consequences  after  it  becomes 
known.  Nuzum  v.  Pittsburgh,  C.  &>  St.  L. 
R.  Co.,  30  W.  Va,  228,  4  S.  E.  Rep.  242.— 
Distinguished  in  Spicer  v.  Chesapeake  & 
O.  R.  Co.,  34  W.  Va.  S14. 

In  case  of  injury  to  live  stock,  railroad 
companies  will  be  held  liable  when  their 
employes,  by  exercising  the  necessary  vigi- 
lance, might  have  seen  at  a  proper  distance 
the  animals  on  the  track,  and  with  due  re- 
gard to  the  safety  of  passengers  have 
stopped  the  train  before  it  struck  them,  but 


failed  to  do  so.  Fossier  v.  Morgan's  L,  &* 
T.  R,  &*  S,  Co,,  McGloitt  (La,)  349. 

The  Tennessee  act  of  1856,  ch.  94,8  8,  re- 
quires all  railroad  companies  within  the  state 
to  keep  a  special  watchman  upon  the  locomo- 
tive when  in  motion,  to  watch  the  track  and 
give  warning  of  any  obstacle  or  obstruction. 
This  is  a  special  duty  to  be  performed  by 
one  person  as  his  sole  occupation  while  the 
train  is  in  motion,  and  if  in  the  absence  of 
such  special  watchman  injury  result  to  per- 
son or  properly  by  being  overrun,  the  com- 
pany is  liable  in  damages  as  for  negligence. 
Memphis  &*  C.  R.  Co.  v.  Dean,  5  Sneed 
(Tenn,)  291.— FOLLOWED  IN  Louisville  & 
N.  R.  Co.  V.  Stone,  7  Hcisk.  (Tenn.)  468. 

It  being  the  duly  of  the  servants  of  the 
railroad  company,  so  far  as  consistent  with 
their  other  and  paramount  duiics  to  their 
passengers,  to  use  ordinary  care  to  avoid 
injuring  cattle  on  the  track,  they  are  bound 
to  adopt  the  ordinary  precautions  to  dis- 
cover danger,  as  well  as  avoid  its  conse- 
quences ifter  it  becomes  known.  Baylor  v, 
Baltimore  &^0,  R.  Co.,g  IV.  Va.  270.— FOL- 
LOWED IN  Laync  v.  Ohio  River  R.  Co.,  35 
W.  Va.  438,  14  S.  E.  Rep.  123.  Quoted  in 
Coyle  V.  Daltimore  &  O.  R.  Co.,  11  W.  Va., 

94. 

The  rule  that  in  the  case  of  an  animal 
trespassing  on  the  track  of  a  company,  with- 
out the  fault  of  the  company,  there  is  no 
duty  of  watchfulness  on  the  part  of  those  in 
charge  of  its  trains  to  ascertain  if  the  ani- 
mal be  there,  and  that  their  duty  of  care 
with  respect  to  it  arises  only  upon  their  dis- 
covering its  peril,  applies  as  well  in  the  case 
of  an  animal  wrongfully  upon  a  highway  at 
a  railroad  crossing.  Palmer  v.  Northern 
Pac.  R.  Co.,  31  Am.  &•  Eng.  R.  Cas,  544,  37 
Minn.  223,  33  A'.  IV.  Rep.  707,  5  Am.  St. 
Rep,  839.— Following  Locke  v.  First  Div. 
St.  Paul  &  P.  R.  Co.,  IS  Minn.  350 ;  Witherell 
V.  Milwaukee  &  St.  P.  R.  Co.,  24  Minn.  410. 

The  extent  of  the  duty  which  a  railroad 
company  owes  to  stock  upon  its  track,  is 
that  the  engineer  in  charge  of  the  train  at 
the  time  shall  use  ordinary  or  reasonable 
care  after  the  stock  is  discovered  by  him  to 
prevent  injury  to  it,  and  this  negatives  the 
idea  that  the  engineer  is  bound  to  keep  a 
lookout  for  stock.  Memphis  &•  L.  R.  R. 
Co.  V.  Kerr,  52  Ark.  162,  40  Am,  &*  Eng.  R. 
Cas.  171,  12  S.  W.  Rep.  329.— Quoted  in 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Washington,  49 
Fed.  Rep.  347,  4  U.  S.  App.  121,  i  C.  C.  A. 
286. 


120 


ANIMALS,  INJLRIHS   TO,  (12. 


(2)  Degree  of  care* — Locomotive  engi- 
neers are  required  to  use  reasonable  care  to 
discover  cattle  on  the  track  and  to  avoid  in- 
juries thereto  in  the  Indian  Territory,  where 
there  is  no  law  requiring  companies  to  fence 
their  tracks,  nor  the  owners  of  animals  to 
fence.  Gulf.  C.  &-  S.  F.  R.  Co.  v.  Wash- 
ington, 49  Fed.  Rep.  347,  4  U.  S.  App.  121. 
I  C.  C.  A.  286.— Quoting  Memphis  &  L. 
R.  R.  Co.  V.  Kerr,  52  Ark.  162,  12  S.  W. 
Rep.  329;  Little  Rock  &  Ft.  S.  R.  Co.  v. 
Finley,  37  Ark.  562 ;  Little  Rock  &  Ft.  6.  R. 
Co.  7/.  Holland,  40  Ark.  336— FoL.  owed 
IN  Gulf,  C.  &  S.  F.  R.  Co.  V.  Childs,  49  Fed. 
Rep.  358,  4  U.  S.  App.  200,  I  C.  C.  A.  297 ; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Martin,  49  Fed. 
Rep.  359.  4  U.  S.  App.  198,  I  C.  C.  A.  298  ; 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Ellis,  54  Fed. 
Rep.  481,   10  U.  S.  App.  640,  4  C.  C.  A. 

454- 

Though  stock  be  wrongfully  upon  a  rail- 
road track,  yet  it  is  the  duty  of  engineers  to 
keep  a  constant  and  careful  look-out  for 
them,  and  to  use  ordinary  care  and  dili- 
gence to  discover  and  to  av  jid  injuring  the 
same.  Little  Rock  &*  Ft.  S.  R.  Co.  v.  Fin- 
ley,  1 1  Am.  &'  Eng.  R.  Cas.  469, 37  Ark.  562. 

It  is  the  duty  of  trainmen  to  use  ordinary 
care  in  keeping  a  lookout  for  cattle  on  the 
track,  and  it  is  not  sufficient  to  use  due  care 
after  they  are  discovered,  if  by  the  use 
thereof  they  might  ha-e  been  seen  in  time 
to  have  stopped  the  train  and  avoid  an  injury 
thereto.  Chicago  6>»  A.  R.  Co.  v.  Legg,  yi  III. 
App.  218.— Quoting  Toledo,  W.  &  W.  R. 
Co.  V.  Barlow,  71  111.  640. 

In  nning  its  trains  at  places  where  its 
tracko  ire  not  fenced,  and  where  animals 
are  liable  to  stray  upon  its  tracks,  a  railway 
company  is  under  the  duty  of  keeping  a 
reasonable  lookout  for  such  animals.  Ac- 
cordingly, when  slock  thus  straying  upon 
its  tracks  is  killed  by  one  of  its  trains,  the 
railway  company  is  responsible  therefor,  if 
its  employes  could,  by  the  exercise  of 
reasonable  care,  have  discovered  the  stock 
in  time  to  have  avoided  injury  thereto. 
Hill  v.  Missouri  Pac.  R.  Co.,  49  Mo.  App, 
520. 

The  company  owes  to  the  owner  of  do- 
mestic animals  the  duty  of  reasonable  out- 
look for  such  animals  straying  upon  its 
track.  The  conipany  is  bound  to  adopt 
the  ordinary  precautions  to  discover  that  the 


*  See  ante,  48, 49,  58 ;  post,  1 16,  141, 
180> 


cattle  are  on  the  track,  as  well  as  to  avoid 
injuring  them  after  they  are  seen.  Gunn  v. 
Ohio  River  R.  Co.,  54  Am.  6-  Eng.  R.  Cas. 
167,  36  ]V.  I'a.  165,  14  S.  E.  Rep.  465. 
Layne  v.  Ohio  River  R.  Co..  35  W.  Va.  438, 
14  S.E.  Rep.  123. 

(3)  What  is  performance  of  this  duty. — 
An  engineer  must  keep  a  constant  look- 
out for  obstructions  as  well  as  live  stock  on 
the  track,  but  this  duty  is  discharged  when 
he  gives  it  that  care  and  watchfulness,  in 
connection  with  his  other  duties,  which  a 
prudent  and  careful  person  would  give. 
East  Tenn..  V.  &•  G.  R.  Co.  v.  Bayliss,  22 
Am.  (S>»  Eng.  R.  Cas.  596,  75  Ala.  466.— Re- 
viewed IN  East  Tenn.,  V.  &  G.  R.  Co. 
V.  Deaver,  79  Ala.  216. 

While  it  is  the  duty  of  those  in  charge  of 
a  moving  train  to  keep  a  lookout  for  stock 
on  the  track,  yet  this  duty  must  be  regu- 
lated with  reference  to  their  other  duties, 
and  if  it  appears,  on  account  of  their  other 
duties,  that  neither  the  engineer  nor  fire- 
man, for  a  short  time,  looked  ahead,  the 
company  will  not  be  liable  for  an  animal 
killed.  Howard  v.  Louisville,  N.  O.  &*  T. 
R.  Co.,  67  Miss.  247,  7  So.  Rep.  216. 

While  it  is  the  duty  of  those  in  charge  of 
trains  to  keep  a  lookout  for  stock  on  the 
track,  and,  if  discovered,  to  do  what  they 
can  to  avoid  injuries  thereto,  yet  this  duty 
is  limited  to  the  use  of  such  means  as  are 
consistent  with  their  own  safety  and  the 
safely  of  passengers  that  they  may  be  carry- 
ing. Carlton  v.  Wilmington  <S^  W.  R.  Co.,\o 
Am.  (So  Eng.  R.  Cas.  178,  104  N.  Car.  365, 
10  S.  E.  Rep.  516.  S.  P.  Owens  v.  Hannibal 
6-  St.  J.  R.  Co.,  58  Mo.  386. 

The  provision  of  the  Tennessee  Code,  §§ 
1166-1168,  requiring  engineers  to  keep  a 
lookout  for  any  person,  animal,  or  other 
obstructions  appearing  upon  the  road, — held, 
to  include  not  only  the  roadbed  proper  or 
track,  but  the  whole  of  the  road.  Nashville, 
&-  C.  R.  Co.  v.  Anthony,  i  Lea  (Tenn.)  516. 

Section  n66  (5)  of  the  Tennessee  Code: 
"  Every  railroad  company  shall  keep  the  en- 
gineer, fireman,  or  some  other  person  upon 
the  locomotive,  always  upon  the  lookout 
ahead,  etc.,"  is  not  to  be  construed  as  re- 
quiring for  the  exoneration  of  the  company 
that  somebody  on  the  locomotive  must 
throughout  the  whole  trip  have  been  liter- 
ally always  upon  the  lookout.  It  is  suffi- 
cient if  the  precaution  was  being  observed 
when  the  accident  happened.  Louisville  &* 
N.  R.  Co.  V.  Stone,  7  Heisk.   ( Tenn).  468.— 


AM.MAl.S,  INJURIES   TO,  C,2. 


in 


Following  Memphis  &  C.  R.  Co.  v.  Dean, 
5  Sneed  (Tenn.)  291. 

Those  in  charge  of  trains  are  not  required 
to  "<eep  a  lookout  for  teams  near  the  track, 
and  to  operate  the  trains  so  as  not  to 
frighten  them.  A  company  does  not  owe 
any  duty  beyond  keeping  a  lookout  to 
avoid  injuries  to  persons  who  may  be  found 
on  the  track,  especially  at  public  cross- 
ings. Hixrgif  V.  St.  Louis,  A.  &*  T.  R.  Co., 
75  Tex.  19,  \2  S.  W.  Rep.  953. 

(4)  Obstructions  to  vienu. — The  duty  of 
railroad  companies  to  avoid  unnecessary  in- 
jury to  stock  upon  their  tracks  does  not  re- 
quire them  to  keep  their  entire  right  of  way 
clear  of  obstructions  which  conceal  stock 
from  view  of  the  engineer  of  the  train  until 
they  rush  upon  the  track  unseen,  and  too 
late  to  avoid  the  injury.  Kansas  City,  S,&^ 
M.  R.  Co.  V.  Kirksey,  48  Ark.  366,  3  S.  W. 
Rep.  190.— Quoted  in  St.  Louis,  I.  M.  & 
S.  R.  Co.  V.  Ferguson,  57  Ark.  16. 

It  is  negligence  on  the  part  of  a  railway 
company  to  permit  grass  or  weeds  to  grow 
on  its  grounds  so  as  to  obstruct  the  view  of 
stock  by  the  engine-driver.  Ohio  &*  M.  R, 
Co.  V.  Clutter,  i2  III.  123. 

It  is  the  duty  of  a  railroad  company  to  re- 
move such  growth,  whether  of  shrubs,  trees, 
or  grain,  as  is  calculated  to  obstruct  the 
view  of  its  engineers,  to  the  outer  bank  of 
the  side  ditches  of  its  roadbed ;  and  when, 
by  reason  of  such  growth,  a  horse  is  con- 
cealed from  the  view  of  the  engineer,  and 
gets  upon  the  track  in  front  of  the  moving 
train  and  is  killed,  the  company  is  liable, 
although,  after  seeing  the  horse,  the  engi- 
neer did  all  he  could  to  avoid  the  collision. 
JVaniv.  Wilmington  &^  IV.  R.  Co.,  \ii  N. 
Car.  566,  \Z  S.  E.  Rep.  211. 

If  by  failing  to  keep  bushes  cut  down 
on  the  right  of  way  of  a  railroad  where 
stock  are  accustomed  to  roam  at  will,  the 
bushes  afford  cover  and  concealment  for 
ittlc,  so  that  their  dangerous  proximity  to 
ihe  train  cannot  be  seen  in  time  to  avoid 
accident  by  those  operating  a  moving  train, 
whereby  injury  resu'.ts  (i'"om  a  wreck  caused 
by  stock  suddenly  stepping  from  the  bushes 
on  the  track  in  front  of  the  train),  the  com- 
pany is  liable  in  damages.  Eames  v.  Texas 
&"  N.  O.  R.  Co.,  22  A.'n.  (S-  Eng.  R.  Cas.  540, 
63  Tex.  660. 

(5)  E^ect  of  non-performance  of  this 
duty. — The  failure  of  the  engineer  to  keep 
a  diligent  lookout  for  obstructions,  and  his 
failure  to  ring  the  bell  (or  blow  the  whistle) 


under  ti.c  circumstances  specified  in  the 
statute,  are  each  violations  of  a  statutory 
duty,  and  if  such  failure  reasonably  contrib- 
uted to  the  injury,  the  plaintiff  himself  not 
being  guilty  of  contributory  negligence,  the 
railroad  company  is  liable.  Western  R.  Co, 
V.  Sistrunk,  85  Ala.  352,  5  So.  Rep.  79. 

If  stock  be  run  down  and  killed  by  a 
train  where  the  engineer  in  charge  saw  or 
might  have  seen  it  in  time  to  have  stopped 
the  train  and  avoided  the  injury,  the  com- 
pany is  liable.  Buster  v.  Hannibal  &*  St.f. 
R.  Co.,iZ  Mo.  App.  5/8. 

A  railroad  company  cannot  excuse  itself 
from  liability  for  killing  stock  on  the  ground 
that  when  it  was  first  seen  the  train  was  too 
close  to  avoid  a  collision,  if  it  appear  that 
such  impossibility  was  due  to  the  negligence 
of  those  in  charge  of  the  train  in  not  discov- 
ering the  stock  sooner.  Brooks  v.  Hannibal 
&•  St.  f.  R.  Co.,  35  Mo.  App.  571. 

Where  trespassing  animals  were  killed  by 
a  train,  if  the  servants  of  the  company  hav- 
ing the  train  in  charge,  by  the  exercise  of 
ordinary  care,  and  with  due  regard  to  their 
duties  for  the  safety  of  the  persons  and 
property  in  their  charge,  ould  have  seen 
such  animals  on  the  track  in  time  to  have 
saved  them,  it  was  their  duty  to  have  done 
so,  and  for  their  negligence  in  this  respect, 
where  the  owner  is  not  guilty  of  contributory 
negligence,  the  company  will  be  liable. 
Cincinnati  &^  Z.  R.  Co.  v.  Smith,  22  Ohio 
St.  227. — Distinguishing  Cincinnati,  H.& 
D.  R.  Co.  7/.  Watcrson,40hio  St.  424.— Re- 
viewed IN  Moses  7K  Southern  Pac.  R.  Co., 
42  Am.  &  Eng.  R.  Cas.  555,  18  Oreg.  385. 

(6)  Illustrations, — In  an  action  against  a 
railroad  co.npany  for  killing  stock  the  evi- 
dence showed  that  the  killing  was  on  a 
foggy  morning  before  daylight,  and  that  it 
was  impossible  to  see  the  stock  far  enough 
ahead  to  stop  the  train  before  reaching  them. 
Held,  that  the  railroad  company  was  not  lia- 
ble on  the  ground  of  negligence.  Georgia 
R.  &^  B.  Co.  V.  Wall,  80  <Ja,  202,  7  5.  E. 
Rep.  639.— Followed  in  Georgia  M.  &  G. 
R.  Co.  V.  Harris,  83  Ga.  393,  9  S.  E.  Rep. 
786 ;  Central  R.  &  B.  Co.  v.  Bryant,  89  Ga. 

457. 

Where  \*.  appeared  that  at  the  time  the 
cow  in  question  was  killed  the  train  was  go- 
ing down  a  steep  grade  quite  rapidly,  that 
the  engineer  alone  was  on  the  lookout,  sit- 
ting at  the  right  side  of  his  engine;  that, 
by  reason  of  tlie  fact  that  the  smoke-stack 
obstructed  his  view  to  the  left,  he  could  not 


122 


ANIMALS,    IXJUKIliS   TO,  03. 


see  tlic  cow;  that  the  fireman,  llic  cjiily 
otlier  person  on  the  engine,  was  at  the  time 
"  firing  up  the  engine,"  and  that  nobody  was 
looking  out  on  the  left  side  of  the  engine, 
on  which  side  the  cow  got  upon  tlie  rail- 
road ;  a  verdict  finding  against  the  company 
was  not  wiiliout  evidence  to  support  it. 
The  jury  may  have  considered  that  the  fact 
that  nobody  was  on  tlie  lookout  on  the  left 
side  of  the  engine  was  negligence  on  the 
part  of  the  railroad  company,  and  they  may 
have  concluded  that  if  anybody  had  been 
looking  out  on  that  side  the  cow  could  have 
been  seen  in  time  to  iiave  stopped  the  train 
and  avoided  tlie  casualty.  Northeastern  R. 
Co.  v.  Martin,  78  Ga.  603,  3  S.  E.  Rep.  701. 

VVliere  a  colt  nm  on  the  track  in  front  of 
a  train,  before  it  was  struck  and  killed,  for  a 
distance  of  twenty-five  or  thirty  rods,  and 
the  track  was  straight,  so  that  the  engine- 
driver,  by  the  exercise  of  reasonable  dili- 
gence, could  have  discovered  it  in  time  to 
have  slackened  the  speed  of  the  train,  the 
company  was  held  liable,  notwithstanding 
the  evidence  was  conflicting.  Paris  &*  D. 
R.  Co.  v.  Mullins,  66  ///.  526. 

'•  If  the  cattle,  by  the  use  of  proper  vigil- 
ance, could  have  been  discovered  while  the 
train  was  tiiree  hundred  and  fifty  yards  in 
their  rear,  and  the  train  could  have  been 
stopped  within  tiiree  hundred  yards  of  the 
place  of  such  discovery,  then  the  cattle 
could  have  been  saved,  as  well  as  the  dis- 
aster to  the  train,  and  there  was  certainly 
some  evidence  conducing  to  this  conclu- 
sion." Kentucky  C.  R.  Co.  v.  Lebus,  14  Bush 
(Ky.)  518. 

C3.  Duty  to  avoid  injury  after  dis- 
covery of  auiuial  oa  traelt.*— When- 
ever the  danger  of  collision  becomes  ap- 
parent, whether  by  aninmls  coming  upon  the 
track  or  otherwise,  it  is  the  duty  of  the  en- 
gineer to  use  whatever  appropriate  means 
he  reasonably  can  to  prevent  or  avoid  it. 
Cle^ieland,  C.  C.  6-  St.  L.  R.  Co.  v.  Rice,  48 
///.  App.  51. 

A  railroad  company  will  be  liable  for  kill- 
ing stock  if  those  in  charge  of  the  train 
could  by  proper  care  have  avoided  the  kill- 
ing after  the  stock  was  discovered,  though 
the  stock  was  unlawfully  running  at  large, 
through  either  the  voluntary  act  or  negli- 

•  Duty  of  locomotive  engineer  after  he  dis- 
covers stock  on  or  near  the  track,  see  notes.  35 
Am.  &  Eno.  R.  Cas.  151,  abstr.;  49  /,/.  548;  20 
Am.  St.  Rep.  i6t.  See  also  ante,  49,  52; 
pott,  115. 


gcnce  of  the  owner.  Cleveland,  C,  C.  &•  St. 
L.  R.  Co.  v.  Ahrens,  42  III.  App.  434. — 
Quoting  Indianapolis  &  St.  L.  R.  Co.  v. 
Peyton,  76  111. 340;  Peoria,  P.  &  I.  R.  Qo.v. 
Champ,  75  111.  577- 

The  owner  of  cattle  trespassing  upon  a 
track  may  recover  for  injuries  to  the  stock 
if  it  appears  that  the  engineer,  after  dis- 
covering tlie  stock,  might  have  prevented 
the  injury.  Chicago  6«»  A.  R.  Co.  v.  Hill, 
24  ///.  App.  619.— Quoting  Toledo,  W.  & 
W.  R.  Co.  V.  Barlow.  71   III.  640. 

A  railroad  company  will  be  liable  to  the 
owner  of  live  stock  injured  on  the  track  if 
it  appears  that  the  engineer  in  charge  did 
not  use  proper  effort  to  avoid  the  injury 
after  discovering  the  stock.  Young  v.  //an- 
nibal  <^  St,  J.  R.  Co.,  19  Am.  &>  Eng.  R. 
Cas.  512,  79  Mo.  336. — Followed  in  Mil- 
burn  V.  Hannibal  &  St.  J.  R.  Co.,  21  Mo. 
App.  426. 

If  the  engineer  in  charge  of  a  train,  after 
discovering  live  stock  on  or  near  the  track 
in  danger,  fails  to  use  proper  effort  to  avoid 
injuring  them,  the  company  will  be  liable 
for  any  injury  done.  Welch  v.  //annibal  &* 
St.  J.  R.  Co.,  20  Mo.  App.  477.— Not  Fol- 
lowed IN  Hill  V.  Missouri  Pac.  R.  Co.,  49 
Mo.  App.  520. 

If  the  injury  was  the  result  of  the  defend- 
ant's actual  negligence,  and  if  the  defend- 
ant's servants  discovered  the  danger  in  time 
to  avoid  the  injury,  and  if  it  could  have  been 
avoided  without  imperiling  the  persons  or 
property  intrusted  to  the  defendant  for 
transportation,  then  the  jury  should  find  for 
the  plaintiff.  White  v.  St.  Louis  &■'  S.  F.  R, 
Co. ,  20  Mo.  App.  564. 

Persons  in  charge  of  a  train  are  not  justi- 
fied in  regarding  cattle  that  are  seen  on  an 
uninclosed  track  as  unlawfully  there,  so  as 
to  relieve  them  from  the  duty  of  using  propei 
precautions  to  prevent  injuries  thereto;  and 
if  the  stock  be  injured  through  the  negli- 
gence or  mismanagement  of  those  in  charge 
of  the  train,  the  company  is  liable.  Raiford 
V.  Mississippi  C.  R.  Co.,  43  Miss.  233. 

Railroads  must  govern  themselves  by  the 
actual  facts,  and  if  they  observe  a  drove  of 
cows  upon  the  railroad,  whether  properly 
or  improperly  or  negligently  there,  they 
should  indulge  in  no  presumptions  that  Ihey 
are  properly  attended,  and  will  be  driven  off 
in  abundant  season  to  escape  collision  with 
a  railroad  engine,  but  should  exercise  a  de- 
gree of  care  and  precaution  proportioned  to 
the  impending  danger  and  the  probabilities 


ANIMALS,  INJURIKS   TO,  04,«r». 


lii 


of  a  collision.     Cn/rf  v.  Xric  ]'or/,-  (S-»  //.  A". 
Co..  so  Barb.  (A'.  K)  39. 

In  an  action  for  injury  to  the  plaintiff's 
horses,  if  it  appears  that  the  road  runs 
through  plaintiff's  land,  and  the  horses  got 
upon  the  track  of  the  road  without  any  neg- 
ligence or  default  of  his,  and  were  killed  by 
the  company's  engine,  the  company  will  be 
liable  for  the  damage  sustained  by  the  plain- 
tiff, if  the  damage  was  done  by  the  failure 
of  the  engineer  to  take  the  proper  care  to 
avoid  doing  the  injury.  Tioitt  v.  Virginia 
&*  T.R.  Co.,  23  Grail.  {Va.)  6i9.~QuoT- 
ING  AND  DISAPPROVING  New  York  &  E.  R. 
Co.  V.  Skinner,  19  Pa.  St.  298.  Quoting 
Jackson  v.  Rutland  &  B.  R.  Co.,  25  Vt.  150. 
An  engineer  has  no  right  to  presume  that 
a  cow  or  other  animal  will  leave  the  track 
as  ilie  engine  approaches  in  time  to  avoid 
injury.  Overton  v.  Indiana,  B.  &>  W.  A'. 
Co.,  I  Inci.  App.\}fi,  27  A'.  E.  Rep.  651.— 
Quoting  Dennis  v.  Louisville,  N.  A.  &  C. 
R.  Co.,  1 16  Ind.  42. — Elinsleyv.  Georgia  Pac. 
R.  Co.,  (Miss.)  10  So.  Rep.  41. 

04.  Duty  to  avoid  injury  to  animal 
discovered  near  tlie  tracli.*— Persons 
in  charge  of  moving  trains  are  not  required 
to  exercise  the  same  diligence  where  stock 
is  seen  in  dangerous  proximity  to  the  track, 
as  if  they  were  actually  on  the  track.  West- 
ern R.  Co.  V.  Lazarus,  88  Ala.  453,  6  So. 
Rep.  877. 

The  diligence  of  an  engineer  in  charge  of 
a  train  to  avoid  injuries  to  stock  does  not 
necessarily  commence  when  he  perceives 
the  stock  on  the  track,  but  it  may  begin 
earlier  when  he  sees  the  stock  in  dangerous 
proximity  to  the  track.  Alabama  G.  S.  R. 
Co.  v.  Powers,  19  Am.  &*  Eng.  R.  Cas.  502, 
73  Ala.  244.— Quoting  South  &  N.  Ala.  R. 
Co.  V.  Jones,  56  Ala.  507. 

The  duty  of  the  engineer,  or  other  per- 
son in  charge  of  a  moving  train,  to  take 
precautions  against  inflicting  injuries  upon 
live  stock  arises  not  only  when  he  sees  an 
animal  on  the  track,  or  in  dangerous  proxim- 
ity thereto,  but  also  when,  by  the  exer- 
cise of  due  diligence,  he  might  have  seen 
it.  A  failure  in  either  of  these  respects  is 
negligence  for  which  the  railroad  company 
is  liable.  Louisville  <S-  N.  R.  Co.  v.  Posey, 
96  Ala.  262,  1 1  So,  Rep,  423. 

It  is  not  enough  for  the  engineer  and 
fireman  in  charge  of  a  locomotive  and  traiti 

*  Duty  when  cattle  are  seen  near  the  track, 
see  38  Am.  &  Eng.  R.  Cas.  308,  abstr.  See  also 
post,  65,  67. 


to  merely  use  diligence  in  driving  animals 
away  that  are  discovered  upon  the  track, 
but  they  should  keep  a  vigilant  lookout, 
and  exercise  ordinary  diligence  to  frighten 
away  animals  that  may  be  discovered  ap- 
proaching, and  in  dangerous  proximity  to 
the  track,  by  sounding  the  whistle,  ringing 
the  bell,  and  using  the  means  provided  for 
that  purpose.  Missouri  Pac.  R.  Co.  v.  Ged- 
ney,  45  Am.  &*  Eng.  R.  Cas.  492,  44  A'ati. 
329,  24  Piic.  Rep.  464. 

If  an  engineer  discovers  the  presence  of 
hogs  in  such  relation  to  his  track  r.  to  in- 
dicate to  a  watchful  and  prudent  person,  in 
his  situation,  that  they  are  about  to,  or 
would,  likely,  enter  upon  the  track  in  front 
of  his  engine,  it  is  his  duty  to  put  forth 
every  reasonable  effort,  consistent  with  the 
safety  of  his  train  and  the  passengers,  to 
avoid  a  collision.  Ravenscraft  v.  Missouri 
Pac.  R.  Co.,  27  Mo.  App.  617. 

It  is  negligence  for  the  engineer  to  take 
no  notice  of  a  horse  feeding  in  plain  view, 
within  three  feet  of  the  track  until  the  horse 
gets  on  the  track.  Snowden  v.  Norfolk 
Southern  R.  Co.,  95  A^.  Car.  93.— Distin- 
guishing Wilson  V.  Norfolk  &  S.  R.  Co.,  90 
N.  Car.  69. 

65.  Duty  to  give  signals*— Ringing 
bell  and  blowing  wliistle.i—(i)  Gener- 
ally.— The  provision  in  the  Alabama  stat- 
ute requiring  a  whistle  to  be  blown  or  a  bell 
rung  when  approaching  depots,  crossings, 
etc.,  is  intended  for  the  safety  of  persons  at 
such  places,  and  has  no  reference  to  stock 
which  may  be  running  at  large  along  the 
track  where  there  is  no  such  crossing. 
Nashville,  C.  &•  St.  L.  R.  Co.  v.  Hembree,  38 
Am.  &*  Eng.  R.  Cas,  300,  85  Ala.  481,  5  So. 
Rep.  173- 

Under  Mill  &  V.  Tennessee  Code,  §  1298, 
sub-sec.  4,  it  is  the  duty  of  locomotive  en- 
gineers to  use  every  possible  means  to  stop 
the  train  and  every  means  to  prevent  an  ac- 
cident to  persons  or  animals  discovered  on 
the  track,  by  sounding  the  whistle  and  other- 
wise. Memphis  St'  C.  R.  Co.  v.  Scott,  87  7V««. 
494,  II  S.  IV.  Rep.  317. 

The  circuit  judge  was  asked  to  charge, 
"If  the  animal  jumped  on  the  track  so  near 
the  engine  that  it  was  impossible  to  check 

*  Duty  and  liability  of  company  as  to  giving 
signals  when  cattle  are  on  track,  see  nuies,  13 
Am.  &  Eng.  R.  Cas.  502,  19  /J.  508. 

f  Nefiligence  in  failing  to  sound  whistle,  see 
40  Am.  &  Eng.  R.  Cas.  213,  afistr.  See  also  ante, 
35  ;  post,  102,  208,  200. 


124 


ANIMALS,  INJURIES   TO,  «r.. 


ii  before  it  came  in  contact  vvitli  ilie  animal, 
and  there  was  not  suiricieiit  lime  to  do  more 
than  was  done,  tiien  liie  railroad  company 
should  be  excnscd  from  tlie  consequences 
for  not  sounding  the  alarm-whistle."  Held, 
there  was  no  error  in  refusing  tlie  charge 
asked  for.  The  statute  is  imperative  in  re- 
quiring two  things  to  be  done :  ist,  to  sound 
the  alarm-whistle;  2d,  to  put  down  the 
brakes.  If  the  precautions  prescribed  are 
not  obsurvi'd,  the  law  tolerates  no  excuse 
Nashville  &^  C.  K.  Co.  v.  Thomas,  5  Heisk. 
{Tenn  )  262.  — Disai'PKOvkd  in  East  Tenn., 
V.  &  G.  R.  Co.  V.  Scales.  2  Lea  (Tenn.)  688. 
Rkstricteu  in  Holder  v.  Chicago,  St.  L. 
&  N.  ().  R.  Co.,  1 1  Lea  (Teim.)  176. 

(2)  IVhere  to  be  j{iven.—  \]n6ev  the  Ala- 
bama Code  of  1S76,  ;!  1699,  railroad  engi- 
neers are  under  no  duty  to  blow  the  whistle 
or  ring  the  bell  until  within  a  quarter  of  a 
mile  of  a  highway  crossing  or  of  a  regular 
depot  or  stopping-place,  and  an  instruction 
in  an  action  for  killing  stock  which  as- 
sumes any  other  duty  is  erroneous.  Ala- 
oama  G.  S.  Ii.  Co.  v.  Mc Alpine,  15  Am.  &• 
Eng.  R.  Cas.  544,  71  Ala.  545. 

Where  appellee's  horses  were  kille    while 
on  the  right  of  way  of  the  railroad  company 
at  the  farm  crossing  of  appellee,  and  no 
whistle  was  blown  or  bell  rung, — held,  that  at 
such  a  crossing  a  railroad  company  is  not 
required  by  statute  to  ring  a  bell  or  blow  a 
whistle.  Such  a  duty  is  imposed  only  where 
a  railroad  crosses  or  intersects  any  public 
highways.     Wabash,  Si.  L.  &^  P.  R.  Co.  v. 
Neikirk,  13  ///.  App.  387.     S.  P.  Wabash,  St. 
L.  <S-  P.  R.  Co.  V.  Neikirk,  15  ///.  App.  172. 
Under  the   Missouri  statute  (Wagn.  St. 
310,  §  8),  the  failure  by  the  person  in  charge 
of  a  railroad  train  to  ring  the  engine-bell  or 
blow  the  whistle  at  a  distance  of  at  least  80 
rods  before  reaching  the  crossing  of  a  pub- 
lic  highway,  is  negligence,  and   if,   under 
such  circumstances,  cattle  are  killed  at  such 
crossing,  such  negligence  is  sufficient  of  it- 
self to  create  a  liability  on  the  part  of  the 
railroad    company,  unless  some   contribu- 
tory negligence  can  be  shown  on  the  part 
of  the  owner  of  the  cattle.     Owens  v.  Han- 
nibal &^  St.  J.  R.  Co.,  58  Mo.  386,  9  Am.  Ry. 
Rep.  19.— Foi.LOWKD  IN  Holman  7'.  Chicago, 
R.  I.  &  P.  R.  Co..  62  Mo.  562.     Rkviewed 
IN  Windsor?'.  Hannibal  &  St.  J.  R.  Co..  45 
Mo.  App.  123. 

(3)  Need  not  both  ring  hell  and  blow  whis- 
tle.— Under  Missouri  Rev.  St.,  ji  809,  rail- 
road companies  are  not   required  to  both 


ring  a  liell  and  sound  a  whistle;  but  one  of 
ihe  signals  is  sulhcicnt.  In  an  action  under 
the  statute  for  killing  stock,  the  burden  is 
on  plaintifl  to  prove  that  neither  signals 
were  given.  Siimmer^'ille  v.  Hannibal  <S>» 
St.  J.  R.  Co.,  29  Mo.  App.  48.— Followed 
IN  McCormick  v.  Kansas  Ciiy,  Ft.  S.  &  M. 
R.  Co.,  50  Mo.  App.  109. — Cathcart  v.  Han- 
nibal <S-  St.  J.  R.  Co.,  19  Mo.  App.  113.-- 
Followed  in  McCormick  v.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.,  50  Mo.  App.  109. 

(4)  lijfect  of  failure  to  signal. — Whether  it 
is  negli^enco  to  run  trains  wiihoiit  sounding 
a  whistle,  ringing  a  bell,  or  slackening  the 
speed,  depends  on  the  circumstances  of  e;ich 
case.  Si-iirles  v.  Milwaukee  <1--^  .SV.  P.  R.  Co., 
35  loiva  490,  5  Am.  Ry.  Rep.  524. 

As  to  trespassing  cattle,  the  defendant  is 
liable  for  actual  negligence  on  the  part  of 
the  engineer  in  omitting  to  give  the  proper 
signals  or  in  failing  to  use  due  diligence  to 
prevent  the  accident  after  he  saw  the  dan- 
ger. Hooper  v.  Chicago,  St.  P.,  M.  6^  O.  R. 
Co.,  37  Minn.  52,  33  A'.  W.  Rep.  314. 

To  make  a  railroad  company  liable  under 
Missouri  Rev.  St.,  §  806,  for  killing  live 
stock  at  a  crossing,  it  must  appear  that  nei- 
ther the  whistle  was  sounded  nor  the  bell 
rung.  Van  Note  v.  Hannibal  &*  St.  J.  R. 
Co.,  70  Mo.,  641. 

In  order  to  recover  against  a  railroad  com- 
pany for  stock  killed  by  a  failure  to  sound  a 
whistle  or  ring  a  bell,  the  fact  of  such  fail- 
ure must  be  established,  but  it  need  not  be 
established  by  direct  evidence;  it  may  be 
inferred  where  there  is  no  apparent  reason 
why  the  stock  would  not  have  escaped  had 
the  signals  been  given.  Alexander  v.  Han- 
nibal (S-  St.  J.  R.  Co.,  76  Mo.  494.— Fol- 
lowing Goodwin  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  75  Mo.  73.  Reviewing  and  Distin- 
guishing Holman  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  62  Mo.  562;  Stoneman  v.  Atlantic  & 
P.  R.  Co.,  58  Mo.  503.— Distinguished 
IN  Harlan  v.  Wabash,  St.  L.  &  P.  R.  Co., 
18  Mo.  App.  483. 

A  failure  on  the  part  of  trainmen  to  sound 
a  whistle  or  ring  a  bell  on  approaching  a 
crossing,  as  required  by  statute,  is  prima 
facie  evidence  of  negligence.  Barr  v.  Han- 
nibal &^  St.  f.  R.  Co.,  30  Mo.  App.  248.— 
Quoting  Goodwin  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  75  Mo.  73;  Turner  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co..  78  Mo.  578. 

It  may  be  true  that  if  the  bell  had  been 
rung  and  the  whistle  blown  that  such  signals 
would  not  have  prevented  the  animal  from 


' 


ANIMALS,  INJURIES   TO,  «6. 


l-.'5 


coining  in  contact  with  the  train,  but  it  can- 
not be  said  that  a  collision  would  not  have 
been  avoided  had  the  signals  required  by 
statute  to  be  given  at  crossings  been  given. 
Texas  &•  N.  O.  R.  Co.  v.  Ludtke,  3  Tex.  Civ. 
App.  308, 23  S.  W.  Rep.  82. 

(5)  Failure  must  be  proximate  cause.* — In 
the  absence  of  contributory  negligence  on 
the  part  ot  the  owner,  a  failure  to  ring  a  bell 
or  sound  a  whistle,  as  required  by  statute, 
will  render  a  company  liable  for  an  injury 
to  stock,  if  such  failure  reasonably  contrib- 
uted to  the  injury.  Western  R.  Co.  v.  Sis- 
trunk,  85  Alti.  352,  5  So.  Rep.  79. 

In  a  suit  under  Missouri  Rev.  St.  1879, 
^  806,  for  killing  cattle,  there  can  be  no  re- 
covery unless  the  evidence  shows  that  the 
killing  resulted  from  a  failure  to  ring  a  bell 
or  sound  a  whistle.  Plaintiff  cannot  re- 
cover on  proof  that  other  acts  of  negligence, 
which  combined  with  such  failure,  caused 
the  injury.  Braxton  v.  Hannibal  &*  St./. 
R.  Co.,  13  Am.  &•'  Eng.  R.  Cas.  494,  n  Mo. 

455- 

The  failure  to  sound  a  whistle  or  ring  a 
bell  on  the  train  is  not  negligence /^r  j^, 
and  in  order  to  mak^  -x  company  liable  for 
such  failure  there  must  be  evidence  to  show 
some  connection  between  such  failure  and 
the  injury.  Wallace  v.  St.  Louis,  I.  M.  &* 
S.  R.  Co.,  74  Mo.  594.— Followed  in  Main 
V.  Hannibal  &  St.  }.  R.  Co.,  18  Mo.  App. 
388. 

(6)  Duty  as  to  animals  near  the  track,  t — 
The  statutory  duty  imposed  on  a  railroad 
engineer  to  blow  the  whistle  or  ring  the 
bell  on  perceiving  an  obstruction  "on  the 
track"  (Alabama  Code,  §1144)  does  not 
strictly  apply  when  an  animal  is  perceived 
near,  but  not  on  it ;  yet  the  failure  to  do  so, 
in  order  to  frighten  away  stock  in  dangerous 
proximity  to  the  track,  may  constitute  such 
negligence  as  will  render  the  railroad  com- 
pany rp.ble  in  damages  for  injuries  to  them. 
East  Tenn.,  V.  &»  G.  R.  Co.  v.  Watson,  90 
Aiu.  41,  7  So.  Rep.  813. 

The  duty  of  the  engineer  to  frighten 
animals  away  from  the  track,  by  using  the 
whistle  or  bell,  is  not  limited  to  his  dis- 
covery of  them  on  the  track,  or  approaching 
it,  but  arises  whenever  he  sees  (or  ought  to 
see)  them  in  dangerous  proximity  to  the 
track,  and   under  circumstances  indicating 

*  See  ««/<-,  34-3«;/tf.f/,  ISO,  188,  1»4, 
ti77-27». 

\  See  iiiiii',  04 ;  fosi,  <{7. 


danger  that  they  may  get  on  it.     Western 
R.  Co.  V.  Sistrunk,  85  Ala.,  352,  5  So.  Rep. 

79- 

In  respect  of  animals  near  railroad  tracks 
at  places  other  than  the  crossings  of  public 
highways,  the  railroad  is  under  no  obligation 
to  give  any  warning  signals,  or  to  slacken 
the  speed  of  its  train.  Sloop  v.  St.  Louis,  /. 
M.  6^  S.  R.  Co.,  22  Afo.  App.  593. 

(7)  Illustrations.— An  animal  was  killed 
on  appellant's  track  within  one  hundred 
feet  of  a  public  crossing.  Appellant  neg- 
lected to  give  either  of  the  statutory  sig- 
nals of  warning.  The  jury  had  a  right  to 
infer  that  such  neglect  contributed  to  the 
injury,  although  appellant  could  not  have 
discovered  the  animal's  danger  in  time  to 
have  avoided  the  killing.  St.  Louis,  /.  M. 
&*  S.  R.  Co.  v.  Hendricks,  S^Ark.  201,  13  5. 
W.  Rep.  699. 

No  whistle  was  sounded,  or  other  alarm 
given,  until  the  train  was  within  twenty 
rods  of  the  crossing.  This  was  negligence. 
Central  Branch  R.  Co.  v.  Fhillipi,  20  Kan.  9, 
19  Am.  Ry.  Rep.  99. 

Where  the  plaintiff's  horse  was  in  the 
pasture,  through  which  the  defendant's  road 
ran,  and  was  run  over  in  the  daytime  by  one 
of  the  engines  of  defendant,  it  appearing  on 
the  trial  that  the  horse,  before  being  struck, 
ran  some  two  hundred  yards  on  the  track, 
and  that  there  was  nothing  to  prevent  the 
engineer  from  seeing  him,  and  that  no  alarm 
was  given  by  the  engineer  until  about  the 
time  the  horse  was  run  over, — held,  that 
there  was  such  negligence  on  the  part  of  the 
engineer  as  would  make  the  defendant  lia- 
ble in  damages  for  the  injury  to  the  horse, 
Jones  v.  North  Carolina  R.  Co.,  70  N.  Car. 
626.—  Revikwed  in  Doggett  v.  Richmond 
&  D.  R.  Co.,  81  N.  Car.  459. 

0<t.  Duty  to  stop  train,  generally. 
— (1)  When  must  stop. — If  a  conductor  of  a 
train  "^ees  a  cow  on  the  track  at  such  dis- 
tance ahead  that  the  train  could  be  stopped 
so  she  could  be  gotten  off  unhurt,  the  com- 
pany is  liable  if  the  necessary  steps  are  not 
taken  to  avoid  the  injuries.  Richmond  v. 
Sacramento  Valley  R.  Co.,  18  Cal.  351. 

Where  stock  is  killed  on  a  railroad  track, 
and  the  engineer  in  charge  could,  by  the  use 
of  ordinary  care  and  skill,  without  danger, 
have  stopped  the  train  in  time  to  avoid  the 
collision,  although  the  animals  were  wrong- 
fully upon  the  track,  the  company  is  never- 
theless liable.      Tolaio,  P.  &^   W.  R.  Co.  v. 


' 


126 


ANIMALS,  INJURIES   TO,  ««. 


Bray,  57  ///.  514.  10  Am.  Ay.  Rep.  441.— Kk- 
viEWEU  IN  Cliicago  «&  N.  W.  R.  Co.  v.  Tay- 
lor, 8  111.  App.  108. 

If  those  in  charge  of  a  train  see  a  frif^ht- 
ened  animal  running  iiefoie  tlie  train  toward 
a  trestle,  it  i.s  tlieir  duty  to  stop  the  train, 
both  to  avoid  a  collision  with  ilie  animal  and 
to  avoid  running  it  onto  the  trestle,  where 
it  will  injure  itself  .\',  •,'»ian  v.  Vicksburg 
&^  M.  R.  Co.,(  I  Ml  "  So.  Rep.  172. 

If  it  appears  tlu.^  is   .  glit  not  have 

been  killed  by  the  c  e.  ,. -e  >.  du;>  care,  the 
company  will  be  liable  where  tht  engineer 
fails  to  make  an  c^y^.a  \o  stop  a  train,  and 
fails  to  make  any  elfori      -   frig  them 

from  the  track  after  they  arc  seen.  Af  - 
Master  v.  Montana  Union  R.  Co.,  49  ,1in.  cj"* 
Eng.  R.  Cas.  564,  1 2  A/ont.  1 63. 

When  the  employes  in  charge  of  the 
trains  of  a  railway  company  discover  ani- 
mals upon  the  track  they  are  bound  to  ex- 
ercise proper  care  and  prudence  to  prevent 
injury  to  them,  .jnd  a  mere  slackening  of 
speed  will  not  b*;  considered  sufficient  to 
relieve  them  from  responsibility.  Pontiac 
Pac.  J.  R.  Co.  V.  Brady,  4  Montr.  L.  R. 
(Q.  B.)  346. 

(2)  IV/ten  need  not  stop. — It  is  not  always 
necessary  that  those  in  charge  of  a  railroad 
train  should  stop  it  or  slacken  its  speed  on 
discovering  stock  on  the  track.  Ordinary 
prudence  requires  them  to  promptly  en- 
deavor to  drive  them  off  by  sounding  the 
whistle,  but  does  not  require  them  to  stop  or 
slacken  the  speed  of  the  train,  wiien  they 
may  reasonably  believe  that  they  will  leave 
the  track  in  time,  and  there  is  no  cause  or 
reason  to  suppose  there  is  any  risk  or  danger. 
Little  Rock  <S-  Ft.  S.  R.  Co.  v.  Trotter,  1 1 
Am.  &*  Eng.  R.  Cas.  475,  37  Ark.  593. 

There  was  no  negligence  in  not  stopping 
a  train  before  the  injury  happened,  if  it 
could  not  have  been  anticipated  that,  as  a 
consequence  of  not  stopping, cattle  running 
along  the  track  would  attempt  to  cross  the 
culvert  into  which  they  fell  and  were  injured. 
Not  Springs  R.  Co.  v.  Ne^vman,  36  Ark, 
607. 

Where  trespassing  animals  are  killed  by  a 
moving  train  the  company  will  not  be  liable 
where  the  engineer  otherwise  acted  in  a 
proper  and  lawful  manner,  merely  because 
he  did  not  stop  the  train  until  the  animals 
were  entirely  off  the  tr  ick.  Hurdv,  Grand 
Trunk  R.  Co.,  35  Am.  &^  Eng.  R.  Cas.  450, 
i;  Ont.  App.  58.— Dlsiinguishing  Camp- 
bell V.  Great  Western  R.  Co.,  15  U.  C.  Q.  B. 


498.  Qu(n'N(;  Degg  v  Midland  R.  Co.,  1 
H.&  N.  773.  Ri-Vii'.wiNG  Manchester,  S.  J. 
&  A.  R.  Co.  V.  Fullarton,  14  C.  B.  N.  S.  54; 
Rosenberger  v.  Grand  Trunk  R.  Co.,  8  Ont. 
App.  482;  Singleton  v.  Eastern  Counties 
R.  Co.,  7  C.  B.  N.  S.  287;  Auger  v.  On- 
tario, S.  &  H.  R.  Co.,  9  U.  C.  C.  P.  164 ; 
Sharrodz/.  London  &  N.  W.  R.  Co.,  4  Exch. 
580. 

(3)  Must  vot  put  train  in  peril. — Where 
those  in  charge  of  a  train  perceive  cattle 
ahead  on  the  track  near  the  entrance  of  a 
bridge,  it  is  not  their  duty  in  all  cases  to  de- 
lay or  retard  the  train  until  the  cattle  can 
be  driven  off,  because  said  cattle  may  run 
upon  the  bridge  and  so  be  killed.  It  is  not 
their  duty  to  so  delay  or  retard  the  train 
unless,  taking  all  the  circumstances  into  ac- 
count, it  is  probable  that  the  cattle  will  not 
leave  the  track  and  will  run  upon  the  bridge. 
The  first  duty  of  those  in  charge  of  a  train 
is  to  look  to  its  safety,  and  where  cattle 
upon  the  track  are  run  over  and  injured,  the 
question  is,  whether  those  in  charge  of  the 
train  did  what  reasonable  men  would  have 
done  under  the  circumstances,  having  in 
view  the  safety  of  the  train,  speed,  regu- 
larity, and  the  safety  of  the  cattle.  Louis- 
ville &*N.  R.  Co.  V.  Ganote,  (Ky.)  13  Am.  &* 
Eng.  R.  Cas.  519.— Explaining  Louisville 
&  N.  R.  Co.  7/.  Wainscott,  3  Bush  (Ky.)  149. 

(4)  nor  disregard  passengers  safety.* 

— Where  the  engineer  of  a  passenger  train 
sees  cattle  upon  the  track  in  advance,  he  is 
only  bound  to  stop  the  train  when  he  can 
do  so  with  due  regard  to  the  safety  of  his 
passengers.  Louisville  Sf  N.  R.  Co.  v.  Mar- 
riott, {Ky.)  19  Am.  &•  Eng.  R.  Cas.  509, 

A  railroad  company  is  not  negligent  in 
failing  to  stop  a  train  after  live  stock  is  dis- 
covered on  the  track,  if  such  stopping  would 
imperil  property  being  carried,  or  the  lives 
of  passengers.  Wallace  v.  5'/.  Louis,  /.  M. 
&^  S.  R.  Co.,  74  Mo.  594. — Distinguishing 
Gorman  v.  Pacific  R.  Co.,  26  Mo.  441.— 
Approved  in  Hill  v.  Missouri  Pac.  R.  Co., 
49  Mo.  App.  520.  Followed  in  Brooks  7>. 
Hannibal  &  St.  J.  R.  Co.,  27  Mo.  App.  573. 
Quoted  in  White  v.  St.  Louis  &  S.  F.  R. 
Co.,  20  Mo.  App.  564. 

(5)  Illustrations. — Where  the  track  of  a 
railroad  passed  through  a  cut  80  rods  long, 
and  a  horse  of  the  owner  of  the  land  was 
near  the  track  at  the  entrance  of  the  cut, 
and  the  whistle  of  an  approaching  engine 

*See<i«/^  38;  post,  «7. 


ANIMALS,  INJURIES   TO,  «7. 


127 


was  sounded,  and  the  horse  ran  upon  the 
track  and  into  the  cut,  whence  it  cuuld  not 
escape  up  the  sides,  and  the  engine  was  run 
on  and  the  whistle  sounded,  thereby  con- 
tinuing to  frighten  the  horse  until  it  jumped 
into  a  trestle  work  at  the  other  end  of  the 
cut  and  was  killed,  when  the  engine  cuuld 
have  been  stopped  after  the  horse  was  in  tlie 
cutand  before  it  jumped  into  the  trestle  work, 
—held,  that  the  company  was  guilty  of  such 
negligence  as  rendered  it  liable  at  common 
law  for  the  value  of  the  horse.  Indianapolis, 
B.  6*  W.  R.  Co.  V.  McBroTvn,  46  Ind.  229,  6 
Am.  Ry.  Rep.  415. 

67.  Duty  to  stop  traiu  when  ani- 
mals are  near  track.*— A  locomotive 
engineer  is  not  always  required  to  stop  his 
train  upon  seeing  animals  near  the  track. 
Yazoo  Of  M.  V.  R.  Co.  v.  Bntmfield,  64 
Miss.  637,  1  So.  Rep.  905. 

Failure  to  stop  a  train  on  discovering 
animals  near  the  track  is  not  ordinarily 
negligence  ;  and  to  make  it  so  the  circum- 
stances must  be  such  as  to  suggest  danger. 
Yazoo  &>  M.  V.  R.  Co.  v.  Brumfield,  64  Miss. 
637,  I  So.  Rep.  905. 

Where  an  engineer  sees  a  cow  about  to 
cross  the  track  near  to  the  train,  he  is  not  re- 
quired to  try  to  stop  the  train  if  it  is  apparent 
that  the  attempt  would  be  useless.  Alabama 
G.  S.  R.  Co.  V.  Chapman,  31  Am.  &*  Eng.  R. 
Cas.  394,  80  Ala.  615,  2  So.  Rep.  738. 

The  Alabama  statute  making  it  the  duty 
of  engineers  to  use  all  means  to  stop  the 
train  on  perceiving  any  obstructions  on  tiie 
track  of  the  road,  does  not  apply  to  an 
animal  running  by  the  side  of  the  track,  but 
which  suddenly  turns  and  springs  on  the 
track  too  near  the  train  to  avoid  an  acci- 
dent. East  Tenn.  V.  &*  G.  R.  Co.  v.  Bayliss, 
77  Ala.  429,  $4  Am.  Rep.  69.— Approving 
Louisville  &  N.  R.  Co.  v,  Reidmond,  ii  Lea 
(Tenn.)  205. 

An  engineer  of  a  train  is  not  bound  to 
stop  it  upon  discovering  cattle  on  the  right 
of  way,  if  it  reasonably  appears  that  sound- 
ing the  alarm-whistle  will  drive  them  off 
and  avoid  danger.  Ohio  6^  M.  R.  Co.  v. 
Stribling,  38  ///.  App.  17. 

Those  in  charge  of  trains  are  not  requirt-l 
to  stop  them  or  even  check  the  speed  upon 
seeing  cattle  near  tiie  track,  unless  it  ap- 
pears that  it  is  necessary  to  do  so  to  avoid 
injuring  them.  New  Orleans  &^  N.  E.  R. 
Co.  V.  Bourgeois,  66  Miss.  3,  5  So.  Rep.  629. 


•  .See  ante,  04,  05. 


If  an  engineer  sees  cattle  quietly  grazing 
along  an  unfenced  track  he  is  not  bound  to 
stop  the  train  as  a  precautionary  matter, 
and  if  they  take  fright  and  run  toward  the 
track,  it  is  sufficient  if  he  does  all  in  his 
power  to  avoid  a  collision  after  the  danger 
becomes  apparent.  Young  v.  Hannibal  Sf* 
St.  J.  R.  Co.,ig  Am.  &•  Eng.  R.  Cas.  512,  79 
Mo.  336. 

The  failure  to  stop  a  train  on  seeing  an 
animal  by  the  side  of  the  track  a  short  dis- 
tance ahead  of  the  train  is  not  negligence, 
when  there  is  nothing  in  the  actions  of  the 
animal  to  indicate  that  it  will  attempt  to  go 
upon  the  track,  until  it  is  too  late  to  stop. 
Savannah,  F.  &*  W.  R,  Co,  v.  Rice,  23  Fla. 
575,  3  So.  Rep.  170. 

Negligence  cannot  be  predicated  from  the 
fact  that  the  engineer  saw,  or  might  have 
seen,  the  cow  near  the  track,  as  was  done 
by  the  instructions  in  tl)is  case.  It  was  not 
the  duty  of  the  engineer  10  stop  his  train  or 
slacken  its  speed,  or  sound  '.he  alarm,  merely 
because  he  saw, or  might  have  seen,  the  cow 
grazing  near  the  track.  Otherwise,  trains 
could  not  make  the  necessary  headway  and 
form  the  necessary  connections.  Milburn 
V.  Hannibal  6f  St.  J.  R.  Co.,  21  Mo.  App. 
426.— Following  Young  v.  Hannibal  &  St. 
J.  R.Co.,79  Mo.  336.— Followed  in  Sloop 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  22  Mo.  App. 

593- 

Where  those  in  charge  of  a  moving  train 
see  cattle  near  the  track,  they  are  not  re- 
quired to  stop  the  train  or  attempt  to  avoid 
injuring  them,  unless  it  is  reasonably  ap- 
parent that  the  animals  will  go  on  the  track 
before  the  train  passes.  Grant  v.  Hannibal 
&*  St.  J.  R.  Co..  25  Mo.  App.  227. 

Where  cattle  are  seen  moving  on  a  line 
with  the  track,  it  is  the  duty  of  the  trainmen 
to  use  proper  precautions  in  frightening 
them  away  or  stopping  the  train,  though  not 
on  the  track,  and  if,  by  failing  to  do  so,  the 
stock  suddenly  turns  and  is  injured  while  at- 
tempting to  cross  the  track  so  near  the  en- 
gine that  it  is  impossible  to  stop,  the  com- 
pany will  be  liable.  South  &*  N.  Ala.  R. 
Co.  V.  Jones,  ^d  Ala.  507.— Distinguished 
IN  .-Mabama  G.  S.  R.  Co.  v.  McAlpine,  22 
Ami.  &  Eng.  R.  Cas.  602,  75  Ala.  113. 
Quoted  in  Alabama  G.  S.  R.  Co.t/.  Powers, 
19  Am.  &  Eng.  R.  Cas.  502,  73  Ala.  244. 

Those  in  charge  of  a  train  are  not  re- 
quired to  stop  it  upon  seeing  cattle  some 
fifty  feet  from  the  track,  but  they  are  re- 
quired  to  exercise  ordinary   prudence   by 


■■1 


138 


ANIMALS,  INJURIES   TO,  08,  «0. 


watching  to  see  't(  they  are  likely  to  cross 
the  track.  Missouri  Pac.  R.  Co,  v.  Reynolds, 
13  Am.  Sf*  Eng.  R.  Cas.  510,  31  Kan.  132,  i 
Pac.  Rep,  150. 

08.  Duty  to  reverse  engine.— A  lo- 
comotive engineer  is  not  required  to  reverse 
his  engine  to  avoid  injur'ng  cattle  on  the 
track  if  it  appears  that  such  reversal  would 
endanger  tlie  lives  of  the  trainmen  or  of  pas- 
sengers, but  the  company  is  not  excused  on 
the  ground  that  suoh  reversal  would  be  in- 
jurious to  the  machinery.  East  Tenn.,  V, 
(S-  G.  R.  Co.  v.  Selcer,  7  Lea  (Tenn.)  SS7-  — 
Following  Nashville  &  C.  R.  Co.  v, 
Anthony,  i  Lea  (Tenn.)  516. 

69.  Duty  to  Mlackcu  speed.*  -  (i) 
Generally. — A  party  whose  cattle,  without 
fault  on  his  part,  escape  from  his  inclosure 
and  wander  on  to  a  railroad  track,  and  are 
there  killed  by  alleged  carelessness  in  not 
slackening  the  speed  of  the  locomotive,  can- 
not recover  for  their  loss  from  the  railroad 
company.  Price  v.  New  Jersey  R.  <S^  T.  Co., 
31  N.  J.  L.  229.— Following  Munger  v. 
Tonawanda  R.  Co.,  4  N.  Y.  349.— Distin- 
guished IN  Alabama  G.  S.  R.  Co.  v. 
Powers,  19  Am.  &  Eng.  R.  Cas.  502,  73  Ala. 
244. 

(2)  When  must  check  speed, — Where  ani- 
mals can  be  seen  on  the  track  by  the  use  of 
ordinary  care  on  the  part  of  those  in  charge 
of  the  train,  it  is  their  duty  to  slacken  the 
speed,  or,  if  necessary  to  avoid  injury,  to 
stop  the  train.  Shiiman  v.  Indianapolis  &* 
St,  L,  R.  Co.,  II  ///.  Ap/>,  472. 

Where  a  cow  is  killed  upon  a  railroad 
track  by  a  passing  train,  if  she  was  in  plain 
view  of  the  engine-driver  and  fireman  in 
charge  of  the  train,  and  was  seen,  or  could 
have  been  seen  by  them  by  the  use  of  ordi- 
nary care,  in  time  to  have  slackened  the 
speed  of  the  train,  and  no  efforts  were  made 
in  that  direction,  this  will  be  such  negligence 
as  renders  the  company  liable.  Rock/or d, 
R,  I.  &*  St.  L.  R.  Co.  V.  Rafferty,  73  ///.  58. 

If  those  in  charge  of  a  train  see  a  cow  on 
the  track  two  or  three  hundred  yards  ahead, 
the  company  will  be  liable  for  an  injury 
thereto  if  no  attempt  is  made  to  slacken  the 
speed,  even  though  the  cow  be  wrongfully 
on  the  track ;  but  where  it  appears  that  the 
cow  was  suddenly  driven  on  the  track  by  a 
dog,  the  company  will  not  be  liable  if  it  ap- 
pears that  she  was  killed  without  fault  on 

•ObDgation  to  slacken  speed,  see  notes,  13  Am. 
&  Eng.  R.  Cas.  520;  38  Id.  308,  abslr.  See  also 
•«/^  .32;  post.  198,  201,  210,  21 1. 


the  part  of  the  engineer.     Illinois  C.  R. 
Co,  v.  Wren,  43  ///.  77- 

An  engineer  is  guilty  of  negligence  where 
he  discovers  stock  on  the  track  and  blows 
the  alarm-whistle,  but  fails  to  check  the 
speed  of  his  train  and  runs  down  the  stock 
and  kills  it.  Bullington  v.  Newport  News 
&•  M,  V,  Co..  32  VV.  Va,  436,  9  S.  E,  Rep. 
876. 

(3)  When  need  not  check  speed. — A  rail- 
road company  cannot  be  held  liable  for  neg- 
ligently killing  live  stock  on  proof  that  the 
rate  of  speed  was  not  slackened,  nor  the 
whistle  sounded,  where  the  circumstances  of 
the  case  show  that  such  efforts  would  have 
been  unavailing.  Flattes  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  35  Iowa  191,  5  Am.  Ry.  Rep.  518. 

A  railroad  company  will  not  be  liable  to 
the  owner  of  horses  killed  on  the  track  by 
reason  of  the  engineer  not  slackening  the 
speed  of  the  train,  unless  it  appears  that  he 
acted  maliciously  or  wantonly.  Boyle  v. 
New  York,  L.  E,  &*  W,  R,  Co,,  39  Hun,  (N. 
y,)  171 ;  affirmed  in  115  A'^,  Y,  636,  mem,,  2 
Silv,  App.  326,  21  A'^.  E,  Rep,  724,  23  A^  Y. 
S.  R,  731.— Quoting  Darling  v,  Boston  & 
A.  R.  Co.,  121  Mass.  118.  Reviewing 
Maynard  v,  Boston  &  M.  R.  Co.,  115  Mass. 
458. 

The  failure  to  slacken  the  speed  of  a  train 
on  approaching  a  highway  crossing  is  not 
negligence  per  se,  and  will  not  in  itself  en- 
title an  owner  of  animals  killed  to  recover 
against  the  company.  Zeigler  v.  North 
Eastern  R.  Co.,  7  So.  Car,  402.— Applied  in 
Barber  v.  Richmond  &  D.  R.  Co.,  34  So. 
Car.  444. 

(4)  Must  consult  safety  of  passengers,* — 
Railroad  companies  are  not  required  to 
diminish  the  speed  of  passenger  trains  in 
order  to  avoid  injuring  live  stock  on  the 
track,  if  so  doing  would  increase  the  danger 
to  the  passengers.  Sandham  v.  Chicago,  R, 
I,  &*  P.  R.  Co,,  38  Iowa  88. 

A  railroad  company  will  not  be  liable  for 
killing  live  stock  on  the  track  by  reason  of 
a  failure  to  check  the  speed  of  a  train,  where 
such  checking  would  endanger  property 
being  carried,  or  the  lives  of  passengers ;  but 
it  is  otherwise  if  no  such  danger  would  re- 
sult from  checkiig  the  speed.  Pryor  v.  St, 
Louis,  K,  C,  &*  N,  R,  Co,,  69  Mo,  215. 

(5)  Illustrations, — Und-  /  Alabama  Code 
1876,  §  1699,  railroad  companies  are  only  re- 
quired to  reduce  the  speed  of  their  trains 


See  aiiu,  ilH,  (U>,  08. 


ANIMALS,  INJURIES   TO,  70. 


129 


when  approaching  road-crossings  in  "a 
curve  or  cut  where  the  engineer  cannot  see 
at  least  one  quarter  of  a  mile  ahead,"  and  it 
is  error  in  an  action  for  damages  for  killing 
stuck  to  instruct  the  jury  that  it  is  the  duty 
of  railroads  to  check  the  speed  of  their 
trains  when  approaching  a  public  crossing, 
when  the  undisputed  evidence  shows  that 
the  killing  took  place  in  an  open  field,  the 
>;round  being  level,  and  there  being  neither 
carve  nor  cut  in  that  part  of  the  road  ;  that 
the  train  was  approaching  and  was  within 
175  or  200  yards  of  u  flag-station  ;  and  that 
there  was  a  public  road-crossing  ahead  of 
the  train  and  within  300  or  400  yards  of  the 
scene  of  the  collision.  Nashville,  C.  &^  St. 
L.  K.  Co.  V.  Hembree,  38  Am.  &*  Eng.  R. 
Cas.  300,  85  Ala.  481,  5  So.  Rep.  173. 

Where  the  evidence  tends  to  prove  that  a 
liorse  ran  400  yards  on  the  track,  on  a  bright 
moonlight  night,  and  in  the  full  glare  of  the 
headlight,  gradually  increasing  his  speed 
until  overtaken,  and  yet  there  was  no  slack- 
ening of  the  speed  of  the  engine,  this  is  sug- 
gestive of  recklessness  on  the  part  of  the 
company's  agents,  and  the  court  will  refuse 
to  disturb  a  verdict  against  the  road.  Macon 
Sf  W.  R.  Co.  V.  Lester,  10  Ga.  911. 

Where  a  railroad  company  is  charged  with 
negligently  killing  a  horse,  the  company 
cannot  be  said  to  be  entirely  free  from  neg- 
ligence under  proof  that  the  engineer  saw 
tlie  horse  running  some  forty  yards  ahead 
of  Ills  train,  but  ran  on  without  perceptibly 
checking  its  speed,  and  without  sounding 
the  whistle,  claiming  that  it  would  have 
been  impossible  to  have  prevented  striking 
the  animal.  Bedford  v.  Louisville,  N.  O.  &* 
T.  R.  Co.,  6$  Miss.  385,  4  So.  Rep.  121. 

Where  it  appeared  that  the  train  was  run- 
ning at  a  greater  than  usual  speed  upon  a 
straight  part  of  the  road,  in  the  daytime,  and 
that  one  of  several  cattle  that  were  feeding 
near,  and  crossing  the  road  was  killed  by 
the  locomotive,— /;tf/((^,  that  it  was  negligence 
that  the  speed  was  not  lessened,  nor  the 
usual  mode  of  driving  off  stock  by  the 
blowing  of  a  steam-whistle  resorted  to. 
Ay  cock  v.  Wilmington  &*  IV.  R.  Co.,  6 /ones 
{jV.  Car.)  331. -Distinguished  in  Laws  v. 
North  Carolina  R.  Co.,  7  Jones  (N.  Car.) 
468.  Reviewed  in  Doggett  v.  Richmond 
&  D.  R.  Co.,  81  N.  Car.  459. 

The  plaintiff's  mule  was  run  over  and 

killed.    On  the  trial,  the  company  proved 

that  the  engineer  was  on  the  lookout  ahead ; 

that  he  saw  the  mule  when  it  dashed  into 

I  D.  R.  D.— g. 


the  road ;  that  he  immediately  sounded  the 
alarm-whistle,  and  that  one  of  the  brakes 
was  put  down,  but  as  to  whether  the  otlier 
two  brakes  were  put  down  no  proof  was 
made,  //eld,  to  exempt  itself  from  damages 
under  the  Tennessee  statute  it  was  incum- 
bent on  the  company  to  show  that  all  three 
brakes  were  put  down,  Memphis  &*  C.  R. 
Co  V.  Smith,  9  //eisL  (Tenn.)  860.— Disap- 
proved IN  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Scales,  2  Lea  (Tenn.)  688.  Explained  in 
Nashville  &  C.  R.  Co.  v.  Anthony,  i  L«a 
(Tenn.)  516. 

In  an  action  against  a  railroad  company 
for  negligently  killing  a  mule,  plaintiff's 
evidence  showed  that  it  was  killed  while 
standing  in  a  space  from  three  to  seven  feet 
wide,  between  the  track  and  a  bank  on 
which  was  a  fence  ;  that  it  could  have  been 
seen  500  yards,  and  that  the  train  could 
have  been  stopped  in  200  yards,  but  the 
train  was  running  30  miles  an  hour  and 
passed  without  signals  and  without  check- 
ing its  speed,  //eld,  that  it  was  error  in  the 
trial  court  to  sustain  a  demurrer  to  plain- 
tiff's evidence.  Z/eard  v.  Chesapeake  6-  O. 
R.  Co.,  26  W.  Va.  455. 

70.  Right  to  run  at  reasonably 
high  rate  of  speed.*— Railroad  compa- 
nies are  not  required  to  regulate  the  manner 
of  running  their  trains  with  reference  to  live 
stock  that  may  stray  upon  the  track,  but 
have  a  right  to  run  at  a  reasonable  speed, 
either  day  or  night,  being  controlled  therein 
entirely  by  the  exigencies  of  their  business 
and  by  custom.  Raiford  v.  Mississippi  C.  R. 
Co.,  43  Miss.  233. 

A  railroad  company  will  not  be  adjudged 
negligent  in  killing  stock  on  proof  merely 
showing  that  the  train  was  running  faster 
than  usual.  Plaster  v.  Illinois  C.  R.  Co.,  35 
fozva  449,  5  Am.  Ry.  Rep.  528. 

The  rate  of  speed  to  be  adopted  in  the 
running  of  trains  is  to  be  determined  from 
the  nature  of  the  business  and  the  amount 
of  carrying  that  the  company  is  required 
to  do.  If  the  exigencies  of  business  de- 
mand a  rapid  transportation,  the  companies 
will  not  be  'iable,  because  the  danger  to 
stock  is  increased  by  running  fast  trains,  yet 
companies  are  not  allowed  to  relax  their 
efforts  to  protect  live  stock  from   injury. 

♦  Running  train  at  a  high  speed  not  negligence 
per  St,  see  note  38  Am.  &  Eng.  R.  Cas.  304, 
abitr. 

Speed  of  train  when  animals  are  on  track,  see 
notes,  19  Am.  &  Eng.  R.  Cas.  496,  511. 


130 


ANIMALS,  INJURIES   TO,  71,72. 


li 


II 

r  J 


New  Orleans,  J.  &-  G.  N.  H.  Co.  v.  Fu/J,  46 
Aliss.  573.  2  Am.  Ky.  Rep.  439. 

A  railroiid  company  is  not  liable  for  kill- 
ing stock  on  tlie  track  where  tlie  train  is  not 
exceeding  the  statutory  limit,  and  the  en- 
gineer, as  soon  as  he  saw  the  stock,  or  with 
proper  care  might  have  seen  ii,  did  every- 
thing tliat  he  could  to  avoid  the  accident, 
though  the  train  was  running  faster  than 
schedule  time.  Seawell  v.  Raleigh  &*  A.  R. 
Co.,  106  iV.  Car.  272,  10  S.  E.  Rep.  1045.— 
Following  Winston  v.  Raleigh  &  G.  R. 
Co.,  90  N.  Car.  66. 

Where  owners  of  live  stock  permit  them 
to  run  at  large  in  the  vicinity  of  an  unin- 
closed  railroad  track,  the  company  is  only 
required  in  the  legitimate  conduct  of  its 
business  to  exercise  ordinary  and  reasonable 
care  to  avoid  unnecessary  injury  thereto. 
The  speed  at  which  trains  shall  be  run  is  to 
be  determined  by  reference  to  its  other  busi- 
ness, and  tlie  company  is  not  bound  to  con- 
sider the  increased  risk  to  live  stock  running 
at  large,  and  lessen  the  speed  of  its  trains 
on  that  account.  Central  Ohio  R.  Co.  v. 
Lawrence,  13  Ohio  St.  66.— Distinguished 
IN  Burlington  &  M.  R.  R.  Co.  v.  Brinck- 
nian,  1 1  Am.  &  Eng.  R.  Cas.  438, 14  Neb.  70. 
Reviewku  in  Pittsburgh,  C.  &  St.  L.  R.  Co. 
V.  McMillan.  7  Am.  &  Eng.  R.  Cas.  588,  37 
Ohio  St.  554. 

In  consideration  of  the  public  conveyance 
and  accomodation,  railroad  companies  are 
to  be  considered  in  the  exclusive  possession 
of  lands  purchased  for  their  right  of  way, 
and  as  possessing  a  license  to  use  the  great- 
est obtainable  rate  of  speed,  without  refer- 
ence to  property  or  persons  that  may  go 
upon  the  track.  New  York  &*  E.  R.  Co,  v. 
Skinner,  19  Pa.  St.  298. 

Proof  that  an  engineer  passed  a  station 
at  a  greater  rate  of  speed  than  that  pre- 
scribed by  the  rules  of  the  company,  and 
that  a  watchman  gave  an  incorrect  signal 
as  to  an  obstruction  on  the  track,  will  not 
makeacompanyliable  for  killing  animals  150 
rods  beyond  a  station,  where  it  does  not  ap- 
pear that  the  incorrect  signal  was  the  result 
of  negligence  on  the  part  of  the  watchman, 
and  the  rate  of  speed  was  not  art  unusual 
one.  Stern  v.  Michigan  C.  R.  Co.,  76  Mich. 
591,  43  A'.  W.  Rep.  587. 

7].Biiiiuing  at  unlawful  rate  of 
speed.— If  a  railroad  company  knowingly 
runs  its  trains  under  such  conditions  as 
renders  it  impossible  for  those  in  charge  of 
them  to  prevent  injury  to  stock  straying 


upon  the  track,  and  such  injury  results,  it 
ought  to  be  and  is  held  responsible  for  the 
loss;  especially,  when  the  train  is  run  in  the 
nighttime  at  such  a  high  rate  of  speed  that 
stock  cannot  be  seen  in  time  to  prevent  in- 
jury by  ordinary  means  and  appliances. 
Central  R.  <&«•  B.  Co.  v.  Ingram,  98  Ala.  395. 

A  railroad  company  will  be  liable  for  neg- 
ligently killing  stock  where  the  train  at  the 
time  is  being  run,  on  a  straight  track,  at 
night,  at  such  a  speed  as  cannot  be  stopped 
within  the  distance  in  which  cattle  may  be 
seen  on  the  track  with  the  use  of  a  liead- 
light.  Memphis  &•  C.  R.  Co.  v.  Lyon,  62 
Ala.  71.— Following  Tanner  v.  Nashville 
&  D.  R.  Co.  (M.  S.).  — Reviewed  in  East 
Tenn.,  V.  &  G.  R.  Co.  v.  Deaver,  79  Ala. 
216. 

Proof  that  stock  was  killed  by  a  train 
moving  at  a  rate  of  speed  prohibited  by  law 
makes  the  company  liable.  Houston  6*»  T. 
C.  R.  Co.  v.   Terry,  42  Tex.  451. 

The  engineer  on  a  government  railway 
train  was  guilty  of  negligence  for  which  the 
Crown  was  liable  under  Rev.  St.  Canada, 
ch.  38,  §  23,  and  50-51  Vic.  ch.  16,  §  16  (c), 
for  allowing  his  train  to  run  over  and  kill  a 
horse,  when  it  appeared  that  at  the  time  of 
the  accident  the  train  was  being  run  faster 
than  usual  to  make  up  time,  that  it  had 
passed  a  station  without  slowing  up,  and 
was  approaching  a  crossing  at  full  speed, 
the  engineer  admitting  that  lie  saw  some- 
thing on  the  track  but  paid  no  attention  to 
it.     Gilchrist  v.  Queen,  2  Can.  Exch.  300. 

72.  Eft'ect  of  iucrea8iii^  rate  of 
speed.— Where  it  is  apparent  that  cattle 
were  discovered  on  a  crossing  too  near  the 
train  to  avoid  a  collision,  the  company  will 
not  be  liable  because  those  in  charge  increas- 
ed the  rate  of  speed  in  order  to  lessen  the  dan- 
ger to  the  train.  Owens  v.  Hannibal  6-  St. 
J.  R.  Co.,  58  Mo.  386,  9  Am.  Ry.  Rep.  19. 

If  a  locomotive  is  running  tnrough  an  in- 
corporated city  at  less  than  six  miles  an 
hour  when  animals  jump  into  a  trestle  and 
render  a  collision  inevitable,  the  speed  may 
be  increased,  notwithstanding  Mississippi 
Code  1880,  §  1047,  in  order  to  strike  them 
with  such  momentum  as  to  knock  them  off 
the  track  and  avoid  throwing  the  train  from 
the  bridge.  Chicago,  St.  L.  <&«•  N.  O.  R.  Co. 
V.Jones,  1 1  Am.  &»  Eng.  R.  Cas.  450,  59  Miss. 
465. 

Wbi^re  a  train  which  injures  cattle  is  run 
without  s>topping,  in  order  to  escape  liabil- 
ity the  company  must  show  that   its  em- 


ANIMALS,  INJUKIKS   TO,  73. 


181 


ploy^s  were  guilty  of  no  defuult,  and  tliut  a 
collision  was  inevitable,  and  that  by  increas- 
ing the  speed  of  the  train  the  danger  to  the 
train  and  persons  theron  was  diminished. 
Chicago,  St.  L.  &*  N.  O.  Ji.  Co.  v.  Jones,  1 1 
Am.  &*  Eng,  R.  Cas,  450,  59  Miss.  465. 

Upon  the  approach  of  the  railroad  train 
tu  I  lie  horses,  they  ran  along  the  side  of  the 
track  a  Ion};  distance,  and  were  forced  upon 
ilie  track  by  an  embankment,  and  were 
driven  into  a  bridge,  and  some  of  them 
were  injured  by  the  train,  its  speed  not  hav- 
ing been  diminished,  hut  having  been  in- 
creased ;  and  the  remaining  horses  were  in- 
jured on  the  bridge  by  another  train  which 
followed  in  a  few  minutes,  the  engineer  of 
which  did  not  discover  the  horses  until  he 
was  near  them,  though  the  conductor  jumped 
off  the  train  and  the  fireman  deserted  his 
post,  and  when  the  signal  was  given  there 
was  no  person  to  apply  the  brakes.  Held, 
that  the  railroad  company  was  guilty  of 
negligence.  Toledo,  W.  &*  IV.  Ji.  Co.  v. 
Milligan,  52  Ind.  505. 

3,  Necessity  for  Actually  Touching  Animal."* 

73.  When  actual  contact  is  neces- 

Hury.— (1)  In  Indiana.— \x.  is  well  settled 
that  under  the  statutes  of  Indiana  prior  to 
ihc  law  of  1885  there  could  be  no  liability  of 
a  railroad  company  for  the  death  or  injury 
uf  an  animal  unless  the  same  was  killed  or 
injured  by  an  actual  touching  by  the  engine 
or  cars  or  other  carriages.  The  act  of  1885 
has  not  changed  the  statutory  liability,  and 
hence,  where  an  animal  is  not  killed  by  an 
actual  touching  by  the  engine,  the  company 
can  only  be  sued  on  its  common-law  liabil- 
ity. Ft.  Wayne,  C.  <S-  L.  R.  Co.  v.  O'Keefe, 
4  Ind.  App.  249,  30  A^.  E.  Rep.  916. 

Under  the  Indiana  statute,  railroad  com- 
panies are  not  liable  for  injuries  to  live  stock 
unless  the  animal  is  actually  struck  by  the 
train.  Pittsburgh,  C.  V  St.  L.  R.  Co.  v. 
Troxell,  57  Ind.  246. — DISTINGUISHED  IN 
Louisville,  N.  A.  &C.  R.Co.  t/.  Harrington, 
19  Am.  &  Eng.  R.  Cas.  606,  92  Ind.  457. — 
Cray  V.  Louisville,  N.  A.  <S-  C.  R.  Co.,  19  Am. 
&*  Eng.  R.  Cas.  608,  97  Ind.  126. 

In  an  action  under  the  statute,  evidence 


*  Injuries  not  resulting  from  contact  with 
train,  see  notes,  19  Am.  &  Eng.  R.  Cas.  610,  15 
/</.  526. 

When  injury  to  live  stock  is  "  done  by  "  or 
"caused  by"  a  train  or  engine  within  meaning 
of  statutes,  see  note,  14  L.  R.  A.  841.  See  also 
/"•St,  135. 


must  be  introduced  from  which  the  court  or 
jury  may  find  that  the  locomotive  or  can 
came  in  actual  contact  with  the  animals 
killed  or  injured.  Louisville,  E.  &*  St.  L.  R. 
Co.  v.  Thomas,  106  Ind.  10,  l  N.  E.  Rep.  198. 
Jeffersonville,  M.  &»  I,  R.  Co.  v.  Dunlap,  31 
Am.Sf* Eng.  R.  Cas,  5 1 2, 11 2  Ind.  93,  x^N.E. 
Rep.  403.  Louisville,  N.  A.  &-  C.  R.  Co.  v. 
Stnith,  58  Ind.  575,  19  Am,  Ry.  Rep.  18. 

The  cases  of  killingor  injury  to  live  stock, 
provided  for  under  i  Indiana  Rev.  St.  1876, 
p.  751,  §  I,  by  locomotives,  etc.,  do  not  in- 
clude cases  where  animals  become  so  fright- 
ened as  to  injure  or  kill  themselves.  Balti' 
more,  P.  Sr*  C.  R.  Co.  v.  TAomas,  60  Ind.  107. 

It  is  essential  to  the  liability  of  a  railroad 
company,  under  the  acts  of  1853  and  1863, 
for  the  death  or  itijury  of  an  animal,  that 
the  animal  should  be  actually  touched  by 
the  engine,  cars,  or  other  carriages.  Indian- 
apolis, B.  &*  IV.  R.  Co.  V.  McBrmvn,  46  Ind. 
229,  6  Am.  Ry.  Rep.  415. 

The  Indiana  act  of  1853,  making  railroad 
companies  liable  for  injuries  to  live  stock, 
whether  negligent  or  not,  does  not  include 
cases  where  animals  become  frightened  and 
injure  themselves,  without  actual  collision 
with  the  train.  Peru  Sr*  I.  R.  Co.  v.  HaS' 
ket,  10  /«</.  409.— Distinguished  in  Strong 
V.  Sacramento  &  P.  R.  Co.,  8  Am.  &  Eng. 
R.  Cas.  273, 61  Cal.  326;  Meeker  z/.  Northern 
Pac.  R.  Co..  21  Oreg.  513.  Followed  in 
Laflferty  v.  Hannibal  «fc  St.  J.  R.  Co.,  44  Mo. 
291.  Reviewed  in  Young  v.  St.  Louis,  K. 
C.  &  N.  R.  Co.,  44  Iowa  172. 

To  render  a  railrcad  company  liable, 
under  the  statute,  for  jnimals  killed  or  in- 
jured by  its  cars,  locomotives,  or  other  car- 
riages, there  must  be  actual  collision  of  the 
cars,  locomotives,  or  other  carriages  with 
such  animals.  A  company  is  not  liable 
where  a  train  caused  the  animal  to  take 
fright,  and  the  injury  was  the  result  of  the 
fright,  as,  e.g.,  where  a  colt  frightened  by  a 
train  ran  from  an  adjoining  field  upon  the 
railroad  track,  which  was  not  properly 
fenced,  and  there  broke  its  leg  between  the 
bars  of  a  cow-pit.  Ohio  &*  M.  R.  \.o.  v. 
Cole,  41  Ind.  331.— Distinguished  in  In- 
dianapolis, P.  &  C.  R.  Co.  V.  CoUingwood, 
71  Ind.  476;  Meeker  v.  Northern  Pac.  R. 
Co.,  21  Oreg.  513. 

Judgment  must  be  reversed  in  the  absence 
of  evidence  showing  that  a  horse  found  dead 
by  the  side  of  the  road  was  struck  by  the 
locomotive.  Toledo,  W.  6-  W.  R.  Co.  v. 
Stithorn,  16  Iiui.  225. 


132 


ANIMALS,   INJUKII'S   TO,  74,75. 


Two  mules  were  tier!  toj^ctlicr  and  turned 
out  to  graze,  one  of  wliicli  was  struck  by  a 
train  and  killed,  and  was  so  draggcil  alon^ 
the  track  as  to  kill  the  other.  HeU,  that 
the  owner  could  recover  only  for  the  one 
struck  by  the  train.  Jtffersonville,  J/,  v^  /. 
A*.  Co.  V.  Downey,  6i  Inii.  287. 

(2)  In  Missour/.— There  is  a  wide  flitler- 
ence  between  the  case  of  an  actual  collision 
and  one  where  there  is  none,  in  respect  to 
the  inquiry,  wiiether  negligence  in  iiinning 
the  railroad  train  at  an  excessive  rate  of 
speed,  in  violation  of  a  municipal  ordinance, 
was  tiie  proximate  cause  of  the  injury. 
Lmvry  v.  St.  Louis  6f  II.  K.  Co.,  40  Mo, 
App.  554. 

Under  Missouri  Uev.  St.,  ;i  809,  in  order 
to  recover  for  live  stock  killed  t>r  injured, 
there  must  be  proof,  either  direct  or  circum- 
stantial, of  an  actual  collision  between  the 
animals  and  the  train.  Hesse  v.  St.  Lout's, 
I.  M.  (&*  S,  A\  Co.,  36  Mo.  App.  163.— Re- 
viewing RIcwett  V.  Wyandotte,  K.  C.  «S 
N.  W   R.  Co.,  72  Mo.  583. 

There  can  be  no  recovery  for  cattle 
alleged  to  have  been  killed  by  a  train  in  the 
absence  of  any  evidence  to  show  a  collision. 
Such  evidence,  however,  need  not  be  direct, 
but  the  collision  may  be  inferred  from  facts 
and  circumstances.  Halferty  v.  Wabash, 
St.  L.  6-  /'.  K.  Co.,  82  Mo.  90. 

(3)  In  Nebraska. — The  true  meaning  of 
§§  I  and  2  of  ch.  72  of  the  Comp.  St.  of 
Nebraska  is  that  the  injury  to  stock  must  be 
caused  by  actual  collision— that  is,  it  must 
be  done  by  the  agents,  engines,  or  cars  of 
the  company,  or  the  locomotives,  engines,  or 
trains  of  any  other  corporation  permitted 
and  running  over  or  upon  the  said  road,  or 
the  wilful  misconduct  of  the  trainmen  in  the 
course  of  their  employment — to  make  the 
company  liable.  Burlington  &*  M.  R.  R. 
Co.  v.  Shoemaker,  22  Am.  &*  Eng.  R.  Cas. 
565, 18  Neb.  369. 

(4)  In  Texas. — Under  Texas  Rev.  St.,  art. 
4245,  making  railroads  liable  to  the  owner 
for  the  value  of  all  stock  killed  or  injured  by 
the  locomotive  and  cars  of  such  railroad 
company  in  running  their  respective  rail- 
roads, there  can  be  no  recovery  unless  the 
injury  is  caused  by  actual  collision  of  the 
locomotive  or  cars  with  the  stock  injured. 
Houston  <S»  T,  C.  R.  Co.  v.  Harris,  3  Tex. 
App.  {Civ,  Cas.)  270. 

74.  Where  actual  contact  is  iiiinec- 
essapy. — In  an  action  against  a  railroad 
company  for  damages  for  the  killing  of  a 


horse  by  defendant's  train,  at  a  point  whr 
defendant  had  a  ri^ht  to  build  a  fence  I 
had  failed  to  do  so,  the  fact  that  the  train 
dill  not  strike  the  horse,  and  that  the  lioi<«e 
was  injured  by  running  in  front  of  the  train 
into  a  bridge,  dues  not  relieve  the  railroad 
company  of  liability.  Listoii  v.  Central  lojva 
R.  Co.,  26  Am.  &*  Eng.  R.  Cas,  593,  70  Iowa 
714,  29  N.  VV,  Rep.  445. 

Where  stock    is   injured    on    a    railroad 
which  is  unfenccd,  it  is  a  question  for  the 
jury  whether  or  not  the  injury  was  caused 
by  the  negligence  of  the  railroad  company. 
It  is  not  necessary  that  slock  should  have 
been  struck  by  a  train  to  authorize  a  recov- 
ery under  the  slalute.    A'rausv.  lUirlington, 
C.  R.  <S-  N.  R.  Co.,  55  Io7va  338. 7  A'.  W.  Rep. 
598.  -Following  Young  v.  St.   Louis,  V 
C.  &  N.  R.  Co.,  44  Iowa  172— Foi.i.ov 
IN  International  &  (i.  N.  R.  Co.  v.  Mug 
31  Am.  &  Eng.  R.  Cas.  569,  68  Tex.  290. 

In  an  action  for  injury  to  stock  by  a  rail- 
road, there  may  be  a  recovery  without  any 
actual  collision,  if  the  action  be  one  at  com- 
mon law,  though  it  is  otherwi.se  when  the 
action  is  one  for  double  damages  under  the 
statute.  Lofivry  v.  St.  Louis  i&*  //.  R.  Co.,  40 
Mo.  App.  554. 

Under  S!  4044,  Hill's  Oregon  Code,  a  rail- 
road company  is  liable  for  the  death  or 
injury  of  stock  caused  by  a  moving  train 
upon  or  near  its  unfenced  track,  happening 
where  the  track  is  required  to  be  fenced, 
whether  or  not  the  death  or  injury  is  caused 
by  actual  contact  with  the  train.  Meeker  \, 
Northern  Pac.  R,  Co.,  21  Or  eg.  513,  28  Pac. 
Rep.  639. — Distinguishing  Peru  &  I.  R. 
Co.  V.  Hasket,  10  Ind.  409,  71  Am.  Dec.  335  ; 
Ohio  &  M.  R. Co. V.  Cole,  41  Ind.  331.  Nor 
FOLLOWING  Laflerty  v.  Hannibal  &  St.  J. 
R.  Co.,  44  Mo.  291 ;  Schertz  v.  Indianapolis, 
B.  &  W.  R.  Co..  107  111.  577. 

75.  Injuries  caused  by  excava- 
tions, etc.,  near  track.— The  law  does 
not  require  a  railway  company  to  keep  the 
excavations  along  the  sides  of  its  track  free 
from  water  and  ice,  and  it  will  not  be  liable 
for  stock  killed  in  consequence  of  ice  there- 
in, so  as  to  prevent  escape  from  the  track 
over  the  same.  Peoria  &»  R.  I.  R.  Co.  v.  Mc- 
Clenahan,  74  ///.  435. 

A  railroad  company  is  not  liable  for  kill- 
ing a  horse  where  it  becomes  frightened  on 
the  approach  of  a  train  while  grazing  near 
the  track,  and  runs  some  distance  along  the 
track,  but  not  on  it,  and  jumps  into  a  "bar- 
row-pit "  and  is  killed.     New  Orleans  6-  X. 


ANIM.VLS,  INJURIES   TO,  7«,  77. 


188 


E.  R.  Co.  V,  Thornton,  65  Miss,  256,  3  So. 
Rep.  654. 

In  North  Carolina,  where  railroad  com- 
punie«  are  not  required  to  fence,  a  company 
will  not  be  liable  where  a  fence  is  removed 
in  the  construction  of  a  roud,  and  iin  animal 
pasturing  upon  the  lands  falls  into  an  un- 
fiiiced  cut.  Jones  v.  Western  N.  C.  A',  Ln., 
95  4V.  Car.  328. 

70. by  wells  near  the  trn«!k.— 

In  an  action  a);ainst  a  railroad  for  an  injury 
to  a  horse  from  falling  into  a  dry  well  on 
(lelcndant's  lot  partly  concealed  by  rubbish, 
where  the  fence  was  down,  the  presumption 
is  that  the  company  knew  of  the  existence 
of  such  well  and  is  chargeable  with  negli- 
gence  in  not  having  it  securely  closed.  Nel- 
son V.  Central  R.  &•  />.  Co.,  48  Ga.  1 52. 

No  statutory  liability  is  imposed  upon 
railroads  for  damages  to  cattle  that  may  fall 
into  abandoned  wells  or  tanks  on  its  right 
of  way,  although  occasioned  by  its  failure  to 
erect  and  maintain  fences,  as  required  by  the 
Missouri  Railroad  Act,§43.  The  liability  of 
a  company  in  such  case  is,  therefore,  such 
only  as  is  imposed  by  the  common  law. 
J/ui,--/ies  V.  Hannibal  &^  St.  /.  R.  Co.,  66  Mo. 
3:5.— FoLLOWEt)  IN  Turner  z/.  Thomas,  71 
Ml).  596. 

Where  a  well  is  dug  upon  the  right  of 
way  of  a  railroad  company  without  their 
knowledge  and  consent,  and  a  mule  falls  into 
it  and  is  killed,  the  company  cannot  be  held 
liable  on  the  ground  of  negligence  in  not 
covering  or  securing  such  well.  The  act  re- 
quiring railroad  companies  to  fence  their 
roads  is  only  designed  to  protect  the  trav- 
elling community  from  accidents  occasioned 
by  stock  getting  upon  the  road,  and  also  to 
prevent  damage  to  such  stock  from  their  lia- 
bility to  be  run  over  and  killed,  and  is  not 
intended  to  extend  their  liability  to  the  case 
named.  Illinois  C.  Ji.  Co,  v.  Carra/ter,  47 
^^^-  333-— Approved  in  O'Conner  v.  Illinois 
C.  R.  Co.,  44  La.  Ann.  339. 

77.  Injuries  at  or  on  bridges.— 
(I)  W/ten  company  liable.— A  railroad  com- 
pany is  liable  for  the  death  of  a  horse 
that  goes  upon  the  track  where  it  is  not 
fenced  and  runs  ahead  of  a  train  until  it  falls 
into  a  bridge,  where  it  was  so  injured  as  to 
die,  it  appearing  that  the  track  was  on  a  fili 
from  where  the  horse  went  on  the  track  to 
the  bridge,  with  but  one  narrow  place  where 
it  could  have  escaped,  though  the  train  was 
stopped  before  reaching  the  horse.  Young 
V.  St.  Louis,  K.  C.  ^  N.  R.  Co.,\\Iinva  172. 


—  Revikwim;  l\ru  &  I.  R,  Co.  v.  liaskct, 
10  Ind.  409;  Latlcrtyi'.  Hannibal  &  St.  J.  R. 
Co.,  44  Mo.  291. — I'oLi.owEU  IN  Kraus  7'. 
Burlington,  C.  R.  &  N.  R.  Co.,  55  Iowa  338. 
Reviewed  in  International  &  G.N.  R.  Co. 
V.  Hughes,  31  Am.  &  Eng.  R.  Cas.  569,  68 
Tex.  390. 

Under  the  Kansas  act  of  1874,  ch.  94,  §  5, 
making  railroad  companies  liable  for  killing 
stock,  but  providing  that  the  act  shall  not 
apply  to  any  company  "  whose  road  is  in- 
closed with  a  good  and  lawful  fence,  to  pre- 
vent such  animals  from  being  on  such 
road,"  in  order  to  make  the  company  liable 
(or  killing  stock  there  must  not  only  be  a 
lack  of  a  fence,  but  also  the  lack  of  one 
which  would  have  prevented  the  injury.  In 
order  to  make  the  company  liable,  the  in- 
jury must  be  the  direct  result  of  operating 
the  road,  but  it  is  not  necessary  that  there 
be  actual  collision  between  the  engine  and 
the  animals  injured  where  the  injury  was 
caused  by  falling  into  a  tie-bridge.  Atchi- 
son, T.  &*  S.  F.  R.  Co.  v.  Jones,  20  Kan.  527. 
—Quoted  in  Missouri  Pac.  R.  Co.  v.  Gill, 
49  Kan.  441 ;  International  &  G.  N.  R.  Co. 
7'.  Hughes,  31  Am.  &  Eng.  R.  Cas.  569,  68 
Tex.  290.  Reviewed  in  Missouri  Pac.  R. 
Co.  V.  Eckel,  49  Kan.  794. 

The  injuries  resulting  from  the  animals 
falling  into  the  bridge  were  not  within  the 
scope  of  the  Kansas  act  of  1874,  ch.  94,  §  5, 
although  the  company  might  be  liable 
therefor  on  account  of  its  negligence. 
Atchison,  T.  &*  S.  F.  R.  Co.  v.  Edwards,  20 
Kan.  531,  20  Am.  Ry.  Rep.  311. 

The  track  of  a  railroad  being  unfenced, 
two  mares  got  onto  it,  and,  walking  along, 
attempted  to  cross  a  bridge.  The  bridge 
being  built  of  lies,  with  open  spaces  between, 
their  legs  slipped  into  these  open  spaces, 
and  the  animals  became  fastened  in  the 
bridge,  receiving  certiiin  injuries  therefrom. 
There  was  negligence,  as  the  jury  found,  on 
the  part  of  the  company  in  the  construction 
of  the  bridge  causing  these  injuries.  After- 
ward, a  train  approaching  found  the  animals 
still  fastened  in  the  bridge.  The  trainmen 
proceeded  to  remove  them  therefrom,  and  in 
so  doing  the  animals  sustained  still  further 
injuries.  Held,  that  the  injuries  done  in  re- 
moving the  animals  from  the  track  were 
done  in  operating  the  road,  within  the  mean- 
ing of  the  law  of  1874  concerning  injuries 
to  stock.  Atchison,  T,  <S>»  S.  F.  R.  Co.  v. 
Edwards,  20  Kan.  531,  20  Am.  Ry.  Rep.  311, 

Where  a  horse  is  killed  by  taking  fright 


134 


ANIMALS,  LNJUKltb   TO,  77. 


and  breaking  through  u  railing  on  the  side 
of  an  approach  to  a  bridge,  wiiich  a  railroad 
company  is  bound  to  maintain,  the  company 
is  liable  where  it  appears  that  the  railing 
was  insufficient,  and  that  the  accident  would 
not  have  happened  had  it  been  otherwise. 
Titcomb  v.  Fitchburg  R.  Co.,  1 2  Allen  {Mass.) 
254.— Quoted  in  Sowles  v.  Moore,  65  Vt. 
322. 

Under  the  provision  of  the  General  Rail- 
road Act  (§  44,  ch.  140,  New  York  Laws 
of  1850,  as  amended  by  §  8,  ch.  282,  Laws 
of  1854),  requiring  railroad  corporations  to 
erect  and  maintain  fences  on  the  sides  of 
their  roads,  and  making  a  corporation  which 
neglects  to  comply  with  said  requirement 
"liable  for  damages  which  shall  be  done  by 
the  agents  or  engines  of  any  such  corpora- 
tion to  any  cattle,  horses  ♦  *  *  thereon," 
to  create  a  liability  there  must  be  some 
action  on  the  part  of  the  corporation,  by  its 
mechanical  or  other  agents,  producing  the 
injury ;  no  liability  is  imposed  for  injuries 
to  cattle  or  horses  caused  by  themselves 
when  straying  upon  a  railroad  bridge. 
Knight  V.  New  York.  L.  E.  <&-.  W.  R.  Co., 
23  Am.  &^  Eng.R.  Cas.  188,  99  N.  Y.  25,  i 
N.  E.  Rep.  108;  reversing  30  Hun.  415. — 
Distinguished  in  Dolan  v.  Newburgh,  D. 
&  C.  R.  Co.,  42  Am.  &  Eng.  R.  Cas.  611, 
120  N.  Y.  571,  24  N.  E.  Rep.  824.  31  N.  Y. 
S.  R.  852 ;  Graham  v.  Delaware  &  H.  C. 
Co..  46  Hun  (N.  Y.)  386,  12  N.  Y.  S.  R.  390. 
Reviewed  in  Leggett  v.  Rome,  W.  &  O.  R. 
Co.,  41  Hun  (N.  Y.)  80,  2  N.  Y.  S.  R.  312. 

(2)  When  company  not  liable.—  In  the  ab- 
sence of  any  statute  requiring  railroad  com- 
panies to  fence  or  secure  their  bridges,  a 
company  cannot  be  made  liable  on  mere 
proof  that  an  animal  was  found  fastened  on 
a  bridge  with  its  legs  broken.  Denver  &• 
R.  G.  R.  Co.  V.  Chandler,  8  Colo.  371,  8  Pac. 
Rep.  571. 

Under  the  Illinois  statute  relating  to  the 
liability  of  railroads  for  stock  killed,  a  com- 
pany is  not  liable  where  a  horse  becomes 
frightened  by  an  approaching  train  and  runs 
upon  a  bridge  and  is  so  injured  as  to  die, 
the  train  not  having  come  in  contact  with 
the  animal.  Chicago  &•  N.  W.  R.  Co.  v. 
Taylor,  8  ///.  App.  108. 

A  railroad  company  is  not  liable  for  an 
injury  to  a  horse  that  occurs  in  a  county 
where  the  commissioners  have  made  no 
order  as  to  what  stock  shall  run  at  large, 
where  it  appears  that  the  animal  strayed 
•pon  the  track,  and   becoming  frightened 


by  an  approaching  train,  and  despite  the 
slackening  of  the  speed  and  the  sounding 
of  a  whistle,  fails  to  leave  the  track,  as  it 
safely  might  have  done,  but  runs  ahead  of 
the  train  upon  a  bridge  and  breaks  its  leg. 
Pittsburgh,  C.  6-  St.  L.  R.  Co.  v.  Stuart,  71 
Ind.  500.— Quoting  North  Pa.  R.  Co.  v. 
Rehman,  49  Pa.  St.  101 ;  Tonawanda  R.  Co. 
V.  Munger,  5  Den.  (N.  Y.)  255— Distin- 
guished IN  Alabama  G.  S.  R.  Co.  v. 
Powers,  19  Am.  &  Eng.  R.  Cas.  502,  73  Ala. 
244;  Bostwick  V.  Minneapolis  &  P.  R.  Co., 
2  N.  Dak.  440. 

Under  the  provisions  of  §§  1  and  2  of  ch. 
72  of  Comp.  St.  of  Nebraska,  where  a  party's 
horse  gets  on  the  railroad  track  for  the 
want  of  a  fence  such  as  the  law  requires  the 
company  to  erect  and  maintain  to  inclose  its 
track,  and  while  on  or  near  the  track  is 
frightened  by  a  passing  train,  and  in  its 
flight  is  injured  by  falling  through  a  bridge 
on  the  line  of  the  railroad,  and  no  negli- 
gence or  wilful  misconduct  is  charged  to 
the  agents  of  the  company  in  charge  of  the 
train  at  the  time,  and  where  no  injury  is 
done  to  the  horse  by  any  actual  collision  or 
contact  with  the  engine  or  cars  of  the  train, 
the  railroad  company  will  not  be  liable  to 
the  owner  of  the  horse  for  such  injury. 
Burlington  &»  M.  R.  R.  Co.  v.  Shoemaker,  22 
Am.  Sf  Eng.  R.  Cas.  565,  18  Neb.  369. 

A  railroad  company  is  not  liable  for  kill- 
ing a  colt  on  a  bridge  crossing  a  river  where 
it  appears  that  the  colt  was  pastured  on 
lands  on  the  opposite  side  of  the  river,  but 
had  broke  away,  went  a  half-mile  to  a  ford 
and  crossed  the  river  to  an  open  mill-yard, 
from  which  it  went  upon  the  track  near  the 
bridge.  Hyatt  v.  New  York,  L.  E.  (^  W. 
R.  Co.,  46  A^.  Y.  S.  R.  7,  64  Hun  542.  19  N. 
Y.  Supp.  461. 

The  owner  of  a  horse  cannot  recover  from 
a  railroad  company  for  its  value  when  killed 
upon  a  bridge,  where  it  does  not  appear  that 
it  was  actually  struck  by  the  train,  but 
where  the  evidence  tended  to  show  that 
the  horse  ran  on  the  bridge  and  fell  off. 
Gnlf,  C.&'S.  F.  R.  Co.  v.  Ritter,\  Tex.  App. 
(Civ.  Cas.)  212,  16  S.  IV.  Rep.  909. 

One  who,  as  a  mere  licensee,  uses  for  the 
passage  of  his  stock  an  opening  under  a 
railway  bridge  constructed  by  the  company 
for  its  own  use  and  benefit,  does  so  at  his 
own  risk,  and  cannot  recover  for  the  death 
of  a  horse  caused  by  iiis  suddenly  throwing 
up  his  head  and  striking  the  end  of  a  bolt 
left  projecting  down  from  a  timber  of  the 


I 


ANIMALS,  INJURIES   TO,  78. 


135 


bridge.  Truax  v.  Chicago,  Si.  P.,  M.  6-  O. 
R.  Co.,  83  Wis.  547,  53  A^.  W.  Rep. 
842. 

78.  Injuries  on  trestles.— (i)  When 
company  liable, — A  company  is  liable  for  the 
negligence  of  its  employes  in  constructing 
a  part  of  its  ya'^J,  designed  for  receiving 
cotton,  so  that  a  mule  is  injured  by  catch- 
ing its  foot  between  a  rail  and  a  plank, 
while  being  driven  with  due  care.  Central 
R.  Co.  V.  Gleason,6^  Ga.  200.— DISTINGUISH- 
ING Thompson  v.  Central  R.  &  B.  Co.,  54 
Ga.  509 ;  Lindsey  v.  Central  R.  &  B.  Co.,  46 
Ga.  447. 

Where  a  colt  was  unlawfully  running  at 
large,  and  strayed  upon  a  railroad  track,  and 
became  frightened  at  an  approaching  train, 
and  ran  upon  the  track  and  fell  upon  a  tres- 
tle, so  that  it  could  not  get  off  the  track, 
and  the  employes  of  the  company,  aft  r  be- 
ing requested  to  wait  till  other  help  could 
be  secured,  as  that  present  was  insufficient 
to  remove  the  colt  with  safety,  kicked  the 
colt  and  gave  it  a  lunge,  when  it  fell  oS.  the 
side  of  the  trestle,  falling  about  eight  feet, 
and  in  a  few  days  thereafter  died  from  in- 
juries thus  sustained,  there  was  evidence 
tending  to  show  that  the  injury  to  the  colt 
was  wilfully  and  negligently  inflicted,  and 
that  the  plaintiff  was  entitled  to  recover, 
notwithstanding  his  own  negligence  in  per- 
mitting the  colt  to  run  at  large.  Ft.  Wayne, 
C.  &*  L.  R.  Co.  V.  O'Keefe,  4  Ind.  App.  249, 
30  A.  E.  Rep.  916. 

A  railroi>d  company  is  liable  for  the  value 
of  a  horse  which  is  killed  by  taking  fright 
from  a  train  and  running  upon  a  trestle  and 
jumping  therefrom,  if  it  appears  that  those 
in  charge  of  the  train  could  have  prevented 
the  killing  by  the  exercise  of  due  care. 
Newman  v.  Vicksbttrg  <S»  M.  R.  Co.,  64  Miss. 
115,  8  So.  Rep.  172. 

Running  a  train  at  an  unlawful  speed  will 
not  make  the  company  liable  for  an  injury 
to  stock  that  becomes  frightened  and  runs 
in  front  of  a  train  into  a  trestle,  where  they 
are  injured  without  any  collision  with  the 
train,  as  the  unlawful  speed  is  not  the  proxi- 
mate cause  of  the  injury.  Lowry  v.  St.  Louis 
&*  H.  R.  Co.  40  Mo.  App.  554. 

(2)  When  company  not  liable. — It  is  proper 
to  order  a  nonsuit  where  suit  is  brought 
against  a  railroad  company  for  killing  a 
horse,  and  plaintiff's  evidence  shows  that 
his  horse  went  upon  the  track  and  ran 
upon  u  trestle,  where  he  fell  and  was  killed, 
without  negligence  on  the  part  of  the  com- 


pany.     East   Tenn.,    V.    &*  G,  R.   Co.   v. 
Waiters,  77  Ga.  69. 

A  railroad  company  is  not  liable  for 
double  damages  under  the  Missouri  statute, 
where  the  animal  was  killed  by  the  com- 
pany's employes  in  trying  to  extricate  it 
from  a  trestle  into  which  it  had  fallen. 
Seibert  v.  Missouri,  K.  &*  T.  R.  Co.,  72  Mo. 
565. 

A  plaintiff  is  not  entitled  to  recover  for 
injuries  to  an  animal  which  ran  from  fright 
into  a  trestle  or  bridge  and  was  injured 
without  being  struck  by  the  train.  Foster 
v.  St.  Louis,  /.  M.  6-  S.  R.  Co.,  90  Mo.  1 16, 
2  .S.   W.  Rep.  138. 

Live  stock  killed  or  injured  by  running 
upon  and  falling  from  a  trestle  in  conse- 
quence of  fright  caused  by  a  moving  train 
are  not  "  killed  or  crippled  by  any  train  of 
cars  or  locomotive  "  within  the  meaning  of 
the  Tennessee  acts  1891,  ch.  101,  making 
unfenced  railroads  absolutely  liable  for  live 
stock  killed  or  injured  upon  or  near  their 
tracks  by  actual  collision  with  their  moving 
trains.  Only  cases  of  killing  or  injury  of 
live  stock  by  actual  collision  with  moving 
trains,  etc.,  are  within  said  act.  Nashville, 
C.  (S-  St.  L.  R.  Co.  V.  Sadler,  91  Tenn.  508, 
195.  W.  Rep.  618. 

A  failure  to  sound  a  whistle  as  required 
by  statute,  when  stock  is  seen  on  the  track, 
will  not  necessarily  make  the  company  lia- 
ble where  the  animal  becomes  frightened 
and  runs  on  the  track  to  a  trestle,  from 
which  it  jumps  and  is  killed.  Holder  v . 
Chicago,  St.  L.  &*  N.  O.  R.  Co.,  13  Am.  &* 
Eng.  R.  Cas.  567,  11  Lea  {Tenn.)  176. — 
Applying  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Scales,  2  Lea  (Tenn.)  688.  Restricting 
Nashville  &  C.  R.  Co.  v.  Thomas,  5  Heisk. 
(Tenn.)  262, 

Under  a  statute  (Texas  Rev.  St.  art.  4245) 
providing  that  every  railroad  company  shall 
be  liable  to  the  owner  for  any  stock  killed 
or  injured  by  the  locomotives  and  c^'-s  of 
the  company  in  running  over  iheir  respec- 
tive railways,  unless  the  track  is  fenced,  a 
railroad  company  is  not  liable  for  an  injury 
to  an  animal  running  on  the  track  through 
fright  at  the  train,  and  being  injured  on  a 
trestle,  and  not  by  contact  with  the  locomo- 
tive or  cars.  International  &*  G.  N.  R.  Co.  v. 
Hughes,  31  Am.  &*Eng.  R.  Cas.  569 ;  68  Tex. 
290,  4  S.  W.  Rep.  492.— Following  Kraus 
V.  Burlington,  C.  R.  &  N.  R.  Co.,  55  Iowa 
338.  Quoting  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Jones,  20  Kan.  527.    Reviewing 


13G 


ANIMALS,  INJURIES  TO,  79,  80. 


Young  V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  44 
Iowa  172. 

70.  Injuries  at  cattle-firuards ;  *  cul- 
verts.— Plaintiff's  horse  was  injured  by  fall- 
ing through  a  cattle-guard.  The  injury  was 
alleged  to  have  been  caused  by  failure  of 
defendant  to  fence  its  track.  It  was  not 
claimed  that  the  horse  was  struck  by  the 
engine.  The  evidence  tended  to  prove  that 
the  tracks  of  three  horses,  one  of  which  was 
the  horse  injured,  showed  that  they  were 
going  fast,  on  the  right  of  way  before  the 
cattle-guard  was  reached,  and  that,  during 
the  night  in  which  the  accident  occurred,  a 
train  passed  over  the  road.  The  jury  were 
instructed  that  in  order  to  entitle  the  plain- 
tiff to  recover,  he  must  establish,  by  a  pre- 
ponderance of  evidence,  that  the  horse  was 
injured  by  being  driven  by  one  of  defend- 
ant's trains  into  the  cattle-guard.  Held, 
that  the  presumption  that  the  horses  were 
frightened  by  a  train  is  a  mere  surmise,  and 
a  verdict  for  the  plaintiff  cannot  be  sus- 
tained. Moore  v.  Burlington  &*  IV.  R.  Co  , 
31  Am.  &*  Eng.  R.  Cas.  572,  72  Iowa  75,  33 
N.  W.  Rep.  371.— Distinguishing  Chicago 
&  N.  W.  R.  Co.  V.  Dement,  44  111.  74.  Fol- 
lowing Meade  v.  Kansas  City,  St.  J.  &  C. 
B.  R.  Co.,  45  Iowa  699.— Reviewed  in 
Brockert  v.  Central  Iowa  R.  Co.,  82  Iowa 

369- 

A  railroad  company  is  not  bound  to  plank 
or  cover  culverts  or  drains  necessary  in  the 
construction  of  its  road,  so  as  to  prevent 
catt.e  from  getting  fast  therein;  and  it  is  not 
liable  for  killing  the  same  if  there  is  no  neg- 
ligence in  the  management  of  the  train. 
Memphis  &•  C.  R.  Co.  v.  Lyon,  62  Ala.  71. — 
Modified  in  Alabama  G.  S.  R.  Co.  v.  Mc- 
Alpine,  22  Am.  &  Eng.  R.  Cas.  602,  75  Ala. 

313. 

A  railroad  company  is  liable  for  injuries 
to  a  cow  which  escapes  from  adjoining  lands 
to  the  track  through  an  open  culvert,  though 
it  appeared  that  the  culvert  was  sufficient  to 
turn  stock  at  the  ordinary  height  of  water. 
Kelihtr  v.  Connecticut  River  R.  Co.,  107 
i)/(i5j.  411.— Distinguishing  Eames  v.  Sa- 
'  lem  &  L.  R.  Co..  98  Mass.  560.  Following 
Eames  v.  Boston  &  W.  R.  Co.,  14  Allen 
(Mass.)  151.— Distinguished  in  McDon- 
nell V.  Pittsfield  &  N.  A.  R.  Co.,  115  Mass. 
564. 

80.  Injuries  caused  by  barbed  wire 
fences.— (I)  G^«^ra/^.— Where  a  company 

•See /ox/.  100-160. 


incloses  its  track  with  a  barbed  wire  fence  it 
must  use  diligence  corresponding  to  the  in. 
creased  danger  of  injuring  stock  thereon. 
Atlanta  6-  IV.  P.  R.  Co.  v.  Hudson,  62  Ga. 
679.  — Reviewed  in  Hillyard  v.  Grand 
Trunk  R.  Co.,  23  Am.  &  Eng.  R.  Cas.  154, 
8  Out.  583. 

Where  a  colt  runs  against  a  barbed  wire 
fence  maintained  by  a  railroad  company, 
and  the  issue  is  made,  in  an  action  against 
the  company,  as  to  whether  such  fence  is 
dangerous  and  a  nuisance,  the  railroad  com- 
pany should  be  permitted  to  prove  that 
other  municipalities  had  held  out  induce- 
ments to  the  company  to  erect  them,  the 
evidence  tending  to  show  that  they  were 
not  considered  dangerous  or  a  nuisance. 
Hillyard  v.  Grand  Trunk  R.  Co. ,  23  Am.  &* 
Eng.  R.  Cas.  154,  8  Ont.  583. 

(2)  PV/ien  company  liable. — The  right  to 
make  the  usual  noises  incident  to  the  oper- 
ation of  a  railroad,  including  the  right  to 
give  the  usual  danger  signals,  is  included 
in  the  right  to  operate  a  railroad ;  but  these 
rights  may  be  exercised  in  such  a  negligent 
manner  as  to  make  a  company  liable  for 
frightening  a  horse  so  as  to  make  him  in- 
jure himself  by  running  into  a  wire  fence. 
Louisville  6-  N.  R.  Co.  v.  Upton,  18  ///.  App. 
605. 

A  mare  went  upon  the  right  of  way  of  the 
railway  company,  where  it  ought  to  have 
been,  but  was  not,  fenced,  and  was  fright- 
ened by  a  passing  train,  and  was  either 
thrown  or  ran  off  the  railroad  track  into  a 
wire  fence  located  near  but  not  on  the  line 
of  the  right  of  way,  and  sustained  such  in- 
juries that  she  died.  Held,  that  the  rail- 
road company  was  liable,  under  par.  1252  of 
the  general  statutes  of  1 889.  Missouri  Pac. 
R.  Co.\.  Eckel,  56  Am.  <S>»  Eng.  R.  Cas.  174, 
49  Kan.  794,  31  Pac.  /?<•/>.  693.— Reviewing 
Atchison,  T.  c'i  S.  F.  R.  Co.  v.  Jones,  20 
Kan.  527. 

Plaintiff's  mart  -vas  pastured  on  the  de- 
fendant's right  of  way,  at  a  place  where  it 
ought  to  have  been,  but  was  not,  inclosed. 
She  was  frightened  by  the  sounding  of  a 
whistle  upon  an  engine  drawing  a  train  of 
cars,  and  ran  along  by  the  side  of  the  track 
on  the  right  of  way  into  a  barbed  wire  fence 
running  at  right  angles  with  the  railroad, 
and  was  injured.  Held,  that  the  defendant 
was  liable  under  the  statute.  Missouri  Pac. 
R.  Co.  V.  Gill.  49  Kan.  441 ,  30  Pac.  /V/>.  414.— 
Quoting  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Jones.  20  Kan.  527. 


ANIMALS,  INJURIES   TO,  81. 


137 


When  an  animal  gets  on  the  track  at  a 
point  where  the  company  was  bound  to 
fence,  and  being  frightened  by  the  approach 
of  a  train,  is  injured  by  attempting  to  jump 
a  barbed  wire  fence,  an  action  is  maintain- 
able, although  not  under  the  statute.  Boggs 
V.  Missouri  Pac.  R.  Co.,  i8  Mo.  App.  274. 

Prior  to  the  New  York  act  of  1891,  ch. 
367,  it  could  not  be  said  as  a  matter  of  law 
tiiat  it  was  negligence  for  a  railroad  com- 
pany to  erect  and  maintain  a  barbed  wire 
fence,  whereby  a  horse  was  injured,  in  the 
absence  of  anything  to  show  the  nature  of 
the  land  fenced.  Guilfoos  v.  New  York 
C.  6-  H.  A\  iV.  Co.,  23  iV.  V.  Supp.  925. 

(3)  When  company  not  liable. — A  railway 
company  which  inclosed  part  of  its  track 
with  a  barbed  wire  fence  and  permitted  it 
to  fall  into  disrepair  is  not  liable  for  injury 
to  a  colt  which,  uninvited,  strayed  upon  the 
track  through  a  gap  in  the  fence,  became 
fritjhtened  by  a  train  whistle  and  ran  into 
the  fence,  and  was  thereby  wounded  and 
killed,  there  being  no  duty  upon  the  part  of 
the  railway  to  build  the  fence  or  to  keep  it 
in  a  state  of  repair.  .SV.  Louis,  I.  M.  &^  S. 
R.  Co.  V.  Ferguson,  57  Ark.  16,  20  5.  IV. 
Rep.  545.— Quoting  St.  Louis,  I.  M.  &  S. 
R.  Co.  V.  Fairbairn,  48  Ark.  491 ;  Kansas 
City,  S.  &  M.  R.  Co.  v.  Kirksey.  \'&  Ark. 
366;  Knight  V.  Abert,  6  Pa.  St.  472. 

A  railroad  track  was  inclosed  by  a  wire 
fence,  but  at  the  ends  of  the  fence  it  did  not 
connect  with  the  track,  so  as  to  prevent 
stock  from  passing  to  the  inclosed  portion. 
A  colt  strayed  upon  the  inclosed  right  of 
way,  and  becoming  frightened  at  a  train, 
ran  against  the  wires  and  was  killed.  Held, 
that  the  company  was  not  liable.  The  colt 
was  trespassing,  and  the  company  was  un- 
der no  obligation  to  construct  its  fence  of 
material  such  as  would  make  it  harmless. 
St.  Louis,  I.  M.  <S~»  S,  R.  Co.  v.  Ferguson,  57 
Ark.  16,  20  S.  W.  Rep.  545. — APPROVING 
Hughes  V.  Hannibal  &  St.  J.  R.  Co..  66  Mo. 
325  ;  Leseman  v.  South  Carolina  R.  Co.,  4 
Rich.  (So.  Car.)  413;  Oilman  v.  Sioux  City 
&  P.  R.  Co.,  62  Iowa  299,  17  N.  W.  Rep. 
520.  Distinguishing  Clary  v.  Burlington 
&  M.  R.  R.  Co.,  14  Neb.  232,  15  N.  W.  Rep. 
220.  Quoting  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Fairbairn,  48  Ark.  491,  4  S.  W.  Rep. 
so;  Kansas  City.  S.  &  M.  R.  Co.  v.  Kirksey, 
48  Ark.  366,  3  S.  W.  Rep.  190. 

Although  the  evidence  shows  that  an  ani- 
mal was  found  dead  near  an  opening  in  the 
fence,  with  her  foot  entangled   in  the  top- 


wire  of  the  fence,  and  that  tracks  were 
found  on  the  right  of  way  inside  of 
the  fence,  still  a  recovery  cannot  be  had, 
unless  it  be  further  shown  that  she  was 
frightened  by  the  cars  and  for  that  reason 
ran  against  or  attempted  to  jump  over 
the  fence  and  was  thereby  killed.  Perkins 
V.  St.  Louis,  I.  M.  &»  S.  R.  Co.,  103  Mo.  52, 
155.  W.  Rep  120. 

Under  Texas  Rev.  St.  art.  4245,  making 
railroads  liable  for  the  value  of  stock  killed 
or  injured  by  locomotives  and  cars  running 
over  their  tracks,  there  can  be  no  recovery 
for  the  death  of  a  horse  that  becomes  fright- 
ened and  is  killed  by  running  into  a  fence. 
The  statute  only  applies  to  damages  caused 
by  actual  collision  of  the  locomotives  or  cars 
with  the  stock  injured  or  killed,  as  the 
case  may  be.  Texas  &*P.  R.  Co.  v.  Mitchell, 
4  Tex.  App.  (Ci-"  Cas.)  454,  17  S.  W.  Rep. 
1079. 

A  barbed  wire  fence  used  by  a  railroad, 
where  it  is  required  to  fence,  and  con- 
structed upon  an  ordinary  country  road, 
cannot  be  treated  as  a  nuisance  in  the  ab- 
sence of  any  by-law  of  the  locality  respect- 
ing fences  of  this  kind,  and  therefore  a  rail- 
road company  will  not  be  liable  for  loss  of  a 
colt,  while  following  its  dam,  which  runs 
against  such  fence  and  is  injured,  since  46 
Vic.  ch.  18,  §  490,  sub-section  16  (O),  seems 
to  sanction  such  fences.  Hillyard  v.  Grand 
Trunk  R.  Co.,  23  Am.  &*  Eng.  R.  Cas.  154, 
8  Ont.  583.— Reviewing  Atlanta  &.  W.  P. 
R.  Co.  V.  Hudson,  62  Ga.  679. 

81.  Injuries  outside  right  of  way.— 

Although  a  railroad  company  is  not  ordi- 
narily liable  for  injury  resulting  from  fright 
occasioned  by  the  running  of  its  trains, 
when  its  servants  are  informed  of  the  dan- 
gerous situation  of  an  animal  they  must  act 
with  reference  to  its  known  habits  in  avoid- 
ing injury.  Newman  v.  Vicksburg  &•  M.  R. 
Co.,  64  Miss.  115,  8  So.  Rep.  172. 

A  railroad  company  is  not  liable  for  the 
value  of  a  horse  that  takes  fright,  while  on 
the  highway,  at  a  passing  train  and  in  his 
fright  ruptures  a  blood-vessel,  which  causes 
his  death,  in  the  absence  of  anything  to 
show  that  the  injury  resulted  from  some 
wrongful  act  of  the  company.  Moshier  v. 
Utica  Sr*  S.  R.  Co.,  8  Barb.  (N.  K.)  427.— Dis- 
approved in  Coy  V.  Utica  &  S.  R.  Co.,  23 
Barb.  (N.  Y.)  643.  Not  followed  in 
Lafferty  v.  Hannibal  &  St.  J.  R.  Co., 44  Mo. 
291.  Reviewed  in  Rood  7/.  New  York  & 
E.  R.  Co.,  18  Barb.  (N.  Y.)  80. 


m 


!(•■ 


^ 


138 


ANIMALS,  INJURIES   TO,  82-86. 


4.  Injuring  or  Killing  Dogs.* 

82.  Company  wlieu  liable.— A  rail- 
road company  is  liable  for  killing  a  dog 
where  it  appears  that  the  same  could  have 
been  seen  by  those  in  charge  of  the  train 
and  the  killing  avoided,  though  the  owner 
at  the  time  is  a  trespasser  on  the  track  with 
his  dog,  which  becomes  frightened  and  runs 
on  the  track  before  the  train.  St.  Louis,  A. 
<S-  T.  R.  Co.  V.  Hauks,  45  Am.  Sf  Eng.  R. 
Cas.  521.  78  Tex.  300,  14  S.  W.  Rep.  691. 

83.  and   when   not   liable.— In 

an  action  for  killing  a  dog,  the  evidence 
showed  that  there  was  a  curve  in  the  rail- 
road at  or  close  to  the  place  where  it  was 
killed ;  that  the  railroad  at  that  point  was 
in  a  deep  cut  so  that  the  engineer  could  not 
see  it  at  any  great  distance ;  and  that  it  was 
on  a  down  grade.  The  testimony  of  the  en- 
gineer was  that  as  soon  as  he  saw  the  dog, 
he  reversed  the  engine,  sounded  the  alarm- 
whistle  and  did  all  he  could  to  avert  the 
accident,  and  that  the  animal  attempted  to 
cross  the  track,  when  he  was  run  over  and 
killed.  The  fireman  testified  that  he  was 
otherwise  engaged,  and  did  not  see  the  ac- 
cident, but  did  hear  the  alarm-whistle  and 
knew  that  the  engine  was  reversed.  Plain- 
tiff's witnesses  testified  that  they  heard  the 
whistle,  but  thought  it  was  tne  whistle  giv- 
ing notice  of  the  approach  of  the  train  to 
a  town.  Held,  that  the  evidence  was  not 
sufficient  to  justify  a  judgment  for  the  plain- 
tiff. Jones  v.  Bond,  40  Am.  &^  Eng.  R.  Cas. 
191,  40  Fed.  Rep.  281. 

A  dog  is  not  "stock,"  within  the  meaning 
of  Tex.  Rev.  St.  art.  4245,  hence  railroads 
are  not  required  to  fence  against  that  char- 
acter of  animals.  The  company  will  not  be 
held  liable  for  killing  a  dog,  though  the 
conductor  knows  that  it  is  on  tlie  track. 
Te.vas  &>  P.  R.  Co.  v.  Scofl.  4  Tex.  App.  (Civ. 
Cas.)  476,  17  S.  IV.  Rep.  1116. 

84.  Prcsnniption  of  uegligence.f- 
A  dog  is  not  property,  except  in  a  qualified 
sense,  either  at  common  law  or  under  the 
statutes  of  Georgia.  The  owner  may  main- 
tain an  action  of  trespass  vi  et  armis  for  the 
wanton  and  malicious  killing  of  his  dog,  but 
he  cannot  maintain  case  for  its  uninten- 
tional, though  negligent,  destruction;  and 
where  a  dog  was  killed  by  a  railroad  train, 
a  presumption  did  not  arise  against  the  com- 
pany, as  in  cases  of  injury  to  persons  or  prop- 

•  See  tost,  2»2. 

\  Seefos/,  12H,  103,  207. 


erty.  Jemison  v.  Southwestern  R,  Co.,7^Ga. 
444,  sS  Am.  Rep.  476.— AvpRovitiG  Wilson 
V.  Wilmington  &  M.  R.  Co.,  10  Rich.  (So. 
Car.)  52. 

Where  a  dog  is  killed  on  the  track,  the 
rule  as  applied  to  cattle,  that  proof  of  the 
killing  is  prima  facie  proof  of  negligence, 
does  not  apply.  Wilson  v.  Wilmington  &*  M. 
R.  Co.,  \oRich.  (So.  Car.)  52.— D1.STINGUISH- 
ING  Danner  v.  South  Carolina  R.  Co.,  4 
Rich.  (So.  Car.)  329. — Applied  in  Roof  v. 
Charlotte,  C.  &  A.  R.  Co.,  4  So.  Car.  61. 
Approved  in  Jemison  v.  Southwestern  R. 
Co.,  75  Ga.  444,  58  Am.  Rep.  476. 

m.  LIABILITY  AS  DEPENDENT  UPON  COM- 
PANY'S DUTY  TO  FENCE.* 

I  Duty  to  Fence  Track.\ 
rt.  In  General. 

85.  At  common  law.— At  common  law 
railroad  companies  are  not  required  to  fence, 
and  in  the  absence  of  a  statute  requiring 
them  to  fence,  they  are  only,  as  a  rule,  lia- 
ble for  injuries  to  cattle  which  result  from 
wilful  negligence  or  misconduct.  Vande- 
grift  V.  Delaware  R.  Co.,  2  Houst.  (Del.) 
287. 

In  the  absence  of  special  legislation  on 
the  subject  requiring  a  railroad  to  fence  its 
track,  there  is  no  general  law  which  requires 
them  to  do  so,  neither  is  there  ;my  general 
law  against  the  owners  of  stock  allowing 
animals  to  run  at  large  or  to  depasture 
public  roads  ;  consequently  the  bare  fact 
that  a  railway  is  uninclosed,  or  unprotected 
by  cattle-stops,  where  it  crosses  a  public 
road,  does  not  in  general  render  the  railroad 
company  liable  to  pay  for  such  stock  stray- 
ing upon  the  track  and  killed  by  a  train ; 
nor,  upon  the  other  hand,  can  contributory 
negligence  be  attributed  to  the  plaintiff  for 
allowing  his  stock  to  run  at  large.  Laynev. 
Ohio  River  R.  Co.,  "^l  W.  Va.  438,  14  S.  E. 
Rep.   123. 

The  rights,  duties,  and  obligations  of  the 
New  Orleans,  O.  &  G.  W.  R.  Co.  are  created 
by  express  law,  and  until  the  legislature  re- 

*  See  also  Fe.«)ces. 

t  Duty  of  companies  to  fence  track  generally, 
ree  note,  35  Am.  &  Eng.  R.  Cas.  133  ;  and  lia- 
bility for  stnck  that  goes  upon  track  where  it 
might  have  been  fenced,  see  35  Am.  &  Eng.  R. 
Cas.  165,  ahstr.;  i6Id.  l66,  abstr.;  42  Id.  578, 
abstr.;  7  /(/.  577. 

Duty  of  compnny  to  fence  where  it  is  legal  to 
permit  cattle  to  roam,  see  note,  22  Am.  &  Eng, 
R.  Cas.  616. 


.:.^«..i^it^ 


ANIMALS,  INJURIES   TO,  8«,  87. 


139 


quires  them  to  inclosetlicir  road,  or  delegates 
the  power  to  the  parochial  authorities, 
and  the  latter  exercise  the  same,  tiie  com- 
pany will  be  under  no  obligation  to  inclose 
their  road,  or  any  part  thereof,  with  fences 
or  barriers.  And  if  cattle  stray  upon  the 
track  and  are  killed  or  maimed  by  accident, 
it  will  be  damnum  absque  injuria,  and  the 
owner  will  have  the  loss  to  bear.  Knight 
V.  New  Orleans,  O.  &>  G.  IV.  R.  Co.,  i^  La. 
Ann.  105. 

86.  Rule  where  statute  does  not 
impose  a  positive  duty  to  fence.*— 

Under  the  system  in  Alabama  all  unin- 
closed  lands  are  common  pasture.  The 
owners  of  stock  have  the  right  to  allow  them 
to  go  at  large  upon  the  commons.  It  is  the 
duty  of  the  railroad,  if  necessary  to  secure 
it  in  the  safe  operation  of  its  road,  and  not 
of  the  owners  of  stock,  to  fence  against  the 
incursion  of  stock  upon  the  railroad  track. 
Central  R.  &*  B.  Co.  v.  Ingram,  98  Ala.  395. 

Under  Wagn.  Missouri  St.  520,  §  5,  rail- 
way companies  are  not  required  to  fence 
anywhere,  the  section  simply  dispensing 
with  proof  of  negligence,  where  animals  are 
killed,  and  the  track  is  not  fenced,  but 
might  have  been.  Edwards  v.  Hannibal 
&*  Si.  J.  R.  Co.,  66  Mo.  567.— Quoting 
Tiarks  v.  St.  Louis  &  I.  M.  R.  Co.,  58  Mo. 
45.— Followed  in  Wymore  v.  Hannibal 
&  St.  J.  R.  Co.,  79  Mo.  247. 

In  Oregon  the  duty  to  fence  is  not  im- 
posed upon  railroad  companies  as  a  duty, 
yet  proof  that  the  track  is  unfenced  where 
stock  is  killed  is  conclusive  of  negligence, 
and  the  only  defence  that  the  company  can 
make  is  that  the  owner  contributed  to  the 
injury,  or  that  he  has  wilfully  procured  the 
killing.  Hindman  v.  Oregon  R.  &-  N.  Co., 
38  Am.  &*  Eng.  R.  Cas.  310,  17  Or  eg.  614, 
22  Pac.  Rep.  116. 

87.  Statutes  requiring  fences.t— 
A  statute  which  prescribes,  as  a  precaution- 
ary measure,  what  shall  be  deemed  a  suf- 
ficient fence  to  protect  a  railroad  track  from 
the  entrance  of  live  stock,  and  declares  an 
absolute  liability  for  the  killing  of  stock  for 
the  failure  to  fence,  or  for  killing  stock  on 
an  unfenced  track,  except  for  contributory 
negligence  or  misconduct,  imposes  by  im- 

*See/w/,  130,  212. 

tSee  anil,  1-28. 
Various  state  statutes  with  their  construction 
re((arding  liability  of  railroads   for  injuring  or 
killing  live  stock  by  failure  to  fence,  see  note,  8 
L.  R.  A.  135. 


plication  the  duty  to  fence  as  much  as  if 
such  duty  was  expressly  declared.  Sullivan 
v.  Oregon  R.  Sf  N.  Co.,  42  Am.  &-  Eng.  R. 
Cas.  625,  19  Oreg.  319,  24  Pac.  Rep.  408. 

Section  4044  of  the  Oregon  statute  makes 
a  railroad  company  liable  for  the  value  of 
stock  killed  upon  or  near  any  unfenced 
track  by  a  moving  train,  and  §  4045  pre- 
scribes what  shall  be  deemed  a  sufficient 
fence  to  guard  the  railway  track  from 
the  entrance  thereon  of  live  stock,  and 
§  4048  provides  that  in  every  action  for  the 
value  of  any  stock  mentioned  in  §  4044, 
so  killed,  that  proof  of  such  killing  shall 
be  deemed  and  held  conclusive  evidence 
of  negligence,  except  where  the  owner 
is  guilty  of  negligence  or  misconduct. 
Held,  that  the  statute,  in  prescribing  the 
fence,  and  declaring  that  stock  killed  "  on 
or  near  any  unfenced  track  "  shall  be  con- 
clusive evidence  of  negligence,  by  implica- 
tion, makes  it  the  duty  of  a  railway  to  fence 
its  track.  A  statute  oftens  speaks  as  plainly 
by  inference  and  by  means  of  the  purpose 
which  underlies  the  enactment  as  in  any 
other  manner.  Sullivan  v.  Oregon  R.  &• 
N.  Co.,  42  Am.  &•  Eng.  R.  Cas.  62;,  19  Oreg. 
319,  24  Pac.  Rep.  408.  —  Distinguishing 
Bielenberg  v.  Montana  Union  R.  Co.,  8 
Mont.  276;  Ohio  &  M.  R.  Co.  v.  Lackey, 
78  111.  ss;  Zeiglerz/.  South  &  N.  Ala.  Co.. 
58  Ala.  594  ;  Jensen  v.  Union  Pac.  R.  Cc,  6 
Utah  253 ;  Hindman  v.  Oregon,  R.  li  N. 
Co.,  17  Oreg.  614.  Quoting  Bennett  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  61  Iowa  355  ; 
Welsh  V.  Chicago,  B.  &  Q.  R,  Co.,  53  Iowa 
632. 

Such  a  statute  is  intended  as  a  precau- 
tionary measure  to  protect  the  track  from 
stock  where  allowed  to  roam  at  large,  so  as 
to  insure  safety  in  the  running  of  the  trains, 
as  well  as  to  prevent  the  destruction  of  live 
stock,  and  is  a  police  regulation  which  finds 
its  authority  in  the  same  power  as  regulates 
the  storage  of  gunpowder  or  other  danger- 
ous instrumentalities,  and  is  not  obnoxious 
to  the  constitutional  objection  of  depriv- 
ing the  company  of  its  property  without 
due  process  of  law,  or  of  denying  it  the 
equal  protection  of  the  laws.  Sullivan  v. 
Oregon  R.  &>  A'.  Co.,  42  Am.  6-  Eng.  R.  Cas. 
625,  ig  Oreg.  319,  24  Pac.  Rep.  408. 

Under  the  statute,  in  view  of  the  con- 
struction given  in  Hindman  7'.  Railroad  Co., 
17  Oreg.  619,  when  it  is  alleged  and 
proven  that  stock  is  killed  or  injured  at  a 
place  where  the  company  has  failed  to  fence, 


140 


ANIMALS,  INJURIliS   TO,  88-90. 


but  the  duly  existed, — an  unfciiced  track, — 
a  case  of  n.gligence  is  made  uut  unless  the 
defendant  can  show  contributory  negligence 
or  misconduct.  Sullivan  v.  Oregon  K.  &* 
N,  Co.,  42  Am.  dr'Eng,  K.  Las.  625,  19  Oreg. 
319,  24  Pac.  Rep.  408. 

Generally  a  railroad  company,  under  the 
stock  law  of  Kansas,  1874,  in  order  to  be  ab- 
solved from  liability  for  stock  killed  by  it  in 
the  operation  of  its  railroad  must  have  its  rail- 
road "  inclosed  with  a  good  and  lawful  fence, 
to  prevent  such  animals  from  being  on  such 
road."  Atchison,  T.  &>  S.  F.  K.  Co.  v.  Shaft, 
19  Am.  &^  Eng.  R.  Cas.  529,  33  Kan.  521,  6 
Pac.  Rep.  908. 

88.  Contract  between  company  and 
laaUowner.* — Where  a  railroad  company 
has  entered  into  a  contract  with  an  adjoin- 
ing owner  that  the  company  will  fence  its 
right  of  way,  and  has  failed,  and  is  sued  for 
stock  killed  on  the  track  and  for  injuries  by 
cattle  trespassing  upon  fields,  it  cannot  set 
up  the  defence,  or  escape  liability,  on  the 
ground  that  the  landowner  might  have 
fenced  after  the  company  failed  to  do  so. 
Louisville,  N.  A,  &*  C.  R.  Co.  v.  Sumner,  24 
A/n.  &>  Eng.  R.  Cas.  641,  106  Ind.  55,  5  N. 
E.  Rep.  404. 

If  proper  fences  are  built  and  maintained, 
it  will  make  no  difference,  in  an  action  by 
an  adjoining  landowner  for  stock  killed, 
whether  such  fences  are  built  and  main- 
tained by  the  railroad  company  or  such  ad- 
joining landowner,  or  whether  they  are  upon 
the  right  of  way  or  upon  the  lands  of  such 
owner,  with  his  consent.  Bond  v.  Evans- 
ville&-  T.  H.  R.  Co.,  23  Am.  6-  Eng.  R.  Cas. 
200,  100  Ind,  301. 

Where  the  law  imposes  upon  railroads 
the  duty  of  fencing,  and  a  company  is  sued 
for  killing  live  stock,  it  cannot  exempt  itself 
from  liability  by  showing  an  agreement  with 
the  owner  whereby  the  company  agreed  to 
put  In  certain  caitle-guards  as  its  only  obli- 
gation in  regard  to  fencing.  Cincinnati,  H. 
&*  /.  R.  Co.  V.  Hildreth,  77  Ind.  504. 

Railroads  in  Indiana  are  required  to  fence, 
but  it  is  Immaterial  whether  the  company  or 
an  adjoining  landowner  fences.  If  a  fence 
is  built  and  kept  In  repair,  the  roads  will  be 
held  liable  only  for  common-law  negligence. 
New  Albany  &*  S.  R.  Co.  v.  Pace,  13  Ind. 
411. 

In  an  action  against  a  railroad  company 
by  the  owner  of  stock  killed  by  a  train  used 

•See^w/,  138,  130,  149.  150,  t75. 


by  II  in  the  construction  of  its  road,  at  a 
point  on  the  plaintiff's  land  where  the  road 
was  not  fenced,  the  defendant  offered  in 
evidence,  in  connection  with  proof  of  the 
date  of  the  completion  of  the  road,  a  deed 
containing  several  covenants  of  warranty, 
conveying  to  the  defendant  its  roadbed 
across  such  land,  executed  by  the  plalntlfi 
to  the  defendant  prior  to  the  alleged  injury, 
and  providing  that  the  defendant  should 
"  make  a  good  fence  along  "  its  "  roadway, 
on  said  premises,  within  a  reasonable  time 
after  the  completion  of  "said  railroad.  Held, 
that  the  "  completion  "  meant  by  the  terms 
of  such  deed  was  the  completion,  not  of  the 
whole  line  of  road,  but  simply  of  the  same 
across  plaintlfl's  land.  Held,  a.\^o,  that  such 
fence  should  have  been  built  within  a  reason- 
able time  after  the  completion  of  the  road- 
way across  such  land,  and  by  the  time  the 
company  commenced  running  Its  trains. 
Held,  also,  that  the  evidence  was  proper. 
Baltimore,  P.  &•  C.  R.  Co.  v.  McClellan,  59 
Ind,  440. 

A  railroad  company  which  has  entered 
into  a  contract,  agreeing  to  fence  Its  track 
where  It  passes  through  certain  lands.  Is 
under  the  same  liability  as  to  loss  or  injuries 
to  live  stock  as  if  a  statute  required  it  to 
fence.  Gulf,  C.6-  S.  F.  R.  Co.  v.  Washing- 
ton, 49  Fed.  Rep.  347,  4  U.  S.  App.  121,  i  C. 
C.  A.  286. 

89. or  company  and  a  third  per- 
son.*— Where  a  railroad  company  has  killed 
stock  at  a  point  where  it  was  Its  duty  to 
fence,  It  cannot  excuse  itself  on  the  ground 
that  the  owner  had  not  requested  It  to  fence, 
or  that  a  third  party  had  waived  the  re- 
quirements of  a  fence.  Parks  v.  Hannibal 
&•  St./.  R.  Co.,  20  Mo.  App.  440.— Distin- 
guishing Harrington  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  71  Mo.  384. 

The  adjacent  landowners,  in  such  a  case, 
are  not  the  agents  for  each  other  for  the 
purpose  of  waiver  of  liability,  and  no  one  of 
them  could  waive  the  right  of  the  other  to 
held  the  railroad  company  to  Its  statutory 
obligation,  but  only  for  himself.  Parks  v. 
Hannibal &*  St.  J.  R.  Co.,  20  Mo.  App.  440. 

90.  Against  what  animals  must 
fence.t  —  (1)   Generally.  —  In   Indiana  the 

*  See  post,  94,  139,  150,  154,  166, 
173.  181,237. 

\Swpost,  109-113. 

A  team  hitched  up  but  wandering  about  is  not 
"  running  at  large  "  within  the  meaning  of  Iowa 
C<de  requiring  companies  to  fence,  see  35  Am.  & 
Eng.  R.  Cas.  133,  abstr. 


ANIMALS,  INJURIES   TO,  «1. 


141 


company  must  fence  against  animals  on  a 
highway  as  well  against  those  in  tields  and 
woods  adjoining  the  track.  Evaiisvilit:  6» 
C.  R.  Co.  V.  Bar  bee,  74  Ind.  169. 

Railroads  are  not  obliged  to  maintain 
either  fences  or  cattle-guards  against  cattle 
wrongfully  upon  the  public  highways,  and 
are  not  responsible  for  injuries  to  cattle 
wrongfully  on  the  highway,  and  from  thence 
escaping  upon  their  tracks.  Chapin  v.  Sulli' 
van  R,  Co.  39  N.  H.  564. 

(2)  •'  Crazy  "  /torse. — Owing  to  the  neglect 
uf  u  railroad  company  to  fence  a  part  of  its 
track,  a  horse  of  the  plaintiff  strayed  upon 
the  track  and  was  injured.  The  horse  was 
what  is  called  a  "crazy  "  horse,  i.e.,  did  not 
possess  sufficient  natural  intelligence  to  pre- 
serve itself  from  injury.  HM,  that  this 
fact  had  nothing  to  do  with  determining 
the  liability  of  the  company;  that  it  is  re- 
quired to  fence  its  track  for  the  protection 
of  "crazy  "  horses  as  well  as  for  the  protec- 
tion of  animals  possessing  good  "  horse 
sense."  Listen  v.  Central  Iowa  R,  Co.,  26 
Am.  &•  Eng.  R.  Cas.  593,  70  Io7va  714,  29 
N.  ]V.  Rep.  445. — Followed  in  Van  Slyke 
V.  Chicago,  St.  P.  &  K.  C.  R.  Co.,  80  Iowa 
620. 

(3)  Hogs.*—\l  a  railroad  company  desires 
to  exonerate  itself  from  liability  for  injury 
to  stock,  under  §  1289  of  the  Iowa  Code,  it 
must  fence  its  track  against  "live  stock" 
running  at  large,  which  includes  swine. 
Section  1507  of  the  Code,  prescribing  what 
is  a  lawful  fence,  does  not  determine  the 
character  of  fence  which  a  railway  company 
is  required  to  build  in  such  cases.  Lee  v. 
Minneapolis  &*  St.  L.  R.  Co.,  20  Am.  6- 
Eng.  R.  Ca  .  476,  66  /owa  131,  23  N.  W. 
Rep.  299. 

A  company  need  not  fence  against  hogs 
in  a  township  where  by  law  hogs  cannot 
run  at  large,  and  it  will  not  be  liable  for 
their  death,  notwithstanding  the  fact  that 
they  came  upon  the  track  from  the  adjoin- 
ing premises  of  their  owner  through  a  de- 
fective gate.  Leebrick  v.  Republican  V.  &* 
S.  IV.  R.  Co.,  41  Kan.  756.  21  Pac.  Rep. 
796.— Quoting  Atchison  T.  &  S.  F.  R. 
Co.  V.  Yates,  21  Kan.  613.  Reconciling 
Missouri  Pac.  R.  Co.  v.  Bradshaw,  33  Kan. 

533- 

Whenever  the  building  of  a  fence  would 
have  prevented  an  accident  to  domestic  ani- 
mals there,  the  negligence  of  the  railroad 

*Swpost,  llO. 


company  in  not  fencing  iis  road  is  the  cause 
of  the  injury,  and  tlie  company  would  be 
liable,  regardless  of  the  species  of  the  ani- 
mals. In  the  case  of  sheep  or  swine 
this  would  be  a  question  uf  fact  depending 
on  the  size  of  the  animals,  llalverson  v. 
Minneapolis  &•  St.  L.  R.  Co.,  19  Am.  &■• 
Eng.  R.  Cas.  526,  32  Minn.  88,  19  A.  II '. 
Rep.  392. 

In  a  county  where  the  law  restraining 
swine  from  running  at  large  is  in  force,  a 
railroad  company  is  relieved  from  the  duty 
of  fencing  against  them  merely  to  prevent 
their  getting  upon  its  track;  but  where  its 
road  passes  through,  along,  or  adjoining  in- 
closed or  cultivated  fields  it  is  under  legal 
obligation  to  erect  and  maintain  lawful 
fences  on  the  sides  of  its  roads,  and  is  liable 
in  double  damages  for  injury  to  swine  by  its 
engines  and  cars  where  they  entered  upon 
its  track  from  such  fields,  because  of  its 
failure  to  erect  and  maintain  lawful  fences 
along  the  sides  of  its  road.  Stanley  v. 
Missouri  Pac.  R.  Co.,  29  Am.&*  Eng.  A'.  Cas. 
250,  84  Mo.  625.  —  Quoting  Gorman  v. 
Pacific  R.  Co.,  26  Mo.  441.  Reviewing 
Clark  V.  Hannibal  &  St.  J.  R.  Co.,  36  Mo. 
202 ;  Silver  v.  Kansas  City,  St.  L.  &  C.  R, 
Co.,  78  Mo.  528. — Followed  in  Morrow  v. 
Missouri  Pac.  R.  Co.,  17  Mo.  App. 
103. 

(4)  S/icep.—lJ nder  §  68  of  the  Railways 
Clauses  Act,  1845,  a  railway  company  is 
bound  to  keep  its  fences  sufficiently  strong 
to  prevent  sheep  and  cattle  from  straying 
out  of  the  adjoining  lands.  If  the  cor  lany 
uses  a  hedge  fence  and  the  sheep  escapes 
through  a  hole  and  is  killed  while  upon  the 
track,  the  company  is  liable.  Bessant  v. 
Great  Western  R.  Co.,  8  C.  B. N.  S.  368.— See 
Halverson  v.  Minneapolis  &  St.  L.  R.  Co., 
19  Am.  &  Eng.  R.  Cas.  526,  32  Minn.  88,  19 
N.  W.  Rep.  392. 

91.  Time  within  -which  fences  must 
be  built.* — Where  cattle  are  killed  by  rea- 
son of  the  failure  of  a  railroad  company  to 
erect  fences  along  its  tracks,  the  company 
will  be  liable  for  double  damages  under  the 
statute  (Iowa  Code,  §  1 289),  although  the 
road  has  not  been  completed  and  opened  to 
traffic,  and  the  injury  complained  of  is 
caused  by  a  construction  train  carrying  ma- 
terials to  be  used  in  the  construction  of  the 
road  at  a  point  beyond  where  the  accident 
occurred.     Glandon  v.  Chicago,  M.  Or'  St.  P. 

•  See««/<r,  88  ;  post,  123-125. 


14;i 


ANIMALS,  INJURIES   TO,  U2-94. 


A'.  Co.,  24  Am.  &^  Eng.  R.  Cas.  366,  68  Iowa 
457,  27  N.  W.  Rep.  457. 

It  is  no  defence  to  an  action  against  a 
railway  company  for  the  icilling  of  stock 
owing  to  tlie  failure  of  the  company  to 
fence  its  road,  that,  at  the  lime  of  the  injury 
complained  of,  the  road  had  not  been  in 
operation  for  three  months ;  the  statutory 
obligation  of  the  company  to  fence  begins 
at  least  as  soon  as  cars  are  run  over  the 
road.  Cobb  v.  Kansas  City,  Ft,  S.  &*  M.  R, 
Co.,M  Mo.  App.  313. 

b.  Against  Whom  Must  Fence. 

02.  Generally.  —  Cattle  which  escape 
from  one  having  cliarge  of  them  on  a  high- 
way, and  go  upon  an  adjoining  lot  without 
the  knowledge  or  consent  of  the  owner,  are 
unlawfully  on  the  lot,  and  a  railroad  com- 
pany owes  the  party  no  duty  to  fence,  such 
as  would  make  it  liable  to  tlic  owner  of  the 
stock  when  injured  by  going  from  the  lot  to 
the  railroad  track,  uniess  the  injury  was  wan- 
ton or  malicious.  McDoniull  v.  /'/f/s^e/it &* 
A'.  A.  R.  Co.,  115  Mass.  564,  7  ,////.  A>.  Rep. 
465.— DisriNOUiSHiNG  Lord  ?'.  Wormwood, 
29  Me.  2S2  ;  Keliher  V.  Connecticut  River  R. 
C'l.,  107  Mass.  411.  Following  Eames  v. 
Salem  &  L.  R.  Co.,  98  Mass.  560. 

A  railroad  company  owes  no  duty  to 
fence  towards  subcontractors  engaged  in 
the  construction  of  its  road,  and  is  there- 
fore not  liable  for  a  horse  of  such 
subcontractor  killed  by  getting  on  the 
track,  through  the  act  of  the  contractor  in 
leaving  a  fence  down.  Ctari  v.  Chicago  &* 
W.  M.  R.  Co.,  62  Mich.  358,  28  A'.  W.  Rep, 
914. 

03.  Adjoluiug  landowuers.* — Stat- 
utes requiring  railroads  to  maintain  fences 
on  the  sides  of  its  track  are  designed  for 
the  protection  of  adjoining  owners,  and 
their  requirements  may  be  waived  by  such 
owners,  so  as  to  exonerate  the  company 
from  injuries  to  cattle  happening  by  reason 
of  a  fence  not  being  constructed  according 
to  such  requirements.  Enright  v.  San 
Francisco  6-  S.  J.  R.  Co.,  33  Cal.  230. 

Under  Missouri  statute  requiring  rail- 
roads to  fence,  only  adjoining  owners  or 
persons  holding  under  such  adjoining 
owners  can  recover  for  injuries  to  cattle 
which  go  upon  the  track  by  reason  of  a 
failure  to  fence.  Summers  v.  Hannibal  &* 
St.  J.  R.  Co.,  29  Mo.  App.  41. 

•  Stt  post,  130,  140,  306. 


A  railway  company  is  not  bound  to  main- 
tain and  keep  up  fences  along  their  track, 
except  as  between  them  and  the  owners  of 
the  adjoining  property,  and  when  cattle 
were  allowed  to  pasture  upon  a  neighbor's 
land,  and  from  thence  strayed  on  the  rail- 
way track,  and  were  killed,  the  company 
was  not  responsible.  McLennan  v.  Grand 
Trunk  R.  Co..  8  U.  C.  C.  /'.  411. 

It  appeared  that  the  plaintiff  owned  land 
on  cither  side  of  the  defendants'  railway, 
but  the  Toronto, G.  &  B.  R.  Co.,  which  lay 
to  the  north  of  defendants'  railway,  and  had 
also  been  taken  from  his  farm,  ran  between 
his  land  and  defendants'  railway.  Held, 
upon  the  facts  stated  below,  that  there  was 
no  evidence  that  the  cattle  had  reached  the 
railway  from  the  south  side,  and  the  fact 
that  the  Toronto,  G.  &  B.  R.  Co.  had  neg- 
lected to  fence,  did  not  give  the  plaintiff, 
in  respect  of  the  occupation  of  their  land  by 
his  cattle,  the  status  of  that  company  for 
the  time,  as  adjoining  proprietors,  against 
whom  only  the  defendants  were  bound  to 
fence,  so  as  to  make  the  defendants  liable. 
Douglass  v.  Grand  Trunk  R.  Co.,  $  Ont. 
App.  585.— Applying  McAIpine  v.  Grand 
Trunk  R.  Co.,  38  U.  C.  Q.  B.  446. 

04.  Persons  usiui;,  though  not  own- 
ing, adjoining  lands.— (1)  Generally.— 
Railroad  companies  are  liable  for  killing  the 
stock  of  occupants  of  adjoining  lands  by 
reason  of  a  failure  to  fence,  the  same  as  of 
owners  of  such  lands.  Veerhusen  v.  Chicago 
^N.  IV.R.  Co.,  53  IVis.eSg,  11  A^.  W.  Rep. 

433- 

Where  there  is  a  statute  requiring  rail- 
road companies  to  fence,  one  who  has  a 
right  to  pasture  his  sheep  on  the  land  of 
another  can  recover  for  sheep  killed  by  rea- 
son of  the  failure  of  a  company  to  fence. 
AfcCoy  V.  Southern  Pac.  R.  Co.,  {Cal.)  26  Pac. 
Rep.  629. 

The  Canada  Company  owned  land  in  the 
town  of  Goderich,  through  which  defend- 
ants' railway  ran,  and  on  which,  being  an 
open  common,  the  cattle  of  persons  living 
in  the  town  had  for  thirty  or  forty  years 
been  accustomed  to  pasture,  though  with- 
out any  express  permission.  The  plaintifT'fi 
cow,  having  escaped  from  this  land  on  to 
the  railway,  owing  to  the  want  of  fences, 
and  been  killed  by  a  train, — held,  that  he 
could  not  recover,  for  as  against  him  the  de- 
fendants were  not  bound  to  fence.  Mcin- 
tosh v.  Grand  Trunk  R.  Co.,  30  U.  C.  <2.  B. 
601.  —  Following    McLennan    v.    Grand 


ANIMALS,  INJURIES  TO,  95. 


143 


TrunkR.  C0..8  U.  C.  C.  P.  411.  Quoting 
Auger  V.  Ontario,  S.  &  H.  R.  Co.,  16  U.  C. 
Q.  B.  92. 

(2)  Lessees* — The  owner  of  land  adjoin- 
ing a  railroad,  under  an  agreement  with  tlie 
company,  erected  a  fence  along  the  line  be- 
tween his  land  and  the  right  of  way,  and 
took  upon  himself  to  maintain  it.  A  ten- 
ant of  such  owner,  while  in  the  occupancy 
of  the  premises,  and  with  full  knowledge  of 
the  undertaking  of  his  landlord,  and  with 
knowledge  of  the  condition  of  the  fence, 
placed  his  live  stock  in  the  inclosure  which 
was  separated  from  the  right  of  way  by  this 
fence.  The  stock  got  upon  the  track 
through  the  fence  and  were  killed.  In  an 
action  by  the  tenant  to  recover  for  the  stock 
V.\\\tA,— held,  that  he  could  not  allege  any 
want  of  sufficiency  in  the  fence  as  a  ground 
of  recovery.  St.  Louis,  V.  &•  T,  H.  R. 
Co.  V.   Washburn,  97  ///.  253. 

A  tenant,  in  the  absence  of  notice,  will 
not  be  bound  by  an  agreement  of  his  land- 
lord exempting  a  railroad  from  liability  for 
failing  to  fence  its  track  passing  through 
his  field,  and  although  he  may  have  unwit- 
tingly accepted  the  benefit  of  the  considera- 
tion, he  may  recover  double  damages  for 
stock  injured  through  the  failure  to  fence. 
Thomas  .  Hannibal  &•  St.  /.  R.  Co.,  23 
Ain.&*Eng.  R.  Cas.  183.  82  Mo.  538. 

The  statutory  duty  of  a  company  to  fence 
does  not  extend  to  fencing  between  the 
track  and  a  strip  of  land  that  it  may  own, 
and  a  tenant  occupying  such  strip  cannot  re- 
cover for  stock  killed  by  reason  of  the  com- 
pany's failure  to  fence.  Potter  v.  New  York 
C.  &•  H.  R.  R.  Co.,  38  N.  Y.  S.  R.  798,  60 
Hun  313,  15  A^.  Y.  Supp.  12. 

(3)  Licensees. — Where  the  lessees  of  land 
along  a  railroad  track  have  made  an  open- 
ing in  the  railroad  fence,  which  has  been 
constructed  by  the  railroad  company  as  re- 
quired by  the  statute,  one  who  has  a  license 
to  pasture  sheep  upon  such  land  cannot  re- 
cover the  value  of  the  sheep  from  the 
company  on  whose  track  they  have  been 
killed  after  passing  through  the  opening. 
McCoy  v.  Southern  Pac.  R.  Co.,  56  Am.  6- 
Eng.  R.  Cas.  132,  94  Cal.  $68;  29  Pac.  Rep. 
1 1 10. 

If  the  opening  in  the  said  fence  was 
made  with  the  consent  of  the  company, 
under  an  understanding  that  the  said  com- 
pany would  substitute  a  gate  for  the  panel 

^See/i'j/,  139,  310. 


removed,  it  would  be  the  duty  of  f.hft  com- 
pany to  put  up  the  gate  witliin  a  reasonable 
time,  and  failure  to  do  so  would  make  it  lia- 
ble for  the  loss  of  the  stock ;  but  where 
such  agreement  was  made  with  an  agent  of 
the  company,  it  was  the  duty  of  the  plain- 
tiff to  show  that  the  person  assuming  the 
act  for  the  company  had  authority  to  do  so. 
McCoy  v.  Southern  Pac.  R.  Co.,  56  Am.  &* 
Eng.  R.  Cas.  132,  94  Cal.  568;  29  Pac.  Rep. 
1 1 10. 

One  having  a  license  to  graze  his  cattle 
upon  land  adjoining  a  railway  track  may 
maintain  an  action  for  injury  to  his  cattle, 
owing  to  the  neglect  of  the  company  to  con- 
struct the  fence  required  by  statute.  Daw- 
son V.  Midland  R.  Co.,  42  L.  J.  Exch.  49,  L. 
R.  8  Exch.  8,  21  W.  R.  $6. 

c.  Where  Fences  Must  be  Built.* 

95.  Generally. — At  such  places  as  it  is 
practicable  to  do  so  a  railroad  company 
must  fence  its  track  to  avoid  injury  to  live 
stock.  Louisville,  N.  A.  &*  C.  R.  Co.  v. 
Zink,  i$Ind.  219. 

The  burden  of  proof  is  upon  a  rail- 
road company  to  show  that  a  space  along 
its  track  left  unfenced,  which  was  not 
within  the  station  grounds,  but  sometimes 
used  by  passengers  in  going  between  the 
station  and  a  hotel  nearby,  was  left  open  and 
unfenced  for  the  convenience  of  the  public, 
and  that,  therefore,  their  statutory  duty  to 
fence  was  complied  with.  Dixon  v.  New 
York  C.  6-  H.  R.  R.  Co.,  51  Hun  644,  4 
N.  Y.  Supp.  296,  22  N.  Y.  S.  R.  61.  Cox  v. 
Minneapolis,  S.  St.  M.&^A.R.  Co.,  38  Am. 
&*  Eng.  R.  Cas.  287,  41  Minn.  loi,  42  A^. 
ff.  Rep.  924. 

Where  it  appears  that  the  fencing  of  a 
railroad  track  would  not  obstruct  any  street 
or  public  highway,  a  company  cannot  avoid 
liability  for  live  stock  killed  by  showing 
that  a  fence  at  the  point  would  cause  much 
Inconvenience  to  the  company's  servants  in 
loading  and  unloading  cars,  and  in  the  opera- 
tion of  trains.  Inconvenience  to  a  railroad 
company  is  not  a  sufficient  excuse  for  failing 
to  fence.  Houston  &*  T.  C.  R.  Co.  v.  Simp- 
son, 2  Tex.  App.  {Civ.  Cas.)  591, 

Where  a  cow  got  upon  a  railroad  track 
and  was  killed  by  a  passing  locomotive,  at  a 

•  Where  railroad  company  is  obliged  to  fence, 
see  notes,  11  Am.  &  Eng.  R.  Cas.  496,  19  Id. 
649. 

Points  where  companies  are  not  bound  to 
fence,  see  note,  19  Am.  &  Enc.  R.  Cas.   539. 


■^^^^a 


114 


ANIMALS,  INJURIES  TO,  06-UU. 


jiuiiil  on  said  railroad  wiiere  there  was  a 
saw-iiiili  located  and  in  operation  50  feet 
from  said  track,  tlie  intervening,' ^ro""''  ^^' 
twecn  said  track  and  said  null  being  used 
by  tlie  owners  of  the  mill  for  piling  their 
lumber,  and  for  loading  lumber  upon  the 
cars  of  the  railroad  company  for  transpor- 
tation, and  by  the  public  for  passing  to  and 
from  said  mill  with  logs  and  lumber,  and 
for  piling  wood  to  be  sold  to  the  railroad 
company, — //<;/(/,  that  the  railroad  company 
was  not  bound  to  fence  in  the  track  at  such 
point,  and,  in  the  absenccof  negligence,  was 
not  liable  for  the  killingof  the  cow.  /'///s- 
hiir^li.  C.  &*  S/.  L.  R.  Co.  V.  liowyer.t^l  liui. 

4'/>. 

)M(.  WIicii  fence  would  iiitort'crc 
with  traiiHaetioii  of  coiiiimny^H  biiNi- 
IH'SH. —  A  railroad  company  is  not  required 
by  the  statute  to  fence  its  track  at  places 
where  fences  would  interfere  with  its  own 
rights  in  operating  its  road  or  transacting 
its  business,  nor  where  the  rights  of  tlie 
public  in  travelling  or  doing  business  with 
tlie  company  arc  interfered  with,  nor  where 
such  fencing  would  imperil  the  lives  of  its 
employes.  No  recovery  can  be  had  under 
the  statute  for  stock  killed  by  its  locomo- 
tives or  cars  where  such  places  on  the  line 
of  its  road  are  left  unfenced.  Evansville 
&-  T.  //.  R.  Co.  V.  IVtllis,  19  Am.  &•  Eng. 
R.Cas.  565,93  /ltd.  507.— -Following  Jef- 
fersonville,  M.  &  I.  R.  Co.  v.  Beatty,  36  Ind. 
15.— Followed  in  Lake  Erie&  W.  R.  Co. 
V.  Kneadlc,  94  Ind.  454;  Pearson  v.  Chi- 
cago, B.  &  K.  C.  R.  Co.,  33  Mo.  App.  543. 
Quoted  in  Banister  v.  Pennsylvania  Co., 
98  Ind.  220;  Indianapolis,  D.  &  W.  R.  Co. 
V.  Cl.iy,  4  Ind.  App.  282. 

07.  or  the  use  of  it8  own  prop- 
erty.— A  railroad  company  is  not  required 
by  the  statute  to  fence  its  road,  where  such 
fencing  would  result  in  cutting  itself  from 
the  use  of  its  own  land,  or  leased  property, 
or  buildings,  or  woodsheds,  although  the 
buildings  or  sheds  may  not  be  in  present 
use;  and  if  cattle  are  killed  at  such  a  point 
by  the  cars  of  the  company,  it  is  not  liable 
unless  there  is  proof  of  negligence  or  want 
of  care  or  skill  on  the  part  of  the  persons 
operating  the  train.  Jeffersonville,  M.  &*  I. 
R.  Co.  V.  Beatty,  36  Ind.  1 5.— Followed  in 
Evansville  &  T.  H.  R.  Co.  v.  Willis,  19  Am. 
&  Eng.  R.  Cas.  565,  93  Ind.  507. 

08.  Lands  used  for  public  pur- 
poses.* —  The    implied   exemption    that 

*  Company  not  bound  to  fence  where  there  is 


places  necessary  for  use  for  public  purposes 
need  not  be  fenced  is  not  to  he  extended  to 
cases  where  the  reason  for  it  is  wanting; 
and  where  the  particular  land  in  controversy 
is  not  actually  used  for  such  public  pur- 
poses, it  is  not  enough  that  the  plims  of  the 
C(jmpany  contemplate  such  use  at  some  in- 
definite time  in  the  future.  Cox  v.  Minne- 
apolis, S.  St.  A/.  &*  A.  R.  Co.,  38  ///;/.  6- 
Juijf.  R.  Cas.  287,41  Minn.  101,42  A'.  11^ 
Rep.  924. 

00.  Ill  cities,  towns,  iiiid  villnt;es.* 
— (I)  When  must  fence. — Railroads  arc  not 
required  by  statute  to  fence  their  roads 
within  the  corporate  limits  of  a  town,  and 
in  iictions  against  them  to  recover  for  in- 
juries to  stock,  occurring  within  such  limits, 
it  is  error  to  refuse  so  to  instruct  the  jury. 
Chicago  &•  A.  R.  Co.  v.  Engle  t,illl.  381. 

The  Iowa  act  of  1862,  ch.  169,  §  6,  relating 
to  the  duty  of  railroads  to  fence,  does  not 
apply  to  depot  grounds,  and  especially  to 
cities  and  towns  where  tracks  are  often  laid 
along  streets.  Davis  v.  Burlington  &•  M. 
R.  R.  Co. ,  26  Iowa  549. 

Where,  within  the  limitsof  atown  or  city, 
lands  dedicated  to  public  use,  and  crossing 
or  abutting  upon  the  right  of  way  of  a  rail- 
road company,  are  occupied  and  used  for 
farming  purposes,  such  occupancy  does  not 
make  it  lawful  for  the  railroad  company  to 
fence  across  them,  and  its  failure  to  do  so 
will  not  subject  it  to  liability  under  §  5  of 
the  Missouri  damage  act.  Elliott  v.  Han- 
nibal &'  St.  J.  R.  Co.,  66  Mo.  683.— Fol- 
lowed IN  Vanderworker  v.  Missouri  Pac. 
R.  Co.,  48  Mo.  App.  654. 

A  railroad  company  is  not  required, 
within  the  limits  of  a  city,  to  place  guards 
around  a  cut,  away  from  a  public  thorough- 
fare, to  prevent  animals  grazing  there  in 
violation  of  law  from  falling  down  the  bank. 
Clary  v.  Burlington  tS^  M.  R.  R.  Co.,  11  Ant. 
&•  Eng.  R.  Cas.  493,  14  A'eb.  232.— Distin- 
ouiSHED  IN  Rathburn  v.  Burlington  &  M. 
R.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  137,  16 
Neb.  441. 

While  the  New  York  act  of  1850,  ch.  140, 
§  44,  making  it  the  duty  of  railroad  com- 
panies to  fence,  does  not  apply  to  cities 
and  villages,  yet  it  does  apply  to  outskirts 
of  a  city  or  village  where  the  land  is  not 
built  upon.  Brady  v.  Rensselaer  &*  S.  R. 
Co..  I  Hun  (JV.  V.)  378,  3r.&-  C.  537. 

a  public  user,  see  note,  13  Am.  &  Eng.  R.  Cas. 
533. 
*  See  post,  117,  203-2 12. 


I 


ANIMALS,  INJURIES  TO,  100. 


145 


(2)  IV/ieH  not  required  to  fence.— Vi\\trt 
the  nearest  objects  to  the  place  wliere  a 
horse  went  upon  the  main  track  of  a  road 
within  the  city  limits  and  was  injured  were 
a  building  one  hundred  and  seventy-five 
feet  north,  a  crossing  one  hundred  and 
seventy-five  feet  south,  and  a  yard  track 
sixty  feet  east,  the  ground  adjoining  the 
main  track  being  unoccupied,  the  situations 
and  surroundings  are  not  shown  to  be  such 
that  a  fence  could  not  be  maintained  with- 
out interfering  with  the  company's  business, 
or  with  the  proper  discharge  of  its  duty  to 
the  public,  or  without  endangering  the 
safety  of  the  company's  eniploy^s,  and  the 
company  was  bound  to  maintain  a  fence. 
Jtffersonville,  M.  &*  I.  R.  Co.  v.  Peters,  1  Ind. 
App.  69.  27  A^  E.  Rep.  299. 

'There  are  no  exceptions  under  the  In- 
diana act  as  to  the  liability  of  a  railroad 
company  for  injury  to  animals  coming  upon 
the  track  through  defect  of  fences,  founded 
on  the  idea  that  at  certain  places  a  company 
is  not  bound  to  fence  their  track.  But  the 
supreme  court  has  interpolated  some  neces- 
sary exceptions,  such  as  the  crossings  of 
highways,  streets,  and  alleys,  in  towns  and 
cities,  and  tit  mills,  where  the  public  have  a 
right  and  a  necessity  to  go  undisturbed; 
but  the  court  has  not  made,  and  ought  not 
to  make,  under  the  statute,  an  exception  of 
large  blocks  of  ground  merely  because  they 
are  situated  within  the  limits  of  a  city. 
There  is  no  reason  why  such  lands  not  in  a 
city  must  be  fenced,  that  does  not  apply 
with  equal,  if  not  greater,  force  when  they 
are  within  the  limits  of  a  city,  Toledo,  W, 
&*  W.  R.  Co.  V.  Howell,  38  Ind.  447,  10  Am. 
h'y.  Rep.  272. — DiSTiNdUiSHFn  in  Louis- 
ville, N.  A.  &  C.  R.  Co.  V.  Porter,  20  Am.  & 
Mng.  R.  Cas.  446,  97  Ind.  267. 

It  is  necessary  for  railroad  companies,  for 
the  purpose  of  avoiding  the  statutory  liabil- 
ity for  killing  stock  on  the  line  of  road 
within  the  limits  of  corporate  towns,  and  out- 
side of  the  first  street  or  alley  of  said  town, 
to  fence  the  same  against  stock  running  at 
large.  Such  portion  of  the  corporate  terri- 
tory through  which  a  railway  runs,  which 
lies  outside  of  or  beyond  streets  or  other 
public  highways,  may  be  fenced  by  the  rail- 
way company  along  its  right  of  way  to  the 
same  extent  and  in  the  same  manner  as  if 
the  municipal  corporation  did  not  exist,  un- 
less possibly  there  is  an  ordinance  of  the 
town  which  would  control  such  right.  Coyle 
V.  Chicago.  M.  &^  St.  P.  R.  Co.,  13  Am.  &* 
I  D.  R.  n.— 10. 


En£^.  R.  Cas.  526,  62  Iowa  518,  17  A'.  W. 
Rep.  771. 

In  an  action  to  recover  the  value  of  a  cow 
killed  by  a  railroad  train  in  a  small  hamlet, 
it  will  not  be  presumed,  in  the  absence  of 
evidence,  that  any  reason  of  public  or  pri- 
vate convenience  prevented  the  application 
of  the  general  statute  (Sess.  Laws  1872,  72), 
requiring  every  railroad  company  to  fence 
their  track  and  put  cattle-guards  at  highway 
crossings,  and  in  default  thereof  making 
them  liable  for  all  damage  done  to  cattle, 
etc.,  thereon  ;  any  exceptional  case  must  be 
proved  by  the  party  claiming  a  benefit  there- 
from. In  an  action  under  this  statute,  neg- 
ligence of  the  plaintiff  in  care  of  his  prop- 
erty, contributing  to  the  injury,  constitutes 
no  defence.  Flint  6-  P.  M.  R.  Co.  v.  Lull,  28 
Mic/i.  510,  12  Am.  Ry.  Rep.  296.— FOLLOWED 
IN  Grand  Rapids  &  I.  R.  Co.  v.  Cameron, 
45  Mich.  451.  Quoted  in  Crcssey  v. 
Northern  R.  Co.,  15  Am.  &  Eng.  R.  Cas. 
540,  59  N.  H.  564,  47  Am.  Rep.  227. 

The  duty  imposed  upon  railroad  com- 
panies to  fence  their  roads  to  prevent  injury 
to  live  stock,  by  the  Ohio  act  of  March  25, 
1859  (S.  &  C.  331),  and  the  amendments 
thereto,  requires  the  construction  and  main- 
tenance of  such  fences  within  the  limits  of 
cities  and  villages  where  they  do  not  ob- 
struct streets,  highways,  or  other  public 
grounds.  Cleveland  &*P.  R.  Co.  v.  McCon- 
nell,  26  Ohio  St.  57,  1 1  Am.  Ry.  Rep  266. 

100.  IiicloHCfl  or  cultivated  fields. 
— Wagn.  Missouri  St.  310,  311,  which  re- 
quire railroads  to  erect  and  maintain  fences 
on  the  sides  of  the  road  where  the  same 
pass  through,  along,  or  adjoinii.g  inclosed 
or  cultivated  fields  or  uninclosed  prairie- 
lands,  does  not  include  lands  from  which 
timber  has  been  cut,  but  which  is  not  culti- 
vated; and  where  stock  is  killed  at  such 
places  the  owner  is  not  entitled  to  recover 
double  damages  under  the  statute.  Tiarks 
V.  St.  Louis  &*  I.  M.  R.  Co.,  58  Mo.  45.— Re- 
viewing Walther  v.  Pacific  R.  Co.,  55  Mo. 
271 ;  Slattery  v.  St.  Louis,  K.  C.  &  N.  R. 
Co.,  55  Mo.  362.— Distinguished  in  Swear- 
ingen  v.  Missouri,  K.  &  T.  R.  Co.,  64  Mo. 
73.  Followed  in  Mason  v.  St.  Louis  &  I. 
M.  R.  Co.,  58  Mo.  51 ;  Shrum  v.  St.  Louis 
&  I.  M.  R,  Co.,  58  Mo.  51 ;  Dee  v.  St.  Louis 
&  I.  M.  R.  Co.,  58  Mo.  52 ;  Switzer  v.  St. 
Louis  &  I.  M.  R.  Co.,  58  Mo.  52;  Riflfey  v. 
St.  Louis  &  I.  M.  R.  Co..  58  Mo.  53; 
Grounds  v.  St.  Louis  &  I.  M.  R.  Co.,  58  Mo. 
53;  Buxton  V.  St.  Louis  &  I.  M.  R.  Co.,  58 


I  J 


•  !"'■'■ 


146 


ANIMALS,  INJURIES   TO,  1O1-103. 


m 


Mo.  55 ;  Stephens  v.  St.  Louis  &  I.  M.  R.  Co., 
58  Mu.  54;  Wymore  v.  Hunnibal  &  St.  J.  K. 
Co.,  79  Mo.  247.  QuoTKD  IN  Edwards?'. 
Hannibal  &  St.  J.  R.  Co.,  66  Mo.  567;  Rus- 
sell V.  Hannibal  &  St.  J.  R.  Co.,  83  Mo.  507; 
Clarkson  v.  Wabash.  St.  L.  &  P.  R.  Co.,  84 
Mo.  583. 

Wagn.  Mo.  St.  p.  310,  §43,  proviiling  for 
the  recovery  of  double  damages  for  stock 
killed  by  reason  01  a  railroad  company  fail- 
ing to  fence  "  where  the  road  passes  thr(nigli, 
along  or  adjoining  enclosed  or  cultivated 
fields,  or  unenclosed  prairie  lands,"  requires 
a  fence  on  both  sides  of  the  track  where  it 
runs  between  timbered  lands  on  one  side 
and  cultivated  lands  on  the  other.  IValt/ifr 
V.  Pacific  A\  Co.,  55  Afo.  271.  —  Dis- 
tinguished IN  Robertson  v.  Atlantic  &  P. 
R.  Co.,  64  Mo.  413.  Reviewed  in  Tiarks 
V.  St.  Louis  &  I.  M.  R.  Co.,  58  Mo.  45. 

Railroad  companies  that  were  in  existence 
on  Feb.  24,  1853,  are  subject  to  the  provi- 
sions of  the  Missouri  act  of  that  date,  §  51 
(Rev.  Code,  1855,  §  52),  relating  to  injuries 
to  live  slock  where  railroads  pass  through 
inclosed  lands,  and  resulting  from  a  failure 
of  the  companies  to  fence.  Trt'ce  v.  Hanni- 
bal Sf  St.  J.  R.  Co..  35  Mo.  188.— Follow- 
ing Gorman  v.  Pacific  R.  Co.,  26  Mo.  441. 

101.  Uninclosed  pralrie-lauds.*— 
Under  the  Missouri  St.  310,  §  43,  a  com- 
pany will  not  be  liable  for  killing  stock 
where  its  track  passes  through  uninclosed 
lands,  unless  the  lands  are  prairie.  Carj/  v. 
St.  Louts,  K.  C.  <S-  N.  K.  Co.,  60  ATo.  209.— 
Followed  in  Shelton  v.  St.  Louis,  K.  C.  & 
N.  R.  Co.,  60  Mo.  412;  Rhea  v.  St.  Louis  & 
S.  F.  R.  Co.,  84  Mo.  345.  Reviewed  in 
Crutchfield  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
64  Mo.  255. 

102.  Lands  owned  and  occupied 
by  private  persons.— Nevada  St.  1864, 
427.  §  30,  making  railroad  companies  liable 
for  the  killing  of  domestic  animals  "when 
they  stray  upon  their  line  of  road  where  it 
passes  through  or  alongside  of  the  property 
of  the  owners  thereof,"  does  not  require 
them  to  fence  where  the  road  runs  through 
public  land,  but  only  where  it  runs  through 
or  alongside  of  the  land  of  private  individ- 
uals, and  even  then  the  fencing  is  only  for 
the  protection  of  adjoining  owners,  and  no 
other  person  can  complain  of  the  want  of  it. 
Walsh  V.  Virginia  &•  T.  R.  Co.,  8  Nev. 
no. 

*Stt  post,  117,  169. 


Underthc  statute  requiring  railroad  tracks 
to  be  fenced  where  they  run  through  lands 
"owned  or  settled  and  occupied  by  private 
owners,"  a  fence  is  required  to  be  built 
along  the  entire  track  that  runs  through 
land  that  is  so  settled  or  occupied,  though 
but  part  of  the  track  be  under  actual  culti- 
vation. Stimpson  v.  Union  Pac.  R.  Co.,  9 
Utah  123,  33  Pac.  Rep.  369. 

Plaintiff  in  an  action  against  a  railroad 
company  for  killing  a  horse  which  went 
upon  its  track  where  it  was  unfenced,  must 
show  that  the  land  was  owned  by  a  private 
person  and  was  in  the  possession  or  occupa- 
tion of  such  a  person,  to  recover  under  the 
Utah  statute  requiring  railroad  companies 
to  maintain  fences  where  their  roads  pass 
through  lands  owned  and  settled  or  occu- 
pied by  private  owners.  Stimpson  v.  Union 
Pac.   R.  Co.,  8    Utah   349,  31    Pac.   Rep. 

449- 

Under  the  Railway  Act,  46  Vict.  ch.  24  (D.) 
"  occupied  lands  "  are  such  as  adjoin  a  rail- 
way and  are  either  actively  or  constructively 
occupied  up  to  the  track  by  actual  occupa- 
tion of  some  portion  of  the  land,  either  as 
owner  or  as  occupier ;  and  the  act  includes 
one  who  has  gone  on  Crown  lands  and  who 
is  still  occupying  them,  but  who  has  failed 
to  fulfil  the  conditions  of  his  location,  the 
Crown  having  taken  no  steps  to  cancel  the 
location,  and  such  person  may  require  the 
railro.id  company  to  fence.  Davis  v.  Cana- 
dian Pac.  R.  Co.,  12  Ont.  App.  724.— Pf 
viewing  Conway  v.  Canadian  Pac.  '     Co., 


r 


«n 


V, 

'■  3SO- 

.s  parallel 

company  is 

,  track    iiter- 


12  Ont.  App.   708.      Qvorn 
Grand  Trunk  R.  Co.,  24  U 

103.  Where  railroai 
with  highway.— A  raih 
not  required  to  fence  where  11 
sects  and  runs  near  to  and  parallel  ith  a 
highway,  and,  as  a  consequence,  will  not  be 
liable  for  killing  live  stock  at  such  places. 
Indianapolis,  P.  <S-  C.  R.  Co.  v.  Crandall,  58 
Ind.  365. 

Where,  with  the  permission  of  the  proper 
board  of  county  commissioners,  a  railroad 
is  located  upon  part  of  a  public  highway, 
the  remainder  of  which  is  still  used  by  the 
public  as  a  highway,  the  company  is  not 
bound  to  fence  its  right  of  way,  and  is  not 
liable  under  the  statute  for  stock  killed 
thereon.  Louisville,  N.  A.  &■*  C.  R.  Co.  v. 
J'rancis,  58  Ind.  389.  DISTINGUISHED  in 
Louisville,  N.  A.  &  W.  R.  Co.  v.  White,  94 
Ind.  257  ;  Louisville.  N.  A.  &  C.  R.  Co.  v. 
Shanklin,   98    Ind.    573.      Followed   in 


m§ 


ANIMALS,  INJURIES   TO,  104-10«. 


ur 


Louisvi.'e,  N.  A.  &  C.  R.  Co.  v.  Wysong.  58 
Ind.  597. 

VVhci'c  there  is  a  travelled  road  running 
parallel  with  the  line  of  a  railway,  but  a 
sufficient  distance  from  the  railway  track  to 
permit  the  construction  of  a  fence,  such 
railway  company  is  not,  by  reason  of  the 
existence  of  such  travelled  road,  excused 
from  inclosing  its  road  with  a  good  and 
lawful  fence,  to  prevent  animals  from  being 
on  its  track.  Missoioi  Pac.  R,  Co,  v.  Eckel, 
56  Am.  6-  En^.  K,  Cas.  1 74,  49  Kan,  794, 
31  /'<!<•.  Kt'p.  693. 

Where  defendant's  railroad  runs  parallel 
with  the  public  road,  from  which  the  evi- 
dence tends  to  show  the  plaintitl's  animals 
strayed  upon  its  railroad  track,  it  is  not  ex- 
cused from  fencing  the  same,  even  though 
its  said  right  of  way  occupied  part  of  the 
public  road.  It  is  not  the  right  of  way 
which  the  law  requires  to  be  fenced,  but  the 
"road."  Emmerson  \.  St.  Louis  &*  H,  R. 
Co,.  3SAfo,  App.t2\, 

104.  IfVliero  private  way  croHHCs 
track.* — It  is  the  duty  of  railroad  com- 
panies to  fence  their  tracks  where  private 
ways  cross  them,  and  in  an  action  for  kill- 
ing stock  at  such  place  it  is  not  necessary 
that  it  be  shown  by  direct  evidence  that  the 
stock  was  killed  by  the  company's  cars,  but 
it  may  be  inferred  from  circumstances. 
Indianapolis,  P.  6-  C,  R,  Co,  v.  Thomas,  1 1 
Am.  6>»  Eng.  R.  Cas.  491,  84  Ind.  194. — Ap- 
proved IN  Pittsburgh  &  L.  E.  R.Co.  v.  Cun- 
ningham, 13  Am.  &  Eng.  R.  Cas.  529,  39 
Ohio  St.  327.  Distinguished  in  Pennsyl- 
vania Co.  V.  Spaulding,  35  Am.  &  Eng.  R. 
Cas.  184,  112  Ind.  47. 

105.  Where  no  necessity  for  fence 
exists.— Under  Wisconsin  Rev.  St.  §810, 
providing  that  fences  shall  not  be  required 
where  the  proximity  of  ponds,  hills,  em- 
bankments, or  other  sufflcient  protection 
renders  a  fence  unnecessary  to  protect  cattle 
from  straying  upon  the  track,  proof  that 
cattle  went  upon  the  track  over  an  embank- 
ment is  conclusive  that  such  embankment 
was  not  sufficient  protection  under  the 
statute.  Veerhusen  v.  Chicago  &*  N.  W.  R. 
Co.,  53  Wis.  689,  II  A'.  W.  Rep.  433. 

100.  Where  two  railroads  run 
imrallel.— The  provisions  of  §§  3505,  3507, 
Connecticut  Gen.  St.,  that  railroad  com- 
panies shall  fence  their  tracks  except  at  such 
points  as  the  railroad  commissioners  shall 

♦Sce/w/,  1 70- 184. 


adjudge  unnecessary,  and  that  in  the  event 
of  a  failure  to  do  so,  any  person  sutlering 
damage  by  reason  thereof  shall  have  a  cause 
of  action, do  not  require  a  railroad  company 
to  fence  its  track  at  a  place  where  it  is 
located  50  feet  distant  from  and  parallel  to 
another  railroad  track  upon  the  side  next  tu 
the  latter  track,  although  the  commissioners 
had  never  adjudged  that  the  fencing  of  that 
part  was  unnecessary ;  and  the  company  is 
not  liable  in  damages  for  injuries  to  a  horse 
which  came  upon  the  track  at  that  point. 
Gallagher  v.  New  York  Sr>  N.  E.  R.  Co.,  40 
Am.  6-  Eng.  R.  Cas.  197,  57  Conn.  44?,  18 
All.  Rep.  786,  5  /,.  R.  A.  737. 

In  an  action  to  recover  damages  for  the 
killing  of  plaintiff's  cattle,  it  appeared  that 
defendant  is  one  of  five  railroad  companies 
whose  tracks  run  parallel  for  some  distance, 
being  separated  only  enough  to  permit  the 
passage  of  trains,  defendant's  tracks  being 
the  central  ones.  No  fence  had  been  built 
along  the  exterior  of  the  outer  track,  and 
there  was  no  natural  or  artificial  barrier. 
Plaintiff's  cattle  strayed  from  a  farm  adjoin- 
ing across  the  intervening  tracks  belonging 
to  other  companies  on  to  defendant's  track, 
where  they  were  killed  by  an  engine  running 
thereon.  Held,  that  plaintiff  was  entitled 
to  recover ;  that  the  land  from  which  the 
cattle  strayed  was  adjoining  defendant's 
track  within  the  meaning  of  the  statute, 
and  that  defendant  was  not  excused  by  the 
fact  that  the  company  owning  the  track, 
nearest  to  plaintiff's  land  had  failed  to  per- 
form its  duty.  Ki'h'er  v.  New  York,  C.  &* 
St.  L.  R.  Co.,  49  Am.  &>  Eng.  R.  Cas,  551, 
126  N.  Y.  365,  27  A'.  E.  Rip.  553,  37  N.  Y. 
S.  R.  485;  affirming  35  A^  Y.  S.  R.  673. 
12  A^.  Y.  Sitpp.  723.— Following  Shep- 
ard  V.  Buffalo.  N.  Y.  &  E.  R.  Co.,  35  N.  Y. 
641. 

Upon  the  trial  evidence  offered  by  the 
defendant  that  fences  on  the  sides  of  de- 
fendant's road  would,  by  reason  of  the  nar- 
row space  between  its  tracks  and  those  of 
the  adjacent  roads,  constitute  a  dangerous 
obstruction  and  imperil  the  lives  of  pas- 
sengers and  operatives  employed  about  the 
cars  and  upon  the  tracks  was  excluded. 
Held,  no  error ;  that  defendant  could  not 
set  up  a  situation  it  had  wrongfully  created 
as  an  excuse  for  disregarding  its  duty.  AVA 
ver  V.  New  York,  C. <5-  St.  L.  R.  Co.,  49  .////. 
&»  Ettg.  R.  Cas.  551,  126  A^.  K  365,  27  A". 
E.  Rep.  553,  37  A^.  Y.  S.  R.  485 ;  affirming 
35  A^.    Y.S.  R.67^.  12  A'.  Y.  Sttpp.  723.— 


148 


ANIMALS,  INJURIES  TO,  107. 


■i 
i 


Distinguishing  Dolan  v.  Newburgh,  D.  & 
C.  R.  Co..  120N.  Y.  571. 

107.  At  Mtatious,  depots  or  sid- 
ings.*—(1)  Geneniify.— Fencing  against 
animals  is  not  required  at  stations  and 
sidings  where  freight  or  passengers  are  re- 
ceived or  discliarged.  Indiana,  B.  &*  IV.  Ji. 
Co.  V.  Quick,  109  Ind.  295,  9  A^.  E.  Rep.  788, 
925.— Followed  in  Indiana,  B.  &  W.  R. 
Co.  V.  Sawyer,  109  Ind.  342,  10  N.  E.  Rep. 
105. 

And  a  railroad  company  is  not  liable  for 
killing  animals  which  enter  upon  its  track  at 
such  places,  and  it  is  error  to  refuse  to  so 
instruct  the  jury  where  there  is  evidence  to 
which  such  an  instruction  is  applicable. 
Indiana,  B.  &*  IV.  R.  Co.  v.  Sawyer,  109 
Ind.  342,  10  N.  E.  Rep.  105.— Following 
Indiana,  B.  &  W.  R.  Co.  v.  Quick.  109  Ind. 
2gs— Indianapolis  &* St. L.  R.  Co.  v.  Christy, 
^T,Ind.  143. — Quoting  Indianapolis  &  C.  R. 
Co.  V.  Parker,  29  Ind.  471. 

The  company  need  not  fence  their  road 
where  the  engine-house,  machine-shop,  car- 
house,  and  wood-house  are  located,  and  are 
not  responsible  for  killing  or  injuring  live 
stock  at  such  places  by  reason  of  a  want  of 
fencing.  Indianapolis  &*  C.  R.  Co.  v.  Oestel, 
20  Ind.  231.— Reviewed  in  Davis  v.  Bur- 
lington &  M.  R.  R.  Co.,  26  Iowa  549. 

In  an  action  for  stock  killed  near  the 
depot  in  an  unincorporated  village, — held, 
that  the  railroad  coinpany  is  not  bound  to 
fence  the  grounds  about  a  station.  Chap- 
ter 114,  §  48,  of  the  Illinois  Rev.  St.  is  not 
to  be  construed  to  embrace  depots  and  sta- 
tions. Terre  Haute  &*  I.  R.  Co.  v.  Bowles, 
\6  III.  App.  261.— Reviewing  Chicago.  B. 
&Q.  R.  Co.  V.  Hans,  iii  111.  114. 

The  fact  that  the  place  where  the  cow 
entered  and  was  killed  was  used  for  storing 
wood  and  grain  brought  for  shipment,  shows 
that  public  necessity  required  that  it  should 
remain  unfenced  as  part  of  the  company's 
depot  grounds.  Hooper  v.  Chicago,  St.  P., 
M.  (S-  O.  R.  Co.,  37  Minn.  52,  33  A^.  W.  Rep. 
314.— Following  Greeley  v.  St.  Paul,  M. 
&  M.  R.  Co.,  33  Minn.  136,  22  N.  W.  Rep. 
179. 

*See/>w/,  199-202. 

Obligation  of  company  to  fence  depot  grounds, 
■ee  43  Am.  &  Eng.  R.  Cas.  578,  abstr.  Com- 
pany not  liable  for  failure  to  fence  depot 
grounds,  but  extent  of  grounds  is  for  the  jury, 
see .38  Am.  &  Eng.  R.  Cas.  290,  abstr.;  35  Id. 
132.  What  are  depot  grounds  where  fences  are 
not  required,  see  49  Am.  &  Eno.  R.  Cas.  554, 
abstr. 


A  railway  company  is  not  liable  either  at 
common  law  or  under  §  68  of  the  Railway 
Clauses  Act,  1845,  to  fence  from  its  track  a 
yard  adjoining  the  station  into  and  through 
which  cattle  brought  by  the  company  to  the 
station  w^ie  accustomed  and  were  obliged 
to  pass  in  going  to  the  highway.  Roberts  v. 
Great  Westerv  R.  Co.,  4  C.  B.  N.  S.  506,  4 
Jur.  A'.  S.  1240.  27  L.J.  C.  P.  266. 

(2)  Lands  not  necessary  for  station  grounds. 
— Action  for  the  value  of  horses  killed  on 
defendant's  main  track  outside  but  near  the 
entrance  of  the  side-tracks  at  a  station,  and 
at  a  place  where  the  town  plat  was  bounded 
by  the  right  of  way.  The  company  claimed 
that  it  had  not  the  right  to  fence  at  that 
point  because  (1)  it  was  a  part  of  the  depot 
grounds,  it  being  necessary  for  the  trainmen 
to  use  the  track  at  that  point  for  entering 
the  side  tracks,  and  (2)  because  the  streets 
and  alleys  of  the  town  extended  to  the  right 
of  way.  Held,  that  this  position  could 
not  be  sustained,  because  the  absence  of  a 
fence  at  that  point  was  not  necessary  for 
the  convenience  of  the  public  in  transacting 
business  with  the  company  at  the  station, 
and  the  streets  and  alleys  did  not  cross  the 
right  of  way.  Peyton  v.  Chicago,  R.  I.  &*  P. 
R.  Co.,  70  Iowa  522,  30  A'.  IV.  Rep.  877.— 
Distinguishing  Cole  v.  Chicago  &  N.  W. 
R.  Co.,  38  Iowa  311. 

The  railroad  company  owned  a  strip  of 
land  250  feet  wide  by  2400  feet  long,  which 
it  used  for  station  grounds.  The  plaintiff 
owned  a  steer,  which  he  permitted  to  run  at 
large  near  the  station  grounds.  This  animal 
passed  along  the  highway  and  on  to  the 
station  grounds,  and  wandered  along  the 
same  until  it  passed  upon  the  company's 
right  of  way  and  upon  the  railroad  track, 
where  it  was  killed.  Neither  the  railroad 
track,  nor  the  right  of  way,  nor  the  station 
grounds  was  inclosed  with  a  fence.  A  fence, 
however,  extended  along  one  end  and  a  part 
of  the  two  sides  of  the  station  grounds.  The 
place  where  the  animal  was  killed,  though 
used  as  a  part  of  the  defendant's  station 
grounds,  was  not  necessary  for  such  use. 
Held,  that,  assuming  that  land  necessarily 
used  for  station  grounds  need  not  be  fenced, 
still,  as  the  place  where  the  animal  was 
killed  was  not  necessary  in  the  |)resent  case 
for  the  use  of  the  railroad  company  as  a  part 
of  its  station  grounds,  the  same  should  have 
been  fenced.  Atchison,  T.  <&*  S.  F.  R.  Co. 
V.  Shaft,  19  Atn.  &»  Eni;.  R.  Cas.  529,  33 
A'an.  521,  6  Pac.  Rep.  908. 


ANIMALS,  INJURIES  TO,  JOH,  lOO. 


149 


108.  At  crossings  of  streets  and 
Iiighwrtys.* — A  railroad  company  is  not 
required  to  fence  its  road  where  it  would 
obstruct  a  public  highway,  and  the  want  of 
fencing  at  such  place  does  not  make  it  liable 
for  stock  killed  or  injured.  Loiti'sTt'lle,  A'. 
,  /.  ^  C.  A\  Co.  V.  //ursf.  98  />u/.  330. 

There  is  no  liability  for  killing  of  animals 
for  want  of  a  suitable  fence  at  a  place  where 
a  platted  street  in  an  incorporated  town 
crosses  a  .ailway  track,  even  though  such 
street  was  only  used  by  persons  on  foot. 
O/iio,  I.  Sf  IV.  R.  Co.  V.  Heady  (Ind.  App.), 
zZN.  E.  Rep.  212. 

The  statute  does  not  apply  to  injuries 
done  at  points  where  it  would  be  illegal  or 
improper  for  the  railroad  company  to  main- 
tain fences,  such  as  road  and  street  crossings, 
etc.  It  is  not  every  place,  however,  within 
the  corporate  limits  of  a  town  or  city  that 
is  within  the  exception,  but  only  such  as 
would  be  improper  to  fence.  Indianapolis 
(S-C  R.  Co.  V.  Parker,  29  Ind.  471.— Quoted 
IN  Indianapolis  &  St.  L.  R.  Co.  v.  Christy, 
43  Ind.  143. 

A  railroad  company  has  no  right  to  fence 
its  tracks  where  they  cross  a  public  street  in 
a  city  or  town,  and  the  owner  of  an  animal 
killed  at  such  point  cannot  recover  therefor 
on  the  ground  of  the  failure  of  the  company 
to  fence.  Long  v.  Central  lonva  R.  Co.,  19 
Am.  &*  Eng.  R.  Cas.  541, 64  /owa  657,  21  A'^ 

IV.  Rep,  122. 

And  the  Iowa  statute,  1862,  ch.  169,  re- 
quiring railroads  to  fence  their  track  to 
prevent  injuring  live  stock,  does  not  include 
crossings  of  streets  and  highways.     Soward 

V.  Chicago  &*  N.  W.  R.  Co.,  30  Iowa  551. 
The  statutory  obligation  of  a  railroad  to 

fence  the  road  does  not  extend  to  crossings 
of  highways,  whether  de  jure  or  de  facto. 
Held,  accordingly,  in  an  action  for  the  killing 
of  stock,  predicated  on  the  failure  of  the 
railroad  company  to  fence  where  its  road 
crossed  a  highway,  that  it  was  immaterial 
whether  the  highway  was  maintained  by 
work  under  a  road  overseer  or  not.  Roberts 
V.  Quincy,  O.  <S-  A'  C.  R.  Co.,  43  Mo.  App. 
287.— Following  Luckie  v.  Chicago  &  A. 
R.  Co..  76  Mo.  639;  Brown  7/.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  20  Mo.  App,  427. 
Reviewing  Walton  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.,  67  Mo.  56. 

Under  Missouri  Rev.  St.  1855,  649.  §  5,  a 
railroad  company  is  not  required  to  fence 


*See^x/,  117,  185-108. 


its  track  where  it  crosses  a  public  highway, 
and  in  the  absence  uf  negligence  is  not  liable 
for  animals  killed  at  such  crossing.  Meyer 
V.  North  Mo.  R.  Co.,  35  Mo.  352. — Ap- 
plied IN  Miller  I/.  Wabash  R.  Co.,  47  Mo. 
App.  630.  Explained  in  Ells  v.  Pacific  R. 
Co.,  48  Mo.  231.  Reviewed  in  Wier  v.  St. 
Louis  &  I.  M.  R.  Co.,  48  Mo.  558. 

The  law  requiring  companies  to  fence 
their  tracks  does  not  apply  to  streets ;  and 
where  stock  is  killed  at  a  street  crossing,  in 
order  to  recover,  plaintiff  must  prove  negli- 
gence in  tb  iianagement  of  the  train.  In- 
ter nationul  ." »  G.  N.  R.Co.  V.  Lenders,  i  Tex. 
App.  {Civ.  Cas.)  133. 

d.  Sufficiency  of  Fences.* 

109.  Generally.— In  order  that  a  rail- 
way copipany  may  escape  liability  for 
double  damages  for  injury  to  stock  under 
the  statute,  it  is  not  enough  that  it  once 
fence  its  track  it  must  maintain  a  sufficient 
fence.  Bennett  v.  Wabash,  St.  L.  &>  P.  R. 
Co.,  61  lortra  355,  16  A'.  W.  Rep.  210. — 
Quoted  in  Sullivan  v.  Oregon  R.  &  N. 
Co.,  19  Oreg.  319. 

If  a  railroad  company  allow  an  opening  to 
be  made  in  the  fence  inclosing  its  road,  and 
left  insecure,  it  cannot  be  said  that  the  road 
is  securely  fenced,  and  if  animals  pass 
through  the  same  and  upon  the  railroad,  and 
are  killed,  the  company  is  liable  without 
proof  of  negligence  on  the  part  of  the  com- 
pany. Cleveland,  C,  C.  &*  I.  R.  Co.  v. 
Swift,  42  Ind.  1 19. 

The  main  object  of  the  law  requiring  rail- 
roads to  fence  their  road  is  the  protection 
of  the  public,  and  where  a  railroad  adjoins 
a  public  road  on  one  side  and  inclosed  fields 
on  the  other,  and  stock  come  upon  the 
track  from  the  ."adside  and  are  injured,  the 
company  is  liable  under  §  43,  Missouri  Rail- 
road Act.  In  such  a  case  the  company  is 
bound  to  fence  the  road  on  both  sides,  and 
the  fact  that  the  stock  injured  went  upon 
the  track  from  land  of  another  is  imma- 
terial. Humes  v.  Missouri  Pac.  R.  Co.,  9 
Mo.  App.  588. 

Under  the  New  York  Railroad  Act  of  185  >, 
as  amended  in  1854,  railroad  companies  ere 
required  to  erect  and  maintain  a  fence  on 
both  sides  of  their  track,  and  are  liable  for 
injuries  to  stock  so  long  as  this  is  not  done. 
Shepard  v.  Buffalo,  N.  V.  &*  E.  R.  Co.,  35 

•  See  twte,  »0. 

What  is  a  sufficient  fence,  see  43  Am.  &  ENa 
R.  Cas.  579,  adstr. 


150 


ANIMALS.  INJURIES  TO,    110-113. 


i 


N.  Y.  641.— Approved  in  Cleveland,  C.  C. 
&  I.  R.  Co.  V.  Scudder,  13  Am,  &  Eng,  R, 
Cas.  561.  40  Ohio  St.  173.  Followed  in 
Spence  v.  Chicago  &  N.  W.  R.  Co.,  25  Iowa 
139;  Kelver  v.  New  York.C.  &  St.  L.  R.  Co., 
126  N.  Y.  365.  Quoted  in  Klock  7).  New 
York  C.  &  H.  R.  R.  Co..  42  N.  Y.  S.  R.  200. 
—  Tredwayv.  Sioux  aty&-  St.  P.  R.  Co.,  43 
/07va,  527,  8  Am.  Jiy.  Kef.  415,  14  /</.  465.* 

A  railroad  company  is  liable  for  a  failure 
to  fence  as  required  by  the  statute,  unless  it 
be  inclosed  on  both  sides  of  tiie  track,  and 
when  sued  for  killing  live  stock  it  is  no  de- 
fence that  the  track  was  fenced  on  one  side. 
Cattle  were  killed  by  going  upon  the  track 
over  a  fence  that  was  so  broken  down  as  to 
be  but  a  little  more  than  half  as  high  as 
when  it  was  originally  erected  by  the  com- 
pany. Held,  that  the  company  was  liable. 
Leyden  v.  New  York  C.  &^  H.  R.  R.  Co.,  55 
Hun  (N.  Y.)  1 14,  28  A^.  Y.  S.  R.  72.  8  N.  Y. 
Supp.  187.— Distinguishing  Morrison  v. 
New  York  &  N.  H.  R.  Co.,  32  Barb.  (N.  Y.) 
568. 

A  railroad  company  is  not  bound  to  pro- 
vide places  for  stock  to  leave  its  track.  Gil' 
man  v.  Sioux  City  &*  P.  R.  Co.,  13  Am.  <&* 
Eng-.  R.  Cas.  538, 62  Awa  299,  I7A^.  IV.  Rep. 
520. 

110.  Hog-tlglit  fences. t— In  the  ab- 
sence of  want  of  due  care  on  the  part  of 
those  running  a  train,  a  railroad  company  is 
not  liable  for  killing  hogs  that  go  upon  the 
track  through  a  fence  that  the  company  has 
erected,  which  is  a  lawful  fence  as  to  other 
stock,  but  which  will  not  turn  hogs,  the 
fence  being  in  a  district  where  hogs  are  pro- 
hibited from  running  at  large.  Atc/iison,  T. 
&*  S.  F.  R.  Co.  V.  Yates,  21  /Can.  613.—  FOL- 
LOWED IN  Henning  v.  Wilkinson,  21  Kan. 
747.  Quoted  in  Leebrick  v.  Republican 
V.  &  S.  W.  R.  Co.,  41  Kan.  756,  21  Pac. 
Rep.  796. 

If  a  railroad  company  allow  an  opening  to 
be  made  in  the  fence  inclosing  its  road  and 
left  insecure,  it  cannot  be  said  that  the  road 
is  securely  fenced,  and  if  hogs  pass  through 
the  same  and  upon  the  railroad  and  are 
killed,  the  company  is  liable  without  proof 
of  negligence  on  the  part  of  the  company. 
Cleveland.  C,  C.  &*  I.  R.  Co.  v.  Swi/t,  42  Ind. 
119. 

111.  With    respect    to    unruly 

*See/M/,  132. 

tSee  ante.  OO. 
uty  to  maintain  hog-tight  fences,  see  note, 
33  Am.  &  Eng.  R.  Cas.  168. 


beasts.*— A  railway  company  is  only  re- 
quired to  maintain  fences  and  cattle-guards 
sufficient  to  restrain  ordinary  domestic 
animals,  and  is  not  compelled  to  guard 
against  the  foraging  propensities  of  excep- 
tionally unruly  beasts.  Wabash  R.  Co.  v. 
Ferris,  6  Ind.  App.  30,  32  N.  E.  Rep.  1 12. 

112.  Joiuiiigr  with  fences  already 
built.— Under  §  2  of  the  act  of  1859  (56 
Ohio  L.  62),  where  the  owner  of  lands 
adjacent  to  a  railroad  constructs  and  main- 
tains a  good  and  sufficient  fence  inclosing 
his  own  lands,  in  such  manner  that  it  may  be 
made  to  answer  the  purpose  of  inclosing  the 
railroad  also,  the  fact  that  compensation 
was  not  paid  for  the  right  of  way  through 
such  lands  will  not  prevent  the  company 
from  joining  its  fences  to  the  fence  con- 
structed by  such  landowner  so  as  to  inclose 
its  road ;  and  where  the  railroad  is  rightly 
inclosed  by  such  joining  of  fences,  no  addi- 
tional fence  need  be  constructed  between 
the  railroad  and  such  inclosed  lands.  Hax- 
ton  v.  Pittsburgh,  C.  &*  St.  L.  R.  Co.,  26  Ohio 
St.  214,  II  .////.  Ry.  Rep.  257. 

113.  Waiver  of  statutory  require- 
ments as  to  siifflciency.t— Where  bars 
in  the  fence  of  a  railroad  alongside  of  its 
track  did  not  conform  to  statutory  require- 
ments, but  were  so  made  for  the  conven- 
ience and  at  the  request  of  the  former 
owner,  who  conveyed  to  the  plaintiiT,  and 
plaintiff  had  used  them  and  made  no  com- 
plaint to  defendant  of  their  unsuitability, 
these  facts  will  amount  to  a  waiver  on  his 
part  of  the  requirement  of  the  statute,  in  an 
action  to  recover  for  horses  killed.  Enright 
v.  San  Francisco  &*  S.  J.  R.  Co.,  33  Cal.  230, 

The  owner  of  land,  by  persistently  keep- 
ing open  a  gate  through  which  his  stock  es- 
caped upon  a  railroad  track,  may  release 
the  company  from  liability  for  a  failure  to 
build  and  maintain  a  fence  as  required  by 
statute;  and  a*tenant  with  knowledge  of 
such  release  has  no  greater  right  than  the 
landlord.  Manwell  v.  Burlington,  C.  R.  &* 
N.  R.  Co.,  45  Am.  &>  Eng.  R.  Cas.  501,  80 
Imva  662,  45  N.  W.  Rep.  568. 

In  an  action  against  a  railroad  for  killing 
stock  on  the  track  by  reason  of  a  failure  to 
maintain  proper  fences,  the  company  set  up 
the  defence  that  it  had  erected  a  suitable 
fence  with  gates  therein,  which  it  was  the 


*  See  ante,  OO. 

ISee    ante,    88.   80; 
0,  156,  167. 


pott,  138,   130. 


ANIMALS,  INJURIES   TO,  114-117. 


161 


duty  of  the  plaintiff  to  keep  closed,  but 
which  he  allowed  to  get  out  of  repair  and 
open,  whereby  the  stock  got  on  the  track. 
Held,  that  the  acceptance  of  the  fence  with 
the  gates  was  a  waiver  of  a  further  duty  im- 
posed on  the  company,  and  it  was  not  bound 
to  use  extraordinary  means  to  prevent  acci- 
dents. Great  Western  R.  Co.  v.  Vilaire,  1 1 
U.  C.  C.  P.  509. 

2.  Effect  of  Performance  of  this  Duty. 

114.  Generally.— Where  a  train  is  run- 
ning on  a  well-fenced  track,  the  company  is 
not  necessarily  guilty  of  negligence  in  in- 
juring stock  trespassing  on  the  track  be- 
cause the  engineer  does  not  act  upon  the 
gestures  made  by  persons  standing  near  the 
track,  unless  they  are  such  as  to  be  a  full 
and  fair  warning  that  stock  will  be  injured 
if  the  train  is  not  stopped.  Dennis  v.  Louis- 
ville,  N.  A.  <S-  C.  R.  Co.,  35  Am.  &-'Eng.  R. 
Gas.  141,  116  Ind.  42,  15  West  Rep.  547,  18 
A'.  E.  Rep.  179,  I  L.  R.  A.  448.— Quoted 
IN  Overton  v.  Indiana,  B.  &  W.  R.  Co.,  i 
Ind.  App.  436. 

115.  Duty  to  use  care  arises  only 
alter  discovery  of  animal.*— Where 
animals  trespass  upon  the  track  of  a  railway 
company  which  is  properly  inclosed,  and 
the  animals  exposed  to  injury,  the  duty  of 
the  company  to  exercise  care  as  to  them 
arises  only  after  discoverv  of  their  presence 
on  the  track.  If,  after  discovering  ani- 
mals upon  the  track  the  servants  of  the 
company  might,  by  the  exercise  of  proper 
care  and  prudence  prevent  an  injury,  and 
fail  to  do  so,  the  company  may  be  liable. 
Illinois  C.  R.  Co.  v.  Noble,  56  Am.  &*  Eitg. 
R.  Cas.  186.  142  ///.  578,  32  A^.  E.  Rep. 
684;  reversing  42  ///.  App.  509.— Disap- 
proving Illinois  C.  R.  Co.t/.  Middlesworth, 
46  111.  494.  Quoting  Toledo,  W.  &  W.  R. 
Co.  V.  Barlow,  71  111.  640. 

11«.  Degree  oi  care,  t— Railroad  com- 
panies may  be  free  from  any  negligence 
with  reference  to  fencing  and  yet  be  liable 
for  killing  stock.  In  all  cases  railroad  com- 
panies are  required  to  use  ordinary  care  and 
diligence  to  avoid  injuring  stock  on  the 
track.  Illinois  C.  R.  Co.  v.  Baker,  47  ///. 
295.— Followed  in  Rockford,  R.  I.  &  St. 
L.  R.  Co.  V.  Irish,  72  111.  404. 

So  where  stock  are  upon  the  track  and  a 

~  •  See,  generally,  ante,  29-84. 

*  ScKante,  49,  51,  52,  63,  04-72.  Cattle  coming  on  track  at  point  where  com- 

4  See  atilt,  48,  49,  68,  62;  post,  141 1  pany  is  not  bound  to  fence,  see  note,  19  Am. 

O.  &  Eng.  R.  Cas.  580. 


train  is  approaching,  though  down  a  slight 
grade,  and  the  engine-driver,  instead  of 
stopping  his  train  to  drive  ofl  the  stock,  pur- 
sues  them  to  a  point  where,  by  reason  of 
ditches  filled  with  water,  on  each  side  of  a 
high  embankment,  there  is  little  probability 
the  animals  will  leave  the  track,  and  they 
are  overtaken  and  killed,  the  company  are 
guilty  of  gross  negligence,  and  they  will  be 
liable,  notwithstanding  it  may  appear  the 
animals  got  on  the  track  within  the  limits 
of  a  town.  Illinois  C.  R.  Co.  v.  Baker,  47 
///.  295. 

A  company  is  not  held  to  any  greater  de- 
gree of  care  to  avoid  injuring  stock  by 
reason  of  a  break  in  a  ience.— Illinois  C. 
R.  Co.v.  Walker, 6i Miss.  13.— EXPLAINING 
Tyler  v.  Illinois  C.  R.  Co.,  61  Miss.  445. 

If  a  road  is  properly  fenced,  as  required 
by  the  Ohio  act  of  1859,  the  company  is 
held  to  the  exercise  of  ordinary  care  only 
in  the  running  of  trains,  to  prevent  the  kill- 
ing of  animals.  Where  the  road  is  not  prop- 
erly fenced  a  higher  degree  of  care  is  re- 
quired. Gill  V.  Atlantic  fi-  G.  W.  R.  Co.,  27 
Ohio  St.  240. 

117.  Animals  coming  on  track 
where  company  not  bound  to  fence. 
—  (i)  Generally. —  Railroad  companies  are 
not  liable  for  killing  stock  that  goes  upon 
the  track  at  points  where  it  is  not  required 
to  fence  under  the  statute.  Indianapolis, 
P.  «^  C.  R.  Co.  V.  Caudle,  60  Ind.  112.  In- 
dianapolis &*  C.  R.  Co.  V.  Kinney.  8  Ind.  402. 
—Quoted  in  Indianapolis  &  C.  R.  Co.  v. 
Kercheval,  16  Ind.  84.  Reviewed  in  Davis 
V.  Burlington  &  M.  R.  Co.,  26  Iowa,  549. — 
Bechdolt  v.  Grand  Rapids  &*  I.  R.  Co.,  35 
Am.  (S-  Eng.  R.  Cas.  168,  113  Ind.  343,  13 
W.  Rep.  53,  1 5  A^.  £".  Rep.  686.  Henderson 
V,  St.  Louis  &•  H.  R.  Co.,  36  Mo.  App.  109. 

And  in  such  cases  common-law  principles 
must  determine  the  rights  and  liabilities  of 
the  parties.  Indianapolis  &*  C.  R,  Co.  v. 
Caldwell.  9  Ind.  397. 

Where  the  attorneys  for  the  plaintiff  and 
defendant  agree  in  writing  that  certain  stock 
killed  by  the  engines  of  a  railway  company 
escaped  without  the  fault  of  the  owner,  and 
were  killed  at  a  place  where  the  court  finds 
the  company  was  not  required  to  fence  its 
track,  and  without  the  negligence  of  the 
railway  company,  there  can  be  no  recovery 


*:  1 


152 


ANIMALS,   INJLKIiiS   TO,  117. 


for  such  stock.  Chicago,  H.  ^  Q.  A'.  Co.  v. 
Ntgan,  27  Aei.  801. 

The  Indiana  statute,  requiring  railroad 
companies  to  fence,  and  making  tliem  lia- 
ble for  stock  killed  by  reason  of  a  failure  10 
fence,  only  applies  to  the  portion  of  the 
road  where  the  company  ought  to  maintain 
a  fence  ;  and  if  animals  be  killed  at  other 
points  on  the  road  where  the  company  is 
not  required  to  fence,  then  their  liability  re- 
mains as  at  common  law,  and  depends  upon 
whether  there  was  negligence  or  wilful  kill- 
ing. JeffersonvilU,  M.  &*  I.  Ji.  Co.  v.  Bre- 
voort,  30  Ind.  324. — Followed  in  Louis- 
ville. N.  A.  &  C.  R.Co.  z/.Quade,  loi  Ind.  364, 

In  the  absence  of  proof  of  negligence  a 
railroad  company  is  not  liable  for  killing 
stock  that  goes  upon  the  track  where  a  fence 
or  cattle-guards  cannot  safely  be  maintained. 
Pearsons.  Chicago, B.&'  K.  C.  R.  Co.,  nMo. 
App.  543. — Following  Ehret  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co..  20  Mo.  App. 
251 ;  Nance  v.  St.  Louis,  I.  M.  &  S.  R.  Co.. 
79  Mo.  196. 

A  company  is  not  liable  for  killing  stock 
at  a  point  where  it  is  not  bound  to  fence,  in 
the  absence  of  such  negligence  as  would 
make  it  liable  at  common  law.  Cleveland, 
C,  C.  <S»»  St.  L.  Ji.  Co.  V.  Afyers,  43  ///.  App. 
251.  Peoria,  D.  <S>»  E.  R.  Co.  v.  Dug  an,  10 
///.  App.  233.  Long  V.  St.  Louis,  K.  6-  N. 
W.  R.  Co.,  23  Mo.  App.  178. 

A  railroad  company  is  not  liable  for  in- 
juries to  animals  that  enter  upon  its  track  at 
places  where  to  maintain  fences  would  in- 
terfere with  the  discharge  of  its  duty  to  the 
public,  or  with  the  rights  of  the  public  in 
the  use  of  the  highway,  or  in  doing  business 
with  the  company,  nor  at  any  place  where 
fences  and  connecting  cattle-guards  would 
mai.e  the  running  and  handling  of  trains 
or  the  necessary  or  proper  switching  of  ca:s 
more  hazardous  to  its  employes.  Where 
animals  enter  upon  railroad  grounds  at  such 
places,  and  are  killed  within  limits  that  can- 
not be  and  are  not  required  to  be  fenced, 
the  company  is  not  liable.  Pennsylvania 
Co.  V.  Mitchell,  124  fnd.  473,  24  A'.  E.  Rep, 
1065. 

A  company  is  not  liable  for  killing  stock 
that  go  upon  the  track  where  it  is  not  bound 
to  fence,  though  it  pass  along  the  track  and 
is  killed  at  a  point  where  the  company  is 
bound  to  fence.  St.  Louis,  A.  &•  T.  H.  R. 
Co.  V.  Linder,  39  ///.  433.— Distinguished 
IN  Toledo.  P.  &  W.  R.  Co.  v.  Darst,  51  111. 
36s. 


(2)  When  it  is  not  practicable  to  fence.* — 
Wliere  an  animal  is  killed  by  cars,  having 
entered  upon  the  railroad  at  a  place  not 
fenced  on  either  side,  but  where  it  is  prac- 
ticable to  fence  only  on  one  side,  the  rail- 
road company  is  not  liable  under  the  statute. 
Indiana,  B.  «S>»  W.R.  Co.  v.  Leak,  13  Am.  &* 
Eng,  R.  Cas.  521,  89  Ind.  596. 

(3)  Uninclosed  lands.j  —  Under  Wagn. 
St.  of  Missouri,  §  43,  p.  310,  a  railroad  com- 
pany is  not  responsible  for  stock  killed  by 
the  cars,  etc..  when  such  killing  takes  place 
at  a  point  on  their  road  where  it  is  not 
fenced,  and  when  it  does  not  pass  through 
or  along  inclosed  or  cultivated  fields,  or  un- 
inclosed prairie  lands,  unless  actual  negli- 
gence be  proven.  Musick  v.  Atlantic  <S>*  P. 
R.  Co.,  57  Mo.  134. 

Under  Maine  St.  1842,  if  an  injury  to  one's 
cattle  happen  through  want  of  fences  upon 
common  and  uninclosed  land,  it  is  not  legally 
imputable  to  the  negligence  of  the  company. 
Perkins  v.  Eastern  R.  Co. ,  29  Me.  307. 

(4)  Public  crossings.X —  Railway  companies 
cannot  be  made  liable  for  injuries  to  animals 
entering  upon  their  tracks  at  places  where 
the  maintaining  fence  would  interfere  with 
the  proper  discharge  of  their  duties  to  the 
public  or  with  the  rights  of  the  public  in  the 
use  of  highways  and  streets,  or  in  doing 
business  with  the  company,  nor  at  any  place 
where  fences  connecting  cattle-guards  and 
wing  fences  would  make  the  running  and 
holding  of  trains,  or  the  necessary  and 
proper  switching  of  cars  more  hazardous  to 
their  employes.  Ohio,  I.  &^  IV.  R.  Co.  v. 
Heady  {Ind.  App.),  28  N.  E.  Rep.  212. 

(5)  In  /OTfWi.S— Although  a  cattle-guard 
is  placed  28  feet  outside  the  limits  of  a  town 
and  140  feet  from  the  head  of  a  switch,  and 
the  railroad  is  not  fenced  between  that  point 
and  the  town  limits,  the  company  is  not  lia- 
ble, under  Missouri  Rev.  St.  1879,  §  809, 
for  an  animal  killed  at  such  unfenced  point, 
if  such  part  of  the  track  could  not  be  fenced 
without  endangering  the  lives  of  employes 
in  switching  trains.  Jennings  v.  St.  Joseph 
6-  St.  L.  R.  Co.,  37  Mo.  App.  651.— Fol- 
lowing Pearson  v.  Chicago,  B.  &  K.  C.  R. 
Co.,  33  Mo.  App.  543.— Applied  in  Straub 
V.  Eddy,  47  Mo.  App.  189. 

(6)  Where   others  besides  company  must 


*  See  ante,  105,  109  ;  post,  132. 
f  See  ante,  lOO ;  post,  159. 
%  See  ante,  108  ;  post,  185-108. 
g  See  ante,  09  ;  post,  20.'i-212. 


ANIMALS,  INJURIES  TO,  118-121. 


153 


fence.*— \l  stock  go  upon  a  track  at  a  point 
where  others  besicJcs  the  company  are  re- 
quired to  fence,  in  the  absence  of  gross  neg- 
ligence the  company  is  not  liable  for  killing 
them,  whether  it  be  ut  the  point  of  entry  or 
at  another  place.  St.  Lout's,  A.  &»  T,  H.  R. 
Co.  V.  Lindtr,  39  ///.  433. 

118.  Where  uuiiual  jumps  or 
breaks  tlirout^li  lawful  I'euce.— Where 
animals  go  upon  a  railroad  track  which  is 
fenced,  the  right  of  recovery  from  the  com- 
pany for  killing  the  same  will  depend  upon 
the  condition  of  the  fence  at  the  place  where 
they  went  on  the  track,  and  if  thb  fence  at 
such  point  is  in  good  condition,  there  can 
be  no  recovery.  Peoria,  D.  &*  E.  R.  Co.  v. 
Aten,  43  ///.  App.  68, 

A  railroad  company  is  not  liable  for  kill- 
ing a  mule  that  jumps  a  fence  and  goes  on 
the  track  only  50  yards  ahead  of  the  engine, 
in  the  absence  of  anything  to  show  defect 
of  machinery,  negligence,  mismanagement 
or  recklessness  of  those  in  charge  of  the 
train.  Louisville  &*  N.  R.  Co.  v.  IVainscott, 
3  Bush  (Ky.)  149. — Approved  in  Volkman 
V.  Chicago,  St.  P.,  M.  &  O.  R.  Co..  35  Am. 
&  Eng.  K.  Cas.  204,  5  Dak.  69, 37  N.W.  Rep. 
731.  Quoted  in  Washington  v.  Baltimore 
&  O.  R.  Co.,  17  W.  Va.  190.  Reviewed  in 
Louisville  &  N.  R.  Co.  v.  Ganote,  13  Am.  &" 
Eng.  R.  Cas.  519. 

Where  a  fence  at  the  point  at  which  an  ani- 
mal broke  through  the  same  and  got  upon 
the  track,  was  such  as  the  law  required  to  be 
erected,  the  finding  must  be  for  the  defend- 
ant. Coryell  v.  Hannibal  S-  St.  J.  R.  Co.,  82 
Afo.  441. 

110.    Liability   for    iictual   nef^li- 

geuce.t— Though  a  railroad  company  may 
have  properly  fenced  its  track,  still  it  will  be 
liable  for  wilfully  killing  live  stock  thereon. 
New  Albany  &»  S.  R.  Co.  v.  McNamara,  1 1 
Ind.  543. 

If  it  appear  that  a  railroad  company  has 
erected  and  maintained  a  fence,  such  as  good 
husbandmen  generally  keep,  it  will  not  be 
liable  for  killing  stock,  except  upon  proof 
of  negligence,  and  perhaps  not  always  then. 
Toledo  G^  IV.  R.  Co.  v.  Thomas,  18  Ind.  215. 

Even  where  a  railroad  is  within  a  lawful 
inclosure,  the  company  must  answer  in  dam- 
ages for  injury  to  stock  straying  on  the 


*  See  ante,  88,  89 ;  post,  138, 
149,  150. 

tSee  ante,  29-^2,  47,  til  i  post, 
200,204. 


139, 
187, 


track,  if  shown  to  have  been  caused  by  its 
negligence.  Louisville  &*  A*.  R.  Co.  v.  Sim- 
mons, 85  Ky.  151,  3  S.  IV.  Rep.  10. 

120.  Duty  to  keep  lookout.*— A 
railroad  company  has  a  right  to  an  unob- 
structed use  of  its  track,  and  where  its 
fences  are  in  proper  condition  its  employes 
are  not  bound  to  anticipate  the  presence  of 
cattle  trespassing  upon  its  tracks,  nor  main- 
tain an  especial  vigilance  in  looking  for 
them,  until  in  some  way  notified  that  they 
are  in  fact,  or  are  likely  to  be,  on  the  track. 
Illinois  C.  R.  Co.  v.  Noble,  56  Am.  Sf*  Eng. 
R.  Cas.  186,  142  ///.  578,  32  A^.  E.  Rep.  684; 
reversing  42  ///.  App.  509. 

Where  a  railway  company  has  properly 
fenced  its  track,  and  done  all  that  the  law 
has  required  of  it,  it  will  not  be  liable  for 
injury  to  stock  wrongfully  on  the  track, 
merely  for  the  want  of  care  and  caution  to 
discern  such  animals.  A  railway  company 
owes  no  duty  to  the  owner  of  trespassing 
animals  to  keep  a  lookout  for  them  up  on 
its  tracks  to  discover  their  presence  there. 
Illinois  C.  R.  Co.  v.  Noble,  56  Am.  &*  Eng. 
R.  Cas.  186,  142  ///.  578,  32  N.  E.  Rep.  684; 
reversing  42  ///.  App.  509. — Quoting  Illi- 
nois C.  R.  Co.  V.  Godfrey,  71  111.  500. 

While  railway  companies  are  not  bound 
to  be  on  the  lookout  for  animals  trespass- 
ing on  their  tracks  at  places  where  it  is 
securely  fenced,  they  are  liable  for  animals 
killed,  where  the  engineer  in  charge  of  the 
train  could,  by  the  exercise  of  reasonable 
diligence,  have  seen  the  animal  and  stopped 
the  train  in  time  to  avert  the  accident. 
Chicago,  St.  L.  &•  P.  R.  Co.  v.  Nash  (Ind.), 
24  N.  E.  Rep.  884. 

121.  KflTcct  of  snow-drifts  against 
fences.!— It  is  not  negligence  for  railway 
companies  to  allow  snow-drifts  to  remain 
over  their  fences,  so  that  they  do  not  serve 
the  purpose  of  restraining  stock  from  cross- 
ing  over  them  into  their  right  of  way.  Pat- 
ten V.  Chicago,  AI.  6-  St.  P.  R.  Co.,  75  Iowa 
459.  39  N.  IV.  Rep.  708.— Reconciled  in 
Grahlman  v.  Chicago,  St.  P.  St  K.  C.  Co.,  42 
Am.  &  Eng.  R.  Cas.  588, 78  Iowa  564,  5  L.  R. 
A.813,  43N.  W.  Rep.  529. 


•See  ante,  02-04,  llff;  post,  164, 
195. 

t  See  post,  169. 

Company  not  liable  where  stock  goes  over  a 
sufficient  fence  by  reason  of  drifted  snow,  see  3$ 
Am.  &  Eng.  R.  Cas.  118,  abstr. 


Ul 


151 


ANIMALS,  INJURIES   TO,  122. 


il 


3.  Injuries  Caused  by  Brcixch  of  this  Duty, 
a.  Where  Duty  is  Imposed  by  Statute.* 

122.  Generally.— (I)  Statement  of  the 
rule. — Since  the  passage  of  the  Illinois  act 
of  1855,  requiring  railway  companies  to 
fence  their  roads,  such  companies  are  liable 
for  injuries  to  stock  that  stray  upon  their 
track  through  the  want  of  the  required 
fences  and  cattle-guards.  Galena  &*  C.  U. 
R.  Co.  V.  Crawford,  25  ///.  43  5  ■ 

If  animals  enter  upon  a  roadway  at  a  place 
where  it  is  the  duty  of  the  railroad  com- 
pany to  fence,  and  are  killed  or  injured,  the 
company  is  liable  if  there  was  no  secure 
fence  at  that  place.  Ft.  Wayne,  C.  &>  L. 
R.  Co.  V.  Herbold,  23  Am.  <&>•  Eng.  R,  Cas. 
221,  99  Ind.  91. 

In  an  action  to  recover  the  value  of  a 
horse  killed  by  the  cars  of  a  railroad  com- 
pany, the  court  instructed  the  jury  that  the 
company  would  be  liable  if  the  horse  was 
killed  at  a  point  on  the  road  not  securely 
fenced,  and  where  it  could  have  been  fenced 
without  interfering  with  the  rights  of  the 
public.  Held,  that  the  instruction  was  not 
erroneous.  Cleveland,  C,  C.  &*  I.  R.  Co.  v. 
Crossley,  36  Ind.  370,  5  Am.  Ry.  Rep.  552. 

Under  the  Iowa  statute  railroad  companies 
are  liable  for  killing  stock  that  escape  from 
adjoining  lands  and  go  upon  the  track  where 
it  is  not  fenced.  Swift  v.  North  Mo.  R.  Co., 
29  Iowa  243. — Following  Hinman  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  28  Iowa  491. 

The  owner  of  stock  which  wanders  upon 
the  track  of  a  railroad  company  without  the 
owner's  fault,  and  is  injured  by  the  negli- 
gent running  of  a  train,  may  recover  where 
the  company,  though  required  by  law  to 
fence,  has  failed  to  do  so.  Scott  v.  Chicago, 
M.  &-  St.  P.  R.  Co.,  68  Iowa  360,  24  N.  \v. 
Rep.  584. 

A  railroad  company  is  liable  in  damages 
for  killing  a  horse  that  goes  upon  the  track 
while  attached  to  a  sleigh  at  a  point  where 
the  track  is  not  fenced,  and  which  is  not 
used  for  depot  purposes.  Dixon  v.  New 
York  C.  &•  H.  R.  R.  Co.,  22  A^.  Y.  S.  R.  61, 
51  Hun  644,  4  N.  Y.  Supp.  296. 

*  Liability  of  r&ilroad  companies  for  injury  to 
animals  on  track  where  company  is  bound  to 
fence  and  fails  to  do  so,  see  notes,  g6  Am.  Dec. 
681 ;  I  L.  R.  A.  449. 

Company  not  liable  for  injuries  to  stock  by 
reason  of  failure  to  fence  where  such  would  have 
been  unavailing,  see  note,  21  L.  R.  A.  733. 

Liability  of  company  for  stock  killed  or  in- 
jured under  Missouri  fence  laws,  see  note,  11 
L.  R.  A.  436. 


(2)  Its  scope  and  extent. — Where  the  law 
makes  it  the  duty  of  a  railroad  company  to 
fence  its  track  it  will  not  be  excused  from 
liability  for  killing  stock,  by  showing  that 
the  road  has  been  in  operation  for  a  number 
of  years  without  being  fenced.  Toledo,  P. 
(S-  IV.  R.  Co.  V.   Wickery,  44  ///■  76. 

Under  the  Indiana  statute  a  railroad  com- 
pany is  liable  for  cattle  killed  where  it  has 
notdiscliarged  its  duty  of  fencing,  whether 
the  county  commissioners  have  made  any 
order  as  to  the  running  at  large  of  cattle  or 
not.  Jeffersonville,  M.  &*  I.  R.  Co.  v.  O'Con- 
nor, 37  Ind.  95, 

A  railroad  company  which  has  failed 
to  fence  its  road,  as  required  by  statute, 
must  run  its  trains  upon  the  t}asis  that 
cattle  rightfully  upon  adjoining  lands  may 
stray  upon  the  track  on  account  of  the  ab- 
sence of  a  fence.  The  adjoining  landowner 
is  not  to  be  deprived  of  the  use  of  his  land 
by  the  failure  of  the  company  to  fence,  and 
in  using  the  same  he  has  a  right  to  expect 
this  course  of  conduct  on  the  part  of  the 
company.  Schubert  v.  Minneapolis  &*  St. 
L.  R.  Co.,  27  Minn.  360,  7  N.  W.  Rep.  366. 

At  places  where  the  law  requires  rail- 
roads to  maintain  fences  they  are  liable  for 
injury  to  stock  because  of  failure  to  fence, 
under  Missouri  Rev.  St.,  §  809.  At  places 
where  they  are  not  required,  but  where 
they  may  fence  and  do  not,  they  are  liable, 
under  §  2124.  Rhea  v.  St.  Louis  &>  S.  F.  R. 
Co.,  84  Mo.  345.— Quoting  Wymore  v. 
Hannibal  &  St.  J.  R.  Co.,  79  Mo.  247, 

Under  the  New  York  act  of  1850,  233,  §44, 
railroad  companies  are  exempt  from  liability 
for  injuries  to  animals  only  when  they  erect 
and  maintain  lawful  fences,  or  where  injury 
is  not  the  result  of  wilfulness  or  negligence. 
McDmvell  v.  New  York  C.  R.  Co.,  37  Barb. 
(N.  Y.)  195. — Approved  IN  Spinner  v.  New 
York  C.  &  H.  R.  R.  Co.,  67  N.  Y.  153; 
affirming  6  Hun  600. 

Under  Tennessee  acts  of  1891,  ch.  loi, 
railroads  are  liable  for  injury  to  live  stock 
by  their  moving  trains  unless  their  track  is 
inclosed  by  a  lawful  fence.  The  observance 
of  statutory  precautions  does  not  protect 
company  under  the  statute  if  track  is  un- 
fenced.  Railroads  are  protected  from  li- 
ability, under  this  act,  if  their  tracks  are  in- 
closed by  a  lawfu  1  fence.  Cincinnati,  N.  O. 
&*  T.  P.  R.  Co.  V.  Russell,  92  Tenn.  108,  20 
5.  W.  Rep.  784. 

(3)  Reason  of  the  rule. — The  owner  of 
stock  killed  upon  a  railroad  is  permitted  to 


ANIMALS,  INJURIES  TO,  123-125. 


155 


recover  from  the  railroad  company,  because 
the  recovery  will  tend  to  secure  the  dis- 
charge of  a  public  duty,  impused  by  law,  to 
fence  its  roiid.  Cincinnati,  H.  &*  I.  R.  Co. 
V.  HiUireth,  -jy  Ind.  504. 

(4)  Illustrations. — Tlie  cliarter  of  the  Rut- 
land &  Burlington  Railroad  Company,  §  14, 
requires  the  company  to  build  and  malniain 
ii  sutiicient  fence  on  each  side  of  tlieir  road 
througli  the  whole  length  thereof.  Held, 
that  the  company  takes  the  risk  of  cattle 
going  upon  tlie  track  through  a  failure  on 
its  part  to  erect  and  maintain  fences  as  re- 
quired, and  are  liable  for  damages  to  such 
stock.  Hurd  v.  Rutland  «&-  B.  R.  Co.,  25 
Vt.  1 16. — Quoting  Sharrod  v.  North  West- 
ern R.  Co..  4  Wels.  Hurlst.  &  Gord.  584. 

Where  a  turnpike  is  legally  but  66  feet 
wide,  a  railroad  company  is  liable  for  killing 
a  cow  43  feet  from  tiie  centre  of  the  turn- 
pike, it  appearing  that  she  was  in  an  open 
space  between  a  cattle-guard  and  the  cross- 
ing of  the  railroad  and  turnpike.  Indian- 
apolis, C.  &*  L.  R.  Co.  V.  Bonnell,  42  Ind.  539. 

123.  When  liability  begins  to  at- 
tach.*—Where  a  railroad  company  owns 
and  operates  a  railroad,  the  construction  of 
which  is  not  entirely  finished,  and  while  so 
operating  the  road  permits  the  contractor 
who  constructed  the  road  to  run  his  con- 
struction train  over  the  road  so  owned  and 
operated  by  the  company,  and  which  at  the 
time  isunfenced,  and  a  cow  is  killed  by  the 
construction  train  in  consequence  of  the 
omission  to  inclose  the  road  with  a  fence 
where  it  could  have  been  fenced,  an  action 
may  be  maintained  against  the  company 
to  enforce  the  statutory  liability  for  the 
loss  of  the  cow.  Wichita  (S>»  C.  R.  Co.  y. 
Gibbs,  47  Kan.  rjl^,  27  Pac.  Rep.  991. 

Under  the  Michigan  general  railroad  act 
the  liability  of  corporations  organized  under 
it  for  a  failure  to  fence  the  right  of  way, 
attaches  as  soon  as  it  is  in  possession  for 
the  purpose  of  constructing  the  road,  and 
this  liability  extends  to  agents  or  contrac- 
tors in  possession.  Gardner  v.  Smith,  7 
il//i-//. 410.— Followed  in  Continental  Imp. 
Co.  V.  Ives,  30  Mich.  448. 

Under  the  Michigan  railway  act,  making 
it  the  duty  of  railway  companies  to  fence 
their  tracks,  and  providing  that  until  such 
fence  shall  be  made  "  the  corporation  and 
their  agents  shall  be  liable  for  all  damages 
which  shall  be  done  by  their  agents  or  en- 

*  See  ante,  91 ;  post,  125. 


gines"to  live  stock,  the  word  "agents" — 
/<^/</,  to  include  "contractors  "  in  possession 
for  the  purpose  of  constructing  the  road. 
Gardner  v    Smith,  7  Mich.  410. 

Liability  for  killing  sheep  while  a  railroad 
is  in  process  of  construction  is  not  affected 
by  the  fact  that  the  owner  turned  them  into 
a  field  through  which  the  track  ran,  where 
the  contractor  was  constantly  throwing 
down  the  fence  in  the  prosecution  of  his 
work.  Gardner  v.  Smith,  7  Mich.  410. — Re- 
viewed IN  Wilder  v.  Maine  C.  R.  Co.,  65 
Me.  332. 

124.  Failure  to  feuue  by  time  pro- 
vided by  law.*— Where  a  railroad  has 
been  operating  trains  for  more  than  six 
months,  and  has  failed  to  fence  its  track, 
and  kills  stock  upon  the  track,  the  com- 
pany will  be  liable  for  the  value  of  such 
stock.     Toledo,  P.  6-  W.  R.  Co.  v.  Crane,  68 

///■  355- 
A  railroad  ran  through  a  common  field  of 

several  square  miles,  owned  by  different 
parties,  some  of  whom  resided  therein, 
which  was  fenced  only  on  the  outside.  The 
railroad  had  been  open  for  use  more  than 
six  months,  and  the  company  had  neglected 
to  fence  its  track  entirely  through  the  in- 
closure.  Held,  that  the  company  was  liable 
for  stock  killed  by  its  trains  inside  of  the 
inclosure.  Peoria,  P.  6-  /.  R.  Co,  v.  Bar- 
ton, 80  ///.  72. 

A  party  who  sues  a  railroad,  under  the 
statute,  for  injuries  to  cattle  resulting  from 
omission  to  fence  a  road,  should  show  that 
the  road  had  been  opened  more  than  six 
months  prior  to  the  injury.  Ohio  &•  M.  R. 
Co.  V.  Meisenheimer,  27  ///.  30. 

Under  the  Missouri  Gen.  St.  ch.  63,  §  43, 
providing,  among  other  things,  that  if  a  rail- 
road company  fails  for  three  months  after 
the  completion  of  its  road  to  fence  its  track, 
the  adjoining  landowner  may  do  so,  it  is  not 
necessary  to  show  that  the  railroad  had  been 
completed  for  three  months  at  the  point 
where  stock  is  killed.  Blewett  v.  Wyandotte, 
K.  C.  &*  N.  R.  Co..  72  Mo.  583. 

125.  Injuries  prior  to  time  fixed 
by  law  for  the  building  of  fences.— 
Under  the  Ohio  act  of  April  18,  1874,  requir- 
ing railroad  companies  to  fence,  a  company 
is  not  liable  for  injuring  trespassing  animals 
on  the  track  until  six  months  after  the  date 
of  the  act.  Baltimore  6^  O.  R.  Co.  v.  Mc- 
Elroy,  35  Ohio  St.  147. 

*  See  ante,  91. 


r^*"P 


15G 


ANIMALS,  INJURIES   TO,  12«. 


In  an  action  against  a  railroad  to  recover 
for  killing  stock,  where  plaintiff  declares 
upon  the  statutory  liability,  growing  out  of 
a  neglect  to  fence  the  road  within  six  months 
after  the  same  is  opened,  no  recovery  can  be 
had  unless  the  company  was  bound  to  fence 
its  road.  Rockford,  R.  I.  «S-  St.  L.  R.  Co.  v. 
Lynch,  67  ///.  149. 

Before  the  time  has  elapsed  in  which  a 
railway  company  is  required  to  fence  its 
road,  it  will  be  liable  only  for  injuries  to 
stock  resulting  from  its  failure  to  properly 
construct  its  road,  or  to  manage  and  oper- 
ate its  locomotives  and  cars  in  a  reason- 
able and  prudent  manner.  Centralia  &•  C. 
R.  Co.  V.  Bniir,  125  ///.  393,  15  IVest  Rep. 
149,  17  N.  E.  Rep.  820. 

Where  a  company  is  under  no  statutory 
liability  for  injury  to  stock  by  its  trains  by 
reason  of  its  road  not  having  been  fenced, 
as,  when  the  road  has  not  been  open  for 
use  six  months,  the  only  ground  of  liability 
will  be  that  ►he  injury  might  have  been 
avoided  by  the  exercise  of  ordinary  care  and 
prudence,  and  its  servants  in  charge  failed 
to  exercise  such  care  and  prudence.  Gil- 
man,  C.  &*  S.  R.  Co.  V.  Spencer,  76  ///.,  192. 

120.  AbMoliito  liability  without 
proof  of  iieKllgciice.*— (i)  Generally. — 
Railroad  companies  being  required  to  fence 
their  tracks  are  held  liable  for  all  injuries  to 
live  stock  by  reason  of  a  failure  to  fence. 
Louisville,  N.  A.  &*  C.  R.  Co.  v.  Zink,  85 
Ind.  219. 

Proof  that  stock  were  killed  by  a  train  in 
a  field  where  an  unfenced  road  passes 
through  it,  makes  a. prima  facie  case  of  neg- 
ligence against  the  company.  A  company 
which  runs  its  trains  upon  an  unfenced  track 
does  so  at  its  peril,  and  is  liable  for  any  stock 
killed  which  may  come  upon  the  track 
through  lack  of  a  fence.  McCoy  v.  Cali- 
fornia Pac.  R.  Co.,  40  Cal.  532. — Followed 
IN  Johnson  v.  Baltimore  &  O.  R.  Co.,  25  W. 
Va.  570. 

(2)  In  Colorado. — Under  the  Colorado  stat- 
ute, railroad  companies  are  liable  for  killing 
stock  without  reference  to  the  question  of 
negligence.  Atchison,  T.  <S-  S.  F.  R.  Co.  v. 
lietts,  31  Am.  &*  Eng.  R.  Cas.  563,  10  Colo. 
4}i,  15  Pac.  Rep.  82 1 . 

(3)  /«  ////«wj.— Where  a  railway  kills  stock 
not  at  a  crossing  or  other  place  where  it  is 
rcqu  red  to  fence  its  track,  and  has  been  in 

*  See  ante  O,  20-33 ;  tost,  204,  238. 
230,281. 


operation  for  more  than  six  months,  and  has 
not  fenced  its  track  at  tlie  place  where  the 
killing  took  place,  and  the  owner  of  the 
land  has  not  agreed  to  fence  the  road,  the 
company  will  be  liable,  under  the  Illinois 
act  of  1855,  without  proof  of  any  actual  neg- 
ligence, even  though  the  owner  may  not 
prove  the  stock  got  upon  the  track  at  the 
point  not  fenced.  Toledo,  P.  &*  W.  R.  Co. 
V.  Pence,  68/11  524.— Followed  in  Toledo, 
P.  &  W.  R.  Co.  V.  Logan,  71  111.  191. 

Where  it  is  the  duty  of  a  railroad  to  se- 
curely fence  its  track,  it  will  be  liable  for  the 
killing  of  a  horse  that  takes  fright  and  goes 
upon  the  track  through  a  defect  in  the  fence 
at  a  particular  place  where  the  horse  crosses 
it,  without  proof  of  carelessness  or  wilful 
injury.  Chicago  &*  A.  R.  Co.  v.  Utley,  38 
///.  410.— Quoted  and  followed  in  Chi- 
cago, B.  &  Q.  R.  Co.  V.  Bryant,  29  111.  App. 

17- 

Where  a  company  fails  to  fence  its  track, 
as  required  by  the  Illinois  statute,  it  must 
see  that  its  servants  so  conduct  its  trains 
that  injury  shall  not  result  to  stock  that  may 
get  upon  its  track,  if  it  can  be  avoided  by 
care  and  caution.  In  failing  to  fence  it 
takes  the  hazard,  and  when  injury  results 
therefrom  it  must  be  required  to  respond  in 
damages.  Toledo,  P.  &*  W.  R.  Co.  v.  Lavery, 
71  ///.  522. 

The  Illinois  statute  makes  it  the  duty  of 
railroad  companies  "to  erect  and  maintain 
fences  suitable  and  sufficient  to  prevent 
cattle,  horses,  sheep,  and  hogs  '  from  getting 
upon  their  road.  VVhere  the  proof  shows 
that  the  fence  of  the  company,  at  the  place 
where  a  horse  got  upon  its  track  and  was 
killed,  was  not  of  that  description,  the  com- 
pany is  liable  to  the  owner.  Chicago  &*  A. 
R.  Co.  v.  Umphenour,  69  ///.  198. 

(4)  In  Indiana. — Where  it  appears  that 
stock  go  upon  a  track  by  reason  of  an  in- 
sufficient fence  and  are  killed,  the  question 
of  negligence  on  the  part  of  the  company, 
and  a  defence  based  upon  reasons  why  a 
sufficient  fence  was  not  maintained,  are  im- 
material. Grand  Rapids  &•  I.  It.  Co.  v. 
Jones,  81  Ind.  523. 

Under  the  Indiana  statute  railroad  com- 
panies arc  liable  for  stock  killed  or  injured 
on  the  track  by  reason  of  a  failure  to  fence 
at  points  where  it  is  required  to  do  so,  with- 
out proof  of  negligence  on  the  part  of  the 
company,  and  without  reference  to  the  fault 
of  the  owner.  Jeffersonville.M.&'I.  R.  Co. 
V.  Ross,  37  Ind.  545,    Thayer  v.  St.  Louts,  A. 


ANIMALS,  INJURIES   TO,   120. 


157 


&*  T.  H.R.  Co.,  22  Ind.  26.  McKintuyv. 
Ohio  &*  M.  K.  Co.,  22  Ind.  99. 

The  Indiana  statute  upon  the  subject  of 
the  liability  of  railroads  for  stock  killed, 
where  the  road  is  not  fenced,  gives  to  the 
want  of  a  proper  fence  the  same  effect  that 
negligence  in  the  management  of  the  train 
would  otherwise  involve.  Jeffersonville,  M. 
&>  I.  R.  Co.  V.  Dunlap,  29  Ind.  426.— DIS- 
TINGUISHED IN  Heller  v.  Abbot,  79  Wis. 
409. 

A  party  cannot  have  the  benefit  of  the 
Indiana  statute  of  1853,  making  companies 
liable  for  animals  killed  without  negligence, 
unless  he  prove  that  the  track  was  not  fenced 
as  prescribed  by  the  statute.  Indianapolis 
Ht*  C.  R.  Co.  V.  Means,  1 4  Ind.  30. 

Under  the  Indiana  act  requiring  railroad 
companies  to  fence,  a  failure  to  fence  will 
make  a  company  liable  without  reference  to 
the  negligence  of  the  owner,  or  whether  he 
was  a  proprietor  of  adjoining  lands  or  not. 
Indianapolis  &*  C.  R.  Co,  v.  To7vnsend,  10 
Ind.  38. 

The  Indiana  acts  of  May  11,  1852,  and 
March  i,  1853,  change  the  common-law  rule 
that  each  landowner  is  entitled  10  the  exclu- 
sive use  of  his  own  lands,  and  is  not  bcmd 
to  fence  against  stock  of  adjoiaing  owners, 
so  far  as  relates  to  railroads ;  and  under  the 
statutes  it  is  the  duty  of  such  corporations 
to  fence  their  tracks,  and  failing  to  do  so, 
they  are  liable  for  all  stock  killed  or  injured 
thereby,  regardless  of  the  question  of  neg- 
ligence, misconduct,  or  inevitable  accident. 
Williains  v.  New  Albany &*  S.  R.  Co.,  5 Ind. 
Ml.— Followed  in  Smitii  v.  Terre  Haute 
&  R.  R.  Co.,  7  Ind.  553;  Terre  Haute  &  R. 
R.  Co.  V.  Jones,  8  Ind.  183. 

(5)  In  Kansas — Michigan. — Where  an  ani- 
mal, after  entering  upon  the  track  at  a  place 
where  it  could  not  legally  be  fenced,  passed 
off  the  railroad's  premises,  and,  re-entering 
upon  the  track  at  a  point  where  the  com- 
pany was  bound  by  law  to  fence,  was  then 
killed — held,  that  the  company  was  liable. 
Atchison  &*  N.  R.  Co.  v.  Cash,  27  Kan.  587. 
—Distinguishing  Missouri  Pac.  R.  Co.  v. 
Leggett,  27  Kan.  323. 

When  stock  gets  upon  a  railroad  right  of 
way  by  reason  of  the  neglect  of  the  com- 
pany to  properly  fence  its  track,  and  is  killed 
by  a  passing  train,  no  other  negligence  need 
be  proved.  Talbot  v.  Minneapolis,  St.  P. 
&•  S.  St.  M.  R.  Co.,  82  Mich.  66,  45  A^.  W. 
Rep.  II 1 3. 

(6)  In  Missouri. — Under  the  Missouri  stat- 


ute (Revision  1879,^806).  it  is  made  the  duty 
of  a  railroad  company  to  fence  its  road, 
and  it  is  made  liable  to  the  owner  of  cattle 
for  double  the  amount  of  all  damages  done 
to  them,  occasioned  by  reason  of  its  failure 
to  fence  the  road.  The  neglect  to  fence  its 
road,  according  to  this  act,  is  of  itself  neg- 
ligence, and  the  corporation  is  liable  in 
double  damages.  Donovan  v.  Hannibal  &* 
Si.  J.  R.  Co.,  26  Am.  (S-  Eug.  R.  Cas.  588,  89 
Mo.  147. 1  S.  W.  Rep.  232". 

Proof  that  stock  was  injured  at  a  point 
where  the  land  was  uninclosed  and  prairie- 
lands,  and  that  the  track  was  not  fenced, 
will  make  the  company  liable  without  proof 
of  negligence.  Shelton  v.  St.  Louis,  K.  C.&' 
N.  R.  Co.,  60  Mo.  412.— Foi.i.uwi.NG  Cary  v. 
St.  Louis.  K.  C.  &  N.  R.  Co.. 60  Mo.  209. 

Under  the  Missouri  act  of  Dec.  12,  1855, 
§  5,  railroads  are  liable  for  stock  killed  with- 
out regard  to  the  question  of  negligence, 
unless  it  be  when  they  are  killed  at  crossings 
or  within  inclosed  fields  ;  and  the  same  lia- 
bility attaches  to  companies  subject  to  the 
general  railroad  act,  §  52.  Burtonv.  North 
Mo.  R.  Co.,  30  Mo.  372.  Morris  \.  St.  Louis, 
K.  C.  <S-  A^.  R.  Co.,  58  Mo.  78.— Reviewing 
Lloyd  7'.  Pacific  R.  Co.,49  Mo.  199.— Dis- 
tinguished in  Pearson  v.  Chicago,  B.  &K. 
C.  R.  Co.,  33  Mo.  App.  543.  Followed  in 
Swearingen  v.  Missouri,  K.  &  T.  R.  Co.,  64 
Mo.  73.  Reviewed  in  Bean  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  20  Mo.  App.  641. 

If  an  animal  comes  upon  the  track  of  a 
railroad  and  is  killed,  where  such  track 
might  be  fenced  lawfully,  the  railway  com- 
pany is  liable,  regardless  of  the  question  of 
negligence ;  and  the  mere  fact  that  the  track 
is  in  a  town-plat  does  not  make  it  unlawful 
to  fence  it,  where  the  laid-out  streets  do  not 
cross  the  track.  /  'anderworker  v.  Missouri 
Pac.  R.  G>.,  51  Mo.  App.  166. 

The  object  of  the  Missouri  statute  requir- 
ing railroads  to  be  fenced  is  the  protection 
of  the  road,  and  of  property  and  passengers 
being  carried,  and  the  prevention  of  injt'iies 
to  live  stock  on  the  track ;  and  if  a  company 
fails  to  fence  as  required  by  the  statute,  or 
to  put  up  cattle-guards,  it  will  be  liable  for 
stock  killed  on  the  track  without  proof  of 
negligence.  But  a  company  is  not  required 
to  fence  its  track  so  as  to  prevent  stock 
from  straying  upon  adjoining  fields.  Clark 
V.  Hannibal  6-  St.  J.  R.  Co.,  36  Mo.  202.— 
Quoted  in  Cannon  7>.  Louisville,  E.  &  St. 
L.  C.  R.  Co.,  34  111.  App.  640.  Referred  to 
IN  Hannibal  &  St.  J.  R.  Co.  ?'.  Kenney,  41  Mo, 


-^mm 


158 


ANIMALS,  INJURIES  TO,  120. 


I 


271.     Reviewed    in    Stanley  v.   Missouri 
Pac.  R.  Co.,  84  Mo.  625. 

A  railroad  company  is  iiiiblu  for  stock 
killed  on  the  track  upon  proof  showing  that 
the  killing  occurred  where  thi  track  was 
not  lawfully  fenced,  and  not  at  a  highway 
crossing,  without  actual  proof  of  negligence. 
I'mvell  V.  Hannibal  «S-  St.  J.  A'.  Co.,  35  Mo. 

457. 

Under  Missouri  Rev.  St.  §  2124,  provid- 
ing that  the  owner  of  stock  killed  or  injured 
on  a  railroad  other  than  at  crossings  and 
where  the  trark  is  fenced,  may  recover, 
"  without  |)roof  of  negligence,  unskilfulness, 
or  misconduct,"  an  action  cannot  be  de- 
feated by  showing  that  the  train  doing  the 
injury  was  being  run  in  a  careful,  prudent 
manner,  and  that  there  was  no  want  ol  care 
or  skill.  C'<m'j[i7/  v.  Hannibal  &-  Si.  J.  A'. 
Co.,  33  A/o.  App.  677. 

A  railroad  company  will  be  liable  where 
stock  is  killed  on  an  unfenced  switch  which 
is  laid  at  a  point  where  it  is  not  necessary  to 
keep  it  open  for  the  transaction  of  business, 
and  to  make  the  company  liable  it  is  not 
necessary  to  prove  negligence.  Russell  v. 
Hannibal  &'  SI.  7.  A\  Co.,  26  Afo.  App.  368. 
A  railroad  company  is  liable,  without 
proof  of  negligence,  for  the  killing  of  ani- 
mals at  a  point  on  its  road  not  in  a  town  or 
at  a  public  crossing,  where  it  is  not  neces- 
sary to  keep  the  space  open  for  the  transac- 
tion of  its  business,  if  the  road  is  not 
lawfully  fenced.  Robinson  v.  St.  Louis,  I.  M. 
6-  S,  R.  Co.,  21  Mo.  App.  141. 

(7)  In  Nebraska — New  Hampshire. — Un- 
der the  Nebraska  statute  requiring  railroad 
companies  to  fence  their  tracks,  a  company 
is  liable  for  stock  killed  upon  proof  showing 
that  the  killing  was  done  where  the  track 
was  unfenced,  without  any  allegation  or 
other  proof  of  negligence.  Union  Pac.  R. 
Co.  V.  Hii,^/i,  14  Neb.  14. 

If  an  animal  come  upon  the  track  of  a 
railroad  through  the  neglect  of  the  corpora- 
.  lion  in  not  maintaining  a  suitable  fence 
against  the  lands  of  its  owner,  and,  in  conse- 
quence, be  there  killed  by  their  train,  the 
corporation  is  liable  for  the  damage,  al- 
though there  be  no  negligence  in  the  man- 
agement of  the  train  by  which  it  is  killed. 
Smit/t  v.  Eastern  R.  Co.,  35  N.  H.  356.— Dis- 
tinguished IN  Laird  v.  Connecticut  &  P. 
R.  R,  Co.,  43  Am.  &  Eng.  R.  Cas.  63,  62  N. 
H.  254. 

(8)   In  New  York — Oregon. — Under  the 
New  York  act  of  March  27,  1848,  making  it 


the  duty  of  railroad  companies  to  fence  their 
track  and  to  place  cattle-guards  at  road- 
crossings,  a  company  is  liable  for  stock 
killed  on  the  track,  without  proof  of  negli- 
gence. Suyilam  v.  Moore,  8  Barb.  (N.  V.) 
358.— DisriNtiUlSHEU  IN  Talmadgei/.  Rens- 
selaer &  S.  R.  Co.,  13  Barb.  (N.  Y.)  493; 
Marsh  v.  New  York  &  E.  R.  Co.,  14  Barb. 
(N.  Y.)  364.  Followed  in  Corwin  v.  New 
York  it  E.  R.  Co..  13  N.  Y.  42. 

Under  the  Oregon  act  of  1887,  defining 
the  duty  of  companies  to  fence  and  the  lia- 
bility for  stock  killed  by  reason  of  a  failure 
to  fence,  allegations  and  proof  that  the  com- 
pany owned  and  operated  a  railroad,  that 
stock  were  killed  on  or  near  the  track  by  a 
moving  train  where  the  company  had  not 
fenced,  fixes  liability,  and  it  is  not  necessary 
to  allege  or  prove  negligence.  Hindman  v. 
Oregon  R.  &*  N.  Co.,  38  Am.  &*  ling.  R.  Cas. 
310, 17  Oreg.  614,  22  Pac.  Ref>.  1 16.— Distin- 
guished IN  Sullivan  v.  Oregon  R.  &  N. 
Co.,  19  Oreg.  319.  Followed  in  Eaton  z/. 
Oregon  R.  &  N.  Co.,  19  Oreg.  371,  391. 

(9)  /«  Texas —  Vermont. — A  railroad  com- 
pany is  liable  for  damages  to  a  team  of 
horses  which  runs  away  and  enters  the 
track  at  a  point  other  than  a  crossing,  where 
it  is  not  fenced,  under  the  Texas  statute 
making  railroad  companies  liable  for  stock 
injured  or  killed  where  the  track  is  unfenced, 
without  regard  to  negligence.  Gulf,  C.  &* 
S.  F.  R.  Co.  v.  Keith,  74  Tex.  287,  11  S.  IV. 
Rep.  1 1 17. 

Where  cattle  are  killed  at  a  point  where 
it  is  lawful  for  them  to  be,  and  where  the 
track  might  have  been  fenced  but  is  not, 
the  railroad  company  cannot  avoid  liability 
by  attempting  to  show  ordinary  care  on  its 
part,  as  a  failure  to  fence  is  a  want  of  ordi- 
nary care.  Gul/,  C.  &•  S.  F.  R.  Co.  v.  Hud- 
son, 77  Tex.  494,  14  S.  IV.  Rep.  158. 

The  plaintiflT's  horse  escaped  from  his  ad- 
joining meadow  directly  on  to  the  track,  and 
was  there  killed  by  a  passing  train.  The 
defendant  had  neglected  to  maintain  a  law- 
ful fence.  Held,  that  the  company  was  lia- 
ble, although  the  owner  knew  of  the  defect 
in  the  fence,  that  his  horse  was  breachy, 
and  although  there  was  no  neglect  in  run- 
ning the  train.  Congdon  v.  Central  Vt.  R. 
Co.,  20  Am.  &*  Eng.  R.  Cas.  460,  56  Vt.  390, 
48  Am.  Rep.  793. 

(10)  Limits  and  exceptions  to  the  rule. — 
Under  the  Iowa  statute  railroads  are  abso- 
lutely liable  for  killing  stock  by  reason  of  a 
failure  to  fence  at  any  point  on  the  road. 


ANIMALS,  INJURIliS   TO,   127. 


150 


except  at  station  ffruuiids  and  at  cioasings 
of  streets  and  highways.  Clary  v.  Icnva  Mid- 
land R.  Co.,  37  Iowa  344. 

But  where  a  proper  fence  is  maintained, 
and  in  places  where  it  is  not  required  to  be, 
tliey  arc  not  liable  for  animals  injured,  ex- 
cept as  at  common  law,  where  there  is  ne^- 
li^ence  on  their  part,  and  the  nct^ii^ence  of 
the  owner  of  the  stock  dues  not  contribute 
to  its  immediate  injury.  Thayer  v.  St.  Louis, 
A.  ij*  T.  H.  R.  Co.,  22  hid.  26. 

If  cattle  stray  upon  a  railroad  directly 
from  the  land  of  their  owner,  by  reason 
of  the  failure  on  the  part  of  the  company  to 
fence  their  roads  at  that  point,  and  are 
killed,  the  company  would  be  lield  liable 
under  the  railroad  act  (St.  Nevada,  1864- 
65,  427,  §  40)  on  a  simple  showing  of  the 
facts  of  sucii  killing  and  neglect  to  fence, 
without  any  further  showing  of  negligence ; 
but  it  is  otherwise  if  they  stray  upon  public 
land  or  from  land  not  belonging  to  their 
owner.  Wahh  v.  Virginia  &*  T.  R.  Co.,  8 
Ne%i.  no. 

Under  the  Wisconsin  statute  the  liability 
of  railroad  companies  is  absolute  for  all  stock 
killed  or  injured  by  reason  of  their  failure 
to  both  erect  and  maintain  proper  fences; 
except  perhaps  the  liability  would  not  be 
absolute  where  a  fence  became  suddenly 
broken  down,  if  immediate  steps  were  taken 
to  repair  it.  Rronvn  v.  Milwaukee  <&*  /'.  du 
C.  R.  Co.,  21  iVis.  39.— Distinguishing 
Hance  v.  Cayuga  &  S.  R.  Co.,  26  N.  Y.  428. 
—Distinguished  in  Fisher  v.  Farmers'  L. 
&  T.  Co.,  21  Wis.  73. 

(11)  Effect  of  contributory  negligence.* — 
Where  a  company  fails  to  fence  its  track,  as 
required  by  law,  it  is  sufficient,  to  fix  its  lia- 
bility, if  plaintiff's  stock,  in  consequence 
thereof,  and  without  any  contributory  neg- 
ligence on  his  part,  goes  upon  the  track 
and  is  there  killed  or  injured.  Eiving  v. 
Chicago  £r*  A.  R.  Co.,  72  ///.  25. 

A  railroad  company  which  fails  to  fence 
its  track  at  a  place  wliere  by  statute  it  is  re- 
quired to  fence,  is  liable  for  stock  killed  or 
injured  on  its  track  by  its  engine  or  cars, 
and  the  mere  negligence  of  theownerof  the 
stock  is  no  defence.  Burlington  &*  M.  R. 
R.  Co.  V.  Franzen,  1 5  Am.  &*  Eng.  R.  Cas. 
530, 1 5  Neb.  365.— Following  Burlington  & 
M.  R.  R.  Co.  V.  Brinkman,  11  Am.  &  Eng. 
R.  Cas.  438,  14  Neb.  70. 

Where  a  company  is  bound  to  maintain 


See /ox/,  148,213-288. 


fences  and  cattle-guards,  it  is  liable  for  all 
stock  killed  by  reason  of  a  failure  to  do  so, 
except  in  cases  where  the  plaintiff  drives 
his  stock  onto  the  track  and  leaves  them 
there,  or  voluntarily  permits  them  to  go 
onto  the  track,  or  by  some  positive  act  in- 
creases the  danger.  Brady  v.  Rensselaer  &* 
S.  R.  Co.,  I  Nun  {N.  V.)  378,  3  /'.  .;;r-  C.  537. 
— guoriNG  Bradley  V.  BulTalo,  N.  Y.  &  E.  R. 
Co.,  34  N.  Y.  427.  Revikwing  Corwin  v. 
New  York  &  E.  R.  Co.,  13  N.  Y.  42. 

In  case  for  the  killing  of  cows  by  a  train 
on  defendant's  railroad,  it  appeared  that  the 
cows  when  killed  were  lying  on  the  track 
in  plaintiff's  meadow  through  which  the 
road  ran.  and  into  which  plaintiff  had  turned 
the  cows  to  graze;  and  that  the  road,  al- 
though it  had  then  been  in  partial  opera- 
ti(jn  about  a  month,  was  there  still  unfenced. 
//eld.  that  under  §  47,  ch.  28, Gen.  St.  of  Ver- 
mont, the  duty  of  defendant  was  absolute 
to  erect  and  maintain  fences  along  its  road; 
and  that  therefore  question  as  to  contribu- 
tory negligence  on  the  part  of  plaintiff 
in  turning  his  cows  into  the  meadow  did 
not  arise.  Mead  v.  Burlington  iS>*Z,.  R.  Co., 
7  A/n.  &>  Eng.  R.  Cas.  550,  52  F/.  278. 

A  railroad  company  which  has  failed  to 
erect  fences  and  cattle-guards,  as  required 
by  law,  is  liable,  under  §  1810,  Rev.  St.  01 
VVisconsin,  as  amended  by  ch.  193,  Laws  of 
1881,  for  the  killing  of  horses  when  on  its 
unfenced  track,  in  the  absence  of  evidence 
that  the  owner  drove  them  upon  the  right 
of  way,  or  abandoned  them  in  a  place  where 
it  was  certain  that  they  would  go  upon  the 
track.  Heller  v.  Abbot,  79  Wis.  409,  48  N. 
IV.  Rep.  598.— Distinguishing  Corwin  v. 
New  York  &  E.  R.  Co..  13  N.  Y.  42;  Mis-' 
souri  Pac.  R.  Co.  v.  Roads,  23  Am.  &  Eng. 
R.  Cas.  165,  33  Kan.  64<">!  Welty  v.  Indian- 
apolis &  V.  R.  Co.,  105  Ind.  55;  Ft.  Worth, 
C.  &  L.  R.  Co.  V.  Woodward,  112  Ind.  118; 
Jefferson ville,  M.  &  I.  R.  Co.  v.  Dunlap,  29 
Ind.  426;  Curry  t/.  Chicago  &  N.  W.  R.  Co., 
43  Wis.  665;  Chicago  &  N.  W.  R.  Co.  v. 
Goss,  17  Wis.  441  ;  McCandless  v.  Chicago 
&  N.  W.  R.  Co..  45  Wis.  365. 

127.  PInce  of  entry,  not  place  of 
(leatli,  fixes  liability.— (i)  Illinois.— \t 
matters  not  whether  a  track  is  sufficiently 
fenced  or  not  at  the  point  where  stock  is 
killed.  The  liability  of  the  company  de- 
pends on  the  sufficiency  of  the  fence  at  the 
point  where  the  stock  went  on  the  track. 
Duggan  V.  Peoria,  D.  <&>•  E.  R.  Co.,  42  ///. 


lUU 


ANIMALS,  INJURIES  TO,  127. 


Merely  showing  that  a  track  was  not 
fenced  at  a  point  where  a  'ence  was  neces- 
sary  will  not  make  a  company  liable  for 
stock  killed  ;  it  must  appear  that  the  stock 
entered  the  track  at  a  point  where  the  law 
niukes  it  the  duty  of  the  company  to  fence, 
and  that  the  loss  occurred  by  reason  of  a 
failure  to  fence.  Illinois  C.  K.  Co.  v.  Finney, 
42  ///.  ////.  390;  Great  Wistern  R.  Co.  v. 
Atorthland,  yi  III.  451.— Ai'i'i.iKU  in  Louis- 
ville &  N.  R.  Co.  V.  Shelion,  43  III.  App.  220. 
Api'ROVKD  in  Cecil  v.  Pacific  R.  Co.,  47 
Mo.  246;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Walton,  3  N.  Mcx.  319.  Followed  in 
Parker  v.  Lake  Shore  &  M.  S.  R.  Co.,  93 
Midi.  607. 

If  stock  go  upon  the  track  at  a  point 
where  the  company  is  required  to  fence,  and 
then  pass  along  the  track  and  are  killed  at 
a  point  where  the  company  is  not  required 
to  fence,  the  company  is  liable  without 
proof  of  negligence  in  the  management  of 
the  train.  Alsop  v.  Ohio  &■•  M.  R.  Co.,  19 
///.  App,  292.— QuoiiNG  Great  Western  R. 
Co.  t/.  Hanks.  36  III.  281. 

The  bad  condition  of  appellant's  fences  at 
other  places  than  that  where  the  stock  got 
upon  the  track  could  not  be  shown.  The 
want  of  a  sufficient  fence  at  the  place  where 
the  animal  got  upon  the  track  is  the  pre- 
cise thing  to  be  considered,  and  if  no  fault 
existed  there,  no  liability  attaches.  Chicago, 
B.  &*  Q.  R.  Co.  V,  Farrelly,  3  ///.  ////. 
60. 

Where  suit  is  brought  against  a  company 
to  recover  for  injuries  to  cattle,  through  the 
alleged  negligence  of  the  company  to  main- 
tain a  proper  fence,  it  is  necessary  to  show 
that  theywenton  the  track  at  a  point  where 
the  fence  was  defective  and  insufficient,  and 
it  is  not  enough  to  show  that  the  fence  on 
both  sides  of  the  track  was  generally  poor 
and  defective.  Wabash  R,  Co.  v.  Brown,  2 
III.  App.  516. 

(2)  Indiana. — The  material  question  is  the 
condition  of  the  road  at  the  place  where  the 
animals  enter  upon  the  track,  and  not  at 
the  place  where  they  are  killed.  Indiana, 
B.  &•  IV.  R.  Co.  V.  Quick,  109  Ind.  295. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Lyon,  72 
Ind.  107.  Wabash  St.  L.  «S-  P.  R.  Co.  v. 
Tretts,  19  Am.  &*  Eng.  R.  Cas.  601,  96  Ind. 
450. 

A  company  is  liable  for  killing  stock  that 
enter  the  track  at  a  place  where  it  might 
have  been  fenced,  without  a  charge  of  negli- 
gence.   Jeffersonville.  M.  ij^  I.  R.  Co.  v.  IJun- 


lap,  31  Am.  6-  Eng.  R.  Cas.  512,  112  Ind,  93, 
13  A'.  £.  Rep.  403. 

If  stock  come  upon  a  railroad  track  where 
it  is  unfenced,  and  where  it  is  the  duty  of 
the  company  to  fence,  and  wander  to  and  arc 
killed  at  a  place  where  the  company  is  not 
bound  to  fence,  the  company  is  liable.  Wa- 
bash R.  Co.  V.  I'orshee,  77  Ind.  158.— Dis- 
TiNOUisHtD  IN  Louisville,  N.  A.  &.  C.  R. 
Co.  V.  Porter,  20  Am.  &  Eng.  R.  Cas.  446, 
97  Ind.  267.  ' 

The  burden  is  on  the  plaintiff  in  all  cases 
of  this  character  to  prove  that  the  animals 
entered  at  a  point  where  the  railroad  com- 
pany was  bound  to  fence,  and  that  at  that 
point  there  was  no  fence.  It  is  the  place  of 
entry  that  controls.  Louisville,  N,  A.  &•  C. 
R.  Co.  V.  Goodbar,  102  Ind.  596, 2  N.  E,  Rep, 
337.  3  N.  E.  Rep.  162. 

Where  it  appears  that  live  stock  went 
upon  a  track  over  a  fence  that  was  generally 
insecure  and  not  such  as  good  farmers  usu- 
ally keep,  it  is  not  necessary  to  show  that 
the  fence  was  insecure  at  the  particular 
place  where  the  stock  went  over.  Louisville, 
N.  A.  <S-  C.  R.  Co.  V.  Spain,  61  Ind.  460. 

Where  an  animal  is  killed  by  cam  of  the 
company  at  a  point  where  the  road  is  inse- 
curely fenced  to  within  10  feet  on  one  side  of 
the  track,  and  within  20  steps  on  the  other 
at  a  public  crossing,  but  where  the  fence 
does  not  extend  to  the  caitle-guard  at  the 
public  crossing,  the  company  cannot  escape 
liability  by  showing  that  the  track  was  se- 
curely fenced  where  the  stock  was  killed, 
where  it  appears  that  it  was  left  open  to 
permit  the  cattle  to  enter,  but  so  closed  that 
they  could  not  escape  when  on  the  track 
upon  the  appro.ich  of  a  train.  Jeffersonville, 
XI.  <S>»  /.  R.  Co.  V.  Avery,  31  Ind.  277. 

If  animals  have  entered  at  a  place  where 
the  railroad  company,  being  bound  to  fence, 
has  not  done  so,  and  they  wander  or  are 
driven  by  the  engine  along  the  track  to  an- 
other place  thereon  and  are  there  struck 
and  injured  by  the  engine,  the  company  is 
liable  whether  or  not  the  place  at  which  Hie 
injury  is  done  be  one  at  which  the  company 
is  bound  to  fence,  and  whether  or  not  that 
place  be,  in  fact,  fenced,  and  though  in  pass- 
ing to  that  place  from  the  place  of  entry  the 
animals  may  have  passed  over  the  place  at 
which  the  company  was  not  bound  to  fence, 
as  a  public  highway.  Louisville,  N.  A.  &* 
C.  R.  Co.  V.  Etzler,  3  Ind.  App.  562,  30  A':  E. 
Rep.  32. 

In  an  action  under  the  Indiana  statute 


ANIMALS,  INJUKlliS   TO,  127. 


161 


against  a  railroad  company  tu  recover  dam- 
ages for  the  killing  or  injuring  of  animals, 
it  is  well  cstablisiiud  that  the  defendant's 
liability  depends  upon  the  question  whether 
the  railroad  was  securely  lenced  in  at  the 
place  where  the  animals  killed  or  injured  by 
the  passing  train  entered  upon  the  railroad. 
The  question  concerning  u  sutticient  fence 
always  relates  to  the  place  of  entry,  not  to 
tho  place  of  the  killing  or  injuring,  if  it  be 
omer  than  th.  place  of  entry.  Louisvilie, 
N.  A.  &*  (,.  A'.  Co.  V.  /Ha/it,  3  ///</.  A/>p.  562, 
30  iV.  A".  AV/).  32. 

If  an  animal  is  killed  or  injured  by  a  rail- 
road train,  the  animal  having  entered  upon 
the  track  at  a  point  where  the  company  was 
not  bound  to  maintain  a  fence,  such  com- 
pany is  not  liable  for  the  damage  thereby 
occasioned  unless  the  killing  was  wilful. 
Pt'Htisylvania  A'.  Co.  v.  LindUyy  2  Ind.  App. 
Ill,  28  A'.  E.  Kep.  106. 

(3)  Kansas—  Minnesota. — Under  Kansas 
Laws  1874,  providing  for  a  recovery  for 
death  of  or  injuries  to  cattle  by  railway 
companies,  the  place  of  entry  and  not  the 
place  of  injury  fixes  the  company's  liability. 
Missouri  J'ac  A'.  Co.  v.  Leggett,  27  Kan, 
323.--DisiiNGUisiiiiU  IN  Atchison  &  N.  R. 
Co.  V.  Cash,  27  Kan.  587. 

In  an  action  against  a  railroad  company 
to  recover  the  value  of  a  colt,  it  appeared 
that  the  fence  along  the  track  was  defec- 
tive, and  that  the  defect  was  known  to  the 
company.  The  animal  was  in  the  pasture 
adjoining  the  track  in  the  evening,  and 
about  9  o'clock  at  night  was  struck  by  the 
engine  and  killed.  Witnesses  testified  that 
the  hair  of  the  colt  was  found  on  the  posts 
at  a  narrow  gap  in  the  fence  through  which 
the  colt  crowded,  and  that  its  tracks  could 
be  seen  leading  to  the  railway  and  down  the 
track  to  a  crossing  where  it  was  killed.  Plain- 
tiff sought  to  recover  on  the  ground  that  the 
colt  ran  ahead  of  the  engine  into  a  cattle- 
guard,  and  was  there  struck  and  thrown  out 
on  the  highway,  where  it  was  found.  The 
engineer  and  fireman  testified  that  it  was 
standing  on  the  crossing  of  the  highway 
headed  in  the  same  direction  that  the  train 
was  going  when  it  was  killed,  and  the  jury 
found  that  it  was  struck  on  the  crossing. 
Held,  that  the  fact  that  it  was  struck  and 
killed  on  the  crossing  would  not  defeat  re- 
covery if  it  escaped  from  the  pasture  through 
the  gap,  and  that  the  evidence  was  sufli- 
lient  to  sustain  a  verdict  for  the  plaintifl. 
Kansas  City,  Ft.  S.  Gt*  G.  R.  Co.  v.  Surge,  40 
I  U.  R.  U.— 11. 


Am.  &•  Eng.  K.  Cas.  181,40  Kan.  736,  31 
Pac.  A'l-p.  589. 

In  case  of  accident  resulting  from  the 
presence  of  animals  on  a  railroad  track, 
caused  by  want  of  a  proper  fence,  it  is  the 
condition  of  ihu  road  where  they  enter  upon 
it,  and  not  where  they  arc  killed,  that 
governs.  Cox  v.  Minneapolis,  S.  St.  M.  &* 
A.  A'.  Co.,  38  Aw.  &*  ling.  A.  Cas.  287,  41 
Minn.   101,  42  A'.    \V.  Rep.  924. 

(4)  Missouri. — It  is  the  place  where  the 
animal  got  on  the  track,  and  not  where  it 
was  killed,  that  fixes  the  railroad  company's 
liability.  Miller  v.  IVabas/i  A'.  Co.,  47  jifo, 
////.  630,— Applying  Eliret  v.  Kansas  City, 
St.  J.  &  C.  B.  K.  Co.,  20  Mo.  App.  251; 
Moore  v.  Wabash,  St.  L.  &  P.  R.Co.,81  Mo. 
499;  Nance  7>.  St.  Louis,  I.  M.  &  S.  R.  Co., 
79  Mo.  196;  Cecil  V.  Pacific  R.  Co.,  47  Mo. 
246.— K/iret  V.  Kansas  City,  St.  J.  &*  C.B,  R. 
Co.,  20  Mo.  App.  251. 

Under  the  Missouri  statute  requiring  rail- 
road companies  to  fence  their  tracks,  a 
company  is  liable  only  for  injuries  to  stock 
that  go  upon  the  track  where  the  company 
is  required  to  fence,  and  a  complaint  under 
the  statute  is  not  good  which  docs  not  con- 
tain an  averment,  expressed  or  implied,  to 
that  effect.  Nance  v.  St.  Louis,  I.  M.  &-  S, 
A.  Co.,  19  Am.  &■•  Eng.  A'.  Cas.  594,  79  Mo. 
196.— Following  Cecil  v.  Pacific  R.  Co., 47 
Mo. 246. —Applied  in  Miller  v.  Wabash  R. 
Co.,  47  Mo.  App.  630.  Distinguished  in 
Morrow  v,  Missouri  Pac.  R.  Co.,  82  Mo.  169. 
Followed  in  Busby  v.  St.  Louis,  K.  C.  & 
N.  R.  Co..  81  Mo.  43;  Wilson  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  18  Mo.  App.  258;  Pear- 
son V.  Chicago,  B.  &  K.  C.  R.  Co.,  33  Mo. 
App.  543.  Quoted  in  Moore  v,  Wabash, 
St.  L.  &  P.  R.  Co.,  81  Mo.  499:  Brassfield 
V.  Patton,  32  Mo.  App.  572. 

A  railroad  company  is  liable  for  stock 
killed  that  enter  the  track  where  it  is  re- 
quired to  fence,  though  the  stock  were 
killed  at  a  point  where  it  is  not  required  to 
fence,  where  the  killing  is  due  to  a  failure 
on  the  part  of  the  company  to  fence  at  the 
point  where  the  cattle  entered.  Snider  v. 
St.  Louis,  /.  M.  6-  5.  R.  Co.,  7  Am.  &*  Eng, 
R.  Cas.  558,  73  Mo.  465. 

In  order  to  recover  against  a  railroad  for 
killing  hogs,  under  the  Missouri  railroad 
act,  §43,  proof,  that  the  fence  is  defective 
oa  both  sides  where  the  hogs  were  killed 
was  not  sufficient,  unless  it  appear  that  the 
hogs  got  on  the  track  by  reason  of  the  com- 
pany's failing  to  fence  where  by  law  it  is  re* 


163 


ANIMALS,  INJURIES  TO,  128. 


t!l# 


quired  to  do,  so  or  that  the  company  was  re- 
quired to  fence  at  the  place  where  ttie  hugs 
were  killed.  Clardys.  St.  Louis,  J.  M.  &• 
S.  R.  Co.,  7  Aw.  &*  Eng.  R.  Las.  555,  73  Mo. 
576. 

On  a  retrial  the  evidence  should  be  pre- 
sented with  greater  care,  so  as  tu  show 
whether  the  animal  entered  the  track  from 
tl  e  public  road  or  not,  as  in  the  one  case 
thr  defendant  would  be  liable,  in  the  other 
Hdt.  .lUuiits  V.  Qiiincy,  O.  &*  R.  C.  R.  Co., 
52  A/o.  App.  590. 

Railroad  companies,  under  §  809,  Rev. 
St.,  are  not  liable  to  the  owner  uf  stock 
killed  or  injured,  unless  it  got  upon  the 
track  at  a  place  where  they  are  by  law 
required  to  fence,  no  matter  at  what  place 
it  may  be  killed  or  injured.  BrassfieUi  v. 
Patlon,  32  Mo.  App.  572.— Quoting  Nance 
V.  St.  Louis,  I.  M.  &  S.  K.  Co.,  79  Mo.  196. 

In  actions  under  this  section  (Rev.  St. 
§  809)  the  fact  should  appear  by  direct 
averment  or  necessary  implication  that  the 
animal  got  upon  the  defendant's  railroad 
track  at  a  point  where  by  the  law  the  de- 
fendant was  required  to  erect  and  maintain 
fences.  BrassfieUi  v.  Patton,  32  Mo.  App. 
572. 

A  railroad  company  is  not  liable  under 
the  Missouri  double  damage  act,  unless  the 
stock  injured  or  killed  went  upon  the  track 
at  a  point  where  the  company  is  required  to 
fence,  regardless  of  wlieie  it  may  have  been 
injured.  Moore  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  81  Mo.  499.— Quoting  Nance  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  79  Mo.  196.— Ap- 
plied IN  Miller  V.  Wabash  R.  Co.,  47  Mo. 
App.  630. 

In  order  to  recover  double  damages  from 
a  railroad  company  for  injuries  to  stock 
under  the  Missouri  act,  it  is  not  necessary  to 
prove  by  direct  evidence  that  the  stock 
passed  through  the  fence  at  a  defective 
place,  where  it  appears  that  the  cattle  went 
upon  the  track  at  a  point  where  there  was 
not  a  lawful  fence.  Gee  v.  St.  Louis,  /.  M. 
&*  S.  R.  Co.,  80  Mo.  283.  — Applied  in 
Harned  v,  Missouri  Pac.  R.  Co.,  51  Mo. 
App.  482.  DisnNGUiSHED  IN  Walton  v. 
Wabash  W.  R.  Co..  32  Mo.  App.  634.  Fol- 
lowed IN  McBride  v.  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.,  20  Mo.  App.  216;  Johnson  v. 
Chicago,  B.  &  K.  C.  R.  Co.,  27  Mo.  App. 

379- 

(S)  Oregon  —  Wisconsin.— Prooi  of  the 
place  of  entry  of  the  stock  only  bcromes 
material  and  devolves  on  the  pluintifl  when 


stock  are  killed  or  injured  at  a  place  where 
the  railiuad  company  is  not  bound  to  fence, 
as  a  public  highway,  which  have  entered 
where  its  track  was  unfenced  and  the  duty 
to  fence  existed,  and  such  killing  or  injury 
is  tile  direct  consequence  of  omission  to 
fence.  Sullivan  v.  Oregon  R.  &^  N.  Co. ,  42 
Am.  ^^  Eng.  R.  Cas.  625,  19  Oreg.  319,  24 
Pac.  Rep.  408. 

Under  the  Wisconsin  act  of  1S60, ch,  268, 
in  order  to  recover  from  a  company  for 
stock  killed  on  the  track  tlie  owner  must 
show  that  the  stock  got  on  the  track  at  a 
point  where  the  company  was  bound  to 
tence,  but  neglected  to  do  so.  and  he  cannot 
recover  by  merely  showing  that  near  the 
place  where  the  injury  hup|jeiied,  and  near 
the  company's  depot,  certain  lands  of  the 
company  wen-  not  fenced.  Bennett  v.  t«/- 
cago&^A'.  W.  R.  Co.,  19  Wis.  145. 

Plaintiff's  cow  strayed  upon  the  defend- 
ant company's  track  and  was  killed  by  a 
passing  train.  She  might  have  strayed  on 
the  track  either  at  the  company's  station 
grounds,  where  they  were  not  bound  to 
erect  a  fence,  or  at  other  points  where  a 
fence  should  have  been  constructed,  though 
the  company  had  failed  to  do  so.  In  an  ac- 
tion to  recover  for  the  loss  of  the  cow — 
Ae/i/,  that  the  plaintiff's  case  was  fatally  de- 
fective in  that  it  failed  to  show  that  the  cow 
had  strayed  on  the  track  at  a  point  where 
the  company  was  bound  by  statute  to  con- 
struct a  fence.  Bremmer  v.  Green  Bay,  S. 
P.  <S-  A'.  R.  Co.,  19  Atn.&^Lng.R.  Cas.  575, 
61   Wis.  114,  20  A'.  W.  Rep.  687. 

128.  PreNiiiiiptioii  iin  tu  place  of 
entry.*— Wliere  a  track  is  unfenced  at  the 
point  where  an  animal  is  injured  it  will  be 
presumed  that  the  animal  entered  on  the 
right  of  way  thereat.  Johnson  v.  Chicago, 
B.  6-  K.  C.  R.  Co.,  27  Mo.  App.  379.— Fol- 
lowing Gee  V.  St.  Louis,  I.  M.  &  S.  R.  Co., 
80  Mo.  283;  Lepp  V.  St.  Louis,  L  M.  &.  S. 
R.  Co.,  29  Am.  &  Eng.  R.  Cas.  242,  87  Mo. 
'39- 

Where  ;t  is  shown  that  a  fence  at  a  point 
where  stock  vere  killed  was  not  a  lawful 
fence,  in  the  a'lsence  of  proof  to  the  con- 
trary, it  will  be  presumed  that  the  stock  en- 
tered at  that  point.  McGuire  v.  Missouri 
Pac.  R  Co..  23  Mo.  App.  325 —Quoting 
Jantz'^n  v.  Wabash,  St.  L.  &  P.  R.  Co.,  83 
Mo.  171.  — Followed  in  J'earson  v.  Chi- 
cago, B.  &  K.  C.  R.  Co..  33  Mo.  App.  543; 


*See/«/,  207. 


ANIMALS,  INJUKIiiS   TO,   I2t>-i:n. 


103 


Duke  7'.  Kansas  City,  Ft.  S.  &  M.  R.  Co.,  39 
Mo.  App.  105. 

It  need  not  be  sliown  by  direct  evidence 
where  the  animal  strayed  upon  the  railroad 
tracic.  Proof  that  it  was  killed  at  a  point 
where  there  was  no  fence,  but  where  the 
company  was  in  duty  bound  to  fence,  is 
sullicient  to  take  the  case  to  the  jury.  Lepp 
V.  St.  Louis,  I.  M.  &^  S.  A\  Co.,  29  Am.  Sr- 
luit;^.  A'.  Ciis.  242.  87  J/o.  1 39. 

i21>.  Proof  of  death  at  place  re- 
quired to  be  t'eiicetl,  when  Huftlcieiit. 
—A  railroad  company  is  liable  for  the  kill- 
in),'  of  slock  at  a  point  where  it  was  required 
by  law  to  fence,  though  there  be  no  evidence 
where  the  animal  came  upon  the  track,  nor 
th:U  the  plaintifT  was  an  adjoining  or  next- 
adjoining  landowner.  Kinion  v.  Kansas 
Lily,  I't.  S.  (S-  M.  R.  Co.,  39  Mo.  App.  574. 
— UisiiNdUiSHiNG  Ferris  v.  St.  Louis  &  II. 
R.  Co.,  30  Mo.  App.  122. 

Under  §  2124.  Rev.  St.  Missouri,  relating 
to  damages  for  killing  stock  by  railroads,  in 
order  to  const iiute  a  cause  of  action,  the 
injury  must  appear  to  have  occurred  at  a 
place  where  there  was  no  lawful  fence,  and 
where  such  fence  could  have  been  erected 
by  the  company  had  it  so  desired,  and  that  it 
occurred  at  a  place  other  than  the  crossing 
of  a  pul)lic  highway,  and  not  within  the 
limits  of  any  incorporated  town  or  city. 
Vail  V.  Kansas  City,  C.  &*  S.  R.  Co.,  28  \'<:. 
App.  yjz. 

13(>.  Rule  where  eoiiipaiiy  has  the 
right  to  hut  does  not  fence.*— (i)  In 
Itnva.  —  While  the  statute,  §  1269,  Code 
Iowa,  docs  not  impose  an  abstract  duty  or 
oKiigation  upon  railway  companies  to  fence 
their  roads,  yet,  as  to  live  stock  running  at 
large,  a  failure  to  fence  fixes  an  absolute  lia- 
bility for  injuries  occurring  in  the  operation 
of  the  road  by  reason  of  the  want  of  such 
fence.  Wi-isli  v.  Chicaf^o,  li.  S^  Q.  R.  Co., 
53  Iffiva  632.  6  JV.  W.  Rep.  13,  21  Am.  h'y. 
Rep.  181.— QuorKi)  in  Sullivan  v.  Oregon 
R.  &  N.  Co.,  19  Oreg.  319. 

Undef  the  Iowa  act  of  1862,  ch.  169,  §  6, 
the  liability  of  railroads  for  stock  killed  or 
injured  is  not  absolute,  but  often  depends 
on  the  question  of  negligence,  as  the  statute 
only  relates  to  places  "  where  they  have  a 
right  to  fence."'  Davis  v.  Burlington  «S<»  M. 
R.  R.  Co.,  26  /ou'a  549.— Reviewing  Indi- 
anapolis &  C.  R.  Co.  7f.  Kinney.  8  Ind.  402  ; 
Whitbeck  -,'.  Dubuque  &  P.  R.  Co.,  21  Iowa 


*Stefoi/,  a  12. 


103 ;  Lafayette  &  I.  R.  Co.  7:  Shriner,  6  Ind. 
141 ;  Indianapolis  &  C.  R.  Co.  7/.  Oestel,  20 
Ind.  231  ;  Galena  &  C.  U.  R.  Co.  7'.  Griffin. 
31  111.  303;  Indianapolis  &  C.  R.  Co.  7: 
Guard.  24  Ind.  222.— DisriNdUisHEn  in 
Mundhenk  v.  Central  Iowa  R.  Co.,  11  Am. 
&  Eng.  R.  Cas.  463,  57  Iowa  718;  Andre  ;'. 
Northwestern  R.  Co.,  30  Iowa  107.  Fol- 
lowed IN  Rogers  7/.  Chicago  &  N.  W.  R. 
Co.,  26  Iowa  558;  Durand  7'.  Chicago  cSi  N. 
W.  R.  Co..  26  Iowa  559;  Packard  7:  Illinois 
C.  R.  Co..  30  Iowa  474.  ytorKi)  in  Mian- 
ford  V.  Minneapolis  it  St.  L.  R.  Co.,  29  Am. 
&  Eng.  R.  Ca.s.  289,  71  Iowa  310,  32  N.  W. 
Rep.  357;  Moses  ?'.  Southern  Pac.  R.  Co.,42 
Am.  &  Eng.  R.  Cas.  555,  18  Oreg.  385.  Re- 
viewed in  Greeley  7/.  St.  Paul,  M.  iSr  M.  R. 
Co.,  19  Am.  &  Eng.  R.  Cas.  559,  33  Minn. 
136,  53  Am.  Rep.  16. 

Where  an  occupant  of  land  traversed  by  a 
railway  allows  his  swine  to  run  at  large  on 
the  land,  and  they  go  upon  the  track  at  a 
point  where  the  company  has  the  right  to 
fence  but  does  not,  and  are  killed  by  a  pass- 
ing train,  he  may  recover  of  the  company, 
under  §  1289  of  the  Iowa  Code,  without 
proving  that  they  were  killed  through  the 
negligence  of  the  company's  servants.  Lee 
V.  Minneapolis  ^^  St.  L.  R.  Co.,  20  Am.  &* 
Kng.  R.  Cas.  476,  66  /(Kca  131,  23  A',  tr.  Rep. 
299. — Following  Krebs  7'.  Minneapolis  & 
St.  L.  R.  Co.,  64  Iowa  670.  Reviewing 
Fernow  t.  Dubuque  iN:  S.  W.  R.  Co.,  22  Iowa 
528;  Spence  t-.  Chicago  &  N.  W.  R.  Co..  25 
Iowa  1 39 ;  Stewart  7'.  Chicago  &  N.  W.  R. 
Co.,  27  Iowa  282. 

(2)  /«  J'e.ras. — Where  a  company  might 
fence  its  track  but  fails  to  do  so,  it  is  liable 
under  the  statute  for  stock  killed.  A  failure 
to  fence  renders  the  company  liable  where 
fencing  is  practicable,  but  If  not,  then  it  is 
only  liable  for  negligently  killing  stock.  /«- 
/ern,ifional  &*  G.  A'.  R.  Co.  v.  Leut/ers,  i  Te.v. 
App.  (C'/V.  Cas.)  133. 

Where  an  animal  is  killed  by  a  locomotive 
or  cars,  the  owner  is  entitled  to  recover 
from  the  company  its  value  without  proving 
negligence  on  the  part  of  the  company  or  its 
.servants,  unless  the  company  has  its  road 
fenced,  if  it  be  not  unlawful  to  fence  it  at 
thiit  point.  A  failure  to  fence  where  it  is 
not  unlawful  to  do  so  is  in  itself  negligence. 
Te.vas  &•  P.  R.  Co.  v.  Mitchell,  2  Tex.  App. 
(C/T.  Cas.)  324. 

l.'M.    Rule    where    owner    haH 
rljfht    to   hut   does   not  fence.— The 
Illinois  act  of    1869,  giving  the  landowner 


164 


ANIMALS,  INJURIES   TO,  132-138. 


the  right  to  build  a  fence  along  the  railroad 
track  over  his  premises,  and  hold  the  com- 
pany liable  therefor,  upon  its  failure  to  fence 
on  notice,  does  not  release  railroad  coni- 
l)anies  from  their  liability,  under  the  act  of 
1855,  for  stock  killed.  The  later  act  creates 
110  duty  upon  the  landowner  to  fence,  but 
merely  gives  him  the  privilege  to  do  so,  and 
the  fence,  when  so  built  by  the  owne-  )f  the 
land,  will  be  the  property  of  the  cornpany. 
Toledo,  P.  &^  ir.  a:  Co.  v.  /'c'ncf,  68  ///.  524. 

The  adjoining  owner  has  a  right  to 
fence  under  the  statute  after  the  lapse  of 
three  months,  if  the  railroad  fails  to  do 
so;  but  such  right  is  cumulative,  and  does 
not  deprive  him  oi  his  right  of  action  under 
other  provisions  of  ji  2b\i  of  the  Mis- 
souri Code.  Co///)  V.  A'lif/stis  C'/'/i",  /•"/.  .V,  i}>> 
M.  N.  Co.,  43  Mo  .Ipf).  313.  -FoLLowiNii 
CarpentLT  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  20 
Mo.  A  pp.  644. 

132.  Failure  to  I'eiico  011  botli 
Ni(i<>H  of  truck.*— Under  the  New  York 
act  of  1854,  ch.  282,  §  8,  it  Is  the  duty  of  rail- 
road companies  to  maintain  fences  on  each 
side  of  their  roads,  and  the  company  will 
be  liable  to  the  owner  of  a  horse  that 
goes  from  an  adjoining  lot  and  is  killed  by 
falling  into  a  cut  at  the  side  of  the  track 
which  is  not  fenced.  Graliam  v.  Delawari' 
6-  H.  C.  Co.,  46  II  in  (.V.  1'.)  3S6,  1 2  .V.  )'.  .v. 
K.  390. 

i;i;i.  Leaving  opening  iiotwecn 
conii»any'.s  fenee  and  tlie  liigliway.f 
— Where  a  company  through  mistake  fails 
to  properly  fence  its  track  at  a  higlnvay 
crossing,  leaving  unfonced  a  space,  on  plain- 
tiff's lands,  between  the  railroad  fence  and 
the  highwjiy  fence,  which  spare  was  defec- 
tively fenced  by  plaintifT,  the  company  is  lia- 
ble for  the  death  or  injury  of  animals  get- 
ting upon  its  txack  by  reason  of  its  failure  to 
maintain  proper  fences.  Co/i-man  v.  Flint 
&>  P.  M.  A\  Co.,  29  Am.  &*  F.ni;.  A\  Cos.  247, 
64  Mich.  160,  31  A'.  IV.  K,-p.  47. 

134.  Rule  wlicrc  animal  is  (res- 
imssing  upon  riglit  of  way4— On  the 
ground  of  public  policy,  railroad  companies 
are  liable  for  killing  trespassing  stf)ck  at 
points  where  the  track  is  not  fenced.  AVrc 
Albany  ^^  .S.  A'.  Co.  v.  Fix,  12  Ind.  485. 


♦See  ontf,  lOo,  109. 

f  See/o.r/.   1»0. 

t  See  antf,  43-((0  ;  /■o.tf.  152-150. 

TrespassiiiK  animals  injured  owing  to  failure 
lo  fence— liability  of  company,  see  note,  22 
Am.  &  Est..  R.  Cas.  614. 


Followed  in  New  Albany  &  -S.  P.  Co.  v. 
Collins,  12  Ind.  526, 

135.  NeeesHity  for  actually  strik- 
ing  aninial."* — The  true  meaning  of  §  i 
of  the  Illinois  act  "in  relation  to  fencing 
and  operating  railroads,"  as  amended  in 
1879,  is  that  the  injury  to  stock  must  be 
caused  by  actual  collision — thai  is,  it  must 
be  done  by  the  "  agents,  engines,  o.'  cars  "  of 
the  company,  or  the  wilful  miscondiu  i  oi 
the  trainmen,  to  make  the  cor.ipany  liable. 
Sf/iiT/a  V.  Indianapolis,  B.  <S-  W.  R.  Co.,  15 
Am.  6-  Eng.  A'.  Cas.  523,  107  ///.  577 ;  a/- 
/irmin^  12  ///.  .Ipp.  304. 

Under  the  Illinois  act  in  relation  to  fenc- 
ing and  operating  railroads,  in  force  July  1, 
1874,  as  amended  by  the  act  of  1879,  where 
a  party's  horse  gets  on  the  railroad  track 
for  want  of  such  a  fence  as  the  law  requires 
the  company  to  erect  and  maiiitain,  to  in- 
close its  track  and  right  of  way,  and  while 
on  the  track  is  frightened  either  by  the  ap- 
proaching train  or  the  sound  of  the  bell  or 
whistle,  or  all  of  them  combined,  and  in  its 
flight  is  injured,  either  by  jumping  a  cattle- 
guard  or  by  coming  in  contact  with  a  wire 
fence,  or  both,  and  no  negligence  orv.  i'fiil 
misconduct  is  chargeable  to  the  agents  of 
the  company  in  charge  of  the  train  at  tiie 
time,  and  where  no  injury  is  done  to  the 
horse  by  any  actual  collision  or  contact  with 
the  engine  or  cars  of  the  train,  the  raMioad 
company  will  not  be  liable  to  the  owner  of 
the  horse  for  such  injury.  Si/ierts  v.  Indian- 
apolis, B.  &•  If.  A'.  Co.,  IS  Aw.  <&«■  Fn£^.  A\ 
Cas.  523,  107  ///.  577  ;  ajflrming  12  ///.  App. 
304 — Nor  FOLLOWED  IN  Meeker?'.  North- 
ern Pac.  R.  Co.,  21  Oreg.  513. 

If  the  death  of  the  mare  resulted  from  the 
want  of  a  fence,  defendant  was  liable,  even 
though  she  was  not  actually  struck  by  de- 
fendant's train.  Van  Slyke  v.  Chicago,  ^t. 
P.  &-■  K.  C.  A\  Co..  80  loiva  620.  45  A'.  W. 
A'cp.  396. — Following  Liston  v.  Central 
Iowa  R.  Co.,  70  Iowa  714. 

A  colt  belonging  lo  plainti.1  ran  from  the 
higlnvay  upon  lands  adjoining  defendant's 
road,  whic''.  did  not  belong  to  the  phiintifl", 
and  from  thence  through  a  gap  whc;  a 
length  in  the  fence  on  the  side  of  the  rr  ad 
was  down,  onto  the  track,  and  "j.oii  a 
bridge  designed  for  the  passage  of  railroad 
trains  only,  with  the  spaces  between  the 
ties  open.  The  colt's  legs  were  caught  in 
these  open  spaces  and  broken.    In  an  action 


.See  (fM/c,  73-81. 


ANIMALS,  INJURIES    TO,   I3«,  137. 


1(35 


to  recover  damages— >4f/</,  that  defendant 
was  not  liable.  Knight  v.  Neiv  York,  L.  E. 
^  IV.  a:  Co..  23  Aw.  (^  Efijr.  A'.  Cus.  188, 
99  TV.  K.  25,  I  A'.  E.  Rep.  108;  m'crsing  30 
//w«4iS. 

136.  Failure  to  fence  must  be  the 
proximate  cause"— Under  the  Illinois 
statute,  railroad  companies  are  liable  only 
lor  sucli  injuries  to  live  stock  as  are  occa- 
sioned directly  or  indirectly  by  a  failure  to 
erect  and  maintain  proper  fi  nces,  ami  are 
limited  to  such  damages  as  are  done  by 
the  agents  or  trains  of  the  company.  Indi- 
ana, B.  &•  IV.  A\  Co.  V.  Schertz,  1 2  ///.  App. 

304. 

Where  stock  are  killed  at  a  place  which  is 
not  a  public  ciossing  but  a  mere  travelled 
way,  the  company  is  liable  if  the  loss  oc- 
curred by  reason  of  a  failure  to  fence. 
Tirre  Haute  &*  I.  R.  Co.  v.  EUvn,  20  /// 
App.  603. 

Under  the  Iowa  Code  a  railroad  company 
is  liable  for  injury  to  stock  upon  its  right  of 
way,  when  the  want  of  a  fence,  in  connec- 
tion with  some  other  act  of  the  company,  is 
the  proximate  cause  of  the  injury.  Ashaih  v. 
Chicago,  li.  &>  Q.  R.  Co.,  74  Iowa  248,  37  S\ 
//'.  Rip.  182.  —  DisriNdUiSHLD  IN  Van 
Slyke  V.  Chicago,  St.  P.  &  K.  C.  R.  Co.,  80 
Iowa  620. 

Where  a  statute  makes  it  tlie  duty  of  rail- 
roads to  fence,  a  company  is  liable  for  stock 
l^illed  if  the  failure  to  fen  :e  and  the  run- 
ning of  the  train  were  the  oroxiniate  cause 
of  the  killing.  So  where  a  horse  came  on- 
to an  unfenccd  track,  and,  taking  fright  at 
an  approaching  train,  ran  ahead  of  it  and 
was  killed  by  jumping  from  a  culvert,  the 
company  was  held  liable.  Young  v.  .SV. 
Louis,  K.  C.  &^  A'.  A'.  Co.,  44  lonHi  172. 

Under  the  Missouri  statute  a  railroad 
company  is  liable  for  killing  live  stock  on 
tlu'  track  only  where  it  appears  that  the  in- 
jury is  due  to  a  faihire  to  fence  or  erect 
cattle-guards  on  that  portion  of  the  road 
which  the  company  is  bound  to  secure  by  a 
fence  or  cattle-guards.  Cecil  v.  Pacific  R. 
Co.,  47  Mo.  246.— ArPROViNO  Morrison  v. 
New  York  iS:  N.  II.  R.  Co..  32  Barb.  (N.  Y.) 
568,  Great  Western  R.  Co.  v.  Hanks,  36  III. 
281;  Great  Western  R.  Co.  v.  Mortliland, 
30  III.  451  ;  Brooks  V.  New  York  &  E.  R. 
Co.,  13  Bari).  (N.  Y.)  594:  Bennett  v.  Chi- 
cago &  N.  W.  R.  Co.,  19  Wis.  145.  •  Ai'Pi.iK.n 
IN  Miller  v.  Wabash  R.  Co.,  47  Mo.  App. 


♦  See  ,mt,-,  34-:>(( ;  post,  188. 


630.  Followed  in  Nance  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.,  19  Am.  &  Eng.  R.  Gas. 
594,  79  Mo.  196;  Cunningham  v.  Hannibal 
&  St.  J.  R.  Co.,  70  Mo.  202.  Not  followku 
IN  Fickle  V.  St.  Louis.  K.  C.  &  N.  R.  Co.,  54 
Mo.  219;  Walther  v.  Pacific  R.  Co.,  55  Mo. 
271. 

Under  the  Wisconsin  act  of  i860,  ch.  268, 
§  I,  and  the  act  of  1872,  ch.  119.  §  30,  rail- 
road companies  are  liable  for  damages  to 
live  stock  by  a  failure  to  fence  as  required ; 
and  in  suing  for  injuries  to  live  stock,  under 
the  statutes,  it  must  allirmatively  appear 
that  the  injury  was  due  to  the  lack  of  a 
proper  fence,  and  the  evidence  must  con- 
nect the  injury  with  the  lack  of  the  fence  at 
some  point  on  the  road,  either  near  to  or  dis- 
tant from  the  plaintid's  premises.  Lawrence 
V.  Milwaukee,  L.  S.  &•  W.  R.  Co.,  42  H'is. 322, 
15  Ant.  Ay.  Re/  366.— QuOTKD  IN  Murphy 
V.  Chicago  &  N.  W.  R.  Co.,  45  Wis.  222. 

Where  a  railroad  company  built  a  barbed- 
wire  fence  one  quarter  of  a  mile  in  length 
along  its  track,  but  failed  to  construct 
proper  cattle-guards  or  fences  at  the  ends 
thereof,  through  which  openings  plaintiff's 
horses  entered  the  right  of  way  and  were 
frightened  by  the  blowing  of  the  whistle, 
and  jumped  upon  the  fence  and  were 
injured — //<•/</,  that  plaintifT  could  recover, 
upon  the  theory  that  the  company's  failure 
to  properly  fence  was  a  proximate  cause  of 
the  injury.  Louisville  &'  A'.  R.  Co.  v,  Upton, 
iS  /U.  App.  60s. 

137.  Fiiilurc  to  I'ciice  as  the  remote 
cause.— V 'here  by  reason  of  the  failure  of  a 
company  to  properly  fence,  an  animal  got 
upon  the  track  and  put  its  foot  into  a  smail 
hole  between  two  ties  and  broke  its  leg,  the 
failure  to  fence  was  not  the  |)roximate  cause 
of  the  accident,  and  the  company  is  not  re- 
sponsible. A'elson  v.  C/iicago,  M.  t^  St.  /'. 
/'.  Co.,  30  Minn.  74,  14  A',  ff.  Rep.  360.— 
Distincuismim;  Salisbury?'.  Herchenroder, 
106  Mass.  458;  Siemers  7'.  Eisen,  54  Cal. 
418;  Powell  V.  Salisbury,  2  Y,  &  J.  391.-^ 
Foi.LOWKi)  IN  Maher  ?•.  Winona  tS:  St.  P.  R. 
Co.,  13  Am.  &  Eng.  R.  Cas.  572,  31  Minn. 
401. 

To  make  out  a  case  against  a  railroad 
company  for  injury  to  stock,  under  ftiissouri 
Rev.  St.,  1889.  §  :6i2,  it  must  be  proved  that 
the  stock  got  upon  the  railroad  track  at  a 
place  not  inclosed  by  a  lawful  fence,  and 
that  it  w;is  frightened  by  a  locomotive  or 
train  of  cars,  and  vas  in  consequence  injured 
by  running  against  ;i  fence  or  into  a  culvert 


iG«J 


ANIMALS,  INJUKIliS   TO,   1.'I8,  l.'IO. 


or  other  object  alon>,'  tlie  line  of  the  road. 
I'erkins  v.  St.  Louis,  I.  M.  &>  S.  A'.  Tv,  103 
Mo.  52.  15  S.  IV.  A'</>.  320. 

Assuii)iii){  thui  u  railway  company  which 
fails  to  fence  its  road,  jiiirsuant  t,'(  the  re- 
quirement of  the  statute  (Rev.  St.  Missouri, 
1889,  ((2611),  is  liable  for  the  escaite  of 
stock  resulting  from  its  default,  even  when 
such  stock  arc  not  killed  or  injured  on  its 
right  of  way,  still  its  liability  must  be  re- 
stricted to  losses  which,  under  general  prin- 
ciples of  the  law,  are  the  proximate  conse- 
quences of  its  default.  And — //<•/(/,  tltat  the 
railway  company  was  not  responsible  for  the 
loss  of  stock  which  had  thus  escaped  from 
adjoining  unfenccr,'  lands  and  tlu-n  been 
killed  by  employes  of  a  contractor  '-ngaged 
in  the  construction  of  its  1  ari.  Gordon  v. 
C/inaifo,  ■'■>'.  r.  &*  C.  R.  Co.,  44  Mo.Af>p.  201. 

A  railwiy  company  is  not,  by  reason  of  its 
failure  to  fence  its  road,  liable  for  the  loss 
of  flesh  of  cattle,  caused  by  their  fright  it 
passing  trains  while  they  are  on  the  com- 
pany's land.  Duoley  v.  Missouri  Pac.  R.  Co., 
id  Mo.  A  pp.  381. 

b.  Where  Duty  is  Imposed  by  Contract.* 

i:t8.  Wiierc  by  contract  company 
niiiHt  fence. — Where  a  company,  in  part 
consideration  for  a  deed  conveying  a  right 
of  way,  agrees  to  build  and  maintain  a  good 
and  sufficient  fence  upon  both  sides  of  the 
right  of  way,  and  farm  crossings  with  cat- 
tle-guards, a  failure  to  construct  cattle- 
guards  at  a  farm  crossing,  and  to  make  the 
fastenings  of  the  gates  secure  for  a  continu- 
ous period  of  about  two  months,  constitutes 
breach  of  the  contract,  and  the  owner  of 
the  lands  may  maintain  an  action  against 
the  company  for  damages  for  stock  escaping 
and  killed  upon  defendant's  track  in  con- 
sequence of  the  breach.  In  such  action,  the 
value  of  the  cattle,  and  not  fhe  cost  of 
erecting  and  maintaining  a  secure  and  sufli- 
cient  fence,  is  the  measure  of  damages. 
Chicago  &*  A.  R.  Co.  v.  liarnes,  38  Am.  &^ 
Eng.R.  C'<w. 297,  wdlnd.  126,  18.V.  E.  Rep. 
459- 

Where  a  right  of  way  is  granted  to  a  com- 
pany, with  the  provision  that  it  shall  main- 
tain a  fence  on  each  side  of  the  track,  a 
failure  to  do  so  will  make  thecompany  liable 
for  hogs  that  escape  from   the  adjoining 


♦  See  iintt,  88,  8»;  post,  1 4f),  150,  1 70, 

17r>,  :too,52». 


lands,  without  negligence  on  the  part  of  the 
owner,  and  are  killed  on  the  track.  Fer- 
HOW  V.  Dubiiyiu'&*  S.  IV.  R.  Co.,  22  Iowa  528. 
—  Followed  in  Stewart  v.  Chicago  &  N.  W. 
R.  Co.,  27  Iowa  282.  Rkvieweu  in  Lee  v. 
Minneapolis  <^  St.  L.  R.  Co.,  66  Iowa  131. 

A  company  is  bound  by  a  covenant  in  a 
deed  to  "make  and  maintain  good  and  suf- 
ficient fences  on  both  sides  "  of  its  right  of 
way  through  a  certain  tract,  and  when  sued 
for  killing  stock  by  reason  of  not  complying 
with  the  covenant,  it  is  error  for  the  court 
to  instruct  the  jury  "  that  a  compliance  by 
defendant  with  the  statute  as  to  fences 
exonerated  it  from  liability."  Thompson  v. 
New  York  S*  H.  R.  Co.,  i  T.&*C.  (M  Y.) 
411. 

A  company,  in  purchasing  the  right  of 
way,  bound  itself  by  contract  with  the  owner 
of  land  through  which  the  road  passed,  to 
fence  the  road  through  his  land.  The  com- 
pany neglected  to  fence,  and  the  owner's 
cattle  being  on  his  land,  went  upon  the 
road  and  were  killed  by  the  engines.  Held, 
that  he  could  no  recover  dama;;es  for  the 
injury  in  an  action  of  tort.  To  render  de- 
fendants liable,  it  must  appear  that  the  dis- 
aster was  exclusively  their  neglect.  Drake 
V.  Philadelphia  &*  E.  R.  Co.,  51  /',/.  .S7.  240. 

law.  Wliere  by  contract  land- 
owner must  fence.*— (I)  Liability  to 
contracting  landowner. — Where  by  con- 
tract with  a  company,  the  owner  of  the 
land  through  which  the  railroad  passes 
has  undertaken  to  maintain  the  fences, 
be  had  by  him  against 
an  injury  to  his  animals 
from  a  failure  to  per- 
Indianapolis,  P  ^^  C  R. 
Co.  V,  Petty,  25  Ind.  413.— Distinci'ished 
IN  Kansas  Pac.  R.  Co.  v.  Peavy,  29  Kan.  169, 
44  Am.  Rep.  630.  Ovekrul'-',!)  in  Hunt  v. 
Lcke  .Snore  &  M.  S.  R.  Co.,  35  Am.  &  Eng. 
R.  Cas.  176,  112  Ind.  69,  11  West  Rep.  i-  , 
13  N.  E.  Rep.  idi.—  Terre  Haute  &*  R.  R. 
Co.  V.  Smith,  16  Ind.  102. — Quo  riNG  Corwin 
7'.  New  Vr)rk  &  E.  Co..  13  N.  Y.  42.  Rkcon- 
cil.iNG  isew  Albany  &  S.  R.  Co.  v.  Maiden, 
12  Ind.  10. 

Where  an  adjoining  landowner  expressly 
or  impliedly  agrees  to  build  and  niain- 
t.iin  fences  lietween  his  lands  and  tlie 
railroad,  as  to  him  the  track  will  be  re- 
garded as  fenced,  and  he  cannot  recover 
from  the    company    for    the    loss  of  aiii- 

•  See  ante,  93}  fost,  140,  300. 


no  recovery  can 
the  ':ompany  for 
which     resulted 
form  the  contract. 


ANIMALS,  INJURILS   TO,  13U. 


16; 


mals  which,  for  the  want  of  such  fence, 
pass  to  the  track  and  are  injured  or 
killed.  Bond  v.  Evansville  &*  T.  H.  R. 
Co.,  23  Am.  6-  £ng^.  N.  Cas.  200,  100  Ind. 
301.— Quoting  Indianapolis,  P.  &  C.  R. 
Co.  V.  Shinier,  17  Ind.  295. 

Though  a  staf  tte  makes  it  the  imperative 
duty  of  a  company  to  fence  its  track,  still 
an  owner  who  has  contracted  with  the  com- 
pany to  fence  between  his  lands  and  the 
track  cannot  recover  for  stock  killed  by  rea- 
son of  such  failure  to  fence.  Ells  v.  Pacific 
R.  Co  ,  48  Mo.  231.— QuoTKD  IN  Wymore  v. 
Hannibal  &  St.  J.  R.  Co.,  79  Mo.  247. 

Where  an  adjoining  landowner  has  agreed 
with  a  company,  for  an  adequate  considera- 
tion, that  he  will  fence  between  his  lands 
and  the  track,  a  failure  to  fence  for  six 
years  will  not  discharge  him  from  the  duty, 
so  as  to  make  the  company  liable  for  stock 
that  may  go  upon  the  track  through  the 
neglect  of  the  owner  to  build  such  fence. 
Talmadge  v.  Rensselaer  &*  S.  R,  Co.,  13 
Rarfi.  (N.  V.),  493- 

Though  the  general  railroad  act  of  New 
York  requires  railroad  companies  to  erect 
and  maintain  on  either  side  of  the  track 
fences  such  as  would  be  a  lawful  fence  be- 
tween adjoining  owners,  yet  a  landowner 
who  has  agreed  with  the  company,  for  a 
valuable  consideration,  to  fence  between  his 
lands  and  the  track,  cannot  recover  from 
the  company  for  stock  killed  which  go  upon 
the  track  by  reason  of  the  owner  failing  to 
fence  as  he  lias  agreed.  Talmadge  v.  Rens- 
selaer &*  S.  R.  Co.,  13  Barb.  (N.  Y.)  493. 
—Distinguishing  Suydam  7/.  Moore,  8 
Barb.  (N.  Y.)  358.  Reviewing  Waldron  v. 
Rensselaer  &  S.  R.  Co.,  8  Barb.  (N.  Y.)  390. 
— .\PPLIED  in  Terry  v.  New  York  C.  R.Co., 
22  Barb.  (N.  Y.)  574.  Not  Followed  in 
Washington  v.  Baltimore  &  O.  R.  Co.,  17 
W.  Va.    JO. 

Where  the  owner  of  land  through  whi,  '.•-  a 
railroad  runs  agrees  with  the  railroad  com- 
pany, for  a  valuable  consideration,  to  build 
and  keep  up  good  and  sufficient  fences  on 
both  sides  of  the  road  through  his  lands, 
and  fails  to  do  so,  and  on  account  of  the  in- 
sufficiency of  such  fences  his  animals  stray 
upon  the  track  and  are  injured,  he  is  not  en- 
titled to  recover  for  such  injury,  although 
the  insufficiency  of  the  fences  was  caused  by 
casualty  and  without  negligence  on  his  part, 
unless  such  injury  is  shown  to  be  inten- 
tional or  the  result  of  gross  carelessness  on 
the  part  of  the  agents  and  servants  of  the 


company.    Pittsburgh,  C.  &*  St.  L.  R.  Co.  v. 
Smith,  26  Ohio  St.  124. 

(2)  to  his  lessee* — An  adjoining  prop- 
erty owner  who  has  covenanted  with  a  com- 
pany to  maintain  fences  along  the  track, 
cannot  recover  for  stock  killed  by  reason  r.f 
his  failure  to  do  so;  and  this  is  so  ot  his 
lessee.  Jiiiffy  v.  Atw  York  &>  H.  R.  Co.,  2 
Hilt.  (A'.  J'.)  496. 

Where  cattle  of  a  lessee  of  lands  adjoin- 
ing a  track  were  killed  by  reason  of  a  defec- 
tive fence,  in  the  absence  of  proof  of  gross 
negligence  or  carelessness  on  the  part  of  the 
company,  it  will  not  be  liable  where  it  is 
shown  that  the  lessor  of  the  lands  was  under 
obligation  to  fence.  Cincinnati,  H.  &*  D. 
R.  Co.  v.  Water  son,  4  Ohio  St.  424. — Ap- 
proved IN  Gorman  %>.  Pacific  R.  Co.,  26 
Mo.  441.  Distinguished  in  Cincinnati  & 
Z.  R.  Co.  V.  Smith,  22  Ohio  St.  227 ;  Gill  v. 
Atlantic  &  G.  W.  R.  Co.,  27  Ohio  St.  240 ; ' 
Pittsburg,  C.  &  St.  L.  R.  Co.  ?'.  Allen,  19 
Am.  &  Eng.  R.  Cas.  657,  40  Ohio  St.  206. 
Quoted  in  Central  Ohio  R.  Co.  v.  Law- 
rence, 13  Ohio  St.  66. 

(3)  to  his  assignee.] — Where  a  rail- 
road company  is  legally  bound  to  fence  its 
track,  and  is  sued  for  killing  stock,  it  cannot 
set  up  the  defence  that  the  owner  of  the 
stock  was  legally  bound  to  fence  tinder  a 
covenant  existing  beiween  the  company  and 
his  assignor.  Shepard  v.  Buffalo,  N.  Y.  &> 
E.  R.  Co.,  35  A^.  Y.  641. — Following  Cor- 
win  V.  New  York  &  E.  R,  Co.,  13  N.  Y.  42; 
Pohler  V.  New  York  C.  R.  Co.,  16  N.  Y.476. 
— Distinguished  in  Diamond  Brick  Co. 
V.  New  York  C.  &  H.  R.  R.  Co.,  28  N.  Y.  S. 
R.  95,  7  N.  Y.  Supp.  868,  5  Silv.  Sup.  321,  55 
Hun  (N.  Y.)  605  mem.  Followed  in  Tracy 
V.  Troy  &  B.  R.  Co.,  38  N.  Y.  433  ;  affirmed  in 
55  Barb.  529. 

(4)  to  lessee  of  his grantee.\ — A  land- 
owner conveyed  a  right  of  way  through  his 
lands  for  a  railroad,  and  covenanted  for  him- 
self, his  heirs,  and  assigns,  to  erect  and  main- 
tain proper  fences  on  each  side  of  the  track, 
but  reserved  the  right  to  pass  and  repass 
across  the  track,  so  as  not  to  interfere  with 
the  company's  business.  He  afterward  con- 
veyed the  land  without  any  such  reservation, 
and  the  tenant  holding  under  such  grantee 
sued  the  railroad  company  for  killing  his 
stock  by  reason  of  the  track  not  being 
fenced.    Held,  that  he  could  not  take  ad- 


*  See  ante.  04  ;  post.  .'HO. 

+  See/oj/.  ,*J1». 

tSee  ante,  04  ;  fast,  310. 


168 


ANIMALS,  INJURIES   TO,  140. 


W4 


vantage  of  a  failure  on  the  part  of  his 
landlord  or  of  the  former  owner  to  keep 
the  provision  of  the  deed  requiring  the 
owner  to  fence.  Easter  v.  I.itl/f  Miami  A'. 
Co.,  14  (;///■<; 5/.48.—DisTiN(;uisnKi)  in  Gill 
V.  Atlantic  &  G.  W.  R.  Co..  27  Ohio  St.  240. 
QuoTKi)  IN  Pittsburg,  C.  &  St.  L.  R.  Co.  7'. 
Bosworth,  38  Am.  &  Eng.  R.  Cas.  290,  46 
Ohio  St.  81,  2  L.  R.  A.  199,  18  N.  E.  Rep. 

533. 

(5)  Liability  to  third  persons.* — Where  a 
company  is  required  to  fence  and  has  failed 
to  do  so,  it  cannot  avoid  liability  for  killing 
stock  by  sho.ving  a  contract  with  an  adjoin- 
ing owner  to  maintain  the  fence,  the  owner 
of  the  stock  killed  not  being  a  party  to  such 
contract.  Iniiiannpolis,  P.  &•  C.  K.  Co.  v. 
Thomas,  1 1  Am.  6-  Eiitr.  R.  Cas.  491,  84  Ind. 
194. — Applying  New  Albany  tt  S.  R.  Co.  v. 
Maiden,  12  Ind.  10.  Criticising  Indian- 
apolis &  C.  R.  Co.  %>.  Lowe,  29  Ind.  545. 
OvK.RRULiNG  Indianapolis  &  C.  R.  Co.  v. 
Adkins,  23  Ind.  340. 

The  fact  that  a  company  holds  a  contract 
or  covenant  against  a  third  person,  requir- 
ing him  to  maintain  a  fence,  and  that  the 
cattle  killed  got  upon  the  track  through 
such  person's  failure  to  perform  lu^  engage- 
ment, docs  not  shield  the  company  from  the 
statutory  liability  to  the  owner.  Gill  v.  At- 
lantic ^  G.  IV.  R.  Co.,  27  Ohio  St.  340.— 
Distinguishing  Russell  t'.  Hawli-v  iolowa 
219;  Great  Western  R.  Co.?'.  Helm,  27  III. 
198;  Indianapolis  &  C.  R.  Co.  ?'.  Adkins,  23 
Ind.  340;  Cincinnati,  H.  &  D.  R.  Co,  ?'. 
Water?on,  4  Ohio  St.  424 ;  Easter  ?'.  Little 
Miami  R.  Co.,  14  Ohio  St.  48.  Distin- 
guished in  Ballimore  &  O.  R.  Co.  7'. 
Wood,  47  Ohio  St.  431. 

On  -he  trial  of  a  suit  against  a  company 
to  recover  the  value  of  the  plaintiff's  animals 
killed  by  the  defendant's  train  of  cars,  the 
evidence  established  that  .said  animals  were 
so  killed  on  the  defendant's  railroad,  at  a 
point  where  it  was  not  but  ou^lit  by  law  to 
have  been  fenced,  at\d  on  the  land  of  one 
whose  grantor  thereof  had  formerly,  by  a 
proper  instrument  and  for  a  valuable  con- 
sideration, granted  to  the  dcfendaiirs  prede- 
cessor the  right  of  way,  and  had  therein  and 
thereby  covenanted  to  build  a  good  fence 
along  said  road,  sufficient  to  prevent  stock 
from  entering  thereon,  and  tluii  he  and  his 
heirs  and  assigns  would  forever  maintain 
the  same  in  g(M)d  repair.     //(/</.  that  even  if 

~See  7«Z^mr,  U-iTf^'s/^  150,  154, 
100,  17;?,  18 1.  '237. 


such  covenant  was  binding  upon  such  cove- 
nantor's assigns,  the  defendant  was  not 
thereby  relieved  from  liability  for  the  vaiue 
of  the  animals  so  killed.  Cincinnati,  N.  &* 
I.  R.  Co.  V.  Ridge,  54  Ind.  39.— Doubting 
Indianapolis  &  C.  R.  Co.  v.  Adkins,  23  Ind. 
340.— Followed  in  Hunt  7/.  Lake  Shore  & 
M.  S,  R.  Co..  35  Am.  &  Eng.  R.  Cas.  176,  112 
Ind.  69,  II  West.  Rep.  107,  13  N.  E.  Rep. 
263. 

A  landowner  who  has  agreed  with  a  com- 
pany to  fence  the  track  cannot  recover  for 
stock  killed  where  he  has  failed  to  fence ; 
but  this  failure  cannot  relieve  the  company 
'rom  liability  for  stock  of  others  that  may  be 
killed  for  the  lack  of  a  fence.  In  such  case 
the  company  must  pay  the  damages  and 
look  to  the  one  who  had  failed  to  fence  ac- 
cording to  contract  for  indemnity.  Warren 
V.  Keokuk  <S-  D.  M.  R.  Co.,  41  I  aw  a  484. 

An  agreement  between  a  company  and  an 
adjoining  landowner,  by  which  such  owner 
shall  fence  between  his  lands  and  the  track, 
will  not  relieve  the  company  from  liability 
for  stock  killed  belonging  to  another  per- 
son which  pass  through  the  lands  of  the 
one  so  contracting  with  the  company,  and  are 
killed  upon  the  track  by  reason  of  a  defec- 
tive fence  along  the  track,  unless  it  appears 
that  the  lands  were  properly  inclosed  with  a 
lawful  fence.  Berry  v.  St.  Louis,  S.  &*  L  .R.  R. 
Co.,  65  Mo.  172.— Adhered  to  in  Harring- 
ton?'. Chicago,  F,  I.  &  P.  R.Co.,71  Mo.  384. 
Distinguished  in  St.  Louis  &  S.  F.  R.  Co. 
V.  Dudgeon,  28  Kan.  283 ;  Kaes  v.  Mis- 
si'uri  Pac.  R.  Co.,  6  Mo.  A  pp.  397.  Fol- 
lowed in  St.  Louis  &  S.  F.  R.  Co.  7/.  Moss- 
man,  29  Kan.  694.  Quoted  in  Peddicoid 
7'.  Missouri  Pac.  R.  Co.,  85  Mo.  160.  Re- 
viewed IN  Emmerson  v.  St.  Louis  &  H.  R. 
Co.,  35  Mo.  App.  621. 

4.  Failure  to  Repair  or  Rebuild  Fences.* 

140.  Duty  to  keep  fences  iu  repair, 
ireiierally. — A  company  is  liable  under  the 
s.atute  for  a  failure  to  keep  a  fence  in  re- 
p  lir  after  it  is  built,  if  animals  are  killed  on 
that  account,  to  the  same  extent  as  if  there 
had  been  a  total  failure  to  fence.  In  either 
event  the  road  is  not  securely  fenced  as  re- 
quired by  statute.  Lake  I'rie  &*  iV.  R.  Co. 
V.  Fishback,  5  Ind.  App.  403,  32  A'.  E.  Ref. 

340. 

Under  the  act  of  April  18,  1874  (71  Ohio 
Laws,  85),acompimy  which  has  neglected  to 

*  See /<../,  109.  220. 


ANIMALS,  INJURIES   TO,  141,142. 


lUU 


keep  a  fence  at  the  siiic  ui  its  truck  in  suffi- 
cient repair  is  liable  to  the  owner  of  live 
stuck  injured  by  reason  of  such  neglect,  not- 
withstanding the  fact  that  the  owner  pas- 
tured such  live  stuck  on  the  iidjacent  lunds 
with  knowledge  of  the  insuliicicncy  of  the 
fence,  liy  the  terms  of  thesiaiuie  the  duty 
of  maintaining  the  fence  in  sullicicnt  repair 
is  imposed  upon  the  company,  and  it  cannot 
escape  responsibility  by  showing  that  it  had 
ni)  notice  of  the  actual  condition  of  the 
fence.  Pittsburi^li,  C.  6-  S/.  L.  R.  Co.  v. 
Smith,  1 3  Am.  &*  Eii^.  R.  C'<«.  579,  38  Ohio 
St.  410.— Reviewing  I<o);crs  v,  Ncwbury- 
port  R.  Co.,  I  .-Mien  (Mass.)  16.— Fui.i.owKU 
IN  Cleveland,  C,  C.  &  I.  R.  Co.  v.  jcudder, 
13  .'\n).  &  Kng.  R.  Cas.  561,  40  Ohio  St.  173. 
Rkco.ncii.eu  in  IJaUimoro  <i  U.  R.  Co.  v. 
Scliultz,  22  Am.  &  Enj;.  R.  Cas.  579,  43  Ohio 
St.  270,  54  Am.  Rep.  805. 

A  company  is  liable  for  stock  killed  which 
arc  placed  in  a  field  adjoining  the  track 
after  the  railroad  fence  had  been  partially 
destroyed  by  fire,  as  under  the  Wisconsin 
statute  companies  are  liable  for  all  damages 
to  live  stock  occasioned  by  a  failure  to  fence. 
Sika  V.  Chicago  6-  A'.  W.  R.  Co.,  21  IVis. 
370. 

141.  Degree  of  care  required.*— A 
coini)any  is  only  bound  to  use  ordinary  care 
in  keeping  in  rcp.iir  fences  that  it  has  erected 
alon;4  its  track,  and  any  evidence  tending  to 
show  mk;Ii  care  is  admissible  on  behalf  of  the 
company.  Li->n>iion  v.  Chicago  &*  A'.  W.  R, 
C(>.,  33  Lm>a  151,  \o  Am.  Ry.  Rep.  32. 

Having  once  built  a  sufficient  fence  a  com- 
pany may  be  liable  for  injuries  to  stock  that 
go  upon  the  track  by  reason  of  defects  that 
afterward  occur  in  the  fence,  if  it  appears 
that  there  was  undue  neglect  in  permitting 
the  fence  to  get  out  of  repair,  and  that  it 
was  so  out  of  repair  that  a  man  of  ordinary 
ciire  would  have  anticipated  danger  to  stock. 
Gouiii  v.  Bangor  (S-  /'.  .A'.  Co.,  82  Me.  122, 
19  Atl.  Rep.  84. 

A  company,  in  maintaining  fences  along 
the  track,  is  only  bound  to  reasonable  dili- 
gence, and  is  not  liable  for  injuries  to  cattle 
whi.h  come  upon  the  track  through  defects 
not  traceable  to  want  of  care.  Grami 
R,i/>i(is  &^  /.  R.  Co.  V.  Afonroe,  47  Mich.  1 52, 
10  A'.   W.  Rep.  179. 

Where  a  company  has  properly  fenced  its 
track  it  is  otilv  required  thereafter  to  use 
proper  diligence  to  keep  the  fence  in  ordi- 

•  See  ante,  4874ttr5iB,  02,  1  loT/'w/T 
180. 


nary  lepair,  and  it  will  not  be  liable  where 
others  break  down  the  fence  and  cattle  go 
upon  the  track  and  are  killed.  Case  v.  St. 
Louis  «S-  S,  /•'.  A'.  Co.,  \iAm.  &*  Eng.  R. 
Cas.  564,  75  Mo.  668.— FuLl.oWEUlN  Foster 
V.  St.  Louis,  1.  M.  &  S.  R.  Co.  44  Mo.  App. 
II.  yuoituiN  Walthersz/.  Missouri  Pac. 
R.  Co.,  78  Mo.  617. 

Where  a  company  has  erected  a  fence  in 
compliance  witli  the  law,  it  is  held  to  a  high 
degree  of  care  in  keeping  the  fence  in  re- 
pair, which  means  something  more  than 
ordinary  care  and  diligence,  though  the  com- 
pany is  not  absolutely  liable  for  injuries  to 
stock,  irres])cctive  of  negiiujeiue,  which  may 
happen  where  the  fence  was  suppo-^ed  ir)  be 
sullicicnt.  Aiiiisdel  \.  c'/z/k/vc  c^  \.  //'.  A'. 
Co.,  26  Wis.  145,  2  .////.  AV.  A'</.  4^7. 

142.  Nt'fcssity  ofnotite  of  dt'loft 
by  eoiiiimiiy.— (I)  (y<7/<vii//r.  -Wiieie  a 
company  maintains  a  fence  apparently  go(j(l, 
it  will  not  be  liable  for  stock  killed  unless  it 
has  notice  of  defects.  Chimgo,  />'.  &^  Q.  R. 
Co.  V.  Seircr,  60  ///.  295,  1 2  Am.  Rjf.  Rep.  315. 

Having  erected  a  fence  as  required  by  law, 
the  company  is  only  liable  fur  stock  that  go 
over  the  fence  at  a  point  where  it  is  out  of 
repair,  and  are  killed  on  the  track,  where  it 
has  knowledge  that  the  fence  is  out  of  re- 
pair. Hodge  V.  New  York  C.Sf  H.  R.  R. 
Co.,  27  Hun  (A'.  1'.)  394.— Applied  in 
McGuire  v.  Ogdensburg  &  L.  C.  R.  Co.,  44 
N.  Y.  S.  R.  348,  63  Hun  632,  18  N.  Y.  Supp. 
l\l.—Heaston  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  18  Mo.  App.  403. 

A  company  will  be  held  responsible  for 
cattle  killed  or  injured  by  reason  of  a  fence 
getting  out  of  repair,  such  fence  having  been 
legally  sulficient  when  erected,  even  though 
the  company  has  no  actual  notice  of  the  de- 
fects therein,  when  by  the  use  of  reasonable 
diligence  a  knowledge  of  the  condition  of 
the  fence  would  have  been  acquired.  Vin- 
yard\.  St.  Louis,  /.  M.  &*  S.  R.  Co.,  80  Mo.  92. 
-^Following  Clardy  v.  St.  Louis,  L  M.  & 
S.  R.  Co.,  73  Mo.  576.— Followed  in  Fos- 
ter V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  44  Mo. 
App.  II.— Heaston v. IVabash, St.  L. &* P. R. 
Co.,  18  Mo.  App.  403. 

To  authorize  a  recovery  for  the  killing  or 
injuring  of  cattle  by  reason  of  defects  in  a 
fence,  erected  and  maintained  by  a  com- 
pany, it  must  be  shown  that  the  company 
had  actual  notice  of  such  defects,  or  that  by 
the  use  of  reasonable  diligence  it  might 
have  acquired  such  knowledge.  Davis  v. 
Chicago,  R.  /.  &*  P.  R.  Co.,  40  Iowa  292.- 


170 


ANIMALS,  INJURIES   TO,   142. 


Following  Aylesworlli  v.  Chicago,  K.  I. 
&  P.  R.  Co.,  30  Iowa  459.— Followed  in 
Brentnerv.  Chicago,  M.  &  St.  P.  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  574,  j8  Iowa  625. 
—Hilliard  v.  Chicago  6-  A'.  W.  R.  Co.,  yj 
Iowa  442.  Aylenvorth  v.  Chicago,  R.  I,  &* 
P.  R.  Co.,  30  Iowa  459.— Foi.LowKi)  in 
Brentner  v.  Chicago,  M.  &  St.  \'.  \i.  Co.,  7 
Am.  &  Eng.  R.  Cas.  574,  58  Iowa  625 ;  Davis 
V.  Cliica^o,  R.  1.  &  P.  R.  Co.,  40  Iowa  292  ; 
Farley  v.  Chicago.  R.  I.  &  P.  R.  Co.,  42 
Iowa  234.  Not  ovkkkuleu  in  Henderson 
V.  Chicago,  R.  1.  &  P.  R.  Co.,  48  Iowa  216. 
— Laney  v.  Kansns  City,  St.  J.  &*  C.  li.  R. 
Co.,  83  i»/<?. 466.— Followed  in  Fosters.  St. 
Louis,  I.  M.  &  S.  R.  Co., 44  Mo.  App.  11. — 
Heaston  v.  Wabash,  St.  L.  >3-  P.  R.  Co.,  18 
Mo.  Apfi.  403.— Following  Clardy  v.  St. 
Louis.  1.  M.  &  S.  R.  Co..  7  Am.  &  Eng.  R. 
Cas.  555,  73  Mo.  576;  Morris  v.  Hannibal  & 
St.  j.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  666,  79 
Mo.  367.— FoLLoWKii  in  Fosters.  St.  Louis, 

I.  M.  &  S.  R.  Co.,  44  Mo.  App.  \\.— Clardy  v. 
St.  Louis,  I.  M.  Sf  S.  R.  Co.,  7  Am.  <S-  Eng.  R. 
Cas.  ^^i,TsMo.  576.— Applied  in  King?/. 
Chicago,  R.  I.  &  P.  R.  Co.,  90  Mo.  520. 
Followed  in  Heaston  v.  Wabash.  St.  L.  & 
P.  R.  Co.,  18  Mo.  App.  403;  Vinyard  v.  St. 
Louis,  1.  M.  &  S.  K.  Co.,  80  Mo.  92 ;  Foster 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  44  Mo.  App. 

II.  yuoTED  IN  Morris  v,  Hannibal  &  St. 
J.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  666,79 
Mo.  367;  VValthers  v.  Missouri  Pac.  R.  Co., 
78  Mo.  617  ;  Young  v.  Hannibal  &  St.  J.  R. 
Co.,  82  Mo.  ^27.— Wheeler  v.  Erie  R.  Co.,  2 
T.&'C.iN.   K.)634. 

To  recover  double  damages  for  killing 
stock,  where  the  evidence  shows  that  the 
company  had  erected  lawful  fences  along  its 
right  of  way,  it  devolves  upon  the  plaintifT 
to  show  some  ntglect  on  the  part  of  the 
defendant  in  maintaming  its  fences,  that  it 
liad  notice  of  their  defective  condition,  or 
that  they  had  been  so  long  out  of  repair 
that  such  notice  should  be  inferred.  Towns- 
ley  V.  Missouri  Pac.  R.  Co.,  89  iMo.  31,  i  S. 
II'.  A'lfi.  15.— Quoted  in  Foster  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  44  Mo.  App.  11. 

A  casual  breach  having  occurred  in  a 
legally  sufficient  fence,  without  the  knowl- 
edge or  fault  of  the  company,  and  stock 
having  gotten  upon  the  track  and  been 
killed,  the  company  is  not  liable  unless  it 
lias  had  a  reasonable  time  to  discover  such 
breach,  or  has  been  notified  and  fails  to  re- 
pair before  the  injury  occurred.  Indian- 
apolis <S-  St.  I..  R.  Co.  V.  Hall,  88  ///.  368. 


Illinois  C.  R.  Co.  v.  .Sji',arinj;en,  47  ///.  206. 
Brentner  v.  Chicago.  M.  &*  St.  P.  R.  Co.,  7 
Am.  6-  Eng.  R.  Cas.  574,  58  /tnva  625,  12  A'. 
W.  Rep.  615.  — Following  Alyesworth  7>. 
Chicago,  R.  I.  &  P.  R.  Co.,  30  Iowa  459; 
Perry  v,  Dubuque  S.  VV.  R.  Co.,  36  Iowa  102  ; 
Davis  V.  Chicago,  R.  I.  &  P.  R.  Co.,  40  Iowa 
292  i  McCormick  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  41  Iowa  193. 

Though  a  company  is  not  liable  for  injury 
to  cattle  caused  by  a  defective  fence  unless 
it  was  negligent  in  failing  to  repair  within 
a  reasonable  time  after  notice  of  its  condi- 
tion, it  is  not  necessary  that  the  notice 
should  have  been  given  by  a  plaintiff  whose 
cattle  have  since  been  injured.  Dunn  v. 
Chicago  «S-  A'.  W.  R.  Co.,  7  Am.  &'  Eng.  R. 
Cas.  573.  58  /owa  674.  12  N.  W.  Rep.  734. 

(2)  y//;/.r//-rt//W;/j.— Where  a  railroad  is  re- 
quired to  keep  its  track  ftMiced,  and  a  breach 
is  made  in  the  fence  by  (^'arties  not  in  the 
employ  of  the  company,  and  the  company 
have  no  knowledge  of  such  breach,  and 
there  are  no  circumstances  showing  that  it 
was  authorized  to  anticipate  the  breach 
being  made,  and  by  reason  of  such  breach 
stock  get  upon  the  track  and  are  killed  be- 
fore the  company  have  had  a  reasonable 
time  to  learn  about  the  breach,  the  company 
will  not  be  liable ;  and  a  covenant  or  condi- 
tion, in  a  deed  conveying  land  to  the  com- 
pany for  its  track,  to  fence  the  same,  will 
not  add  to  defendant's  liability  under  the 
statute.  Chicago  &*  A.  R,  Co.  v.  Saunders, 
85  ///.  288. 

Where  an  employ6  of  the  company,  whose 
duty  it  was  to  keep  fences  in  repair,  passes 
over  the  road  at  4  o'c'ock  p.m.  on  Satur- 
day, and  finds  the  feices  in  repair,  and 
again  on  Monday  morning  passes  over  the 
road  and  finds  that  the  fence  has  been 
recently  broken,  and  that  through  sut  .1 
breach  stock  got  upon  the  track  and  were  in- 
jured— held,  that  the  company  had  shown 
reasonable  diligence  in  keeping  the  fence  in 
repair,  and  was  not  liable.  Illinois  C.  R. 
Co.  V.  Swearingen,  47  ///.  206  -  Quoted  in 
Chicago,  B.  &  Q.  R.  Co.  v.  K.  nn'cdy,  22  111. 
App.  308. 

Where  it  is  sought  to  cliarge  a  railroad 
company  for  killing  stock  that  entered  the 
track  through  a  defect  in  t'.ie  fence,  by 
showing  that  the  company  had  notice  of  the 
defect,  an  instruction  \?  properly  refused 
which  states  that  the  mere  fact  that  hands 
working  in  a  gravel-pit  for  tht  company  had 
notice  of  the  defect  in  the  fence  would  not 


ANIMALS,   INJUKIHS    lO,   I4tt. 


171 


bwid  the  company,  but  to  he  l>iii(Jing  the 
notice  must  be  to  some  person  or  a^ent 
connected  with  the  i<eeping  up  or  repairing 
of  fences.  Such  instruction  is  erroneous  in 
assuming  that  a  laboring  hand  could  not  be 
charged  witii  tiie  repair  of  fences,  and  was 
calculated  to  mislead  the  jury  by  creating 
the  impression  that  the  company  was  not 
bound  to  repair  until  it  had  notice.  Imiian- 
apolis,  P.  &*  C.  A'.  Co.  v.  Truill,  24  Ind.  162. 
— Approvino  Toledo  «&  VV.  R.  Co.  v.  Daniels, 
21  Ind.  256. 

Michigan  act  198  of  1873  gives  damages 
against  a  railway  company  for  cattle  killed 
by  reason  of  the  company's  negligence  in 
not  keeping  up  the  fences  along  its  track. 
Held,  that  where  the  fences  had  been  acci- 
dentally destroyed  by  fire  after  the  track  in- 
spector hud  made  his  daily  inspection,  and 
the  fact  was  not  known  until  after  the  injury 
had  been  done,  the  company  was  not  guilty 
of  negligence.  Toledo,  C.  S.  &^  /).  A'.  Co.  v. 
£der,ns  Mich.  329.  7  N.  W.  Rep.  898. 

A  mere  showing  that  the  stock  which  was 
killed  got  upon  the  railway  track  owing  to 
the  fence  being  out  of  repair  does  not  war- 
rant a  recovery.  It  must  further  appear 
that  the  railway  company  had  notice  of  the 
condition  of  the  fence,  or  that  the  fence  was 
out  of  repair  for  such  length  of  time  that 
ignorance  thereof  could  be  deemed  negli- 
gence. And  held,\.\\dX  this  requirement  was 
satisfied  by  evidence  that  the  fence  had 
been  down  at  least  one  day  prior  to  the  kill- 
ing of  the  stock,  and  that  it  was  in  close 
proximity  to  a  station  and  could  easily  have 
been  repaired.  Foster  v.  St.  Louis,  I.  M. 
&-  S.  /i.  Co.,  44  Mo.  App.  II.— yuoTiNO 
Townsley  v.  Missouri  Pac.  R.  Co.,  89  Mo. 
31.  Following  Clardy  I'.  St.  Louis,  1.  M. 
&  S.  R.  Co.,  73  Mo.  576;  Case  v,  St.  Louis 
&  S.  F.  R.  Co.,  75  Mo.  668;  Fitterling  t/. 
Missouri  Pac.  R.  Co.,  79  Mo.  504;  Heaston 
V.  Wabash,  St.  L.  &  P.  R.  Co.,  18  Mo.  App. 
403 ;  Vinyard  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  80  Mo.  9;! ;  Young  v.  Hannibal  &  St.  J. 
R.  Co.,  82  Mo.  427  ;  Lanev  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  83  Mo.  466;  Maberry 
V.  Missouri  Pac.  R.  Co.,  83  Mo,  667;  Wil- 
son V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  87  Mo. 
431. 

In  an  action  against  a  railroad  company 
for  killing  some  sheep  and  a  heifer,  it  was 
shown  that  the  part  of  the  fence  through 
which  the  sheep  escaped  was  known  to  the 
company  to  be  out  of  repair  before  the  es- 
cape, but  there  was  no  evidence  that  the 


fciiif  was  out  of  repair  where  the  heifer  es- 
caped before  sucli  escape.  Held,  that  the 
company  was  liable  for  the  sheep  but  not  for 
the  heifer.  Wheeler  v.  Erie  R,  Co.,  2  T. 
&•  C.  (N.  Y.)  634.  — DlSTINGinSHED  IN  Mc- 
Guire  v.  Og(lensburg&  L.  C.  R.  Co.,  44  N.  Y. 
S.  R.  348.  63  Hun.  632,  18  N.  Y.  Supp.  313. 

14:t.  Notice  of  (IclVvt  |>rcMiiiiH'<l 
IVoiii  lcii|$tli  «t"  time.  *— (i)  Generally. 
— The  existence  of  defects  in  a  fence  for  a 
long  time  will  raise  the  inference  that  the 
company  had,  or  should  have  had,  knowl- 
edge of  the  defects,  and  that  they  could 
have  repaired  the  fence.  Laney  v.  Kansas 
City,  St.  J.   &'  C.  B.  R.  Co.,  83  Mo.  466. 

PlaintilT  may  recover  double  damages  for 
stock  killed,  under  Missouri  statute,  by  show- 
ing that  their  death  was  due  to  defects  in 
condition  of  a  fence,  which  had  been  out  of 
repair  so  long  that  knowledge  of  its  condi- 
tion should  have  been  acquired  by  the  com- 
pany. To^vnsley  v.  Missouri  Pac.  R.  Co., 
^Mo.  31,  I  i'.   W.  Rep.  15. 

Where  stock  are  killed  or  injured  by  rea- 
son of  the  insufficiency  of  fences  of  a  rail- 
way along  its  track,  and  the  fences  have 
been  out  of  repair  so  long  that  the  company 
must  have  known  it,  and  the  owner  of  the 
stock  is  guilty  of  no  negligence,  the  com- 
pany will  be  liable.  Ohio  &*  Af.  A'.  Co.  v. 
Clutter,  82  ///.  123. 

A  railroad  company  is  liable  for  stock 
killed  by  reason  of  the  fence  being  down, 
where  it  appears  that  it  had  remained  down 
for  a  long  time,  which  was  known  to  the 
agent  of  the  company,  and  that  there  had 
been  full  opportunity  to  repair.  Laude  v. 
Chicago  &>  N,  W.  R.  Co.,  33  Wis.  640. 

(2)  Illustrations, — A  fence  along  a  rail- 
road track  was  burned  on  Thursday,  and  on 
the  following  Sunday  a  horse  was  killed  by 
going  upon  the  track  through  the  opening, 
it  appeared  that  an  employe  of  the  com- 
pany who  was  charged  with  the  duty  of  re- 
pairing fences  had  passed  over  the  track 
twice  a  day  between  the  time  of  the  fire  and 
the  killing.  Held,  (i)  that  the  company 
must  be  deemed  to  have  had  notice  and  a 
sufficient  time  to  repair;  (2)  that,  as  its 
trains  ran  on  Sunday,  it  could  not  be  ex- 
empt on  the  ground  that  it  was  not  lawful 
or  right  to  repair  the  fence  on  Sunday. 
Toledo,  W.  &>  W.  R.  Co.  v.  Cohen,  44  /nd.  444. 


*Seea,ite,  8-*,  128;  post,  Uiii,  207. 

Itiference  of  negligence  from  lapse  of  time 
iliiiintj  which  fence  is  in  bad  repair,  see  note,  13 
A  ,1.  &  Eng.  R.  Cas.  561. 


172 


ANIMALS,  INJURIES  TO,  144,  145. 


Where  it  is  shown  that  the  fence  inclosing 
the  railroad  company's  track  had  been  down 
for  more  than  a  month,  at  a  place  where 
the  road  passed  along  cultivated  fields,  the 
company's  agent  having  nutice  of  the  de- 
fect, and  that  cattle  grazed  at  the  place,  these 
circumstances  are  sufficient  from  which  to 
deduce  the  conclusion  that  ihc  animal  got 
upon  the  track  at  a  place  where  the  com- 
pany was  required  to  fence,  and  because  of 
failure  to  repair  after  ample  notice.  May- 
field  V.  S/.  Louts  &*  S.  /•'.  Jf.  Co.,  91  Mo.  296, 
3.S'.  W.  R,p.  201. 

The  reniuval  of  a  fence  that  a  railroad 
company  is  required  to  erect,  to  allow  per- 
sons to  liaul  wood  for  the  use  of  the  co::)- 
pany,  in  the  months  of  January  and  Feb- 
ruary, and  permitting  such  fence  to  remain 
dowti  until  April  loih  following,  is  such 
negligence  as  to  make  the  company  liable 
for  stock  which  go  upc^n  the  track  through 
such  opening.  Mc/)o7Utll  v.  A'ew  Vopk  C. 
R.  Co.,  37  Barb.  (N.  )'.)  195.— FOLLOWING 
Corwin  v.  New  York  &  E.  R.  Co.,  13  N.  Y. 
42. 

The  fact  that  an  insufficient  fence  has,  for 
several  weeks,  been  maintained  by  a  railroad 
along  its  right  of  way,  is  sufficient  to  justify 
a  jury  in  finding  it  guilty  of  negligence ;  and 
the  fact  that  the  plaintiff's  stock  had,  dur- 
ing all  such  time,  been  kept  in  a  field  ad- 
joining the  right  of  way,  without  escaping 
through  such  fence  and  passing  upon  the 
railroad  track,  is  not  sufficient  to  excuse  the 
company  from  such  neglect.  Baltimore  (S^* 
O.  K.  Co.  v.  Schults,  22  Am.  &^  Eug.  K.  Cas. 
579,  23  /</.  21 1,  43  Ohio  St.  270,  54  Am.  Rep, 
805.  I  N.  E.  Rep.  324. 

144.  Liability  notwithstanding 
want  of  notice.*— Where  a  company  has 
erected  a  fence,  which  was  insufficient  at  the 
time  of  constr^'ction,  it  cannot  afterward 
avoid  liability  for  stock  killed  by  showing 
that  it  did  not  have  knowledge  of  defects 
therein.  Dooley  v.  Missouri Pac.  R.  Co.,  36 
Mo.App.  381. 

Where  the  immediate  means  or  cause  of 
stock  passing  over  a  fence  and  upon  a  rail- 
road track  is  that,  recently  prior  thereto,  a 
board  or  rail  had  become  detached  and 
fallen  from  the  fence,  without  the  knowledge 
of  the  company,  such  company  is  not  ex- 
cused from  liability,  where  there  is  evidence 
to  justify  the  jury  in  finding  that  such  spe- 


*See  ante,  34-.'{0,  05,  130;  post,  188, 
11)4,  277,  27». 


cial  defect  was  attributable  to  the  generally 
defective  condition  of  the  fence.  Baltimore 
&*  O.  R.  Co.  v.  Schults,  22  Am.  &»  Eng.  R. 
Cas.  579,  23  A/.  21 1,  43  OAio  St.  370,  54  Am. 
Rep.  80s,  '  ^-  ^-  ^fp'  324- 

In  an  action  by  an  adjoining  proprietor, 
for  injury  to  his  horses  getting  upon  the 
track  through  defect  of  fences,  it  was  a 
misdirection  to  tell  the  jury  that,  if  the 
fences  became  out  of  repair,  and  before  the 
plaintiff  notified  the  defendant,  or  before 
a  reasonable  time  for  the  defendant  to  re- 
pair it  had  elapsed,  the  horses  got  through, 
the  defendant  would  not  be  liable.  Studtr 
V.  Buffalo  <**  L.  H.  R.  Co.,  25  U.  C.  Q.  B. 
160.— Quoted  in  McMichael  v.  Grand 
Trunk  K.  Co.,  12  Ont.  547. 

145.  MiiHt  repair  or  rebuild  iu  a 
reaHouable  time.— (i)  Company  liable. — 
Where  a  company  has  constructed  a  suffi- 
cient fence,  which  gets  out  of  repair,  to 
avoid  liability  for  animals  killed  or  injured, 
it  must  repair  the  fence  witliin  a  reasonable 
time  after  actual  or  implied  notice  of  the 
defects.  Dunn  v.  Chicago  &*  N.  H'.  R.  Co., 
7  Am.  <S-"  Eng.  R.  Cas.  573,  58  Jiwa  674,  13 
A^.  IV.  Rep.  734.  Davis  v.  Chicago,  R.  !.  &* 
P.  R.  Co.,  40  /owa  292.— Following  Ayles- 
worth  V.  Chicago,  R.  I.  &  P.  R.  Co.,  30 
Iowa  459.— Followed  in  Brentner  v. 
Chicago,  M.  &  St.  P.  R.  Co.,  7  Am.  &  Eng. 
R.  Cas.  574,  58  Iowa  62i.—Hilliard  v.  Chi- 
cago 6-  N.  W.  R.  Co.,  37  Iowa  442.  AyleS' 
worth  V.  Chicago,  R.  I.  &*  P.  R.  Co.,  30  Iowa 
459.— Followed  in  Brentner  v.  Chicago, 
M,  &  St.  P.  R.  Co.,  7  Am.  &  Eng.  R.  Cas. 
574.  58  Iowa  625;  Davis  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  40  Iowa  292  ;  Farley  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  42  Iowa  234.  Not  over- 
ruled IN  Henderson  v.  Chicago.  R.  I.  &  P 
R.  Co.,  48  Iowa  216. — Deiveyv.  Chicago,  R.  I. 
&•  P.  R.  Co.,  31  /oTva  373.  Laney  v.  Kansas 
City.  St.  J.  &'  C.  B.  R.  Co.,  83  Mo.  466.— 
Followed  in  Foster  v.  St.  Louis.  I.  M.  & 
S.  R.  Co.,  44  Mo.  App.  If. — Clardyv.Ft, 
Louis,  /.  M.  5-  5.  R.  Co.,  7  Am.  &>  Eng.  R. 
Cas.  555,  73  Mo.  576.— Applied  in  King 
v.  Chicago,  R.  I.  &  P.  R.  Co..  90  Mo.  520. 
Followed  in  Heaston  v.  Wabash  &  St.  L. 
&  P.  R.  Co.,  18  Mo.  App.  403;  Vinyard  v. 
St.  Louis,  I.  M.  &  S.  R.  Co..  80  Mo.  92; 
Foster  v.  St.  Louis,  f.  M.  &  S.  R.  Co.,  44 
Mo.  App.  II.  Quoted  in  Morris  v.  Han- 
nibal &  St.  J.  R.  Co..  19  Am.  &  Eng. 
R.  Cas.  666,  79  Mo.  367  ;  Walthers  v.  Mis- 
souri Pac.  R.  Co.,  78  Mo.  617;  Young  7/, 
Hannibal   &  St.  J.  R.  Co.,  82  Mo.  427.— 


ANIMALS,  INJURIES  TO,  14«. 


173 


WhuUr  V.  Erie  K.  Co.,  2  T.  &*  C.  (.V.  K.) 
634.  Iniiiiinapolis  &*  Sf.  L.  A'.  Co.  v.  //«//, 
88  ///.  368.  Illinois  C.  R.  Co.  v.  Sweariti^en, 
47  ///.  306.  Brentner  v.  Chicago,  M.  &*  St.  /'. 
A'.  Co.,  7  Am.  &>  Eng.  K.  Cas.  574.  58  Iowa 
625, 12  A'.  IV.  Hep.  615.— Following  Aylcs- 
wortli  V.  Chicugo,  K.  I.  &  P.  R.  Co.,  30  Iowa 
459;  Perry  V.  Des  Moiiics  S.  VV.  R.  Co.,  36 
lowu  I03  ;  Davis  v.  Chicago,  R.  I.  fi  V.  R. 
Co.,  40  Iowa  393 ;  McCoriiiick  v.  Chicago,  R. 
1.  &  P.  R,  Co.,  41  Iowa  193. 

If  a  railroad  company  fails  to  maintain 
in  a  proper  condition  a  fence  which  it  is 
required  to  maintain,  it  is  liable  to  the  ad- 
joining proprietor  for  injury  to  stock  going 
upon  the  track  where  it  is  not  securely 
fenced,  although  the  fence  has  been  kept 
up  by  said  adjoining  proprietor  without  any 
contract  with  the  company.  Tiie  excuse 
that  a  reasonable  time  has  not  elapsed  to 
repair  the  fence  must  be  pleaded  or  proved. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Sullivan,  38 
Ind.  262,  \o  Am.  Ry.  Rip.  279. 

Where  a  portion  of  the  fence  of  a  railroad 
was  burned,  and  one  week  thereafter  cattle 
entered  upon  the  track  through  the  open- 
ing so  caused,  and  were  injured  by  a  passing 
\.r'i.\n—ktld,  that  the  delay  in  repairing  the 
fence  was  unreasonably  long,  and  that  the 
railroad  company  was  liable  for  the  injury 
to  the  cattle.  Cleveland,  C,  C.  &*  I.  R.  Co. 
V.  Brown,  45  Ind.  90.— Distinguishing  To- 
ledo &  W.  R.  Co.  V.  Daniels,  21  Ind.  256; 
Indianapolis,  P.  &  C.  R.  Co.  v.  Truitt  34 
Ind.  162. 

Where  a  railway  track,  roadbed,  and 
bridges  for  fifty  miles  have  been  washed  away 
and  twelve  miles  of  fences  destroyed,  a  jury 
is  authorized  to  find  that  the  company 
did  not  exert  ordinary  diligence  in  repairing 
the  fence  where  the  gap  at  the  point  where 
the  cattle  were  killed  could  have  been 
closed  by  the  sectionmen  in  an  hour,  it  being 
also  shown  that  sectionmen  were  at  that 
point  and  drove  cattle  away  from  the  track. 
Peet  V.  Chicago,  M.  6-  St.  P.  R.  Co.,  (Iowa) 
SSN.  W.  Rep.  508. 

The  duty  of  a  railroad  company  to  main- 
tain its  fences  already  built  is  discharged  by 
the  exercise  of  reasonable  care  and  dili- 
gence, and  they  may  be  temporarily  pros- 
trate or  broken  without  a  breach  of  such 
duty.  But  neglect  to  repair  a  breach  that 
has  been  patent  for  two  weeks  is  presump- 
tively negligence.  Varco  v.  Chicago,  M.  &* 
St.  P.  R.  Co.,  1 1  Am.  6-  Ef^.  R.  Cas.  419,  30 
Minn.  18,  13  A'.  W.  Rep.  931. 


(3)  Company  not  liafile.— Where  a  com- 
pany has  securely  fenced  its  track,  and  a  small 
portion  of  the  fence  is  afterward  destroyed  by 
fire,  which  is  repaired  within  a  reasonable 
time,  the  company  is  not  liable  for  stock 
that  went  upon  the  track  and  were  injured 
while  the  fence  remained  open.  Indian- 
apolis, P.  ir-  C.  R.  Co.  v.  Truitt,  24  Ind.  162. 

Where  a  railroad  is  kept  securely  f(  need 
by  the  company,  and  the  fence  is  destroyed 
by  unavoidable  accident,  as  by  fire,  and  is  re- 
paired by  I  he  company  within  u  reasonable 
time  after  its  destruction,  but  before  it  is  so 
repaired  stock  get  upon  the  track  and  are 
injured,  the  company  will  not  be  liable 
therefor.  Toledo,  is*  II '.  R.  Co.  v.  Daniels,  21 
Ind.  256.— Appro VK.I>  in  Indianapolis,  P.  & 
C.  R.  Co.  7'.  Truitt,  24  Ind.  163.  Distin- 
guished IN  Cleveland,  C,  C.  &  I.  R.  Co.  v. 
Brown,  45  Ind.  90. 

A  railroad  company  which  has  construct- 
ed proper  side-fences,  as  required  by  Mich. 
Laws,  1873,  538,  §15,  is  not  liable  for  dam- 
ages for  the  destruction  by  passing  train, 
without  any  neglect  or  wilfulness  of  the 
agents  or  servants  of  the  company,  of 
horses  that  escaped  from  an  adjoining  lot 
and  got  upon  the  track  through  a  breach  in 
the  fence  recently  caused  by  a  heavy  wind 
in  the  night-time,  in  the  absence  of  any  evi- 
dence showing  that  the  company  had  been 
negligent  in  regard  either  to  the  strength  of 
the  fence  or  to  the  length  of  time  taken  tore- 
store  it.  Robinson  v.  Grand  Trunk  R.  Co., 
32  Mich.  323. 

As  a  rule,  a  railroad  company  is  not  li- 
able for  stock  that  go  upon  the  track 
through  a  defective  fence,  unless  it  has  had 
a  reasonable  time  in  which  to  repair  after  it 
has  discovered,  or  might,  with  reasonable 
diligence,  have  discovered,  that  the  fence  is 
out  of  repair;  but  this  rule  has  no  applica- 
tion where  it  appears  that  there  was  no  fence 
at  all.*  Morris  v.  Hannibal  6r*  St.  J.  R,  Co., 
19  Am.  St*  Eng.  R.  Cas.  666,  79  Mo.  367. — 
Quoting  Clardy  v.  St.  Louis,  I.  M.  &  S.  R. 
Co..  73  Mo.  576.— Followed  in  Heaston  v. 
Wabash.    St.  L.  &  P.  R.  Co.,   18  Mo.  App. 

403- 

146.  Temporary  defects,  etc.,  in 
fences.— A  railroad  company,  wishing  to 
build  a  small  bridge,  removed  a  small  piece 
of  fence  and  left  gaps  through  which,  sub- 
sequent to  the  promise  of  defendant's  em- 
ploy6s  to  repair  the  gaps,  the  plaintifT'shogs 

*  See  ante,  1 44. 


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ANIMALS,  INJURIES   TO,  147-14J>. 


escaped,  and  were  killed  in  the  night  by  the 
cars.  Held,  the  company  was  responsible. 
Iiidiaiuipu/is&^C.  K.Co.  v.  Logan,  ig//iif.  294. 

The  New  York  act  of  1850,  ch.  140,  §  44, 
as  amended  in  1854,  ch.  282,  §  8,  relating  to 
fences,  does  not  make  railroad  companies 
absolutely  liable  as  insurers  of  stock  that 
may  go  upon  the  track  through  a  temporary 
defect  in  a  fence  ;  but  their  liability  under 
the  statute  is  a  question  of  negligence. 
Murray  v.  New  York  C.  K.  Co.,  3  Abk 
App.  /;<;■.  (N.  Y.)  339,  4  Keyes  274.-DIS. 
T1N(JUISHKU  IN  McGuire  v.  Ogdensbuig  & 
L.  C.  R.  Co.,  44  N.  Y.  S.  R.  348,  63  Hun. 
632,  18  N.  Y.  Supp.  313.  See  also  Wlwelcr 
V.  Eric  K.  Co.,  2  T.  &-  C.  {N.  !'.>  63^.  I)i- 
dianapoUs  &"  St.  L.  A'.  Co.  v.  //,?//,  88  ///.  368, 
Illinois  C.  R.  Co.  v.  Swearingen,  47  III.  206. 

A  railroad  company  is  liable  for  killing  a 
cow  where  she  is  sent  by  the  owner  to  a  lot 
adjoining  a  railroad  track  in  charge  of  a 
small  boy,  who  leaves  her  for  a  short  time, 
and  she  goes  upon  the  track  where  the  rail- 
road fence  is  down  temporarily  for  the  pur- 
pose of  allowing  the  company  to  make  cer- 
tain improvements.  Brady  \.  Rensselaer  &^ 
S.  R.  Co.,  I  Hti?i.  {N.  Y.)  378,  3  T.&'C. 
537.— Quoting  Bradley  v.  Buffalo,  N.  Y.  & 
E.  R.  Co.,  34  N.  Y.  427.  Reviewing  Cor- 
win  V.  New  York  &  E.  R.  Co.,  13  N.  Y.  42. 

147.  Leaviiif?  opciiint^ij  iu  fence 
with  coiLseut  of  landowner. — Where 
the  evidence  showed  that  open  spaces  had 
been  left  in  a  fence  inclosing  a  track  by  con- 
sent of  the  landowner,  for  the  purpose  of 
allowing  the  passing  through  of  his  cat- 
tle, the  company  is  held  to  have  had  the 
right  to  run  its  trains  as  if  no  such  privilege 
had  b(^en  granted  to  the  i<.  .:'iwner,  and 
subject  only  to  the  duty  on  the  ^.'xrt  of  the 
company  to  keep  a  look  out  for  ?  id  avoid 
injuring  the  cattle  after  discovering  them  to 
be  in  danger.  Whittier  v.  Chicago,  M.  Sf 
St.  P.  R.  Co.,  26  Minn.  484,  5  N.  W.  Rep. 
372.— Approved  in  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Walton,  3  N.  Mex.  319. 

1^8.  Removal  of  fence  by  land- 
owner.*— M.,  the  owner  of  land  adjoining 
a  railway,  put  down  the  fence  separating  it 
from  the  track,  with  the  assent  of  the  railway 
company,  in  order  to  supply  it  with  wood 
cut  upon  the  land.  Ke  then  sold  the  land  to 
one  C. ,  stipulating  that  he  should  retain  one 
or  two  acres  on  which  this  wood  was  piled. 
C.  afterwards  leased  the  east  half  of  the  land 


•See/w/,  160,  157. 


to  the  plaintiff,  containing  part  of  the  land 
retained  by  M.,  and  C.  allowed  the  plaintitTs 
cattle  to  run  on  the  west  half,  there  being 
no  line  fence  between  the  two  halves.  The 
plaintiflE's  cattle  escaped  from  this  west  half 
onto  the  railway  where  the  fence  had  been 
removed  by  M.,  and  were  killed.  Held,  that 
the  plaintiff  could  not  recover,  for  the  facts 
showed  a  license  by  implication  from  C.  to 
leave  the  fence  as  it  was,  and  the  plaintiff, 
-ts  C.'s  licensee,  could  have  no  better  right 
Muai  C*  Held,  also,  that  as  the  fence  was 
originally  removed  with  the  assent  of  the 
^a.'ies  interested  in  it,  the  defendant  could 
I'  h  liable  without  a  notice  to  erect  it 
f  >  yme  one  duly  authorized,  of  which 

i-  .  .  was  no  evidence.  Kilmer  v.  Great 
Wesf.'.rn  R.  Co.,  35  I/.  C.  Q.  li.  595. 

149.  Uiilc  where  landowner  is 
bound  to  maintain  fence.f— Where  a 
company,  by  sparks  from  an  engine,  burns  a 
fence  between  its  track  and  adjoining  lands, 
which  it  was  the  duly  of  the  adjoining  land- 
owner to  keep  up,  a  failure  on  the  part  of  the 
company  to  rebuild  will  not  make  it  liable  for 
stock  killed  that  go  upon  the  track  through 
the  burned  portion  of  the  fence.  Terry  v. 
New  York  C.  R.  Co.,  22  Barb.  {N.  Y.)  574. 
—Applying  Talmadge  v.  Rensselaer  &  S. 
R.  Co.,  13  Barb.  493;  Marsh  v.  New  York 
&  E.  R.  Co.,  14  Barb.  364.  Reviewing 
Tonawanda  R.  Co.  v.  Munger,  5  Den.  255, 

4  N.  Y.  349;  Spencer  v.  Utica  &  S.  R.  Co., 

5  Barb.  337  ;  Brand  v.  Troy  &  S.  R.  Co.,  8 
Barb.  368;  Clark  v.  Syracuse  &  U.  R.  Co., 
II  Barb.  112;  Haring  7/.  New  York  and  E. 
R.  Co.,  13  Barb.  9;  Willett  v.  RufTalo  &  R. 
R.  Co.,  14  Barb.  585. — Nor  followed  in 
Washington  v.  Baltimore  &  O.  R.  Co.,  17 
W.  Va.,  190. 

An  adjoining  landowner,  under  an  agree- 
ment with  a  company,  contracted  to  erect 
and  n-.aintain  a  proper  fence  between  his 
lands  and  the  track,  and  after  the  fence  had 
been  erected  some  time  the  company,  for 
some  purpose  connected  with  its  business, 
took  the  fence  down  and  put  it  up  again  dif- 
ferent from  its  original  construction,  which 
was  done  without  objection  from  the  land- 
owner. Afterward  he  permitted  the  fence 
to  get  out  of  repair,  and  his  cattle  went  over 
it  and  were  killed  on  the  track.  It  appeared 
that  the  company  had  made  occasional  re- 
pairs to  the  fence.     Held,  that  by  hisacqui- 

*  See  ante,  04. 

+  See  ante,  88,  8»,  139;  tost,  15«, 
170,  175,  300,  393,  i»23. 


ANIMALS,  INJURIES   TO,  130-132. 


lO 


escence  in  the  act  of  the  company  in  not 
rebuilding  the  fence  as  it  was  originally  con- 
structed, he  was  estopped  from  complaining 
of  such  failure,  and  that  he  could  not  recover 
for  the  loss  of  tlie  stock  unless  the  proof 
showed  that  it  was  due  to  negligence  in  the 
manner  of  running  the  train,  the  burden  to 
show  which  was  upon  him.  Pittsburgh,  C. 
&^  St.  L.  R.  Co.  V.  Heiskdl,  1 3  Am.  &*  Eng. 
R.  Cas.  555,  38  Ohio  St.  666. 

130.  Fence  destroyed  or  impaired 
by  third  persons.*— In  the  absence  of 
negligence  a  railroad  company  is  not  liable 
if  cattle  go  upon  the  track  through  a  fence 
which  the  company  has  erected,  but  which 
has  been  broken  down  by  third  p;irties,  and 
are  killed.  Walthers  v.  Missouri  Pac.  R. 
Co.,  19  Am.  &•  Eng.  R.  Cas.  662,  78  A/o.  617. 
— Quoting  Clardy  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  73  Mo.  576 ;  Case  v.  St.  Louis  &  S. 
F.  R.  Co.,  75  Mo.  668. 

Where  a  track  is  inclosed  by  a  sufficient 
fence,  and  a  breach  occurs  therein  by  reason 
of  the  unlawful  act  of  a  stranger,  through 
wiich  breach  stock  get  upon  the  track  and 
are  injured,  in  the  absence  of  negligence  on 
its  part  the  company  will  not  be  liable, 
unless  the  accident  happened  after  the  lapse 
of  a  sufficient  time  for  the  company,  in  the 
exercise  of  reasonable  diligence,  to  have  dis- 
covered and  repaired  the  breach  before  the 
injury  occurred.  Chicago  (Sr^  A'.  f-F.  A'.  Co. 
V.  Barrie,  55  ///.  226,  2  Am.  Ry.  Rep.  451. — 
Distinguished  in  Peoria,  D.  &  E.  R.  Co.  v. 
Aten,  43  111.  App.  68.  Quoted  in  Rockford, 
R.  I.  &  St.  L.  R.  Co.  V.  Connell,  67  111.  216. 

Where  a  company  has  caused  its  road  to 
be  securely  fenced,  and  has  exercised 
reasonable  care  and  vigilance  to  keep  it  so, 
and  the  fence  is  thrown  and  left  down  by 
third  persons,  without  the  authority  or 
knowledge  of  the  company,  whereby  cattle 
stray  upon  the  track  and  get  killed  or  in- 
jured, before  the  company  has  notice,  the 
company  is  without  fault,  and  not  liable  for 
the  stock  thus  killed  or  injured.  Toledo  &* 
W.  R.  Co.  V.  Fowler,  22  Ind.  316. 

151.  Defects  in  fences  which  were 
not  required  by  law  to  be  built.f— 
Where  a  statute  makes  it  the  duty  of  rail- 
road companies  to  fence,  except  where  they 
pass  through  uninclosed  or  unimproved 
lands,  where  a  fence  has  been  erected  but  is 
allowed  to  get  out  of  repair,  so  that  stock  go 

*See/«/,  181,  237. 

tSee  ante,  05-107,  117,  130 ;  post, 
212. 


over  it  and  are  injured,  the  company  is  li- 
able, unless  it  shows  that  the  land  was  not 
inclosed  or  improved,  and  '.herefore  it  was 
not  required  to  erect  and  maintain  fences. 
New  Bru,.swick  R.  Co.  v.  Armstrong,  23 
Nem  Brun.  193. 

5.  Animals  Trespassing,  Running  at  Large, 

or  Coming  from  Lands  not  Belonging 

to  Owner.* 

152.  Animals  trespassinj?,  ;>:ener- 
ally. — The  trespass,  if  any,  of  cattle  is  not 
a  defense  to  any  action  against  a  railroad 
company  for  their  death,  where  they  enter 
upon  the  road  from  the  owner's  premises  by 
reason  of  the  company's  failure  to  fence  its 
road.  Holland  v.  West  End  N.  G.  R.  Co., 
16  Mo.  App.  172. 

Where  a  railroad  company  neglects  to 
build  fences  as  required  by  statute,  they  will 
be  liable  for  stock  injured  or  killed,  without 
reference  to  the  right  of  the  cattle  to  be 
where  they  could  go  upon  the  track,  or 
whether  the  trains  doing  the  injury  were  be- 
ing operated  with  proper  care  or  not.  Mc- 
Call  V.  Chamberlain,  13  Wis.  637.— APPLY- 
ING Fawcettz-.  York  &  N.  M.  R.  Co.,  16  Q. 
B.  610,  71  E.  C.  L.  609.  Reviewing  Corwin 
V.  New  York  &  E,  R.  Co.,  13  N.  Y.  42.--D1S- 
tinguished  in  Pitzner  v.  Shinnick,  39  Wis. 
129. 

The  fact  that  a  horse  escapes  from  the 
control  of  its  owner,  and  passes  from  his 
land  adjoining  a  railroad  through  an  open 
gate,  at  his  private  crossing,  onto  the  rail- 
road tracks,  does  not  make  the  horse  a  tres- 
passer, or  preclude  the  maintenance  of  an 
action  against  the  railroad  corporation  for 
causing  the  horse's  death.  Ta/t  v.  A'etv 
York,  P.  6-  B.  R.  Co.,  157  Mass.  297,  32  N. 
E.  Rep.  168. 

Under  the  provisions  of  section  i  of  the 
Nebraska  act  of  1867  (Comp.  St.  1885,  464), 
where  a  railroad  corporal  oii  neglects  to 
maintain  fences  and  cattle-  uards  along  its 
road,  and  horses  get  the  .eon  and  are  in- 
jured or  killed  by  the  engines  or  trains 
running  on  the  road,  the  railroad  company 
is  liable  to  the  owner  in  damages  therefor, 
and  the  negligence  of  the  owner  in  allow- 
ing the  horses  to  escape  from  him  will 
constitute  no  defense  to  the  action.  Bur- 
lington Sr'  M.  R.  R.  Co.  V.  Webb,  22  Am.  &* 
Eng.  R.  Cas.  617,  18  Neb.  215.— Quoting 

^*  See  (.M/*-,  4;M»o\/>w/,~187,  205,  20«, 
243-270,  .337-375,  376,  300,  411, 
491,  503. 


'4 


176 


ANIMALS,  INJURIES  TO,  153. 


•1 


Corwin  v.  New  York  &  E.  R.  Co.,  13  N.  Y. 
42. 

The  mere  fact  that  an  animal  which  was 
killed  or  injured  by  a  train  of  cars  was  a 
trespasser  on  defendant's  road,  or  that  it 
passed  thereon  from  land  not  belonging  to 
the  plaintiff,  will  not  defeat  a  recovery. 
Cu.ry  V.  Chicago  &>  N.  W.  Jf.  Co.,  43  IV/s. 
665. 

153.    trespassing  upon  lauds 

adjoining  track.* — (i)  General  rule  stat- 
^r/.f— The  fact  that  plaintiff's  horses  entered 
the  close  of  another  through  an  insuffi- 
cient fence  upon  the  highway,  and  passed 
thence  upon  defendant's  road,  could  not 
affect  his  right  of  recovery.  Chicago  (S-»  A'. 
W.  R.  Co.  V.  Harris,  54  ///.  528. 

The  company  is  liable,  althougii  the 
plaintiff  was  not  an  occupant  or  proprietor 
of  the  adjoining  lands.  Ne%v  Albany  J>> 
a.  R.  Co.  V.  Aston,  13  Ind.  545. 

In  an  action  for  injuries  to  cattle  on  a 
track  which  the  company  has  failed  to 
fence,  it  is  no  defense  that  the  cattle  were 
trespassers  upon  the  land  whence  they 
passed  to  the  track.  Gillatn  v.  Sioux  City 
6-  St.  P.  R.  Co.,  26  Minn.  268,  3  X.  IV. 
Rep.  353.— Followed  in  Watler  v.  Chi- 
cago, M.  &  St.  P.  R.  Co.,  13  Am.  &  Eng.  R. 
Cas.  582,  31  Minn.  91. 

Where  the  plaintiff's  horse  was  at  large, 
in  the  night-time,  on  the  premises  of  an- 
other, in  violation  of  the  night  h'^rd  law, 
which  was  then  in  force  in  the  county,  and 
was  killed  by  the  defendants'  train,  without 
fault  or  negligence  of  defendant,  at  a  point 
where  it  had  the  right  to  fence  but  did  not 
— held,  that  defendant  was  liable,  under 
§  1289  of  the  Kansas  Code,  for  the  value  of 
the  horse,  in  ihe  absence  of  any  showing 
that  the  plaintiff,  by  any  wilful  act,  contrib- 
uted to  ti;e  injury.  Krebs  v.  Minneapolis 
6-  St.  L.  R.  Co. ,  20  Am.  •Sr'  Eng.  R.  Cas.  478, 
64  Iowa  670,  21  N.  W.  Rep.  131.— DlST'N- 
GUISHING  Pittsburgh,  F.  W.  &  C.  R.  Co.  v. 
Methven,  21  Ohio  St.  586;  Kansas  Pac.  R. 
Co.  V.  Landis,  24  Kan.  406.  Following 
Spence  v.  Chicago  &  N.  W.  R.  Co.,  25  Iowa 
139. — Followed  in  Lee  v.  Minneapolis  & 
St.  L.  R.  Co.,66  Iowa  131.  Reviewed  in 
Timins  v.  Chicago,  R.  I.  &  P.  R.  Co.,  31 
Am.  &  Eng.  R.  Cas.  541,  72  Iowa  94,  33  N. 
W.  Rep.  379- 

Railroad  fence  laws  are  in  the  nature  of  a 

*  Sac  post,  166. 

t  Injury  to  cattle  trespassing  on  adjoining 
land,  see  note,  19  Am.  &  Eng.  R.  Cas.  661. 


police  regulation,  intended  to  protect  do- 
mestic animals  generally,  and  to  promote 
the  security  of  persons  and  property  pass- 
ing over  the  road,  and  are  not  designed 
merely  for  the  benefit  of  the  adjoining  land- 
owner. The  company  is,  therefore,  under 
a  general  obligation  to  the  public;  and,  in 
an  action  under  the  statute,  the  mere  fact 
that  the  animals  were  trespassers  upon  the 
adjoining  land,  from  which  they  went  onto 
the  unfenced  railroad  track  and  were  killed, 
will  not,  where  they  escaped  from  the  plain- 
tiff's enclosure  without  his  fault,  defeat  a 
recovery.  Missouri  Pac.  R.  Co.  v.  Roads, 
23  Atn.  &>  Eng. . ..  ms.  165,  33  Kan.  640,  7 
Pac.  Rep.  213. 

Under  the  New  York  general  railroad  act 
rf  1850,  requiring  railroads  to  erect  and 
n.aintain  fences  along  their  tracks,  a  failure 
to  do  so  will  render  them  liable  for  stock 
killed  or  injured,  regardless  of  the  fact 
whether  the  stock  were  lawfully  on  the  ad- 
joining lands  or  not.  Duffy  v.  Ne7v  York 
<S«-  H.  R.  Co.,  2  Hilt.  {N.  Y.)  496.— Fol- 
lowing Corwin  v.  New  York  &  E.  R.  Co., 
13  N.  Y.  42. — Corwin  v.  Ne^u  York  &•  E. 
R.  Co.,  13  N.  Y.  42.  —  Distinguishing 
Ricketts  v.  East  &  W.  I.  Docks,  12  Eng. 
L.  &  Eq.  520.  Following  Tonawanda 
R.  Co.  V.  Munger,  5  Den.  255,  4  N.  Y.  349; 
Suydam  v.  Moore,  8  Barb.  358  ;  Waldron  v. 
Rensselaer  &  S.  R.  Co.,  8  Barb.  390;  Faw- 
cett  V.  York  &  N.  M.  R.  Co.,  2  Eng.  L. 
&  Eq.  289.  Not  following  Brooks  v. 
New  York  &  E.  R.  Co.,  13  Barb.  594. — Ap- 
proved IN  Munch  V.  New  York  C.  R.  Co., 
29  Barb.  (N.  Y.)  647.  Distinguished  in 
Bartlett  v.  Dubuque  &  S.  C.  R.  Co.,  20  Iowa 
188;  Fames  v.  Salem  &  L.  R.  Co.,  98  Mass. 
560;  Heller  v.  Abbot,  79  Wis.  409.  Ex- 
plained in  Dent  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  83  Mo.  496.  Followed  in  Spence 
V.  Chicago  &  N.  W.  R.  Co.,  25  Iowa  139; 
Hance  v.  Cayuga  &  S.  R.  Co.,  26  N.  Y.  428; 
Tallman  v.  Syracuse,  B.  &  N.  Y.  R.  Co.,  4 
Abb.  App.  Dec.  (N.  Y.)  351  ;  McDowell  v. 
New  York  C.  R.  Co.,  37  Barb.  (N.  Y.)  195; 
Rhodes  v.  Utica,  I.  &  E.  R.  Co.,  5  Hun  (N. 
Y.)  344 ;  Graham  v.  Delaware  &  H.  C.  Co., 
46  Hun  (N.  Y.)  386,  12  N.  Y.  S.  R.  390; 
Duffy  V.  New  York  &  H.  R.  Co.,  2  Hilt.  (N. 
Y.)  496.  Quoted  in  Terre  Haute  &  R.  R, 
Co.  V.  Smith,  16  Ind.  102;  Burlington  &  M. 
R.  R.  Co.  V.  Webb.  22  Am.  &  Eng.  R.  Cas. 
617,  18  Neb.  215;  Staat?  v.  Hudson  River 
R.  Co.,  33  How.  Pr.  (N.  Y.)  139.  Recon- 
ciled IN  Pittsburgh,  Ft.  W,  &  C  R.  Co.  v. 


ANIMALS,  INJURIES  TO,  153. 


177 


. 


Methven,  21  Ohio  St.  586.  Referred  to 
IN  Brace  v.  New  York  C.  R.  Co..  27  N.  Y. 
269.  Reviewed  in  Richmond  v.  Sacra- 
mento Valley  R.  Co.,  18  Cal.  351 ;  Brady  v. 
Rensselaer  &  S.  R.  Co.,  i  Hun  (N.  Y.)  378.  3 
T.  &  C.  537 ;  Crawford  v.  New  York  C.  & 
H.  R.  R.  Co.,  18  Hun  (N.  Y.)  108  ;  Leggett 
V.  Rome,  W.  &  O.  R.  Co.,  41  Hun  (N.  Y.)  80, 
■2  N.  Y.  S.  R.  312 ;  Becker  v.  New  York,  L. 
E.  &  W.  R.  Co.,  31  N.  Y.  S.  R.  750,  57  Hun 
585,  10  N.  Y.  Supp.  413;  McCall  v.  Cham- 
berlain, 13  Wis.  637. 

Where  animals  escape  from  a  field  which 
does  not  adjoin  the  track  to  one  which  does, 
and  go  thence  to  the  track  at  a  point  where 
the  company  has  failed  to  maintain  a  suffi- 
cient fence,  under  the  statute,  and  are  killed, 
the  owner  may  recover  from  the  company, 
if  it  appears  that  he  has  used  such  reason- 
able care  to  restrain  them  as  a  prudent  and 
cautious  man  would  have  used,  with  knowl- 
edge of  the  disposition  of  the  stock  to  be 
breachy  or  unruly.  Pittsburgh,  C.  Gr'  St.  L, 
R.  Co.  v.  Howard,  1 1  Am.  &*  Eng.  R.  Cas. 
488,  40  O/ii'o  St.  6. 

(2)  /«  Massachusetts. — In  Massachusetts 
one  who  permits  his  stock  to  go  unlawfully 
on  the  lands  of  another  adjoining  a  track 
cannot  recover  from  the  railroad  if  they  go 
on  the  track  and  are  killed,  although  the 
company  may  have  failed  to  fence  as  re- 
quired by  law.  Eames  v.  Salem  &*  L.  R.  Co., 
98  Mass.  560. 

Where  a  company  is  required  by  statute 
to  maintain  needful  fences  and  cattle-guards, 
it  will  be  liable  for  cattle  killed  that  stray 
from  the  owner's  premises  through  the 
lands  of  another,  and  thence  onto  the  track, 
by  reason  of  insufficient  fences  and  cattle- 
guards.  Brffivne  v.  Providence,  H.  &>  F.  R, 
Co.,  12  Gray  (Mass.)  55.— Distinguished 
IN  Eames  v.  Boston  &  W.  R.  Co.,  14  Allen 
(Mass.)  151 ;  Eames  t/.  Salem  &  L.  R.  Co., 
98  Mass.  560. 

(3)  In  Missouri. — The  fact  that  the 
owner  of  an  animal  injured  upon  a  railroad 
track  was  not  the  owner  or  occupant  of  the 
adjoining  field,  from  which  the  animal  came 
upon  the  track,  will  not  affect  the  liability 
of  the  company  on  the  ground  of  its  failure 
to  fence  its  road,  unless  the  animal  was  a 
trespasser  on  the  field  from  which  it  came. 
Brandenburg  v.  St.  Louis  &^  S.  F.  R.  Co. ,  44 
Mo.  App.  224.— Applying  Ferris  v.  St. 
Louis  &  H.  R.  Co.,  30  Mo.  App.  122;  John- 
son V.  Missouri  Pac.  R.  Co.,  80  Mo.,  620. 

Where  the  owner  of  a  mare   killed   by 
I  D.  R.  D.— 12. 


the  defendant's  train  was  not  an  adjoin- 
ing landowner  or  a  next  adjoining  owner, 
and  where  the  animal  had  strayed  from 
the  owner's  field,  four  miles  from  the  rail- 
road, and  passed,  as  a  trespasser,  over  the 
lands  of  several  intervening  proprietors 
before  reaching  the  railroad,  there  can  be 
no  recovery  by  such  owner  against  the  com- 
pany on  the  ground  of  its  failure  to  main- 
tain a  sufficient  fence  along  the  track,  under 
the  provisions  of  Revised  Statutes,  section 
809.  Ferris  v.  ,'^t.  Louis  &>  H.  R.  Co.,  30 
Mo.  App.,  122. — Applied  in  Brandenburg 
V.  St.  Louis  &  S.  F.  R.  Co.,  44  Mo.  App, 
224.  Distinguished  in  Board  v.  St.  Louis, 
I.  M.  &  S.  R.  Co.,  36  Mo.  App.  151 ;  Young 
V.  Kansas  City,  Ft.  S.  &  M.  R.  Co.,  39  Mo. 
App.  52  ;  Duke  v.  Kansas  City,  Ft.  S.  &  M. 
R.  Co.,  39  Mo.  App.  105;  Kinion  v.  Kansas 
City.  Ft.  S.  &  M.  R.  Co.,  39  Mo.  App.  382 ; 
Kinion  v.  Kansas  City,  Ft.  S.  &  M.  R.  Co., 
39  Mo.  App.  574;  Jackson  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  43  Mo.  App.  324. 

The  statute  requires  railroads  to  \ 
fenced  for  the  benefit  of  the  adjoinin^ 
proprietor,  and  if  his  field  has,  on  its  three 
sides,  a  lawful  fence,  it  cannot  avail  a 
stranger,  whose  stock  are  injured,  that  the 
railroad  track  is  defectively  fenced  from  the 
field,  or  not  fenced  at  all,  unless  he  shows 
thai  his  stock  were  in  an  adjoining  field  by 
some  agreement  with  the  owner  thereof. 
Hendrix  v.  St.  Joseph  &•  St.  L.  R.  Co.,  38 
Mo.  App.  520. 

The  owner  of  cattle  trespassing  on  lands 
adjoining  a  railroad  cannot  recover  of  the 
railroad  company  by  showing  that  the  cattle 
got  upon  the  track  owing  to  the  insufficiency 
of  the  railroad  fence,  where  it  appears  that 
the  other  three  sides  of  the  land  were  sur- 
rounded by  a  lawful  fence.  Smith  v.  St. 
Louis,  I.  M.  &-  S.  R.  Co.,  25  Mo.  App.  113. 
— Following  Carpenter  z/.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  25  Mo.  App.  no. — Carpenter V. 
St.  Louis,  /.  M.  &-  S.  R.  Co.,  2S  Mo.  App. 
no.— Followed  in  Smith  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  25  Mo.  App.  113. 

In  such  actions  for  double  damages  under 
the  Missouri  statutes  the  plaintifl  must 
show  that  the  lands  of  the  adjoining  owner 
were  not  inclosed  by  lawful  fences.  /Jar- 
rington  v.  Chicago,  R.  I.  &■*  P.  R.  Co.,  71 
Mo.  384.— Adhering  to  Berry  v.  St.  Louis, 
S.  &  L.  R.  R.  Co.,  65  Mo.  172.— Approved 
IN  Peddicord  v.  Missouri  Pac.  R.  Co.,  85 
Mo  160. 
Where,  in  an  action  under  the  Missouri 


If  "i" 
'4     ■*" 


ANIMALS,  INJURIES   TO,  153. 


double  damage  law,  Rev.  St.  §  809,  for  the 
value  of  a  bull  killed  by  a  train,  the  evidence 
shows  that  the  bull  was  in  a  pasture  which 
did  not  adjoin  the  railroad,  and  escaped 
therefrom  into  the  pasture  of  one  S.,  and 
thciice  onto  the  railroad  track,  there  can  be 
no  recovery  without  proof  also  that  the 
fence  through  which  the  bull  escaped  into 
the  pasture  of  S.  was  a  lawful  fence.  Peddi- 
cordy.  Missouri  Pac.  K.  Co.,  85  Mo.  160. — 
Approving  Harrington  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  71  Mo.  384.— Quoting  B^ry  v. 
St.  Louis,  S.  &  L.  R.  R.  Co.,  65  Mo.  172. 
Rkviewed  in  Emmerson  v.  St.  Louis  &  H. 
R.  Co.,  35  Mo.  A  pp.  621. 

(4)  In  Nevada,  New  Hampshire,  and  Ver 
mont. — In  an  action  for  killing  a  domestic 
animal,  which  has  strayed  upon  its  track 
from  land  not  belonging  to  its  owner,  it  is 
incumbent  on  the  plaintiff  to  show  negli- 
gence on  the  part  of  the  company.  Walsh 
V.  Virginia  <3>*  T.  R.  Co.,  8  Nev.  iio. 

A  railroad  corporation  is  not  liable  for 
damages  done  to  cattle  unlawfully  in  a  pas- 
ture adjoining,  and  escaping  thence  upon  its 
road  through  defective  fences  which  the 
railroad  is  bound  to  keep  in  repair.  Giles  w. 
Boston  &•  M.  R.  Co.,  55  N.  H.  552.— Fol- 
lowing Cornwall  v.  Sullivan  R.  Co.,  28  N. 
H.  i6i.  Reviewing  Midland  R.  Co.  v. 
Daykin,  17  C.  B.  126,  33  Eng.  L.  &  Eq.  193. 

Where  a  company  owned  a  piece  of 
land  adjoining  their  railway,  and  the  plain- 
tiff owned  a  track  adjoining  the  company's 
piece,  and  there  was  no  fence  between  the 
plaintiff's  land  and  the  land  of  the  cor- 
poration, and  no  steps  had  been  taken  to 
have  any  division  of  fence  between  them, 
and  there  was  no  fence  between  the  com- 
pany's piece  of  land  and  the  railway,  and 
the  plaintiff  turned  his  sheep  upon  his  own 
land,  from  which  they  strayed  upon  the 
land  of  the  corporation,  and  thence  upon 
the  railroad  track  and  were  killed — held, 
that  the  plaintiff  could  not  sustain  an  action 
against  the  company  for  the  loss  of  the 
slieep.  Cornwall  v.  Sullivan  R.  Co.,  28  A''. 
//.  161.— Followed  in  Giles  v.  Boston  & 
M.  R.  Co.,  55  N.  H.  552. 

Although  railroad  companies  are  required 
to  fence,  yet  a  failure  to  fence  will  not 
render  them  liable  for  injuries  to  stock 
that  unlawfully  go  on  the  adjoining  close; 
but  common  care  must  always  be  used. 
Morse  v.  Rutland  &*  B.  R.  Co.,  27  Vt.  49.— 
Following  Jackson  v.  Rutland  &  B.  R. 
Co.,  25  Vt.  150. 


An  owner  of  stock  killed  while  trespass- 
ing on  lands  adjoining  a  track  cannot  re- 
cover from  the  company  on  proof  that  the 
company  has  failed  to  fence,  as  required  by 
statute,  but  only  on  proof  that  they  were 
killed  through  the  negligence  of  those  oper- 
ating the  train.  Jackson  v.  Rutland  &*  B. 
R.  Co.,  25  Vt.  150. — Approved  in  Berry  z/. 
St.  Louis,  S.  &  L.  R.  R.  Co.,  65  Mo.  1 72.  Fol- 
lowed IN  Morse  v.  Rutland  &  B.  R.  Co., 
27  Vt.  49.  Quoted  in  Illinois  C.  R.  Co.  v. 
Houghton,  126  111.  233,  18  N.  E.  Rep.  301,  i 
L.  R.  A.  213,  21  Ohio  L.  J.  310;  Chicago,  S. 
F.  &  C.  R.  Co.  V.  McGrew,  104  Mo.  282; 
Chapin  v.  Sullivan  R.  Co.,  39  N.  H.  53,  564; 
Troy  &  B.  R.  Co.  v.  Potter,  42  Vt.  265. 

(5)  In  Canada. — Where  an  owner  of  sf  : 
allows  them  to  pasture  on  lands  adjoining  1.1s, 
which  he  does  not  own  or  occupy,  and  which 
also  adjoin  a  ra'lroad  track,  he  cannot  com- 
plain if  the  stork  pass  from  such  lands  to 
the  track  by  reason  of  a  failure  on  the  part 
of  the  company  to  fence,  and  are  injured. 
Conway  v.  Canadian  Pac.  R.  Co.,  26  Am.  &* 
Eng.  R.  Cas.  576,  12  Ont.  App.  708;  affirm- 
ing 19  Am.  &*  Eng.  R.  Cas.  650,  7  Ont.  673. 

Plaintiff,  by  permission  of  one  H.,  put  his 
horses  into  a  pasture-field  of  H.  adjoining 
defendant's  railway,  and  the  evidence  went 
to  show  that  they  escaped  thence  into  an 
adjoining  field  occupied  by  one  J.  and  thence 
on  to  the  track,  where  they  were  killed  by  a 
train  passing.  The  plaintiff  sued,  alleging 
that  the  horses  escaped  from  the  field  where 
they  were  pasturing  by  reason  of  defects  in 
the  railway  fences.  Held,  that  he  could  not 
recover,  for  the  horses  were  not  in  the  field 
from  which  they  escaped  by  the  owner's  per- 
mission. Wilson  V.  Northern  R.  Co.,  28  U, 
C.  B.  Q.  274. 

The  declaration  averred  that  it  was  de- 
fendants' duty  to  keep  up  sufficient  fences 
along  their  line  of  railway,  and  that,  by  the 
neglect  of  such  duty,  the  plaintiff's  mare, 
which  was  lawfully  depasturing  on  the  ad- 
joining land,  got  upon  the  track  and  was 
killed.  No  negligence  was  charged  against 
defendants  in  the  management  of  their 
train.  It  was  proved  that  the  mare  had  es- 
caped from  her  stable  on  another  farm  and 
was  trespassing  on  the  lot  from  which  she 
got  upon  the  railway.  Held,  that  the  plain- 
tiff could  not  recover,  the  defendants  being 
bound  to  fence  only  as  against  the  owner  of 
the  adjoining  lands.  Gillis  v.  Great  Western 
R.  Co.,  12  U.  C.  Q.  B.  427.— Following 
Dolrey  v.  Ontario,  S.  &  H.  R.  U.  Co.,  11  U. 


ANIMALS,  INJURIES  TO,  1."*,  I.-..1. 


179 


C.  Q.  B.  600.— Applied  in  McDowell  v. 
Great  Western  R.  Co.,  5  U.  C.  C.  P.  130. 
Approved  in  Chisholm  v.  Great  Western 
R.  Co.,  10  U.  C.  C.  P.  324. 

Where  the  plaintiff's  cow,  trespassing  on 
A.'s  close,  strayed  upon  the  defendants' 
railway  adjoinintj,  through  a  defect  in  the 
fence,  which,  ii  certain  cases,  as  against  A., 
tiie  defendants  were  bound  to  make  and 
maintain — /le'ii,  on  demurrer  to  the  declara- 
tion, that  the  plaintiff  could  not  recover; 
first,  because  both  at  common  law  and  by 
their  act  of  incorporation  the  obligation  to 
make  and  maintain  fences  would  apply  only 
as  against  the  owners  of  the  adjoining  close ; 
and,  second,  because  it  was  not  clearly 
averred  either  that  the  owner  of  the  land 
adjoining  had  requested  the  defendants  to 
enclose  their  road  or  that  they  had  thought 
proper  to  do  so,  on  one  of  which  facts  the 
obligation  is  made  by  the  statute  to  depend. 
no/rey  v.  Ontario,  S.  Qr»  H.  R.  U.  Co.,  1 1  U. 
C.  Q.  R.  600. — Applied  in  McDowell  v. 
Great  Western  R.  Co.,  5  U.  C.  C.  P.  130. 
Followed  in  Gillis  v.  Great  Western  R. 
Co.,  12  U.  C.^.  B.  427. 

154.  Animals  comiii;;  from  an- 
other's lands,  where  they  were  not 
trespassing.*— Plaintiff  was  pasturing  his 
horses  in  the  field  of  a  third  party  which 
adjoined  a  railroad  track,  and  which  was  in 
the  possession  of  a  tenant,  such  third  party 
having  agreed  with  the  company  to  main- 
tair^  a  fence  between  his  field  and  the  track. 
Held,  that  plaintiff  could  maintain  an  action 
against  the  company  for  killing  his  horses, 
which  escaped  from  the  field  to  the  track 
by  reason  of  a  defective  fence.  Warren  v. 
Keokuk  6f  D.  M.  R.  Co.,  41  lo^va  484. 

Where  a  railroad  runs  through  an  inclosed 
field  in  which  a  cow  was  killed,  and  the 
owner  of  the  cow  had  permission  of  the 
owner  of  the  inclosed  field  to  pasture  his 
cow  therein,  the  railroad  company  is  liable 
if  its  road  was  not  inclosed  with  a  good  and 
lawful  fence  to  prevent  animals  from  being 
on  such  road.  St.  Louis  &»  S.  F.  R.  Co.  v. 
Dudgeon,  28  Kan.  283.  —  Distinguishing 
Berry  v.  St.  Louis,  S.  &  L.  R.  R.  Co.,  65 
Mo.  172.— Followed  in  St.  Louis  &  S.  F. 
K.  Co.  V.  Mossman,  29  Kan.  694. 

Plaintiff  had  the  privilege  of  leading  his 
horse  along  a  path  and  stabling  him  on  the 
lands  of  another,  which  lands  adjoined  a 
railroad  track.    The  horse  escaped  and  ran 


*  See  ante,  «4,  1.39  ;  fast,  ,31«, 


over  the  land,  but  not  on  the  path,  to  the 
track,  and  was  killed.  Held,  that  he  was 
not  unlawfully  on  the  land  of  another  in 
that  sense  that  would  defeat  a  recovery. 
Sawyer  \.  Vermont  &*M.  R.  Co.,  105  Mass. 
196,  2  Am.  Ry.  Rep.  459. 

A  railroad  cannot,  in  an  action  for  killing 
stock,  avail  itself  of  the  fact  that  the  stock 
came  upon  its  right  of  way  over  the  prem- 
ises of  an  adjoining  proprietor,  unless  such 
premises  were  inclosed  by  a  lawful  fence. 
Dean  v.  Omaha  <S^  St.  L.  R.  Co.,  54  Afo.  App. 

647- 

A  company  is  liable  to  the  owner  of  a 
horse  that  is  injured  on  the  track  while  law- 
fully pasturing  on  lands  adjoining  the  track, 
though  the  owner  of  the  horse  does  not  own 
the  lands,  if  the  injury  is  caused  by  a  failure 
to  maintain  proper  fences.  French  v.  West- 
ern N.  V.  &*  P.  R.  Co.,  25  A^.  V.  Supp.  229, 
72  Hun  469,  54  A^.  Y.  S.  R.  762.— Distin- 
guishing Knight  v.  New  York,  L.  E.  &  W. 
R.  Co.,  99  N.  Y.  25,  I  N.  E.  Rep.  108.  Fol- 
lowing Graham  v.  Delaware  &  H.  C.  Co., 
46  Hun  386. 

Where  the  landowner  contracted  to  pas- 
ture the  plaintiff's  horse  in  an  adjoining 
pasture,  from  which  he  suffered  il  to  escape 
upon  his  meadow,  the  horse  is  lawfully  in 
the  meadow  as  regards  the  railroad  com- 
pany, and  the  plaintiff  may  recover  if  it 
passes  therefrom  on  to  the  track,  and  is  in- 
jured through  the  insufficiency  of  defend- 
ant's fence.  Smith  v.  Barre  R.  Co.,  64  Vt. 
21,  23  Atl.  Rep.  632. 

Plaintiff's  horse,  having  a  right  to  pasture 
in  a  pasturf-field  belonging  to  one  M.,  es- 
caped into  a  pea-field  adjoining,  also  owned 
by  M.,  c  ving  to  a  defect  in  the  fence  di- 
viding the  two  fields,  and  from  the  pea-field 
he  got  on  to  the  defendant's  track  adjoining 
it,  by  reason  of  the  insufficiency  of  the  de- 
fendants' fence,  and  was  killed.  Held,  that 
the  defendants  were  liable,  for  the  horse  was 
not  wrongfully  in  the  pea-field  as  regarded 
M.,  having  got  there  owing  to  M.'s  defective 
fence,  and  it  therefore  was  not  wrongfully 
there  as  regarded  the  defendants,  who  were 
bound  to  fence  as  against  M.  McAlpinc  v. 
Grand  Trunk  R.  Co.,  38  U.  C.  Q.  B.  446.— 
Applied  in  Douglass  v.  Grand  Trunk  R. 
Co.,  5  Ont.  App.  585. 

155.   coming    from   highway 

where  they  have  no  right  to  be.— 
Where  a  company  has  failed  to  fence  its 
track  where  it  runs  alongside  of  a  highway, 
it  is  liable  for  killing  stock  that  is  per- 


rsm 


180 


ANIMALS,  INJURllib   TO,  156. 


mitied  by  the  owner  to  stray  upon  the 
highway,  and  which  passes  from  the  high- 
way to  the  track.  Indianapolis  (S-  C.  R, 
Co.  4.  Guard,  24  Ind.  222.— Reviewed  in 
Davis  V.  Burlington  &  M.  R.  R.  Co,,  26  Iowa 

549- 

As  a  general  rule,  where  a  horse  is  wrong- 
fully in  the  highway  and  from  thence  strays 
onto  a  railroad  track,  and  is  killed  by  the 
engine  in  passing,  the  company  is  not  liable 
to  the  owner  of  the  liorse  for  his  value,  un- 
less the  injury  was  the  result  of  the  gross 
negligence  of  the  engineer;  but  if  the  rail- 
road company  has  failed  to  comply  with  the 
directions  of  the  New  York  act  of  March  27, 
1848,  by  which  all  railroad  companies  are 
required  to  er2ct  and  maintain  fences,  etc., 
and  to  construct  and  maintain  cattle-guards 
at  all  cross  ngs,  etc.,  it  is  chargeable  with 
negligence  in  such  a  case,  and  responsible 
for  the  injury.  Waldron  v.  Rensselaer  6- 
S.  R.  Co.,  8  Barb.  (N.  Y.)  390.— Approved 
IN  Gorman  v.  Pacific  R.  Co.,  26  Mo.  441  ; 
Brooks  V.  New  York  &  E.  R.  Co.,  13  Barb. 
(N.  Y.)  594.  Distinguished  in  Marsh  v. 
New  York  &  E.  R.  Co.,  14  Barb.  (N.  Y.)  364. 
Followed  in  Corwin  v.  New  York  &  E. 
R.  Co.,  13  N.  Y.  42.  Reviewed  in  Tal- 
madge  V.  Rensselaer  &  S.  R.  Co.,  13  Barb. 
(N.  Y.)  493- 

By  Pennsylvania  act  of  March  28,  1868, 
entitled  "An  act  for  the  protection  of 
farmers  and  owners  of  cattle,  horses,  sheep, 
and  swine,  along  the  line  of  railroads  in  the 
county  of  Warren,"  railroad  companies  are 
required  to  erect  and  maintain  fences  along 
the  tracks  of  their  roads  and  to  construct 
cattle-guards  at  all  the  public  road-cross- 
ings, sufficient  to  prevent  orderly  cattle  from 
straying  upon  said  tracks ;  and  by  the  act 
of  April  17,  1869,  a  non-compliance  with 
these  requirements  renders  a  company 
liable  for  the  value  of  the  animal  injured  or 
killed.  Plaintiff  was  pasturing  his  cow 
upon  land  near  to,  though  not  directly 
abutting  upon,  the  railroad.  The  cow 
escaped  from  the  inclosure,  and,  passing 
out  upon  a  public  road,  strayed  on  to  the 
track  of  the  railroad,  where  there  were  no 
guards,  and  was  killed.  Held,  that  plaintiff 
was  entitled  to  recover.  Dunkirk  &»  A.  V. 
R.  Co.  V.  Mead,  i  Am.  &>  Eng.  R.  Cas.  166, 
90  Pa.  St.  454. 

The  plaintiff's  calves  escaped  from  his 
pasture  into  an  adjoining  highway,  which 
was  intersected  by  a  railroad,  in  land  not 
owned  by  htm,  and  they  passed  along  the 


highway  in  the  direction  of  the  plaintiff's 
residence,  until  they  reached  the  place 
where  it  was  thus  intersected,  and  thence 
went  upon  the  track  through  "  gaps,  open- 
ings, and  defective  places"  in  the  fences 
and  cattle-guards  there  constructed,  and 
were  killed  by  the  defend.,  nt's  engi  nes.  Held, 
that  the  corporation  was  not  liable.  IVool- 
son  V.  Northern  R.  Co.,  19  A^.  H.  267. — Re- 
viewed IN  Towns  V.  Cheshire  R.  Co..  21 
N.  H.  363;  Chapin  v.  Sullivan  R.  Co.,  39 
N.  H.  53,  564. 

Where  sheep  escnpe  from  the  owner's 
premises  to  a  highway,  and  thence  to  a  rail- 
road track,  and  are  killed,  the  company  will 
not  be  liable  on  account  of  defects  in  its 
fence,  as  the  sheep  were  trespassing  on  the 
highway.  Daniels  v.  Grand  Trunk  R.  Co., 
22  Am.  &•  Eng.  R.  Cas.  609,  1 1  Ont.  App. 
471.— Reviewing  Ricketts  z/.  East  &  W.  I. 
D.  &  B.  J.  R.  Co.,  12  C.  B.  160. 

156.  Rule  where  it  wns  land- 
owner's duty  to  fence.*— Where  stock 
of  a  third  person  get  upon  the  track  of  a 
railroad  company  by  reason  of  fences  not 
being  built  by  the  landowner,  where  the 
cost  thereof  has  been  estimated  as  part  of 
the  consideration  of  the  right  of  way,  the 
company  is  not,  under  §  3329,  Rev.  St. 
Ohio,  in  the  absence  of  negligence  in  run- 
ning its  trains,  liable  to  the  owner  for  injury 
to  them.  The  duty  of  the  company  is,  in 
such  case,  to  use  ordinary  care  and  pru- 
dence to  avoid  injuring  the  animals.  Balti- 
more Sf  O.  R.  Co.  V.  Wood,  45  Am.  &*  Eng. 
R.  Cas.  464,  47  Ohio  St.  431,  24  N.  E.  Rep. 
1077.— Distinguishing  Gill  v.  Atlantic  & 
G.  W.  R.  Co.,  27  Ohio  St.  240;  Pittsburgh. 

C.  &  St.  L.  R.  Co.  V.  Allen,  40  Ohio  St.  206. 
Railroad  companies  are  liable  for  stock 

killed  on  the  track,  whether  it  belongs  to 
abutting  owners  or  not;  so  a  person  who  is 
not  an  abutting  owner  may  recover  from 
the  company,  where  his  stock  strays  upon  a 
field  which  does  abut  the  track,  and  thence 
onto  the  track  by  reason  of  a  defect  in  the 
fence,  and  the  liability  of  the  company  is 
not  affected  by  showing  that  it  has  a  con- 
tract by  which  the  owner  of  such  abutting 
field  had  agreed  to  fence  between  the  field 
and  the  track.  Pittsburgh,  C.  6-  St.  L.  R.  Co. 
V.  Allen,  19  Am.  &*  Eng.  R.  Cas.  657, 40  Ohio 
St.  206. — Distinguishing  Cincinnati,  H.  & 

D.  R.   Co.   V.   Waterson,  4  Ohio   St.  424. 

*  See  <>n/<f.  88,  80,  92-04,  131,  1:^8, 
130,  140. 


ANIMALS,  INJURIES    TO,   157,  ir.8. 


181 


Following  Marietta  &  C.  R.  Co.  v.  Ste- 
phenson, 24  Ohio  St.  48.— Distinguished 
IN  Baltimore  &  O.  R.  Co.  v.  Wood,  47  Ohio 
St.  431. 

157.  Where  laudowuer  Ims  waived 
requireiiieiitH  as  to  HUfUeieiicy  of 
fence.* — Where  the  owner  of  lands  agreed 
with  a  company  in  fencing  its  track  that  the 
fence  might  terminate  at  a  lake,  and  a  neigh- 
bor's horse  that  a  tenant  of  the  lands  was 
pasturing  passed  around  the  fence  at  a  time 
of  low-water  and  was  killed  on  the  track, 
the  owner  cannot  recover  from  the  com- 
pany.— Clayton  v.  Great  Western  R.  Co.,  23 
U.  C.  C.  P.  137. 

158.  Auiuials  running  at  large, 
generally. t—(i)  In  Illinois— Iowa.— \i\\^x& 
a  mule  escaped  from  an  inclosure  without 
the  fault  of  the  owner,  and  '^ot  upon  a  rail- 
road track  at  a  point  not  fenced,  but  where 
it  was  the  duty  of  the  company  to  have  had 
a  fence,  and  the  mule  is  injured  by  a  train, 
the  company  will  be  liable.     Toledo,  P.  &* 

IV.  R.  Co.  V.  Delehanty,  71  ///.  615. 
Where  a  railiOcid  company  has  failed  to 

erect  a  suffi'jient  fence  to  turn  hogs,  under 
Ijwa  act,  1862,  ch.  169,  its  liability  for  kill- 
ing them,  where  they  escape  through  an 
insutiicient  fence  and  are  killed  on  the 
track,  is  not  afTccted  by  the  fact  that  there 
is  a  local  regulation  of  the  county  making 
it  unlawful  for  them  to  run  at  large.     Fritz 

V.  Milwaukee  ^  St.  P.  R.  Co.,  34  lataa  337. — 
Following  Stewart  v.  Burlington  &  M.  R. 
R.Co.,  32  Iowa  561 ;  Spencer/.  Chicago  &  N. 
W.  R.  Co.,  25  Iowa  139.— Distinguished  in 
Windsors.  Hannibal  &  St.  J.  R.  Co.,  45  Mo. 
App.  123.  Reviewed  in  Boyle  v.  Missouri 
Pac.  R.  Co.,  21  Mo.  App.  416. — Stewart  v. 
Chicago  &^  N.  W.  R.  Co.,  27  Iowa  282.— 
Following  Fernow  v.  Dubuque  &  S.  W. 
R.  Co.,  22  Iowa  528;  Spence  v.  Chicago  & 
N.  W.  R.  Co.,  25  Iowa  xy).— Spence  v.  Chi- 
cago (S>»  N.  IV.  R.  Co.,  25  Iowa  139. — Fol- 
lowing Corwin  v.  New  York  &  E.  R.  Co., 
13  N.  Y.  42 ;  Shepherd  v.  Buffalo,  N.  Y.  &  E. 
R.  Co.,  35  N.  Y.  641 ;  Bradley  v.  Buffalo, 
N.  Y.  &  E.  R.  Co.,  34  N.  Y,  427.— Dis- 
tinguished IN  Windso--  V.  Hannibal  &  St. 

J.  R.  Co.,  45  Mo.  App.  123.      FOLLOWKD  IN 

Krebs  v.  Minneapolis  &  St.  L.  R.  Co.,  20 
Am.  &  Eng.  R.  Cas.  478,  64  Iowa  670; 
Stewart  7/. Chicago  &  N.  W.  R.Co.,  27  Iowa 
282;  Fritz  V.  Milwa.  kee  &  St.  P.  R.  Co..  34 

•  See  ante,  113. 

t  See  ante,  53-60 ;  post,  169, 187,  205, 
243-276,288. 


Iowa  337 ;  Stewart  v.  Burlington  &  M.  R. 
R.  Co.,  32  Iowa  561.  Reviewed  in  Lee  v. 
Minneapolis  &  St.  L.  R.  Co.,  66  Iowa  131  ; 
Bowman  v.  Chicago «S  A.  R.  Co.,  85  Mo.  533; 
Boyle  V.  Missouri  Pac.  R.  Co.,  21  Mo.  App. 
416;  Burlington  &  M.  R.  R.Co.  v.  Brink- 
man,  II  Am.  &  Eng.  R.  Cas.  438,  14  Neb. 
70. 

Where  a  statute  makes  railroad  companies 
liable  for  injuries  to  live  stock  lunning  at 
large,  where  such  injuries  result  from  a  fail- 
ure on  the  part  of  the  company  to  fence  its 
track,  a  company  will  be  liable  for  killing 
sheep  which  go  upon  the  track  through  a 
defective  fence.  Hinman  v.  Chicago,  R.  I.  &- 
P.  R.  Co.,  28  /o7i'a4gi. — Distinguished  in 
Grove  v.  Burlington,  C.  R.  &  N.  R.  Co.,  75 
Iowa  163,  39  N.  W.  Rep.  248.  Followed  in 
Swift  V.  North  Mo.  R.  Co.,  29  Iowa  243; 
Hammond  v.  Chicago  &  N.  W.  R.  Co.,  43 
Iowa  168.  (Quoted  in  Smith  7/.  Chicago, 
R.  I.  &  P.  R.  Co.,  34  Iowa  96. 

A  team  of  horses  which  are  harnessed  to 
a  wagon,  and  which  have  escaped  from  the 
control  of  their  owner,  are  included  under  the 
term  "  live  stock  running  at  large,"  as  used 
in  Iowa  Code,  §  1289;  and  a  railway  com- 
pany whose  train  injures  a  team  so  running 
at  large,  at  a  place  where  it  has  the  right  to 
fence  its  track,  is  liable  to  the  owner.  /«- 
man  v.  Chicago,  M.  &^  St.  P.  R.  Co.,  60  Iowa 
459,  15  N.  IV.  Rep.  286.— Reviewing  Welsh 
V.  Chicago,  B.  &  Q.  R.  Co.,  53  Iowa  632. 

(2)  In  h'ansas. — Under  the  Kansas  statute 
making  railroad  companies  liable  for  every 
animal  killed  in  the  operation  of  the  roads, 
except  where  the  road  is  inclosed  with  a  law- 
ful fence,  the  company  will  be  liable  for  the 
killing  of  a  hog  which  is  running  at  large  in 
violation  of  the  law.  Missouri  Pac.  R.  Co. 
v.  Bradshaw,  33  Kan.  533, 6  Pac.  Rep.  917. — 
Followed  in  Missouri  Pac.  R.  Qo.v.  Roads, 
23  Am.  &  Eng.  R.  Cas.  165,  33  Kan.  640 ; 
Missouri  Pac.  R.  Co.  v.  Johnson,  35  Kan. 
58. 

A  railroad  company  is  liable  for  killing 
stock  that  stray  from  the  owner's  lands  to  a 
railroad  track  which  is  unfenced,  though  the 
killing  be  where  the  herd  law  is  in  force, 
which  prohibits  cattle  from  running  at  large. 
Jftchison,  T.  &*  S.  F.  R.  Co.  v.  Riggs,  1 5  Am. 
&*  Eng.  R.  Cas.  531,  31  Kan.  622,  3  Pac.  Rep. 
305.— Distinguishing  Central  Branch  R. 
Co.  V.  Lea,  20  Kan.  353 ;  Kansas  Pac.  R.  Co. 
V.  Landis,  24  Kan.  406;  Union  Pac.  R.  Co. 
7K  Dyche,  28  Kan.  200 ;  St.  Louis  &  S.  F.  R. 
Co.  V.  Mossman,  30  Kan.  336. 


182 


ANIMALS,  INJUKIliS    TO,   lo». 


* 


An  owner  of  stock  wIutc  llic.  lurd  law 
is  in  force,  prcvcntiiii;  calllc  from  runniiij; 
at  larfjc,  is  only  rcquirL'd  to  use  reasonable 
precautions  to  keep  his  cattle  contined,  and 
where  after  this  they  break  away  and  j^o 
upon  an  unfenced  railroad  track  and  are 
killed,  tlie  company  is  liable.  A'li/isds  Piw. 
Ji.  Co.  V.  \l'/^,^ins,  24  h'au.  588.— Foi.l.oWKU 
IN  Missouri  Pac.  K.  Co.?',  Johnson,  35  Kan. 
58. 

(3)  In  A'ebraskiJ.  —  Under  the  Nebraska 
statute,  making  it  the  duty  for  companies  to 
fence  their  tracks  against  stock  running  at 
large,  a  failure  to  do  so  will  render  the  com- 
pany liable  for  all  stock  injured  or  killed. 
Fremont,  E.  &^  M.  V.  A\  Co.  v.  Lawfi,  5  Aw. 
&*  Enj^.  A\  Cds.  367,  II  AV^.  592. 

Under  the  act  of  June  20,  1867,  a  railroad 
company  is  liable  for  stock  killed  upon  its 
track  while  running  at  large  in  the  night- 
time at  a  point  where  the  company  was  re- 
quired but  failed  to  fence  its  track,  notwith- 
standing stock  are  prohibited  by  statute  from 
running  at  large  in  the  night-time,  Bur/ent;- 
ton  5*  M.  R.  li.  Co.  V.  lirinkman,  1 1  Am.  &* 
Eng.  R.  Cas.  438,  14  Neb.  70,  15  N.  IV.  Rep. 
197. — Reviewing  Spencer  7/.  Chicago  &  N. 
W.  R.  Co.,  25  Iowa  139;  Corwin?'.  New  York 
&  E.  R.  Co.,  13  N.  Y.  42  i  Fawcett  v.  York 
&  N.  M.  R.  Co.,  2  Eng.  Law  &  Eq.  289. 
Quoting  Kansas  Pac.  R.  Co.  7>.  Landis,  24 
Kan.  406.  Distinguishing  Central  Ohio 
R.  Co.  V.  Lawrence,  13  Ohio  St.  66;  Pitts- 
burgh, Ft.  W.  &  C.  R.  Co.  V.  Methven,  21 
Ohio  St.  586.  Referring  to  Dayton  &  M. 
R.  Co.  7'.  Miami  County  Infirmary,  6  Cent. 
L.  J.  436. — Followed  in  Burlington  &  M. 
R.  R,  Co.  V.  Franzen,  15  Am.  &  Eng.  R.  Cas. 
530,  1 5  Neb.  365 ;  Chicago,  B.  &  Q.  R.  Co.  v. 
Sims,  17  Neb.  691.— C/ztcago,  B.&'Q.  R.  Co. 
V.  Sims,  17  Neb.  691,  24  A^.  W.  Rep.  388.— 
Following  Burlington  &  M.  R.  R.  Co,  v, 
Brinkman,  14  Neb.  70. 

In  an  action  for  killing,  by  means  of  an 
engine  and  train,  certain  hogs  of  the  plain- 
tiff, at  a  point  on  its  line  where  said  com- 
pany had  failed  to  comply  with  the  law 
requiring  it  to  fence  its  track,  etc.,  it  was 
stipulated  that  the  hogs  were  killed  by  a 
passing  train  of  defendant  at  a  point  on  its 
road  not  within  the  limits  of  any  town,  city, 
or  village,  and  at  a  point  where  said  road 
was  not  fenced  on  either  side ;  that  said  hogs 
had  escaped  from  the  inclosure  of  the  plain- 
tiff, and  were  at  large  without  the  actual 
fault  of  the  plaintiff,  in  the  day-time,  at  the 


time  tliey  were  killed,  but  that  they  were 
killed  without  any  negligence  on  the  part  of 
said  defendant  and  its  agents  or  employes 
other  than  what  may  be  implied  from  the 
neglect  to  fence  the  line  of  its  road.  IleiU. 
that  a  finding  and  judgment  for  the  stipu- 
lated value  (jf  the  hogs  for  the  plaintiff  was 
correct.  Union  !\xc.  R.  Co.  v.  Hi}ih,  14  Ned. 
14,  14  A'.  \V.  Rep.  547. 

(4)  ///  New  York. — Under  the  New  York 
act  of  1850,  p.  233,  making  railroad  com- 
panies liable  for  all  the  injuries  to  live  stock 
that  go  upon  the  track  by  reason  of  the 
company  failing  to  fence,  the  negligence  of 
the  owner  in  permitting  his  stock  to  stray 
upon  lands  of  another  which  adjoins  the 
track,  or  to  run  at  large  upon  highways 
which  lead  to  the  track,  is  no  defence.  Cor- 
win  V.  Ne^v  York  &»  E,  R.  Co.,  i^  N.  ]'.  42. 
— DiSAPi'ROViNc;  Marsh  v.  New  York  &  E. 
R.  Co.,  14  Barb.  (N.  Y.)  364.— Applied  in 
Fitch  V.  Buffalo,  N.  Y.  &  P.  R.  Co.,  13  Hun 
(N.  Y.)  668.  Distinguished  in  Bowman 
7/.  Troy  &  B.  R.  Co.,  37  Barb.  (N.  Y.)  516. 
Followed  in  Stewart  7/.  Burlington  &  M. 
R.  R.  Co.,  32  Iowa  561 ;  Shepard  v.  Buffalo, 
N.  Y.  &  E.  R.  Co.,  35  N.  Y.  641  ;  Spinner  v. 
New  York  C.  &  H.  R.  R.  Co.,  67  N.  Y.  153; 
affirming  6  Hun  600.  Reviewed  in  Bur- 
lington &  M.  R.  R.  Co.  7/.  Brinkman,  1 1 
Am.  &  Eng.  R.  Cas.  438,  14  Neb.  70. 

(5)  /n  Canada. — Plaintiff's  horses  were 
permitted  to  run  at  large,  and  went  upon  an 
unfenced  track  upon  premises  adjoining 
where  the  horses  had  been,  without  permis- 
sion from  the  occupant.  They  were  killed 
at  a  point  where  the  company  was  required 
by  statute  to  fence,  and  no  legal  by-law  had 
been  passed  permitting  horses  to  run  at 
large.  HeM,  that  the  company  was  not  lia- 
ble under  53  Vict.  ch.  28,  §  2  D,  amending 
the  Dominion  Railway  act  of  1888,  and  en- 
acting that  "  no  animal  allowed  by  law  to 
run  at  large  shall  be  held  to  be  improperly 
on  a  place  adjoining  a  railway  merely  for 
the  reason  that  the  owner  or  occupant  of 
such  place  has  not  permitted  it  to  be  there." 
Duncan  v.  Canadian  Pac.  A'.  Co.,  21  On/. 
355.— Distinguishing  Davis  v.  Canadian 
Pac.  R.  Co.,  12  Onr.  A  pp.  724. 

159.  Biiuniug  -^i  large  on  uiiiii- 
closed  lauds.* — In  Kansas,  where  the 
herd  law  is  enforced,  the  owi.er  of  cattle 
that   escape,  without  his    fault,  from    his 

*Seeat$te,  100,  117. 


ANIMALS,  INJURIKS  TO,   100-l<(2. 


1»3 


premises  over  lawful  fences,  uiid  pass 
ilu'ough  uainclused  lands,  and  go  upon  an 
unfenced  track,  may  recover  from  the  com- 
pany that  may  kill  tlieni.  Missouri  J'ac.  A'. 
Co.  \.  Johnston,  35  Kan.  58, 10  J'iu\  Kep.  103. 
FuLLowiNO  Kansas  I'ac.  R.  Co.  v.  Wiggins, 
24  Kan.  588;  Missouri  Fac,  R.  Co.  v.  Brad- 
sliaw,  33  Kan.  533;  Missouri  Pac.  R.  Co. 
V.  Roads,  33  Kan.  640.  Noi  following 
Central  Branch  Co.  v.  Lea,  20  Kan.  353. 

in  Missouri  a  company  is  lialjle  for  stock 
killed  that  belong  to  one  whose  lauds  do 
not  adjoin  the  track,  where  it  appears  that 
they  did  not  escape  to  the  track  ilirough 
fields  which  were  properly  fenced  and  did 
adjoin  the  track,  but  went  upon  the  track 
through  uninclosed  lands.  Young  v.  Kan- 
sas City,  Ft.  S.  &^  M,  K.  Co.,  39  Mo.  App. 
52.— Distinguishing  Ferris  v.  St.  Louis  & 
H.  R.  Co.,  30  Mo.  App.  122.— Hoard  v.  St. 
Louis,  I.  M.  &*  a.  R.  Co.,  36  Mo.  App.  151. 

And  all  the  decisions  which  restrict  the 
right  of  recovery  in  such  actions  to  cases 
where  the  animal  got  upon  tlie  track  from 
land  owned  by  the  plaiiitifi  are  confined  to 
those  in  which  the  lands  adjoining  the  rail- 
way were  inclosed.  Board  v.  St.  Louis,  I. 
M.  &>  S.  Ji.  Co.,  36  Mo.  App.  151.— DisilN- 
OUISHING  Ferris  v.  St.  Louis  &  H.  R.  Co., 
30  Mo.  App.  122. 

In  Missouri  there  can  be  no  such  thing  as 
a  trespass  by  cattle  upon  uninclosed  lands, 
and  where  cattle  are  killed  by  a  locomotive 
on  a  railroad  running  along  uninclosed 
lands,  but  not  at  a  railroad  crossing,  the  fact 
that  the  cattle  got  upon  the  track  from 
land  adjoining  that  of  the  owner  of  the 
cattle,  and  upon  which  they  had  strayed,  is 
no  defence  to  an  action  against  the  railroad. 
Kaes  V.  Missouri  Pac.  Ji.  Co.,  6  Mo.  App. 
397.— Distinguishing  Jackson  v.  Rutland 
&  B.  R.  Co.,  25  Vt.  150;  Brooks  v.  New 
York  &  Erie  R.  Co.,  13  Barb.  (N.  Y.)  594; 
Berry  v.  St.  Louis,  S.  &  L.  R.  R.  Co.,  65  Mo. 
172.— Quoting  Gorman  v.  Pacific  R.  Co., 
26  Mo.  441.  Reviewing  Ricketts  v.  East 
&  W.  L  D.  &  B.  J.  R.  Co.,  12  Eng.  Law  & 
Eq.  520. 

When  stock  get  upon  the  track  at  a  point 
where  the  track  runs  through  uninclosed 
lands  which  are  not  fenced  as  required  by 
law,  proof  that  the  land  of  the  owner  of  the 
stock  adjoins  or  is  next  adjoining  to  the 
railway  is  not  essential.  Duke  v.  Kansas 
City,  Ft.  S.  <&*  M.  K.  Co.,  39  Mo.  App.  105.— 
Distinguishing  Ferris  v.  St.  Louis  &  H. 
R.  Co.,  30  Mo.  App.  122. 


6.  Cattle  guards.* 

lUO.  AVliure  iiiUHt  be  coiiHtructed. 

— Tiie  company  must  construct  and  main- 
tain proper  cattle-guards  at  public  crossings 
to  keep  stock  oti  the  track.  Evansville  &» 
C.  A'.  Co.  V.  Bar  bee,  74  Ind.  169.  />'«/  see 
Chapin  v.  Sullivan  K.  Co.,  39  ^V.  //.  564. 

To  keep  its  road  "  securely  fenced,"  ac- 
cording to  the  requirements  of  the  statute, 
a  railroad  company  must  construct  and  keep 
in  repair  sutBcient  cattle-guards  on  each  side 
of  highways  crossing  its  track.  Pittsburgh, 
C.  &'  St.  L.  A'.  Co.  V.  Fby,  55  fnd.  567,  16  Aw. 
Ay.  Rep.  244.— Following  Indianapolis,  P. 
&  C.  R.  Co.  V.  Irish,  26  Ind.  268. 

101. aud   where    not.— Where 

plaintiff's  contention  is  that  his  horse  came 
upon  defendant's  track  between  the  head  of 
a  switch  and  a  cattle-guard,  and  the  undis- 
puted evidence  shows  that  placing  the 
cattle-guard  any  nearer  the  head  of  the 
switch  would  endanger  the  lives  of  defend- 
ant's employes  in  the  switching  necessary  to 
the  transaction  of  station  or  depot  business, 
plaintiff,  under  such  a  state  of  case,  ought 
not  to  recover.  Pearson  v.  Chicago.  B.  &• 
K.  C.  A.  Co.,  ^^  Mo.  App.  543.— Following 
Evansville  &  T.  H.  R.  Co.  v.  Willis,  93  Ind. 
507. — Followed  in  Jennings  v.  St.  Joseph 
&  St.  L.  R.  Co.,  37  Mo.  App.  651. 

Prior  to  New  Hampshire  act  of  1850,  a 
company  was  not  bound  to  provide  cattle- 
guards  at  places  where  its  track  crossed 
the  highway,  and  no  action  could  be  main- 
tained against  it  for  injury  to  cattle  which, 
having  escaped  from  the  close  of  their 
owner,  had  gone  upon  the  track.  Towns  v. 
Cheshire  A.  Co.,  21  N.H.  363.— Reviewing 
Woolson  V.  Northern  R.  Co.,  19  N.  H.  267. 
—Followed  in  Cornwall  v.  Sullivan  R.  Co., 
28  N.H.  161.. 

Where  a  railroad  track  runs  from  a  street 
onto  a  bridge  it  is  not  the  duty  of  the  com- 
pany to  erect  cattle-guards  between  the 
street  and  the  bridge,  and  it  will  not  be  lia- 
ble for  stock  killed  on  the  bridge  in  the  ab- 
sence of  a  charge  of  negligence.  Vander- 
kar  v.  Rensselaer  &*  S.  R.  Co.,  13  Barb. 
{N.  K)  390.— Followed  in  Parkers.  Rens- 
selaer &  S.  R.  Co.,  16  Barb.  (N.  Y.)  315. 
Not  followed  in  Brace  v.  New  York 
C.  R.  Co..  27  N.  Y.  269. 

162.  Sufflcieiicy.f— A  cattle-guard  suf- 
ficient to  turn  ordinary  cattle  is  sufficient. 

*  See  ante,  79,  and  also  Cattle  guards. 
t  See  «;//<-,  109-113. 


184 


ANIMALS,   INJURIES   TO,  Hiii-Hia. 


1 


:■.'■ 
I: 


Chicago,  B.  &*  Q.  A'.  Ci^.  v.  Jtimily,  j  ///. 

If  a  catilcguard  be  in  such  cuiidiliuit 
that  stock  cuii  pass  uvcr  it  fruiii  a  liighway 
onto  tlic  track  ai  tlic  railroad  upon  wliicli  it 
is  situated,  sucii  road  is  nut " securely  fenced  " 
within  tile  meaning  of  liie  statute.  I't'tts- 
burgh,  C.  <3-  St.  L.  R.  Co.  v.  Eby,  55  Ind.  567, 
16  Am.  Ay.  Nip.  244.  —  FoixowiNU  Indian- 
apolis. P.  &  C.  K.  Co.  V.  Irish.  26  Ind.  268. 

Where,  at  a  higluvay  crossing,  cattle- 
guards  arc  placed  sixty  feet  from  the  bound- 
ary of  the  liighway,  and  it  is  not  siiown  by 
the  railroad  company  that  the  guards,  if 
placed  at  the  boundary  of  the  highway, 
would  interfere  witli  ttie  use  of  the  high- 
way or  endanger  tlie  safety  of  persons  op- 
erating or  managing  the  trains,  or  would 
obstruct  the  transaction  of  tlie  company's 
business,  or  the  discharge  of  iis  duty  to  the 
public,  it  is  liable,  under  the  statute,  for 
animals  killed  by  its  engines  or  cars,  and 
which  entered  upon  its  track  from  the  un- 
fenced  space  between  the  highway  and  the 
cattle-guards.  That  it  would  be  difficult  or 
expensive  to  inclose  is  no  excuse.  /"/. 
IVayne,  C.  &^  L,  A'.  Co.  v.  ILrbold,  23  Am, 
&*  Eng.  R.  Cas.  221,99  ■^'"'-  9'' 

Where  a  company  places  cattle-guards 
50  feet  distant  from  a  liigiiway  crossing, 
when  it  appears  that  they  might  have  been 
placed  at  the  crossing  without  any  inconven- 
ience to  any  one,  the  company  will  be  liable 
for  stock  killed  tliat  go  upon  the  track 
on  t.ie  space  between  tiie  crossing  and  the 
cattle-guards.  Loiimu/le,  N.  A.  &^  C.  R. 
Co.  V.  Porter,  20  Am.  &^  Eng.  R.  Cas.  446, 
97  Ind.  267.— Distinguishing  Bellefon- 
taine  R.  Co.  v.  Suman.  29  Ind.  40;  Jeffer- 
sonville.  M.  &  I.  R.  Co.  v.  Lyon,  72  Ind.  107 ; 
Toledo,  W.  &  W.  R.  Co.  v.  Howell,  38  Ind. 
447  ;  Wab.ish  R.  Co.  v.  Forshee,  77  Ind.  158. 

103.  Efl'ect  of  pcrruriiiaiice  of'diity 
with  respect  to  cattIe-{;iiardM,  {gen- 
erally.*— When  the  usual  and  ordinary 
cattle-pit  has  been  constructed  as  near  the 
highway  as  can  conveniently  be  done,  the 
company  is  not  liable,  without  proof  of  neg- 
ligence, for  an  injury  happening  to  an  ani- 
mal between  the  highway  and  the  pit.  In- 
dianapolis, P.  &•  C.  R.  Co.  V.  Iris/i,  26  Ind. 
268.— Followed  in  Pittsburgh,  C.  &  St.  L. 
R.  Co.  V.  Eby,  55  Ind.  567. 

Nor  is  the  company  responsible  for  an 
injury  happening  to  an  animal,  under  such 


Seea«/^  114-131. 


circumstances,  which  strays  upon  the  track. 
Indianapolis,  /'.  tr*  C.  R.  Co.  v.  Irish,  26 
Ind.  208. 

104.   ati  atleetiiit;  duty  tu  keep 

a  luuk  Ullt."*— Tile  caiile  were  running  at 
large  in  violation  of  the  law.  Held,  that  as 
the  cattle-guard  was  not  in  an  unlawful  or 
forbidden  condition,  under  the  circum- 
stances, and  as  the  cattle  were  at  large  C(;n- 
trary  to  law.  and  trespassers  upon  defend- 
ant's right  of  way.  the  defendant's  servants, 
engaged  in  operating  its  trains,  were  not 
bound  to  anticipate  such  trespassing  by 
looking  ahead,  or  by  managing  a  train  with 
reference  to  such  a  contingency.  Utacey  v. 
Winona  &*  St.  P.  R.  Co.,  40  /////.  &^  Eng. 
R.  Cas.  217,  42  Minn.  158.43  A.  W.Rep. 
905. 

105.  Liability  fur  failure  tu  cun- 
Htruet,  tjenerally.f— A  company  which, 
in  constructing  its  road,  omitted  to  make 
sufficient  cattle  guards,  is  liable  to  one 
whose  cattle  sustained  damage  therefrom, 
although  the  road  at  the  time  was  leased  to 
and  run  by  another  company,  which,  under 
its  lease,  had  contracted  to  discharge  all 
statutory  obligations  and  duties  imposed 
upon  its  lessor.  St.  Louis,  W.  &r'  IV.  R.  Co. 
V.  Curl,  II  Am.  &^  Eng.  A'.  Cas,  458,  28 
A'rtw.  622.— DiSTiNGUiSHFU  IN  Missouri 
Pac.  R.  Co.  V.  Morrow,  19  Am.  &  Eng.  R. 
Cas.  630,  32  Kan.  217, 

The  liability  imposed  on  companies  for 
not  erecting  a  cattle-guard  where  the  road 
passes  through  inclosed  fields,  by  section  51 
of  the  Missouri  general  railroad  act  of  Feb- 
ruary 24,  1853,  is  not  affected  by  tlie  degree 
of  care  exercised  by  the  company.  Gorman 
V.  Pacific  R.  Co.,  26  Mo.  441.— Followed 
IN  Trice  v.  Hannibal  &  St.  J.  R.  Co, 35  Mo. 
188.— Reviewed  in  Rodemacher  v.  Mil- 
waukee &  St.  P.  R.  Co.  41  Iowa  297. 

The  New  Hampshire  act  of  1850,  cli.  593, 
§  5,  provides  that  every  railroad  corporation 
in  that  state  shall  make  and  maintain  all 
necessary  cattle-guards,  cai<le-passes,  and 
farm-crossings  for  the  convenience  and 
safety  of  the  landowners  along  the  side  of 
the  road  :  provided  that  the  provisions  of 
the  section  should  not  apply  in  any  case 
where  the  corporation  should  settle  with 
the  landowner  in  relation  to  such  guards, 
passes,  and  farm-crossings.  Held,  that 
where  a  railroad  divides  the  pasture  of  a 

•See  ante,  62-64,  1  IK,  120; post,  195. 
t  See  ante.  122-139. 


ANIMALS,  INJUKIES  TO,   UMiUH. 


iHr. 


landowner,  and  a  crusiiing  is  made  by  the 
corporation  according  to  the  act,  the  land- 
owner may  let  hiii  cattle  run  in  the  pasture 
withoui  a  herdsman  ;  and  liiat  tiie  corpora- 
tion will  be  liable  for  their  destruction 
while  crossing  the  track  from  one  pasture 
to  the  other,  unless  it  appear  ihat  the  injury 
was  r  msed  by  accident,  or  by  the  fault  of 
the  owner;  or  unless  it  be  shown  that  the 
corporation  has  settled  with  the  landowner 
in  relation  to  such  guards,  passes,  and  farm- 
crossings.  White  V.  ConiorJ  A'.  Co.,  30  A'. 
//.  188.— FoLunvEU  IN  Horn  v.  Atlantic  & 
St.  L.  R.  Co.,  35  N.  H.  169. 

A  company  is  liable  for  animals  'ind  cat- 
tle killed  or  injured  by  gerMi"  m  the  track 
of  the  railway  in  consequence  of  the  ab- 
sence of  cattle  gu;;  Is,  without  reference  to 
whether  such  animals  were,  as  between 
their  owners  and  the  public,  lawfully  on  the 
highway.  Pontiac  Pac.  J.  N,  Co.  v.  Brady, 
4  Montr.  L.  R.  (g.  B.)  346. 

A  declaration  charged  defendants  with 
neglecting  to  maintain  cattle-guards,  by 
means  whereof  the  plaintiff's  ox,  lawfully 
being  on  the  said  highway,  got  upon  the 
railway  and  was  killed  by  the  train.  It  ap- 
peared that  there  were  no  cattle-guards  at 
the  time  of  the  accident,  and  that  the  ox 
got  from  the  highway  onto  the  track. 
Held,  that  a  good  cause  of  action  was  stated, 
as  in  the  absence  of  cattle-guards,  defend- 
ants, under  14  and  15  Vic.  ch.  51,  §.  13,  were 
liable,  without  reference  to  the  question 
N.hether  the  ox  was  lawfully  on  the  high- 
way or  not.  //««/  V.  Buffalo  &*  L.  H.  R. 
Co.,  \6  U.C.  Q.  B.  299. 

100. wlicru  animal  comes  from 

lands  of  third  iicrson.*— The  plaintiffs' 
mare  escaped  from  their  pasture  into  an  ad- 
joining highway,  which  was  crossed  by  a 
railroad,  in  land  not  owned  by  the  plaintiffs, 
and  went  thence  upon  the  track  at  a  place 
where  it  crossed  the  highway  and  where 
there  was  no  cattle-guard  or  fence,  and  was 
killed  by  the  engine.  Held,  that  the  cor- 
poration was  not  liable.  Town  v.  Cheshire 
R.  Co.,2\  N.  H.  363. 

107. wliere      animal    escapes 

from  owner's  poorly-fenced  field.— 
A  failure  on  the  part  of  a  company  to  erect 
cattle-guards  at  highway  crossings,  as  re- 
quired by  the  New  York  act  of  1848,  p.  221, 
§  |2,  will  not  make  it  liable  for  injury  to 
stock  that  go  from  a  field  to  the  track 


through  the  lack  of  a  fence,  which  it 
is  the  duty  of  the  owner  of  the  stock  to 
erect  and  keep  in  repair.  Talmadf^e  v.  Rem- 
Sillier    &*    S.   R.    Co.,     13    Barb.    (X.     )'.) 

493. 

108.  Liability  for  failure  to  keep 
in  repair." — Where  a  company  has  prop- 
erly constructed  its  cattle-guards,  it  is  liable 
oidy  for  ncglif^encc  in  maintaining  them 
and  keeping  them  in  rc[)air.  Wait  v.  />'<;/- 
nington  <&*  A".  A'.  Co.,  61  I't.  268, . ,  .  ///.  Rifi. 
284. 

Where  a  company  constructs  cittlc-guards 
on  a  street  within  the  liniis  of  i  town, 
they  must  keep  them  in  iJi.per  order,  or  bi. 
liable  for  stock  killed  by  reason  of  such 
failure.  Chiiago  &»  R.  I.  R.  Co.  w  !\eid,  24 
///.  144. 

If,  by  reason  of  a  company's  neglect  to 
repair  a  cattle-guard  accidently  put  out  of 
repair,  of  which  it  has  had  reasonable 
notice,  stock  enter  upon  its  track,  over  such 
cattle-guard,  from  a  highway,  and  are  killed, 
such  company  is  liable  therefor.  Pittsburgh, 
C.  &>  St.  L.  R.Co.  V.  Eby,  55  Ind.  567. 

Where  plaintiff  bases  his  right  of  re- 
covery for  injury  10  cattle  uuon  a  defect  in 
the  cattle  guard,  he  must  show  that  de- 
fendant had  notice,  or  by  the  exercise  of 
ordinary  diligence  might  have  had  notice, 
of  the  defect,  and  have  repaired  the  same 
before  the  injury  was  inflicted.  Chubbttck  v. 
Hannibal  >S-  St.  J.  R.  Co.,  TJ  Mo.,  591. 

Plai  riff's  cattle  were  turned  out  upon  the 
public  nighway  for  the  purpose  of  being 
driven  to  pasture,  and  while  there,  unat- 
tended, got  upon  the  defendant's  line  of 
railway,  in  consequence  of  the  defective 
condition  of  the  cattle-guard  at  the  intersec- 
tion of  the  railway  with  the  highway,  and 
one  of  the  cattle  was  killed  by  a  passing 
train.  Held{\),  that  the  clause  of  the  rail- 
way act  of  1880,  requiring  guards  at  cross- 
ings, could  not  be  construed  to  render  the 
company  liable  to  owners  of  cattle  unlaw- 
fully on  the  highway;  (2)  that  the  damage 
not  having  been  done  at  the  point  of  inter- 
section, plaintiff  was  not  absolutely  pre- 
cluded from  recovering,  but  was  subjected 
to  the  onus  of  showing  that  defendant 
might,  by  the  exercise  of  ordinary  care  and 
diligence,  have  avoided  the  mischief,  and 
having  failed  to  do  so,  the  verdict  in  his 
favor  could  not  stand.  Whitman  v.  Wind- 
sor (S-  A.  R.  Co.,  18  Nov.  Sc.  271. 


*Stcanle,  153,  164. 


*Swante,  140-151. 


186 


ANIMALS.  INJURIKS   TO,   1«»-17.'J. 


■n 


mu.  P«>niiil(iii^  fsif tl«'-(;iiiinls  to 
reiiisiiii  iilhMl  with  !<•<>  and  snow.*— 

A  railroad  company  pcnnitUng  its  caitle- 
guards  to  remain  filled  with  snow,  so  that 
animals  which  have  strayed  upon  the  high- 
way without  any  negligence  on  the  part  of 
the  owner,  pass  over  the  guards,  and  in  con- 
sequence of  heing  tiuis  upon  tlie  track  are 
injured  by  a  train,  is  liable  for  the  injuries 
that  may  be  sustained  by  the  animals. 
Dnnnigan  v.  C/i/ctii^o  &^  A'.  IV.  A".  Co.,  18 
H'l's.  28.  —  Cri  ricisF.iJ  IN  Blais  7'.  Minne- 
apolis &  St.  L.  R.  Co.,  22  Am.  &  Eng.  R. 
Cas.  571,  34  Minn.  57,  57  Am.  Rep.  36.  Dis- 
TiNGUiSHKD  IN  Fisher  v.  Farmers'  L,  &  T. 
Co.,  21  Wis.  73.  Followed  in  Chicago, 
B.  &  O.  R.  Co.  7'.  Kennedy,  22  111.  App.308. 
yuoTKD  IN  Indiana,  B.  &  W.  R.  Co.  v. 
Drum,  21  111.  App.  331.  See  also  on  this 
point  IVai't  v.  Bennington  &>  R.  A'.  Co.,  61 
Vt.  268,  17  AtL  R,'p.  284. 

7.  Duty  as  to  Farm  and  Private  Crossings — 
Gates — Bars.j 

170.  Duty  to  coiLstruct  farm  cross- 
iu{;s. —  Railroad  companies  must  construct 
and  maintain  safe  farm  crossings,  to  avoid 
liability  for  injuring  or  killing  live  stock. 
Cotton  V.  Nevj  York,  L.  E.  &>  IV.  K.  Co.,  48 
N.  V.  S.  Ji.  89,  20  A.   V.  Supp.  347. 

Where  the  plaintiff  gave  a  railroad  cor- 
poration a  deed  of  part  of  tlie  railroad,  which 
contained  this  clause:  "Said  corporation 
to  fence  the  land  and  prepare  a  crossing 
with  cattle-guards  at  the  present  travelled 
path,  on  a  level  with  the  track,"  and  it  ap- 
peared that  the  railroad  divided  the  plain- 
tiff's pasture  into  two,  in  one  of  which  there 
was  no  water,  and  that  the  crossing  con- 
nected the  ivio—held,  that  the  clause  in  the 
deed  was  not  a  settlement  between  the 
parties  in  relation  to  the  crossings  required 
by  law,  and  that  the  legal  position  of  the 
parties  was  not  changed  thereby  ;  and  that 
where  the  plaintiff  turned  his  cattle  loose 
into  one  of  the  pastures,  and  they  were  sub- 
sequently killed  in  .ittempting  to  cross  the 
track,  the  defendants  were  liable  for  the 
damage,  unless  it  should  appear  that  it  was 
done  by  accident,  or  by  some  fault  of  the 
plaintiff,  W/iite  v.  Concord  Ji.  Co. .  30  A^.  H. 
188.J— Followed  in  Smith  v.  Eastern  R. 
Co.,  35  N.  H.  356. 


*  Sec  ante,  121. 

{See  also  Farm  ant)  Privatf,  Crossings. 
Swante,  88,  89,  138,  149,  166. 


171.  Liability  for  failure  to  iior- 
forni  tills  duty.*— It  is  tlie  duty  of  rail- 
way companies  to  maintain  safe  farm  cross- 
ings, and  proof  that  plaintiff's  horse  caught 
his  hoof  between  a  rail  and  a  plank,  and 
was  held  until  struck  by  an  engine  and  killed, 
is  sufficient  to  show  a  breach  of  this  duty, 
and  make  the  company  liable.  Cotton  v. 
New  York,  L.  E.  &>  W.  E.  Co.,  48  A^.  Y.  S. 
R.  89,  20  A^.  Y.  Supp.  347. 

Quare,  whether  a  company  can  relieve 
itself  from  liability  to  all  persons  for  killing 
stock  at  a  strictly  private  farm  crossing  by 
putting  in  cattle-pits  and  other  safeguards, 
either  instead  of  or  in  addition  to  gates  in 
its  fences  ?  Wabash  K.  Co.  v.  Williamson, 
23  Am.  &•  Eng.  R.  Cas.  203,  xo^Ind.  154,  3 
A^.  E.Rep.^\^. — Explaining  Grand  Rapids 
&  I.  R.  Co.  V.  Jones,  81  Ind.  523. 

172.  Failure  to  fence  at  farm  cross- 
ings.!— A  company  may  lawfully  fence 
across  a  private  roadway  maintained  by  the 
owner  of  the  land  for  his  own  use  for  farm 
purposes,  and,  failing  to  do  so,  is  liable  for 
killing  stock  at  such  crossing.  Indianapolis 
&*  C.  R.  Co.  V.  Lowe,  29  Ind.  545.— Follow- 
ing Indiana  C.  R.  Co.  v.  Leamon,  18  Ind. 
173.— Criticised  in  Indianapolis,  P.  &  C. 
R.  Co.  V.  Thomas,  1 1  Am.  &  Eng.  R.  Cas. 
491,  84  Ind.  194. — Indiana  C.  R.  Co.  v.  Lea- 
mon,  1%  Ind.  173. — Distinguishing  Lafay- 
ette &  I.  R.  Co.  V.  Shriner,  6  Ind.  141. —  Fo'  • 
lowed  in  Indianapolis  &  C.  R.  Co.  v. 
Lowe,  29  Ind.  545.— 5a///w<?r^,  O.  &•  C.  R. 
Co.  V.  Kreiger,  13  Am.  &>  Eng.  R.  Cas.  602, 
90  Ind.  380.— Overruling  Indianapolis  & 
C.  R.  Co.  V.  Adkins,  23  Ind.  340. 

The  company  was  liable  for  the  loss  of  a 
steer  which  went  upon  the  track  at  a  farm 
crossing  'vhich  the  company  had  failed  to 
fence  as  required  by  law.  and  was  killed  by 
a  passing  train ;  and  this  liability  did  not 
depend  on  any  consideration  of  negligence 
on  the  part  of  either  party.  Fanning  v.  Long 
Island  R.  Co.,  2  T.  &*  C.  (N.  Y.)  585. 

173.  Liability  for  injuries  at  farm 
crossiiigrs.— (i)  Constructed  dy  company. — 
In  the  absence  of  negligence  nn  its  part,  a 
company  is  not  liable  for  injuring  animals 
which  go  upon  the  track  at  a  private  farm 
crossing,  authorized  by  the  Indiana  act  of 
April  8,  1885.  Louisville,  N.  A.  «S-  C.  R. 
Co.  V.  Etzler,  40  Am.  Gr'  Eng.  R.  Cas.  205, 
1 19  Iftd.  39,  19  N.  E.  Rep.  61 5,  2!  A^.  E.  Rep. 
466. 

*le7^]iZ7l22n39rr65^T67^ 
t  See  ante,  95-108. 


ANIMALS,  INJURIKS    1(),    171,  !7r». 


187 


Where  a  company  has  no  i  ij;lit  by  fencing 
in  its  track  to  exclude  proprietors  from  their 
private  passage  to  tiie  highway,  it  is  not 
liable,  under  the  statute,  for  injury  to  cattle. 
Cray  v.  Louisville,  A'.  A.  >&-  C.  A'.  Co.,  \f)Am. 
&*  Eng.  K.  Crti.  608,  97  Ind.  126.— DisilN- 
GUISHING  Louisville,  N.  A.  <S  C.  R.  Co.  v. 
White,  94  Ind.  257;  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Shanklin,  94  Ind.  297.  —  Distin- 
guished IN  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Shanklin,  98  Ind.  573. 

The  Indiana  acts  of  1885  (Acts  1885,  Sess. 
Laws  Ind.  pp.  148  and  224)  do  not  absolve 
railroad  corporations  from  liability  under 
the  police  laws  for  killing  stock  which  enter 
upon  the  track  where  it  is  unfenced,  through 
uninclosed  lands.  These  acts  provide  for 
farm  crossings,  and  for  fencing  railroads  for 
the  benefit  of  the  adjoining  proprietor 
whose  land  is  inclosed,  and  the  liability  for 
injury  to  stock  remains  the  same  as  it  was 
prior  to  the  passage  of  such  acts,  except  to 
such  as  enter  upon  the  track  at  farm  cross- 
ings. Ohio  &•  M.  R.  Co.  V.  IVrape,  4  Ind. 
A  pp.  108,  30  N.  E.  Rep.  427. 

The  Maryland  itatute  making  railroads 
liable  for  all  stock  negligently  injured,  does 
not  apply  to  a  team  injured  at  a  farm  cross- 
ing while  in  charge  of  a  driver.  Annapolis 
&*  B.  S.  L.  R.  Co.  V.  Pump/trey,  42  Am.  &^ 
Eng.  R.  Cas.  599,  72  Md.  82,  19  All.  Rep.  8. 

Where  by  law  the  animals  of  a  party  are 
rightfully  upon  a  farm  crossing  on  a  rail- 
road, and  are  killed  by  the  engines  of  the 
corporation,  gross  negligence  need  not  be 
shown  in  order  to  sustain  an  action  for  the 
injury.  White  v.  Concord  R.  Co.,  30  JV.  H. 
188.— DiSTiNGUiS"ED  IN  Laird  T/.  Coimec- 
ticut&P.  R.  R.  Co.,  43  Am.  &  Eng.  R.Cas. 
63,  62  N.  H.  254. 

Ordinary  care  and  diligence  do  not  require 
that  a  landowner  should  keep  a  "  look-out " 
at  a  private  crossing,  or  an  attendant  to 
watch  the  cattle.  White  v.  Concord  R.  Co., 
30  iV.  H.  188.* 

(2)  Erected  by  third  persons.^ — Where  a 
private  crossing  has  been  erected  by  third 
persons  which  is  of  no  service  to  the  com- 
pany, and  has  never  been  used  or  repaired 
by  it,  the  company  is  not  liable  for  an  injury 
to  plaintiff's  horse,  caused  by  its  foot  being 
caught  between  a  rail  and  a  projecting  spike, 
Pratt  C.  &*  I.  Co.  V.  Davis,  79  Ala.  308. 

*  Sm^«/?,  62^4, 115,  120,  l«4;/»w/, 
105. 

J-See  ante,  89,  04,  139,  150,  154, 
166; /M/,  181,  237. 


174.  Duty  to  iM-vi't  };;'ates,  gener- 
ally.—Where  a  private  way  crossed  a  rail- 
road on  lands  inclosed  on  the  outside,  under 
the  laws  of  Illinois  it  was  the  duty  of  the 
company  to  erect  bars  or  gates  to  protect 
stock  within  the  inclosure,  and  a  failure  to 
do  so  would  render  it  liable  for  stock  killed. 
Peoria,  P.  ^  J.  R.  Co.  v.  Barton,  80  ///.  72. 
—Reviewed  in  Omaha  &  R.  V.  R.  Co.  z/. 
Severin,  30  Neb.  318. — Chicago,  B.  <S~»  Q.  R. 
Co.  V.  finch,  42  ///.  App.  90. 

So  held,  also,  under  the  Iowa  Revision, 
§  1329,  requiring  railroad  companies  to  fence 
at  a  private  crossing.  McKinley  v.  Chicago, 
R.  I.  <S~>  P.  R.  Co.,  47  loiva  76.— Distin- 
guished IN  Bothwell  V.  Chicago,  M.  &  St. 
P.  R.  Co.,  7  Am.  &  Eng.  R.  Cas.  570,  59  Iowa 
192.  Reviewed  in  Timins  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  31  Am.  &  Eng.  R.  Cas. 
541,  72  Iowa  94,  33  N.  W.  Rep.  379. 

A  lane  leading  from  the  highway  to  plain- 
tiff's residence  crossed  a  track,  and  at  each 
end  of  the  lane  were  gates,  which,  with  the 
inclosing  fences,  were  maintained  by  him. 
His  cow  having  been  killed  upon  the  private 
crossing — held,  that  the  company  was  justi- 
fied in  assuming  that  he  preferred  x\^  open 
crossing,  and  that  he  could  not  recover  for 
the  killing  of  the  cow.  Tyson  v.  Keokuk  <S>» 
D. M. R.  Co.,\iIo^va  207.— Distinguishing 
Bartlett  v.  Dubuque  &  S.  C.  R.  Co.,  20  Iowa 
188;  Russell  V.  Hanley,  20  Iowa  219;  Gray 
V.  Burlington  &  M.  R.  R.  Co.,  37  Iowa  119. 

The  plaintiff's  farm  was  divided  by  the 
defendant's  railroad,  and  fen<  es  were  made 
along  the  sides  of  the  road,  and  also  two 
farm  crossings,  but  no  gates  wjsre  put  up  at 
the  crossings.  The  plaintiff",  with  the  knowl- 
edge that  there  were  no  gates,  turned  his 
sheep  into  his  field,  and  afterwards,  in  at- 
tempting to  pass  over  the  road  at  one  of  the 
crossings,  they  were  killed  by  the  defend- 
ant's engine.  Held,  that  the  defendant  was 
liable  for  the  damages.  Horn  v.  Atlantic  &- 
St.  L.  R.  Co.,  35  N.  H.  169.— Following 
White  V.  Concord  R.  Co.,  30  N.  H.  188. 

176.  Tills  duty  as  aK'iM!tecl  by  con- 
tract.*—Where  lessees,  with  the  consent  of 
the  rai.  :)ad  company,  made  an  opening  in 
a  fence,  larough  which  the  sheep  strayed, 
and  upon  its  agreement  to  replace  the  open- 
ing with  a  gate,  it  was  the  duty  of  the  com- 
pany to  put  up  the  gate  within  a  reasonable 
time,  and  if  it  failed  to  do  so,  it  would  be 


•See  ante,  88,   89,    138,   139,    149. 
164,  170. 


'^{ 


% 


H 


■ri'..  "S 


188 


ANIMALS,  INJURIES   TO,   17«-17«. 


liable  for  the  loss  of  the  stock  occasioned  by- 
such  neglect,  precisely  as  if  it  had  left  the 
opening  without  the  consent  of  the  adjoin- 
ing owner  when  it  constructed  the  fence. 
McCoy  V.  Soufhern  Pac.  K.  Co.,  56  Am.  &■' 
Eng.  K.  Cas.  132,  94  Ca/.  568,  29  Pac.  Rep. 
1 110. 

It  was  agreed  between  a  landowner  ana  a 
company  that  the  latter  should  fix  the  cross- 
ing to  a  lane,  and  that  the  former  should  oc- 
cupy the  lane  as  an  open  lane,  as  he  had 
always  done.  Subsequently  the  corporation 
requested  the  landowner  to  go  on  and  fix  the 
crossing  at  the  lane  as  he  wished  to  have  it, 
and  he  did  so,  but  did  not  erect  gates  or 
bars,  and  the  corporation  paid  him  for  it. 
The  company  was  not  liable  for  the  killing 
of  a  cow  belonging  to  a  tenant  having 
strayed  upon  the  railroad  track  from  the 
lane  where  she  was  allowed  to  run.  Tombs 
V.  Rochester  (3~>  S.  R.  Co.,  18  Barb.  (N.  K.) 

583. 

176.  Liability  for  defectively-con- 
structed gates.*— A  company  cannot  be 
released  from  liability  by  ignorance  of  a  de- 
fect in  the  gate  at  a  farm  crossing,  where, 
by  exercising  reasonable  care,  it  would  have 
acquired  knowledge  of  the  defect.  Ham- 
mond V.  Chicago  &*  N.  IV.  R.  Co.,  43  /owa 
168,  14  Am.  Ry.  Rep.  412. 

Nor  would  such  liability  be  discharged  or 
affected  by  pro(5f  that  plaintiff's  tenant  was 
in  the  habit  of  leaving  the  gate  open,  nor 
even  that  plaintiff  himself  was  in  the  habit 
of  doing  so.  Hammond  v.  Chicago  &•  N.  IV. 
R.  Co.,  43  lo7iia  168,  14  Am.  Ry.  Rep.  412. 

A  defect  iji  the  gate  as  originally  con- 
structed is  presumed  10  be  known  to  defend- 
ant, and  plaintiff  need  not  notify  the  com- 
pany of  its  existence,  nor  need  he  repair  it, 
even  though  it  could  be  done  at  small  ex- 
pense. Hammonds.  Chicago &^  JV.  ]V.  R.  Co., 
43  Iowa  168, 14 .7///.  Ry.  Rep.^i  2.— APPROVED 
IN  Cleveland,  C,  C.  &  I.  R.  Co.  7>.  Scudder, 
13  Am.  &  Eng.  R.  Cas.  561,  40  Ohio  St.  173. 

While  the  adjoining  landowner  may  be 
held  responsible  for  the  closing  of  a  gate 
constructed  for  his  convenience  and  at  his 
request,  he  can  only  be  charged  with  such 
responsibility  when  it  was  so  constructed 
that  it  would  remain  closed  if  so  left  by  him. 
Hammond  v.  Chicago  &^  A\  IV.  R.  Co.,  43 
/o7va  168.— Distinguishing  EamesT/.  Bos- 
ton &  W.  R.  Co.,  14  Allen  (Mass.)  151. 

177.  Duty  to  keep  gates  in  good 

*Stt  anU,  142. 


coudition.— A  company  which  erects  a 
fence  and  gate  along  its  right  of  way,  a  few 
feet  beyond  the  same  and  upon  the  land  of 
the  adjoining  owner,  and  keeps  tlie  same  in 
repair  for  some  time  and  then  suffers  them 
to  get  out  of  repair,  whereby  stock  escapes 
through  the  same  and  strays  upon  the  track 
and  is  killed,  cannot  escape  liability  to  the 
owner  of  the  stock  on  the  ground  that  such 
fence  and  gate  are  not  on  its  right  of  way, 
when  it  has  given  no  prior  notice  that  it  will 
not  keep  up  such  repairs  any  longer.  Chi- 
cago &*  E,  I,  R.  Co.  V.  Guertin,  24  Am.  &• 
Eng.  R.  Cas.  385,  1 1 5  ///.  466,  4  ^V.  E.  Rep. 
507. 

Where  the  evidence  tended  to  show  that 
the  cow  got  upon  the  track  of  the  company 
through  the  negligence  of  its  servants  in 
failing  to  keep  a  gate  at  a  farm  crossing  in 
repair — held,  that  a  verdict  finding  the  com- 
pany liable  would  not  be  disturbed.  Toledo, 
W.  &>  W.  R.  Co.  v.  Aelson,  77  III.  160.  Illi- 
nois C.  R.  Co.  V.  McKce,  43  ///.  119. 

In  an  action  brought  to  recover  from  a 
railroad  company  for  injuries  to  a  horse  al- 
ledged  to  have  occurred  through  its  negli- 
gence, the  jury  may  be  justified  in  finding 
defendant  guilty  of  wilful  negligence  in 
permitting  the  gate  to  remain  insecure  and 
unfit  for  the  use  it  was  put  to,  by  the  length 
of  time  it  was  maintained  in  that  condition 
after  notice.  Louisville  &'  N.  R.  Co.  v.  Shel- 
ton,  43  ///.  App.  220. 

The  gates  which  a  company  is  required  to 
maintain  at  private  crossings  constitute  a 
part  of  its  fence,  and  the  company  is  liable, 
under  Iowa  Code,  §  1289,  for  injuries  to 
stock  by  reason  of  the  defective  condition 
of  such  gates.  Mackie  v.  Central  R.  Co.,  54 
Iffwa  540,  6  A".  W.  Rep.  723. 

The  defendant's  line  of  railway  ran 
through  the  plaintiff's  farm,  and  the  plain- 
tiff's mare  escaped  from  a  field  adjoining  the 
railway  through  a  gate  opposite  a  farm 
crossing  which  the  defendants  had  erected, 
and  which  was  out  of  repair,  and  was  killed 
on  the  railway.  Held,  that  it  was  the  duty 
of  the  defendants  to  keep  the  gate  in  repair, 
and  that  they  were  liable,  whether  they 
were  bound  to  erect  such  farm  crossing  or 
not.  Murphy  v.  Grand  Trunk  R.  Co.,  t  Ont. 
619.— Reviewing  Brown  v.  Toronto  &  N. 
R.  Co.,  26  U.  C.  C.  P.  206. 

178.  Insecure  fastenings.— (i)  Com- 
pany liable. — A  company  is  liable  for  cattle 
killed  by  reason  of  its  failure  to  keep  a  gate 
furnished  with  secure  fastenings,  which  it 


ANIMALS,  INJURIES   TO,  170. 


189 


was  bound  by  contract  to  do,  although  the 
owner  of  the  cattle,  as  well  as  the  company, 
had  known  for  two  months  that  the  gate 
fastenings  were  insecure,  and  used  no  effort 
to  provide  proper  or  sufficient  fastenings. 
Chicago  <S>*  A.  K.  Co.  v.  Barnes,  38  Am.  <S<« 
J'ng.  R.  Cas.  297,  1 16  /«</.  126,  18  N.  E,  Rep. 

459 

To  recover  for  stock  killed  by  reason  of 
defective  fastenings  to  a  gate,  or  lack  of  any 
fastening  at  all,  it  must  appear  that  the  gate 
on  which  there  was  no  fastening  was  at  a 
point  where  the  company  was  required  to 
maintain  a  fence.  Vatighn  v.  Missouri  Pac. 
R.  Co.,  17  Mo.  App.  4. 

It  is  the  duty  of  railway  companies  to 
erect  and  maintain  suitable  gates  at  farm 
crossings,  and  knowledge  by  a  landowner 
tliat  a  gate  has  not  secure  fastenings,  and  a 
failure  to  notify  the  company,  will  not  pre- 
vent a  recovery  for  cattle  that  go  upon  the 
track  and  are  injured.  Dunsford  v.  Mich- 
igan C.  R.  Co.,  20  Ont.  App.  577.— Disap- 
proving McMichael  v.  Grand  Trunk  R. 
Co.,  12  Ont.  547. 

Plaintiffs'  horses,  in  consequence  of  the 
insecure  fastening  of  the  gales  at  a  farm 
crossing  where  the  defendant's  railway 
crossed  their  farm,  got  through  the  gates 
and  on  the  railwaj'  track,  and  were  killed 
by  a  passing  train.  Held,  that  the  plain- 
tiffs, by  reason  of  the  continued  use  of  the 
faulty  fastenings,  could  not  be  deemed  to 
have  adopted  them  as  sufficient,  and  that  it 
was  the  duty  of  the  defendant  to  provide 
and  maintain  proper  fastenings  for  the  gate. 
McMichael  s.  Grand  Trunk  R  Co.,  12  O;//. 
547.— Quoting  Studer  v.  Buffalo  &  L.  H. 
K.  Co.,  25  U.  C.  Q.  B.  160. 

(2)  Company  not  liable.  —  A  company, 
which  has  constructed  a  private  farm  cross- 
ing and  erected  gates  for  the  convenience 
of  a  landowner,  is  not  liable  to  the  latter 
for  animals  which  escaped  through  the  gates 
by  reason  of  defective  fastenings,  and  are 
injured  upon  its  track,  unless  it  has  con- 
tracted to  keep  the  gates  closed  and  in 
proper  repair.  Evansiiille  Qr^  T.  H.  R.  Co. 
V.  Mosier,  114  Ind.  447, 14  West.  Rep.  299, 17 
A'.  E.  Rep.  109. 

A  company  is  not  necessarily  responsible 
by  reason  of  the  fact  that  a  gate  in  a  fence 
is  so  constructed  as  to  swing  toward  the 
track,  and  is  fastened  with  a  hook  on  the 
side  toward  the  pasture,  but  the  question  f 
negligence  in  such  a  case  is  one  of  fact. 
rayne  v.    Kansas  City,  St.  J.  &*  C.  B.  R. 


Co.,  il  Am.  (Sx  Eng.  R.  Cas.  111,72  Iowa 
214,  33  A^.  W.  Rep.  633. 

In  an  action  under  Missouri  Rev.  St.  § 
809,  for  double  damages  for  killing  stock, 
the  railroad  company  is  liable  if  the  stock 
entered  upon  its  track  through  a  gate  at  a 
farm  crossing  which  was  open  for  want  of 
proper  fastening ;  but  if  the  gate  was  propped 
open  or  left  open  by  tliird  parties  when  the 
cattle  entered  through  it,  the  finding  should 
be  for  the  defendant.*  Binicker  v.  Hannibal 
6-  St.  J.  R.  Co.,  83  Mo.  660. 

A  company  is  not  liable  for  killing  or  in- 
juring live  stock  coming  upon  the  track 
through  a  gate  with  a  latent  defect  in  the 
fastening,  without  proof  that  the  company 
knew  of  the  defect.  Fittcrling  v.  Missouri 
Pac.  R.  Co.,  20  Am.  dr*  Eng.  R.  Cas.  454,  79 
Mo.  504. — Quoting  Bothwell  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  59  Iowa  192.— Fol- 
lowed IN  Ridenore  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  81  Mo.  227;  Foster  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  44  Mo.  App.  1 1. 

A  company  is  not  guilty  of  negligence  in 
using  on  a  crossing-gate  a  fastening  in 
which  there  is  nothing  intrinsically  danger- 
ous, and  which  has  been  for  years  in  use 
without  causing  damage,  and  which  is  a 
kind  of  fastening  in  general  use  elsewhere. 
Accordingly,  where  cows  are  being  driven 
through  the  gate,  and  one  of  them  drives 
another  against  the  fastening,  causing  its 
death,  the  company  is  not  liable.  Great 
Western  R.  Co.  v.  Davies,  39  L.  T.  475. 

Although  a  company  has  provided  an  in- 
sufficient fastening  for  a  gate  at  a  private 
crossing,  yet  if  the  landowner  uses  it  not- 
withstanding its  insufficiency,  ai.d  thereby  a 
horse  strays  onto  the  track  and  is  killed, 
the  company  is  not  liable.  Haigh  v.  Lon- 
don <S-  A^.  VV.  R.  Co.,  I  F.&'F.  646,  8  W. 
R.  6. 

1 79.  Liability  where  animal  enters 
throiigli  gate,  generally.!  —  (i)  Gate 
erected  by  company.  Under  the  Indiana  acts 
of  April  8,  1885,  a  company  is  not  liable, 
in  the  absence  of  negligence,  for  the  injury 
or  killing  of  animals  going  upon  its  track 
through  gates  at  private  farm  crossings, 
whether  such  crossings  were  constructed 
prior  to  those  acts,  or  under  the  power  given 
by  the  first  section  of  the  act  of  April  8, 
or  since  the  passage  of  those  acts.  Hunt  v. 
Lake  Shore  <S-  M.  S.  R.  Co.,  35  Am.  &•  Eng. 

*Swpost,  182. 

f  Gates  in  fences,  animals  entering  on  track 
through,  see  note,  23  Am.  &  Eng.  R.  Cas.  206. 


rf  3vv 


^pp 


190 


ANIMALS,  INJURIES  TO,  180. 


I? 


I 

'S 


111 


Ji,  Cas.  176, 1 12  /«</.  69.  1 1  IVfs/.  Rep.  107, 13 
N.  E.  Rep.  263.— Following  Cincinnati.  H. 
&  I.  R.  Co.  V.  RirJge,  54  Iiid.  39.  Over- 
ruling Indianapolis  &  C.  R.  Co.  v.  Aditins, 
23  Ind.  340;  Indianapolis  &  C.  R.  Co.  v. 
Adkins,  23  Ind.  345;  Indianapolis,  P.  &  C. 
R.  Co.  z/.  Petty,  25  Ind.  413;  Bellefontaine 
R.  Co.  V.  Suman,  29  Ind.  40. — I^eferred 
TO  IN  Pennsylvania  Co.  v.  Spaulding,  35 
Am.  &  Eng.  R.  Cas.  184,  112  Ind.  47. 

Under  the  Indiana  acts  of  April  8  and 
13,  1885,  where  a  gate  is  erected  at  a  farm 
crossing  by  a  railroad  company,  for  the  con- 
venience of  an  adjacent  landowner,  with  the 
consent  of  the  company,  the  company  is  not 
liable,  in  the  absence  of  negligence,  for  the 
injury  or  killing  of  cattle  belonging  to  such 
landowner  or  other  persons  which  enter 
upon  the  track  through  such  gate.  Louis- 
ville, N.  A.  dr'  C.  R.  Co.  V.  Thomas,  \  Ind. 
App.  131,  27  A',  i?.  Rep.  302. 

(2)  Gate  erected  by  landowner. — One  who 
maintains  for  his  own  convenience  a  gate 
between  iiis  land  and  a  railroad  track  can- 
not recover  of  the  company  if  his  cattle 
stray  through  the  gate  onto  the  track  and 
are  killed  by  a  train.  Louisville,  N.  A.  &' 
C.  R.  Co.  V.  Goodbar,  102  Ind.  596,  2  iV.  E. 
^^P-  337.  3  A^-  E.  Rep.  162. — Following 
Bond  7'.  Evansville  &  T.  H.  R.  Co.,  100  Ind. 
301 ;  Evansville  &  T.  H.  R.  Co.  v.  Mosier, 
loi  Ind.  597.— Quoted  in  Ft.  Wayne,  C.  & 
L.  R.  Co.  V.  Woodward,  31  Am.  &  Eng.  R. 
Cas.  546,  112  Ind.  118,  11  West.  Rep.  101, 13 
N.  E.  Rep.  260. 

Where  permission  has  been  given  to  a 
landowner  to  erect  a  gate  at  a  private  farm 
crossing,  the  company  is  not  liable  to  him  if 
his  stock  pass  through  the  gate  onto  the 
track  ;  but  it  is  liable  if  the  stock  of  a  third 
person  go  through  the  gate  and  are  injured 
on  the  track.  Wabash  R.  Co.  v.  William- 
son,  23  Am.  <S-  En^.  R.  Cas.  203,  104  /nd. 
154,  3  A^.  E.  Rep.  814.* 

180.  Liability  wlicre  gate  i»  left 
open  by  company.  —  (i)  Generally.— 
Under  the  Missouri  statute  requiring  com- 
panies to  erect  and  maintain  fences  with 
gates,  such  gates  must  be  maintained  closed. 
West  v.  Missouri  Pac.  R.  Co. ,  26  AIo.  App. 
344- 

Plaintiflf  pastured  his  horses  in  a  field  ad- 
joining a  track  which  he  owned  in  common 
with  others.  There  were  t\\  o  gates  at  pri- 
vate crossings,  a  north  and  a  south  one,  the 


'See /•OS/,  181. 


south  one  only  being  used  by  plaintiiT.  His 
horses  escaped  from  the  north  gate  and 
were  killed  on  the  track.  Held,  that  the 
company  owed  an  equal  duty  to  keep  both 
gates  closed,  and,  having  failed  to  do  so, 
was  liable.  Evansville  &^  T.  H.  R.  Co.  v. 
Mosier,  22  Am.  &*Eng.  R.  Cas.  569,  loi  Ind. 
597.— Followed  in  Louisville,  N.  A.  &  C. 
R.  Co.  V.  Goodbar,  102  Ind.  596. 

The  company  is  liable  where  sheep  en- 
tered upon  the  track  through  the  gate  to  the 
field  in  which  the  sheep  were  pasturing  ad- 
joining the  track,  and  were  run  over  and 
killed  by  the  cars,  it  being  proved  that  the 
gate  was  opened  through  the  negligence  or 
carelessness  of  the  defendant  or  its  servants. 
Lemon  v.  Chicago  &^  G.  T.  R.  Co.,  59  Mich. 
618,  26  A^.   W.  ^Rep.  791, 

Where  a  company  has  erected  gates  and 
fences  as  required  by  law,  it  is  not  liable  for 
stock  that  go  upon  the  track,  where  the  evi- 
dence failed  to  show  that  the  gate  through 
which  the  stock  entered  ivas  left  open,  or,  if 
opened,  that  it  had  been  opened  for  a  suffi- 
cient time  for  the  company  to  have  known 
it  by  the  exercise  of  reasonable  diligence. 
Ridenore  v.  Wabash,  St.  L.&*P.  R.  Co.,ii 
Mo.  227. — Distinguished  in  Morrison  %>. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  27  Mo. 
App.  418. 

(2)  Liability  to  persons  other  than  adjacent 
landowners.  —  Where  plaintiff's  horses 
escaped  from  him,  and  he  followed  them 
until  night  trying  to  reclaim  them,  and  the 
last  seen  of  them  they  were  going  in  the  op- 
posite direction  from  defendant's  railroad, 
but  later  passed  to  adjoining  close,  and 
thence  through  a  gate  at  a  farm  crossing 
that  the  company  knowingly  permitted  to 
remain  open  to  defendant's  road — held,  that 
plaintiff's  negligence  was  slight  as  compared 
with  defendant's,  making  it  liable  for  injury 
to  the  horses,  though  it  was  unlawful  for 
stock  to  run  at  large.  Chicago  &*  N.  W.  R. 
Co.  v.  Harris,  54  ///.  528.— QUOTED  IN 
Ewingv.  Chicago  &  A.  R.  Co.,  72  111.  25. 

The  maintenance  of  gates  in  a  railioad 
fence  for  the  convenience  of  the  farmer 
owning  the  adjoining  land  does  not  change 
the  company's  liability  to  third  persons ; 
astothem#it  must  keep  the  gates  closed. 
Wabash  R.  Co.  v.  Williamson,  23  Am.  &* 
Eng.  R.  Cas.  203, 10^  Ind.  154,  3  A^.  E.  Rep. 
814. 

The  Indiana  act  of  April  13,  18S5,  provid- 
ing that  gates  at  farm  crossings  shall  be 
constructed  and  kept  closed  by  the  owner 


ANIMALS,  INJURIES    TO,   181,182. 


191 


of  such  crossing,  does  not  relieve  a  company 
from  liability  for  injury  to  animals  which 
enter  upon  the  track  through  a  gateway  to 
such  private  way,  left  open  in  a  fence  sepa- 
rating the  railroad  from  a  public  highway; 
for  where  the  farm  lies  entirely  on  one  side 
the  owner  thereof  could  not  keep  shut  the 
gate  on  the  other  side  of  the  track.  Louis- 
\tlle,  N.  A.  6-  C.  R.  Co.  v.  Hughes,  2  I/ui. 
App.  68.  28  A^.  E.  Rep.  158. 

Cattle  of  the  plaintifl  strayed  upon  the 
highway  and  passed  from  thence  through  a 
gate  in  a  fence  erected  by  the  defendant,  in 
pursuance  of  the  laws  of  this  state,  upon  its 
tracks,  where  they  were  killed.  At  the 
place  where  the  gate  was  situated  the  land 
on  both  sides  of  the  road  was  owned  by  one 
F.,  for  whose  convenience  it  was  built. 
Evidence  was  given  to  show  that  the  gate 
was  used  by  persons  in  passing  to  and  from 
the  freight  depot  of  the  defendant.  Held, 
that  if  the  defendant  was  accustomed  to  use 
the  gate  for  its  accommodation,  or  for  the 
accommodation  of  persons  doing  business 
at  its  depot,  and  on  the  night  in  question  it 
was  left  unclosed  through  the  carelessness 
of  any  of  its  agents,  such  negligence  would 
be  the  negligence  of  the  defendant.  Spin- 
ner V.  New  York  C.  5»  H.  R.  R.  Co.,  2  Hun 
{X.   V.)  421,  4  T.  &^  C.  595. 

181.  by  landowner.— (i)  Caif/e 

of  landowner. — A  landowner  whose  farm  is 
divided  by  a  railroad  is  entitled  to  neces- 
sary crossings ;  and  where  the  railroad 
company  fences  its  track  through  his  farm, 
and  constructs  gates  in  the  fences  at  such 
crossings  for  the  accommodation  of  the 
landowner  or  his  tenant,  the  duty  rests 
upon  him  to  keep  the  gates  closed  ;  and  if 
he  neglects  to  do  so,  and  his  animals  pass 
through  them  upon  the  track  and  are  killed, 
without  the  negligence  of  those  operating 
the  trains,  the  company  is  not  liable  for  the 
loss.  Adams  v.  Atchison,  T.  Or'  S.  F.  R.  Co. 
49  Am.  dr'  Eng.  R.  Cas.  579,  46  A'an.  161, 
26  Pac.  Rep.  439.  Illinois  C.  R.  Co.  v.  Afc- 
Kee,  43  ///.  119.  Jeffersonville,  M.  &^  I.  R. 
Co.  V.  Dunlap,  31  Am.  &•  Eng.  R.  Cas.  512, 
112  Ind.  93,  13  TV.  E.  Rep.  403. 

It  appearing  that  the  track-walker,  an 
employe  of  the  company,  had  shut  the  gate 
in  question— one  constructed  for  the  ad- 
jacent farm-owner's  convenience  at  a  farm 
crossing— some  time  after  midday,  it  was 
error  to  instruct  the  jury  that  the  farm- 
owner  was  under  no  obligation  to  keep  the 
fjate  closed.     Diamond  Brick  Co.  v.  A'ew 


York  C.  &*  H.  R.  R.  Co.,  28  A'.  Y.  S.  R.  95, 
7  N.  Y.  Supp.  868,  5  Silv.  Sup.  321,  55  Hun 
605,  mem. 

(2)  Cattle  of  third  person.* — Where  the 
animals  of  a  third  person  jump  into  the  in- 
closure,  and  are  wrongfully  upon  the  prem- 
ises of  an  adjacent  landowner,  and  then 
pass  through  the  gate  left  open  by  such 
landowner,  and  are  killed  by  a  train,  with- 
out the  negligence  of  those  in  charge  of  the 
same,  the  owner  of  such  trespassing  animals 
is  entitled  to  no  greater  rights  than  the 
landowner,  and  cannot  recover  from  the 
company.  Adams  v.  Atchison,  T.  &•  S.  F. 
R.  Co.,  49  Am.  &>  Eng.  R.  Cas.  579,  46  /Can. 
161,  26  Fac.  Rep.  439. — Approving  In- 
dianapolis &  C.  R.  Co.  V.  Adkins,  23  Ind.  340. 

And  this  rule  is  not  affected  by  the  fact 
that  the  railroad  company  has  not  complied 
with  the  general  railroad  act,  with  respect 
to  fences  at  other  points  on  the  railroad. 
Brooks  V.  New  York  &^  E.  R.  Co.,  13  Barl>. 
(A'.  1'.)  594.— Approving  Waldron  v.  Sara- 
toga &  W.  R.  Co.,  8  Barb.  390. — Approved 
IN  Cecil  V.  Pacific  R.  Co.,  47  Mo.  246. 
Distinguished  in  Bartlett  v.  Dubuque  & 
S.  C.  R.  Co.,  20  Iowa  188  ;  Kaes  v.  Missouri 
Pac.  R.  Co.,  6  Mo.  App.  397.  Not  fol- 
lowed in  Corwin  v.  New  York  &  E.  R.  Co., 
13  N.  Y.  42.  Quoted  in  Berry  v.  St. 
Louis,  S.  &  L.  R.  R.  Co.,  65  Mo.  172  ;  Dent 
7'.  St.  Louis,  I.  M.  &  S.  R.  Co.,  83  Mo.  496 ; 
Omaha  &  R.  V.  R.  Co.  7/.  Severin,  30  Neb. 
318. 

182.  Gate  lett  open  by  third  per- 
Nons.t — A  company  is  not  liable,  under  the 
Missouri  railroad  law,  §  43,  for  killing  stock 
which  come  upon  its  track  through  a  gate 
at  a  private  crossing  left  open  without  the 
consent  of  the  company.  Harrington  v. 
Chicago,  R.  I.  &>  P.  R.  Co.,  71  Mo.  384.— 
Distinguished  in  Parks 7/.  Hannibal  &  St. 
J.  R.  Co,,  20  Mo.  App.  440.  Followed  in 
Ridenorei/.  Wabash,  St.  L.  &  P.  R.  Co.,  81 
Mo.  227.  Quoted  and  followed  in 
Johnson  v.  Missouri  Pac.  R.  Co.,  23  Am.  & 
Eng.  R.  Cas.  i8o,  80  Mo.  620. 

After  a  company  has  erected  the  gate  re- 
quired by  statute,  it  is  not  expected  to 
stand  perpetual  guard  over  it  to  keep  it 
closed  against  the  act  of  third  parties  in 
leaving  it  open  ;  and  if  stock  escape  thus, 
before  the  servar'^s  of  the  company  have 
notice  of  the  fact  of  the  gate  being  open,  or 

*  See  ante,  J>4,  l.'Jl),  154,  160. 

t  See  ante,  178  ;  post,  237. 


192 


ANIMALS,  INJURIES   TO,  183,184. 


i 


■IP 


reasonable  time  in  which  to  discover  the 
fact,  no  liability  attaches.  But  the  gate 
must  "  be  hung  and  have  latches  or  hooks, 
so  that  it  may  be  easily  opened  and  shut," 
pursuant  to  the  statute,  in  order  to  be  en- 
titled  to  such  exemption  from  liability. 
Morrison  v  Kansas  City,  St.  J.  &*  C.  B.  R. 
Co.,  27  Mo.  App.  418. —  Distinguishing 
Ridenore  v.  Wabash,  St,  L.  &  P.  R.  Co.,  81 
Mo.  227. 

One  whose  cattle  have  gone  upon  a  track 
through  open  bars  or  gates  at  a  railroad 
farm  crossing  on  the  land  of  another,  can- 
not recover  from  the  one  by  whose  fault 
such  bars  or  gates  were  open,  if  the  owner 
negligenily  allowed  the  stock  to  stray  upon 
another's  land,  under  the  Wisconsin  act 
1872,  ch.  119,  §  32,  making  any  one  liable 
who  leaves  open  any  gate  or  bars  at  a  rail- 
road farm  crossing.  Pitzner  v.  Shinnick, 
39  Wis.  129.— Distinguishing  McCall  v. 
Chamberlain,  13  Wis.  637. 

A  gate  in  a  railroad  fence  when  properly 
closed  was  of  legal  height,  but  it  might  be 
closed  in  such  a  way  as  to  leave  it  much 
lower  at  one  end.  It  having  been  so  closed 
one  evening  by  a  third  person,  one  of  the 
plaintiff's  horses  jumped  over  the  lower 
end,  and  in  doing  so  unfastened  the  gate  so 
that  another  horse  escaped  upon  the  track, 
and  both  were  killed  on  the  following 
morning  by  a  locomotive.  One  of  the 
hooks  upon  which  the  gate  rested  when 
closed  was  out  of  place,  but  its  absence  did 
not  interfere  with  tlie  proper  closing  of  the 
gate  or  impair  its  sufficiency  when  so 
closed.  Held,  that  neither  the  absence  of 
the  hook  nor  the  negligence  of  the  third 
person  rendered  the  railroad  company  liable 
for  the  killing  of  the  horses.  Davenport  v. 
Chicago,  B.  &*  N.  R.  Co.,  76  Wis.  399,  45  N. 
W.Rep.  215. 

183.  Rule  where  gate  has  been 
open  for  a  long  time.*— It  is  error  to 
instruct  the  jury  that,  if  the  road  was  not  so 
fenced  as  to  prevent  the  horse  from  getting 
upon  it,  they  were  bound,  under  any  cir- 
cumstances, to  find  for  plaintiff.  There  was 
evidence  tending  to  show  that  the  horse 
came  upon  the  road  through  an  open  gate. 
If  this  was  true,  plaintiff  could  not  recover, 
unless  the  gate  had  been  so  long  open  as 
to  raise  the  presumption  that  the  servants 
of  the  company  knew  it,  or  to  charge  them 


*  See  ante,  143. 


with  negligence.     Chicago,  B.  &-  Q.  R  Co. 
V.  Magee,  60  ///.  529. 

Two  horses  having  been  injured  by  a 
train  on  defendant's  road,  whiere  the  horses 
passed  upon  the  track  through  an  open  gate 
at  a  farm  crossing,  where  the  company  pei- 
miited  the  gate  to  remain  open  for  a  week 
previous  to  the  accident,  the  company  was 
regarded  as  guilty  of  such  negligence  as 
rendered  them  liable.  Chicago  &>  A'.  W.R. 
Co.  v.  Harris,  54  ///.  528. 

In  an  action  to  recover  double  damages 
for  the  killing  of  stock,  if  the  evidence  tends 
to  show  that  the  stock  passed  through  a 
gate  in  the  railroad  fence,  which  had  been 
open  for  about  thirty-six  hours  before  the 
accident,  what  constitutes  the  proper  exer- 
cise of  care,  and  whether  a  failure  to  inspect 
the  gate  for  three  or  four  days,  or  for  a 
longer  or  shorter  time,  is  negligence,  or 
whether  the  gate  being  open  for  thirty-six 
hours  will  raise  a  presumption  of  negligence 
against  the  company,  are  matters  for  the 
determination  of  the  jury.  Wait  v.  Burling 
ton,  C.  R.  SfN.  R.  Co.,  35  Am.  &•  Eng.  R.  Cas. 
194,  74  Iowa  207,  37  N.  W.  Rep.  159. — FOL- 
LOWING Perry  v.  Dubuque  S.  W.  R.  Co.,  36 
Iowa  102 ;  Bell  v.  Chicago,  B.  &  Q.  R.  Co., 
64  Iowa  321. 

184.  Liability  for  leaving  bars 
down. — Under  a  statute  requiring  a  com- 
pany to  erect  and  maintain  a  sufficient 
fence,  bars  therein  for  the  convenience  of 
an  adjoining  landowner  constitute  an  essen- 
tial part,  and  the  company  in  allowing  such 
bars  to  remain  down  for  a  period  of  three 
months  is  liable  forstock  killed  having  come 
upon  the  track  through  the  opening  at  the 
bars.    Illinois  C.  R.  Co.  v.  Arnold,  47  ///. 

«73- 

Where  a  company  has  erected  a  fence 
with  bars  therein,  according  to  provisions 
of  the  statute,  it  is  further  required  to  use 
ordinary  care  and  reasonable  diligence  in 
keeping  the  bars  up,  and  is  consequently 
liable  for  injury  to  stock,  from  failure  to  per- 
form this  duty.  Perry  v.  Dubuque  S.  W.  R. 
Co.,  36  Iowa  102.— Followed  in  Brentner 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  7  Am.  &  Eng. 
R.  Cas.  574,  58  Iowa  625 ;  Wait  v.  Burling- 
ton, C.  R.  &  N.  R.  Co.,  35  Am.  &  Eng.  R. 
Cas.  194,  74  Iowa  207,  37  N.  W.  Rep.  159. 

Bars  in  fences  between  a  track  and  adjoin- 
ing farm  for  the  convenience  of  the  land 
owner  may  be  left  down  for  such  a  length 
of  time  as  to  raise  the  inference  that  the 
company  has  been  negligent  in  failing  to 


ANIMALS,  INJURIES  TO,  186. 


193 


keep  them  up.    Perry  v.  Dubuque  S.  W.  R. 
Co.,  36  Iowa  1 03. 

A  company  is  not  liable  for  injuries  oc- 
casioned to  stocit  having  come  upon  the 
rij>ht  of  way  througii  bars  in  fence  between 
tlie  track  and  adjoining  farms,  where  it  ap- 
pears that  the  bars  were  left  down  by  the 
plaintiff  iiimself  or  by  a  third  party.  Perry 
V.  Dubuque  S.  IV.  A'.  Co.,  36  /o7va  102, 

It  seems  that  if  bars  have  been  taken 
down  by  the  owner  or  occupant  of  the 
farm  for  wliose  use  they  were  made  and  the 
crossing  was  permitted  by  tlie  railroad  com- 
pany, and  he  has  neglected  to  replace  them, 
his  own  act  will  prevent  a  recovery  in  a 
suit  brought  by  him.  Illinois  C.  R.  Co.  v. 
Arnold,  47  ///.  173. 

If  bars  are  erected  in  the  line  of  a  railroad 
fence,  at  the  instance  and  for  the  accommo- 
dation of  the  owner  of  land,  the  responsi- 
bility of  keeping  them  up  devolves  on  him ; 
and  if  he  nc  gleets  to  do  so,  and  his  stock 
passes  through  the  bar-way  upon  the  line  of 
railroad  and  is  killed,  he  cannot  recover 
therefor  against  the  company.  And  if,  in 
such  case,  the  animals  of  a  third  person 
should  trespass  on  the  lands  and  inclosure 
of  such  owner,  and  pass  through  the  bars  so 
erected  upon  the  track  of  the  railroad,  and 
be  killed  by  the  train,  the  owner  of  such  ani- 
mals could  not  recover.  Indianapolis  &>  C. 
R.  Co.  v.  Adkins,  23  Ind.  340. — Approved 
IN  Adams  v.  Atchison,  T.  &  S.  F.  R.  Co. 
46  Kan.  161.  Distinguished  in  Gill  v. 
.'  dan:ir  &  G.  W.  R.  Co.,  27  Ohio  St.  240; 
F-  rtiett  v.  Dubuque  &  S.  C.  R.  Co.,  20 
iuwa  188.  Followed  in  Indianapolis  &  C. 
i\.  Co.  v.  Adkins,  23  Ind.  345.  Doubted 
!N  Cincinnati,  H.  &  I.  R.  Co.  v.  Ridge,  54 
Jnd.  39.  Overruled  in  Indianapolis,  P. 
&  C.  R.  Co.  V.  Thomas,  1 1  Am.  &  Eng.  R. 
Cas.  491, 84  Ind.  194;  Huntr/.  Lake  Shore  & 
M.  S.  R.  Co.,  35  Am.  &  Eng.  R.  Cas.  176, 
112  Ind.  69,  II  West  Rep.  107,  13  N,  E. 
Rep.  263. 

Where  the  evidence  showed  that  the 
company  had  fulfilled  the  requirements  of 
the  statute  with  reference  to  erecting  and 
mainlaining  a  fence  along  the  right  of  way, 
with  bars  therein  between  the  track  and  an 
adjoining  pasture,  which  bars  were  for  the 
convenience  of  the  landowner;  and  it 
further  appeared  that  a  cow  belonging  to 
the  owner  of  the  pasture  escaped  upon  the 
track  by  reason  of  the  bars  being  down, 
but  was  afterward  turned  from  the  right  of 


way  into  another  pasture  from  which,  in 
some  way  or  other,  she  again  came  upon 
the  track  and  was  killed— it  was  held  that 
there  could  be  no  recovery  unless  the  bars 
where  shown  to  have  been  left  down  with- 
out fault  of  the  pasture-owner,  and  that  by 
reason  of  the  company's  negligence  the  cow 
was  enabled  to  reach  the  track  a  second  time. 
Eames  v.  Boston  &-'  W.  R.  Co.,  14  Allen  {Mass.) 
151.— Following  Waldron  7/.  Portland,  S. 
&  P.  R.  Co.,  35  Me.  422.  Distinguishing 
Browne  v.  Providence  R.  Co.,  1 2  Gray  (Mass.) 
55.  —  Distinguished  in  Hammond  v. 
Chicago*  N.  W.  R.  Co.,43  Iowa  168.  Fol- 
lowed in  Keliher  v.  Connecticut  River  R. 
Co.,  107  Mass.  411. 

8.  Injuries  at  Public  Crossings.* 

185.  The  rule  of  liability  stated.— 

(I)  Generally. — Where  an  animal  passes 
upon  a  track  at  the  crossing  of  a  public 
street  or  highway,  or  other  place  where, 
from  any  cause,  it  would  be  improper  that 
the  railroad  should  be  fenced,  and  is  killed 
by  the  locomotive  or  cars,  the  company  is 
not  liable,  except  for  the  negligence  or  mis- 
conduct of  those  having  charge  of  the  train. 
Indianapolis  &*  C.  R.  Co.  v.  McKinney,  24 
Ind.  283.  Logansport,  P.  6-  B.  R.  Co.  v. 
Caldwell,  38  ///.  280. 

There  can  be  no  recovery  from  a  com- 
pany for  killing  stock  at  a  highway  cross- 
ing where  it  appears  that  the  track  is  fenced 
on  either  side  with  proper  cattle-guards  at 
the  crossing,  and  where  there  is  no  evidence 
of  negligence  on  the  part  of  the  company. 
Galveston,  H,  &*  S.  A.  R.  Co.  v.  Moeser,  3 
Tex.  App.  (Civ.  Cas)  295. 

Where  animals  are  struck  by  an  engine 
and  killed  at  a  public  crossing,  having  come 
from  the  highway  into  which  they  had  been 
turned  by  their  owner,  there  being  no  neg- 
ligence on  the  part  of  the  engineer  in  giv- 
ing the  proper  signals,  there  can  be  no  re- 
covery against  the  company.  Miller  v. 
Wabask  R.  Co.,  47  Mo.  App.  630. 

An  owner  of  mules  killed  upon  the  track 
by  an  engine  and  cars  cannot  reci  ver 
damages  therefor,  though  they  escaped  from 
a  properly  fenced  enclosure  without  his 
knowledge,  and  were  on  the  highway  at  its 
intersection  with  the  track  at  the  time  of 


*  See  Crossing  of  Streets  and  Highways, 
and  also  an/f,  108,  117. 


*      <v 


194 


ANIMALS,  INJURIES  TO    180. 


ai-, 


the  accident.     North  Pa.  li.  Co.  v.  Rehman, 

49  Pa.  St.  loi.— Applying  New  York  & 
E.  R.  Co.  V.  Skinner,  19  Pa.  St.  298. 
Disapproving  Bulkley  v.  New  York  &  N. 
H.  R.  Co.,  27  Conn.  479.— Quoted  in 
Pittsburgh.  C.  &  St.  L.  R.  Co.  v.  Stuart,  71 
Ind.  500. 

(2)  Where  highway  is  abandoned.— "Wi^ 
yenera!  rule  of  nonliability  for  killing 
catile  at  a  public  crossing  applies  even 
ihoii<;li  the  highway  has  been  changed  and 
tiie  old  crossing  abandoned  by  the  public  for 
more  than  two  years,  when  it  does  not  ap 
pear  that  it  was  vacated  in  the  mode  pre- 
scribed by  law.  Indiana  C.  R.  Co.  v.  Gapen, 
10  hid.  292. 

Before  a  highway  can  be  vacated  by  the 
opening  of  a  new  road,  in  accordance  with 
the  Missouri  statute  (2  Wag.  St.  1229,  §  58) 
for  changing  and  vacating  roads,  the  coun- 
ty court  must  be  satisfied  that  the  new  road 
is  open  and  in  good  condition,  and  must 
have  made  an  order  vacating  the  old  road. 

50  held,  where  defendant  claimed  that  the 
place  where  a  cow  was  killed  was  a  public 
crossing  where  it  was  not  required  to  fence, 
and  ttiat  hence  it  was  not  liable  without 
proof  of  actual  negligence.  Phelps  v.  Pacific 
R.  Co.,  51  Mo.  477. 

(3)  Road  used  but  not  established  as  a  high- 
way.— Under  Kansas  statute  a  railroad  com- 
pany is  not  liable  for  stock  killed  at  the 
crossing  of  a  road  used  and  travelled  by 
the  public  as  a  highway,  though  not  estab- 
lished and  laid  out  as  a  highway.  Atchison, 
T.  6-  5.  F.  R.  Co.  V.  Griffis,  13  Am.  <S- 
Eng.  R,  Cas.  532,  28  /Can.  539.— Followed 
IN  Missouri  Pac.  R.  Co.  v.  Kocher,  46  Kan. 
272. 

Where  an  action  is  brought  under  ch. 
94,  Kansas  Laws  of  1874  (pp.  1252-1257, 
Gen.  St.  of  1889),  for  damages  for  stock 
killed  at  a  place  where  the  road  is  not  in- 
closed with  a  good  and  lawful  fence,  the 
company  may  show  as  a  defence  that  the 
stock  was  killed  at  a  crossing  of  the  road 
used  and  travelled  by  the  public  as  a  highway, 
although  not  established  or  regularly  laid 
out  by  the  county  authorities.  Missouri 
Pac.  R.  Co.  V.  Kocher,  46  Kan.  272,  26  Pac. 
Rep.  731.— Following  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Griffis,  2S  Kan.  539. 

Tne  rule  is  also  applied  under  the  Iowa 
acts  where  stock  were  killed  at  the  cross- 
ing of  a  road  used  and  travelled  by  the 
public  as  a  highway,  though  the  route  thus 
travelled  was  in  fact  outside  of  the  survey 


or  line  of  the  highway,  as  established  by 
the  county  authorities.  Howard  v.  Chicago 
&*  N.  IV.  A'.  Co.,  33  Iowa  386.— Follow- 
ing State  7'.  Kimball,  23  Iowa  531. — Ap- 
proved IN  Brown  7'.  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.,  20  Mo.  App.  427.  Followed 
IN  Luckie  v.  Chicago  &  A.  R.  Co.,  76  Mo. 

639- 

18U.  Degree  of  care  required  of 
company.* — Railroad  tracks  are  not  pub- 
lic highways  in  the  sense  that  a  wagon-road 
is,  and  the  law  makes  a  distinction  as  to 
the  amount  of  care  required  of  railroads 
with  respect  to  persons  and  property  on 
the  track ;  but  where  the  track  crosses  pub- 
lic highways  and  streams  others  have  a 
common  right  with  the  company,  and  it 
must  exercise  the  same  care,  and  its  liabil- 
ity will  be  the  same,  as  others  passing  and 
doing  business  thereon.  Central  Af.  T.  R. 
Co.\.  Rockafellow,  17  ///.  54I.~Followed 
IN  Toledo,  P.  &.  W.  R.  Qo.v.  Pence,  68  111. 
524.  Quoted  in  Galena  &  C.  U.  R.  Co.  v. 
Jacobs,  20  11!.  478. 

A  company  is  bound  to  exercise  ordinary 
and  reasonable  care  to  prevent  injury  to  an 
animal  upon  a  highway  crossing  without 
the  owner's  fault.  Chicago,  St.  L.  &•  P.  R. 
Co.  V.  Fenn,  3  /nd.  App.  250,  29  N.  E.  Rep. 
790.— Following  Chicago,  St.  L.  &  P.  R. 
Co.  V.  Nash,  I  Ind.  App.  298.— Followed 
in  Ohio  &  M.  R.  Co.  v.  Craycraft,  5  Ind. 
App.  },},^.— Balcom  v.  Dubuque  &-  S.  C.  R. 
Co.,  21  loTt/a  102. 

A  railroad  has  not  the  exclusive  right  to 
the  possession  of  a  public  crossing.  It  has 
the  right  of  passage,  and  it  may  drive  or 
frighten  an  animal  from  its  track,  but  in 
doing  so  it  is  not  relieved  from  the  obliga- 
tion to  exercise  ordinary  care.  It  is  not 
bound  to  undergo  unreasonable  delay  which 
will  prevent  the  making  of  connections  or 
the  keeping  of  schedule  time  or  to  risk  the 
danger  of  collision  between  its  trains.  It  is 
simply  bound  to  deal  with  the  animal  with 
reasonable  care.  Chicago,  St.  L.  &*  P.  R, 
Co.  V.  Nash,  I  Ind.  App.  298,  27  N.  E.  Rep. 
564. 

A  company,  in  operating  its  road  across  a 
public  highway,  is  required  to  exercise  or- 
dinary care  and  diligence,  and  is  liable  for 
killing  cattle  which  are  rightfully  upon  such 
highway  if  it  fails  to  exercise  such  care  and 
diligence.    Lane  v.  Kansas  City,  Ft.  S.  6r*  G. 


*  See  ante,  48,  4»,  58,  G2,  llO,  141. 


ANIMALS,  INJURIES  TO,  187. 


195 


R.  Co.,  IS  Am.  &*  Eng.  R.  Cas.  526,  31  Kan. 
525,  3  Pac.  Rep.  341. 

187.  Liability  for  actual  negli- 
gence—Gross  iieKligence.— (1)  6>«fr- 
fl/Zy.*— Where  a  moving  train  causes  an  injury 
at  a  public  street  crossing  thtire  can  be  no  re- 
covery therefor  without  proof  of  actual  neg- 
ligence. McPheeters\.  Hannibal  &*  St.  J. 
R.  Co.,  45  Afo.  22.— Quoted  in  Pryor  v.  St. 
Louis,  K.  C.  &  N.  K.  Co.,  69  Mo.  215. 

And  to  recover  in  such  cases  the  owner 
must  prove,  by  a  preponderance  of  evidence, 
that  .the  stoci{  were  {{illed  through  negli- 
gence. Terre  Haute  &*  I.  R.  Co.  v.  Tuter- 
wiler,  16  III.  App.  197. 

To  recover  the  value  of  a  heifer  belonging 
to  the  plaintiff,  alleged  to  have  been  injured 
so  that  it  would  have  necessarily  died  from 
such  injury,  if  it  had  not  been  actually  killed 
by  the  employes  of  the  company — held,  that 
though  the  injury  complained  of  occurred 
at  the  railroad  crossing  over  a  public  high- 
way, and  at  a  place  where  the  company  was 
not  bound  to  fence,  yet,  if  such  an  injury 
was  the  result  of  the  negligent  and  careless 
operation  of  the  train  on  defendant's  rail- 
road, the  company  is  liable  for  damages  sus- 
tained. Missouri  Pac.  R.  Co.  v.  Wilson,  1 1 
Am.  <S-  Eng.  R.  Cas.  447,  28  Kan.  637.— 
Followed  in  Missouri  Pac.  R.  Co.  v.  King, 
15  Am.  &  Eng.  R.  Cas.  529,  31  Kan.  500. 

Under  the  Missouri  railroad  act,  §  43,  how- 
ever, the  owner  of  stock  is  not  entitled  to 
recover  double  damages  where  they  are 
killed  at  a  public  crossing  through  the  neg- 
ligence of  the  employes  of  a  railroad  com- 
pany. Sullivan  v.  Hannibal  &*  St.  J.  R.  Co. 
72  Mo.  195. — Applied  in  Miller  z/.  Wabash 
R.  Co.,  47  Mo.  App.  630. 

(2)  Gross  or  wilful  negligence.^ — Where 
an  animal  is  killed  on  a  railroad  at  a  point 
where  the  railroad  crosses  a  public  highway, 
and  where  the  road  cannot  be  legally  fenced, 
the  owner  of  the  animal  cannot  recover  on 
account  of  the  road  not  being  fenced ;  he 
must  show  negligence  on  the  part  of  the 
company,  and  the  absence  of  it  on  his 
own  part.  If  he  knowingly  allows  it  to  stray 
upon  the  track  of  a  railroad  at  a  point 
where  it  cannot  be  legally  fenced,  and  the 
animal  is  killed,  he  cannot  recover  unless 
it  was  killed  by  the  gross  negligence  or 
wilfulness  of  the  railroad  company.    Jeffer- 

*  See  ante,  29-32,  47,  57;  post,  200, 
204. 
f  See  aiUe,  37,  60,  60 ;  fost,  217, 218, 

284. 


sonville,  M,  &»  I.  R.  Co.  v.  Huber,  42  Ind. 
173.  —Reviewing  Indianapolis,  C.  &  L.  R. 
Co.  V.  Harter,  38  Ind.  55/. 

If  the  statutory  signals  are  given,  and 
reasonable  efforts  made,  in  the  customary 
manner,  to  frighten  away  animals  which  are 
seen  upon  a  public  crossing,  the  railroad 
company  has  done  all  it  is  required  to  do,  so 
lar  as  the  owner  of  the  animals  is  concerned. 
To  make  it  liable,  an  actual  or  constructive 
intent  to  commit  the  injury  must  be  alleged 
and  proved.  Hanna  v.  Terre  Haute  &■*  I. 
R.  Co.,  \\<)Ind.  316,  21  N.  E.  Rep.  903. 

To  recover  for  the  killing  of  a  horse  by 
defendant's  train,  brought  under  the  Illinois 
act  of  1855,  concerning  the  fencing  of  rail- 
roads, where  the  evidence  showed  the  suffi- 
ciency of  the  fences,  and  that  the  horse  was 
killed  at  the  crossing  of  a  public  road,  where 
the  company  had  constructed  and  main- 
tained suitable  cattle-guards,  and  that  he  got 
upon  the  track  from  the  road — held,  that  the 
company  could  not  be  held  liable,  except 
upon  the  ground  that  the  act  was  wilful  or 
the  result  of  actual  negligence.  Chicago  &* 
A.  R.  Co.  V.  Mc Morrow.  dT  III.  218. 

(3)  Cattle  running  at  large!* — If,  after  an 
owner  has  carefully  confined  an  animal  in  a 
properly  secured  place,  it  escapes  therefrom 
without  his  knowledge  or  fault,  and  wanders 
unattended  to  the  public  railway  crossing 
and  is  there  negligently  injured  by  the  com- 
pany, he  may  recover  for  such  injury  whether 
there  be  an  order  of  the  board  of  commis- 
sioners allowing  animals  to  run  at  large  or 
not.  Ohio  <&*  M.  R.  Co.  v.  Craycraft,  5  Ind. 
App.  335,  32  N.  E.  Rep.  297.— Following 
Chicago.  St.  L.  &  P.  R.  Co.  v.  Nash,  i  Ind. 
App.  298;  Chicago,  St.  L.  &  P.  R.  Co.  v. 
Fenn,  3  Ind.  App.  250. — Chicago,  St.  L.  &^ 
P.  R.  Co.  v.  Nash,  i  Ind.  App.  "298,  27  N.  E. 
Rep.  564. 

When  cattle  running  at  large  are  killed  by 
a  company  at  a  public  crossing,  the  com- 
pany is  liable  when  the  killing  is  caused  by 
its  culpable  negligence  or  by  that  of  its 
agents  or  employes.  Missouri  Pac.  R.  Co. 
V.  AV«<,^  1 5  Am.  &*  Eng.  R.  Cas.  529, 31  Kan. 
500,  ^Pac.  Rep.  371, 

Where  plaintiff's  horse  escapes  into  the 
highway  without  his  fault,  and  is  killed  upon 
a  crossing  by  a  train  run  in  a  negligent  man- 
ner, he  can  recover.  Clark  v.  Boston  &"  M. 
R.  Co.,  31  Am.  (S-  Eng.  R.  Cas.  548.  64  N, 
H.  323,  5  A^.  Eng.  Rep.  48,  lo  Ail.  Rep.  676. 

•  ^tt.ante,  53-60,  152-159  \post,  206, 
20G,  243-270,  288. 


190 


ANIMALS,  INJURIES   TO,   188,  180. 


Where  cattle  running  at  large  on  a  pullic 
liigiiway  are  negligently  killed  by  a  lucoinci- 
tive,  without  any  fault  of  the  owner,  the 
railroad  company  is  liabU'.  Kehmnn  v.  Kail- 
road  Co.,  s  J'hi/a.  (/'a.)  450.— Ai'l'KoviNU 
IJulkley  V.  New  York  &  N.  II.  K.  Cu.,  27 
Conn.  479.  UlSTiNouisHlNC.  New  York  & 
E.  R.  Co.  V.  Skinner,  19  I'a.  St.  298, 

188.  Proximate  oaiisc.*  — Wiiere  it 
is  not  claimed  that  there  was  any  cidpable 
negligence  on  tiie  part  of  the  servants  of  a 
railroad  company  in  operating  a  train  wliicli 
causes  injury  to  slock,  to  fix  upon  the  com- 
pany a  liability  it  must  be  maintained,  first, 
that  it  was  violating  a  duty  in  obstructing  a 
way;  and,  secoml,  that  this  wrongful  act  was 
the  proximate  cause  of  the  injury.  //M, 
that  here  there  was  no  natural  or  necessary 
connection  between  the  obstruction  of  the 
street  crossing  and  the  injury.  Jiro7t'n  v. 
IVaiasA.  S/.  L.  &•  P.  R.  Co.,  20  Mo.  App. 
222.— Api'LYIng  Bosch  v.  Burlington  &  M. 
R.  R.  Co.,  44  Iowa  402. 

189.  Defective  erossiiigs.— (i)  Com- 
pany's duty  and  liability.— Ihe  owner  of  the 
stock  has  the  right  to  expect  that  a  railroad 
company  will  exercise  ordinary  care  to  pre- 
vent injury  to  his  properly  in  the  construc- 
tion of  crossings.  Kuhn  v.  Chicago,  Ji.  I,  <S«» 
P.R.  Ct7.,  42 /t/ifrt 420.— Explaining  Smith 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  34  Iowa  506. 

Under  the  statute  railroad  companies  are 
required  to  so  construct  crossings  as  to  not 
materially  impair  their  usefulness ;  and  a 
company  is  therefore  liable  for  such  defects 
therein  as  cause  injury  to  live  stock  lawfully 
thereon.  Atchison,  T.  &>  S.  F.  R.  Co.  v. 
Miller,  35  Ant.  &*  Eng.  R.  Cas.  190,  39  Kan. 
419,  18  Pac.  Rep.  486. 

Where  a  railroad  fails  to  keep  its  cross- 
ings over  a  public  road  in  repair,  and  in  con- 
sequence thereof  a  team  is  stalled  and 
struck  by  a  passing  train,  it  is  liable  for  the 
injury.  Kiines  v.  St.  Louis,  I.  M.  &*  S.  R. 
Co.,  is  Mo.  611. 

The  state  has  power  to  construct  high- 
ways in  the  Cattaraugus  Indian  reservation, 
and  a  railroad  company  is  therefore  liable 
for  injuries  to  a  horse  caused  by  its  failure 
to  keep  its  crossing  over  such  highway  in 
proper  repair.  France  v.  Erie  R.  Co.,  2 
Hun  (N.  V.)  513,  5  r.  <S-  C.  12. 

The  rails  of  defendant's  track,  where  it 
crossed  a  highway,  projected  from  eight  to 


»  Sec  „„/f,  34-UO,  05,  130,  144 ;  />ost. 
1»4,  277-270. 


nine  inches  above  the  level,  and  while 
plaintitT,  with  a  pair  of  horses  and  wagon, 
was  crossing  over,  an  engine  standing  close 
by  whistled  to  give  notice  of  the  train  start- 
ing. This  caused  the  horses  to  start  for- 
ward, striking  the  wagon  against  the  pro- 
jecting rails  and  breaking  the  whipple-trce, 
in  consequence  of  wliich  the  horses  ran 
away,  and  one  of  them  was  injured.  //(■/(/, 
that  defendant  would  not  be  liable  if  llie 
whipple-tree  was  broken  by  the  sudden 
starting  of  the  horses,  without  reference  to 
the  state  of  the  track,  for  it  was  not  proved 
that  the  blowing  of  the  whistle  was  an  un- 
necessary and  unlawful  act;  but  thai  if  the 
accident  happened  through  the  defective 
state  of  the  track  it  would  be  liable,  and 
the  case  should  have  been  left  to  the  jury, 
witliout  any  evidence  on  plaintiffs  part  to 
show  what  the  state  of  the  highway  was 
before  defendant's  railway  intersected  it. 
Thompson  v.  Great  Western  R.  Co.,  24  I '.  C. 
C.  P.  429. 

(2)  Sufficiency  of  crossing.  — U  railroad 
crossings  at  highways  are  so  constructed 
that  the  public  can  cross  with  teams  and 
vehicles  with  reasonable  safety  and  con- 
venience, such  crossings  are  suihcient  in  law 
to  protect  the  company  from  liability  for 
damages  for  stock  killed  at  such  crossings. 
Mcc/:er  v.  Chicago,  M.  &^  St.  P.  R.  Co.,  19 
Am.  &•  Eng.  R,  Cas.  477, 64  Iowa  64 1 ,  2 1  A'. 
IV.  Rep.  120. 

A  track  constructed  across  a  highway 
some  9  inches  above  the  level  of  the  high- 
way is  not  so  dangerous  in  itself  as  to  re- 
quire persons  with  know  ^dge  of  it  to  aban- 
don driving  over  it,  or  to  prevent  a  recovery 
for  an  injury  to  a  horse  while  driving  over 
it.  E-cansville  &*  T.  H.  R.  Co.  v.  Carvener, 
32  Am.  &^  Eng.  R,  Cas.  134,  113  /nd.  51,  14 
A^.  E.  Rep.  738,  12  West.  Rep.  203. 

Where,  in  a  suit  to  recover  the  value  of  an 
ox  killed  on  a  highway  crossing,  it  appeared 
that  the  defendant's  railroad  was  fenced  at 
said  crossing,  and  furnished  with  cattle- 
guards,  and  that  its  alleged  negligence  con- 
sisted in  its  failure  to  cover  a  ditch  running 
along  its  track  and  across  the  highway,  and 
which  it  has  bridged  at  said  crossing,  but 
not  to  the  full  width  of  the  highway — held, 
that  there  is  nothing  in  the  statute  requir- 
ing a  railroad  company  to  cover  such  ditches 
the  full  width  of  the  highway.  Whitsky  v. 
Chicago  &>  G.  T.  R.  Co.,  62  Mich.  245,  28  N. 
IV.  Rep.  811. 

Where  a  company  planks  acrossing,  it  will 


ANIMALS,  INJURIES   TO,   niO-l»2. 


I»7 


be  liable  for  a  horse  wliicli  is  injured  by 
catching  his  foot  in  a  space  that  is  unneces- 
sarily iur^e  between  a  rail  and  a  plank. 
Cuddeback  s.Jewett,  20  Hun  [N.  K.)  187, 

100.  Failure  to  fviivc  at  croHMliiff.* 
— A  company  may  be  held  liable  for  killing 
stock  between  a  highway  crossing  and  a 
cattle-guard  75  feet  away,  where  it  appeared 
that  a  fence  was  necessary  and  might  have 
been  consti  acted.  Peoria,  I).  &*  E.  A*.  Co. 
V.  S/ii-//y.  25  ///.  A/>p.  141. 

101.  Duty  as  to  ^aXen  at  grade 
crossliiffN.— Where  a  company  is  required 
by  statute  to  keep  the  gates  at  grade  cross- 
ings constantly  closed,  and  owing  to  its 
failure  to  do  so,  horses  which  escaped  from 
a  neighboring  field  get  upon  the  track  and 
are  killed,  it  is  liable,  such  horses,  as  to  it, 
being  lawfully  on  a  highway.  Fawcett  v. 
York  &>  N.  M.  R.  Co.,  16  Q.  B.6\o,  15  /«r. 
173,  20  Z./.  Q.B.  222. 

Under  jj  9,  5  &  6  Vict.  c.  55,  an  obligation 
is  imposed  upon  railway  companies  to  keep 
crossing  gates  closed  against  stray  cattle. 
Accordingly,  if  a  horse  is  killed  by  the  neg- 
ligence of  a  company  in  this  respect  it  is 
liable,  although  the  horse  escaped  onto  the 
track  owing  to  the  negligence  of  the  plaintiff 
in  fastening  him.  Dickinson  v.  London  (S<» 
N.  IV.  R.  Co  .xH.Cr'  R.  399, 

Where  a  company  negligently  leaves  open 
a  gate  at  a  crossing  of  its  track  and  a  tram- 
road,  it  is  liable  to  the  person  having  a 
license  to  use  such  tramroad  with  his  carts 
and  horses,  for  killing  a  horse  which  escapes 
through  such  gate  onto  the  track.  Afar- 
fell  V.  South  Wales  R.  Co.,  8  C.  B.  N.  S.  525, 
7/«r.  A^.  S.  240,  29  L.  J.  C  /'.  315,  8  W. 
R.  765,  2  L.  T.  629. 

102.  Duty  to  i;ive  signals,  gener- 
ally, f — (i)  Generally.~-\^\\&x&  a  locomotive 
on  the  defendant's  railroad  ran  against  and 
injured  the  plaintiff's  mare  upon  a  bridge  in 
a  public  highway,  and  it  appeared  that  no 
bell  was  rung  or  whistle  sounded,  and  the 
speed  of  the  train  was  not  slackened — held, 
that  the  company  was  liable  for  damages. 
Springfield  6-  /.  S.  E.  R.  Co.  v.  Andrews,  68 
///.  56. 

Where  stock  are  killed  near  a  crossing, 

•See<7«/^  108,  117. 

t  See  ante.  35,  66  ;  post,  208,  200. 

Signals  as  to  cattle  at  crossings,  see  notes,  13 
Am.  &  Eng.  R.  Cas.  506,  15  Id.  549,  35  Id.  448 ; 
38  Id.  307,  abstr. 

Statute  requiring  signals  at  crossings. 
Whether  injuries  to  cattle  are  included,  see  45 
\m.  .t  Enc;    R.  Cas.  491,  ahstr. 


but  ber<;re  the  train  reaches  it,  and  no  sig- 
nals are  given,  as  required  by  the  general 
railroad  act,  {f  38,  a  company  is  liable.  The 
questions,  in  such  case,  as  to  whether  the 
rate  of  speed  01  the  train  was  too  great  and 
as  to  the  exact  p.  'ce  where  the  injury  oc- 
curred, are  for  the  ary.  Toledo,  P.  &*  IV.  R. 
Co.  V.  Foster,  43  til.  415. 

Where  an  animal  is  killed  at  a  crossing 
where  the  statute  requires  a  bell  to  be  rung 
or  a  whistle  sounded,  and  the  jury  find  that 
neither  was  done,  and  that  the  injury  oc- 
curred by  reason  of  such  failure,  the  com- 
pany will  be  held  liable.  Great  Western  R, 
Co.  V.  Geddis,  33  ///.  304.— Distinguishing 
Illinois  C.  R.  Co.  v.  Phelps,  29  III.  447; 
Illinois  C.  R.  Co.  v.  Goodwin,  30  III.  1 17. 

To  render  a  company  liable  foi  stock 
killed  by  one  of  its  trains  at  a  public  cross- 
ing, it  must  be  shown  that  neither  of  the 
statutory  signals  was  given.  A  train  is  not 
required  to  both  sound  the  whistle  and  ring 
the  bell  on  approaching  a  crossing.  Hal- 
ferty  v.  Wabash,  St.  L.  <S-  P.  R.  Co.,  82  Mo. 
90. — Quoting  Turner  v.  Kansas  City,  St. 
J.  &C.  H.  R.  Co.,  78  Mo.  578. 

Section  806  of  the  Missouri  Rev.  St.  was 
amended  in  1881  (Laws  of  1881,  79),  so 
that  in  an  action  against  a  railroad  com- 
pany for  the  killing  of  stock,  the  plaintiff 
is  relieved  from  the  necessity  of  showing 
that  the  injury  resulted  "by  reason  of  the 
neglect  of  the  company,"  and  he  is  only  re- 
quired to  show,  in  the  first  instance,  that 
his  animal  was  killed  by  the  railroad  com- 
pany's cars,  at  the  crossing  of  a  public  high- 
way, and  that  the  defendant  neglected  to 
ring  the  bell  or  sound  the  whistle  as  re- 
quired by  the  statute.  But  the  railroad 
company  may  show  "  that  the  failure  to  ring 
such  bell  or  sound  such  whistle  was  not  the 
causeof  such  injury."  Smith  v.  Wabash,  St. 
L.  &>  P.  R.  Co.,  19  Afo.  App.  120. 

A  railroad  company  that  has  killed  stock 
at  a  highway  crossing  cannot  avoid  liability 
for  failure  to  use  the  statutory  signals  by 
showing  that  the  owner  in  charge  of  the 
stock  knew  the  train  was  coming  when  a  half 
a  mile  away,  and  might  have  removed  the 
stock.  Alissouri  Pac.  R.  Co.  v.  Stevens,  35 
Kan.  622,  12  Pac.  Rep.  25. 

Where  a  railway  train  in  approaching  a 
crossing  neglects  to  give  the  proper  signals, 
the  company  will  not  be  relieved  from  lia- 
bility because  the  person  whose  cattle  were 
run  over  did  not  take  the  best  means  to 
avoid  the  accident,  or  because  his  horses 


il 


1 


108 


ANIMALS,  INJUkll'S   TO,  Itl3. 


■li 


were  uniniiiiiiKiablf.     /jwn  v.  (irtunf  I >  link 
A\  Co.,  20  I/.  C.  (J.  n.  256. 

When;  the  pliiiiilifT's  mule  escaped  from, 
him,  and,  straying;  upon  a  railroad  com- 
pany*!) track  at  a  public  crossing,  was  struck 
by  a  locomotive  and  killed,  the  failure  of 
the  cnt^ini'cr  lo  ring  llie  bell  and  sound  the 
whisti'-  iis  the  engine  approached  the  cross- 
ing WHS  not  negligence  on  the  part  of  the 
coinp;lM\  ;  iiiid  the  mule  being  a  trespasser, 
the  |)lainlilf  could  not  recover.  Fisher  v. 
J'eniisyh'ttnia  R.  Co.,  126  Pa.  St.  293.  17  Atl. 
Kefi.  607. 

(2)  Liability  t/iou^/i  signals  are  f^iven. — 
The  fjbservaiice  of  the  regulations  required 
by  Alabama  Code,  1876,  jj  1699,  of  those  in 
charge  of  trains  approaching  "any  public 
road  crossing,  or  any  depot  or  stopping- 
place  on  such  road  "  will  not  relieve  the 
compimy  of  liability,  if  there  is  negligence 
in  other  respects.  South  &•  N.  Ala.  N.  Co. 
V.  Thompson,  62  Ala.  494. — Followed  in 
Alabama  G.  S.  R.  Co.,  v.  Hawk,  18  Am.  & 
Eng.  R.  Cas.  194,  72  Ala.  11 3,  47  Am.  Rep. 

403. 

(3)  Illustrations,— U  the  employes  of  a 
company  operating  the  engine  of  the  train 
see  cattle,  unattended,  upon  or  about  to  go 
upon  the  railroad  crossing  over  a  public 
highway,  at  a  distance  of  three  hundred 
yards  before  reaching  the  crossing,  and  fail 
to  sound  the  whistle  to  frighten  them  away 
from  the  track,  and  fail  to  slacken  the  speed 
of  the  train,  and  otherwise  fail  to  take  any 
steps  to  avcid  running  over  the  cattle,  such 
omissions  and  conduct  of  the  employes  are 
sufficient  to  authorize  a  jury  to  render  a 
verdict  again«t  the  railroad  company  for  the 
damages  sustained  by  the  owner  of  the 
rattle  thrown  from  the  track  by  the  engine 
and  train.  Missouri  Pac.  R.  Co.  v.  IVilson, 
1 1  Am.  &*  Enff.  R.  Cas.  447,  28  Kan.  637. 

In  a  common-law  action  against  a  railroad 
for  negligently  running  over  and  killing 
plaintiff's  cattle  on  a  highway  crossing,  the 
evidence  tended  to  show  that  the  cattle  were 
killed  by  defendant's  train  at  the  crossing; 
that  the  servants  of  defendant  having  the 
management  of  the  train  failed  to  ring  the 
bell  or  to  blow  the  whistle  as  it  approached 
the  crossing;  that  the  cattle  had  freely  ap- 
proached the  crossing  a  short  time  before 
the  train  arrived,  and  that  there  was  noth- 
ing in  their  condition  or  situation  to  pre- 
vent them  from  escaping  the  train  if  the 
required  signals  had  been  given.  Held, 
that  these  facts   made  out  a  prima  facte 


case  for  plaintiff,  and  that  a  demurrer  to  the 
evidence  by  defendant  was  properly  over- 
ruled. Taylor  v.  St.  Louis,  I,  M.  &*  S.  R. 
Co.,  83  Afo.  386. 

HKI.  PrcMiimptioii  of  iieKliKiMicv 
from  t'aUiirv  to  mIkiiiiI.*— Under  Ala- 
bama Code,  J'iJ  1699,  1700,  the  failure  of  an 
engineer  to  observe  the  statutory  prrciin- 
tions  on  approaching  n  highway  crossing  or 
depot  is  negligence  per  se,  making  the  com- 
pany liable  for  stock  killed  or  injured;  and 
when  sued,  the  burden  is  on  it  to  show  that 
the  statute  was  complied  with.  East  'J'etin. 
V.  &•  G.  R.  Co.  V.  Deaver,  79  Ala.  216.  Ala- 
bama, (J.  (S-  S.  R.  Co.  V.  Mc Alpine,  22  /////. 
<&-  Ehj;.  R.  Cas.  602.  75  Ala,  113. 

A  failure  to  give  the  signals  before  ap- 
proaching a  crossing,  as  required  by  Cali- 
fornia Civ.  Code,  §  486,  is  presumptive  neg- 
ligence, and  where  such  failure  is  proved, 
evidence  is  immaterial  whether  the  engineer 
could  have  seen  the  animals  before  they 
came  upon  the  track  only  a  few  .'eet  away, 
after  which  he  did  all  that  he  could  to  avoid 
the  injury.  Oraitl  v.  Pacific  Coast  R.  Co., 
85  Cal.  291,  24  Pac.  Rep.  661. 

When  stock  killed  or  injured  at  a  crossing 
are  in  a  condition  and  situation  to  escape  if 
the  required  signal  is  given,  a  prima  facie 
case  is  made  against  the  company  if  it  has 
failed  to  give  such  signal  as  is  required  by 
§  38  of  the  Missouri  railroad  act.  Turner 
V.  Kansas  City.  St./.  6-  C.  li.  R,  Co ,  78  Mo. 
578.— Approved  in  Keim  v.  Union  R.  &  V. 
Co.,  90  Mo.  314.  Quoted  in  Halfertv  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  82  Mo.  90.— 
Howenstein  v.  Pacific  R,  Co.,  55  AIo.  33. — 
Followed  in  Holman  v.  Chicago,  R.  I.  Si. 
P.  R.  Co.,  62  Mo.  562.  Quoted  in  Stone- 
man  V.  Atlantic  &  P.  R.  Co.,  58  Mo.  503. — 
Illinois  C.  R.  Co.  v.  Gillis.  68  ///.  317. 

And  in  order  to  rebut  this  presumption, 
the  company  must  show  that  the  men  dis- 
charged every  duty  imposed  by  law,  unless 
it  be  shown  that  the  injured  party  has  in 
some  way  contributed  to  the  injury  or  the 
circumstances  rebut  the  presumption  that 
the  injury  resulted  from  neglect  of  duty  on 
the  part  of  the  company.  Howenstein  v. 
Pacific  R.  Co.,  55  Mo.  33. 

In  Indiana,  the  omission  of  the  employes 
of  a  company  to  give  the  statutory  signals 
at  a  highway  crossing  is  conclusive  evidence 
of  negligence  on  the  part  of  the  railroad 
company,  and  gives  rise  to  t  right  of  action 


*  See  ante,  84,  1  'J!v,  143  ;  post,  207. 


ANIMALS,  INJURIES   TO,  104. 


[\)d 


lie 
cr- 
A'. 


fur  injuries  to  animals  upon  lii^jliway  cru&s- 
Ings,  witliout  contributory  negligence  on  the 
part  of  tlie  owner,  resulting  from  a  failure 
to  give  the  statutory  signals.  Chicago,  St. 
/,.  6-  /'.  A'.  Co.  V.  Fenu,  3  hui,  App.  250,  29 
yV.  E.  Hip.  790.  -yuoTINii  Hill  V.  Louis- 
ville &  N.  K.  Co..  9  Heisk.  (Tenn.)  823. 

104.  Failure  to  Higiial  iiiiiMt  be 
proxiiiiute  i.-uiiHe.*  —  A  failure  on  the 
part  of  those  in  charge  of  a  train  to  ring  a 
bell  or  sound  a  whistle  at  a  crossing  will 
not  render  the  company  liable  for  stock 
killed,  unless  it  appears  that  such  ringing  or 
sounding  would  have  prevented  the  killing. 
Illinois  C.  K,  Co.  v.  Phelps,  29  ///.  447.  — D I s- 
riNCiUlSHEl)  IN  Great  Western  R.  Co.  v. 
(ieddis,  33  III.  304;  Toledo,  W.  &  W.  R.  Co. 
V.  FurKUSsoii,  42  111.  449;  St.  Louis,  J.  &  C. 
K.  Co.  V.  Tcrhune,  50  111.  151  ;  Illinois  C. 
R.  Co.  V.  Phillips,  55  111.  194. 

Alabama  Code  1876,  ^  1699,  makes  it  the 
duty  of  railroad  employes  to  blow  a  whistle 
or  ring  a  bell  before  reaching  crossings  and 
other  places;  and  if  the  proof  shows  that  stock 
are  injured,  and  that  the  cause  could  reason- 
ably be  traced  to  a  failure  to  observe  the  re- 
quirements of  the  statute,  the  company,  to 
avoid  liability,  must  prove  that  they  had 
been  complied  with;  but  this  rule  does  not 
apply  where  the  injuries  are  not  caused  by  a 
failure  to  observe  the  requirements  of  the 
statute.  Alabama  G.  S.  A'.  Co.  v.  Mc Alpine, 
22  Am.  &*  Eng.  R,  Cas.  602,  75  A/a.  113. 

The  failure  of  the  engineer  to  give  the 
crossing  signals  required  by  Indiana  statute 
{§  4020,  Rev.  St.  1881),  will  not  enable  a 
party  to  recover  for  a  cow  killed  by  a  pass- 
ing train  upon  a  highway  crossing,  although 
she  escaped  from  a  sufficient  enclosure 
without  the  fault  of  the  plaintiff,  who  made 
diligent  efforts  to  find  her,  unless  the  facts 
authorize  the  conclusion  that  the  failure  to 
give  the  signals  caused  the  death  of  the  ani- 
mal. Such  a  conclusion  is  not  justified  on 
account  of  a  failure  to  sound  the  whistle,  if 
the  other  statutory  signals  are  given.  Lou- 
isville, N.  A.  &*  C.  H.  Co,  V.  Green,  120  Ind. 
367,  22  A^.  E.  Hep.  327. 

If  an  animal  is  killed  at  a  public  crossing 
by  reason  of  a  failure  or  neglect  to  blow  the 
whistle  or  ring  the  bell,  as  required  by  the 
Indiana  statute,  the  company  is  liable;  but 
the  omission  to  give  these  signals  will  not 
authorize  the  rendition  of  a  judgment 
against  the  company,  unless  the  facts  found 

*  See  ante,  35,  65. 


show  that  the  killing  was  caused  by  the  fail- 
ure to  give  them  as  required  by  the  statute. 
Lake  Shore  ^  M.  S.  A'.  Co.  v.  VanAiiken,  I 
/«</.  App.  ^^2,  27  A'.  E.  Hep.  119. 

The  omission  to  sounri  the  whistle  of  an 
engine,  in  accordance  with  the  provisions  <<f 
§  60,  c.  23,  Comp.  Laws  Kansas  1879,  is 
negligence;  but  in  an  action  to  recover 
damages  for  stock  injured  on  the  crossing 
of  a  highway  over  the  railroad  track,  if  it 
appears  by  facts  and  circumstances  proved 
that  the  injuries  complained  of  were  not 
caused  by  or  attributed  to  such  omission  or 
neglect,  the  negligence  is  immaterial,  and 
creates  no  liability  against  the  railroad  com- 
pany for  damages  to  the  stock  upon  the 
track.  Atchison,  T.  6-  5.  /'.  H.  Co.  v. 
Morgan,  13  Am.  &•  Eng,  H.  Cas.  499,  31 
/^an.  77,  I  J'ac.  Hep.  298. 

Where  a  company  is  sued  for  killing  stock 
at  a  crossing,  and  tliere  is  no  proof  except 
of  the  killing  and  that  no  signals  were 
given,  the  company  is  not  liable,  'ind  the 
court  should  so  declare  as  a  matter  of  law. 
Holman  v.  Chicago,  A'.  /.  &*  P.  H.  Co.,  62 
Mo.  562.— Following  Owens  v.  Hannibal 
&  St.  J.  R.  Co.,  58  Mo.  386;  Howenstein  v. 
Pacific  R.  Co.,  55  Mo.  33.— Distinguished 
IN  Goodwin  v.  Chicago,  R.  I.  &  P.  R.  Co., 
II  Am.  &  Eng.  R.  Cas.  460,  75  Mo.  73. 
Overruled  in  Keim  v.  Union  R.  &  T.  Co., 
90  Mo.  314.  Quoted  in  Braxton  v.  Hanni- 
bal &  St.  J.  R.  Co.,  13  Am.  &  Eng,  R.  Cas. 
494,  77  Mo.  455- 

Although  failure  of  the  persons  in  charge 
of  a  railroad  train  to  ring  a  bell  or  blow  a 
whistle  when  within  eighty  rods  of  a  public 
crossing  is  negligence,  yet  such  negligence 
is  not,  by  itself,  sufficient  to  authorize  a  re- 
covery for  damages  for  an  animal  killed  at 
such  place,  unless  it  is  shown,  by  sufficient 
testimony,  that  such  killing  was  attributable 
to  such  negligence.  Stoneman  v.  Atlantic 
&*  P.  H.  Co.,  58  A/o.  503.— Quoting  Karle 
V.  Kansas  City,  St.  J.  &  C.  B.  R.,  55  Mo.  476; 
Howenstein  v.  Pacific  R.  Co.,  55  Mo.  33. — 
Distinguished  in  Goodwins.  Chicago,  R. 
I.  &  P.  R.  Co.,  1 1  Am.  &  Eng.  R.  Cas.  460.  73 
Mo.  73.  Followed  in  Harlan  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  18  Mo.  App.  483. 
Quoted  in  Braxton  v.  Hannibal  &  St.  J.  R. 
Co.,  13  Am.  &  Eng.  R.  Cas.  494,  77  Mo.  455; 
Holman  v.  Chicago,  R.  1.  &  P.  R.  Co.,  62 
Mo.  562.  Reviewed  and  distinguished 
in  Alexander  v.  Hannibal  &  St.  J.  R.  Co.,  76 
Mo.  494. 

In  order  to  recover  for  stock  killed  by  a 


r . 


•MO 


ANIMALS,  INJURIES   TO,  1»5-1»7. 


■t:3 

•  .*.- 
••in 


train  at  a  public  crossing,  under  Missouri 
Rev.  St.  1879,  §  806,  proof  of  the  killing 
and  that  no  signals  were  giveu  is  not  sufli- 
cient,  unless  it  appears  that  the  accident  re- 
sulted from  the  failure  to  give  such  signals. 
Braxton  v.  Hannibal  &*  St.  J.  R.  Co.,  13  Am. 
&-  Eng.  R.  Cas.  494,  77  Mo.  455.— Quoting 
Holman  v.  Chicago,  R.  I.  &  P.  R.  Co.,  62  Mo. 
563;  Stoneman  v.  Atlantic  &  P.  R.  Co.,  58 
Mo.  503.— Explained  in  Wight  v.  Missouri 
Pac.  R.  Co.,  20  Mo.  App.  481. 

If  horses  driven  along  a  public  highway 
become  unmanageable  from  fright,  and  thus 
rushing  to  a  road  crossing  are  killed  by  a 
passing  train,  if  their  fright  and  unmanage- 
able state  were  occasioned  by  the  near  ap- 
proach of  the  train,  and  that  near  approach 
was  caused  by  a  failure  to  give  the  signals 
of  approach  prescribed  by  statute,  the  com- 
pany would  be  liable  in  damages,  there  being 
no  contributory  negligence  on  the  part  of 
the  driver.  Texas  6^  P.  R.  Co.  v.  Chapman, 
57  Tex.  75. 

In  a  suit  for  killing  a  cow,  alleged  to  have 
been  caused  by  negligence,  the  evidence 
showed  that  the  county  board  had  passed  an 
order  allowing  animals  to  run  at  large,  and 
hat  the  killing  occurred  at  a  highway  cross- 
ing, that  the  whistle  was  not  sounded  nor 
the  bell  rung,  and  that  the  train  was  running 
at  an  unusual  rate  of  speed,  and  that  it  was 
storming  at  the  time,  so  that  one  could  not 
see  or  hear  at  any  great  distance.  Held, 
that  the  company,  being  in  the  lawful  use  of 
its  property,  was  not  liable.  Michigan,  S, 
&*  N.  I.  R.  Co.  v.  Fisher,  27  Ind.  96. 

195.  Duty  to  keep  a  lookout  *— 
While  railroads  are  entitled  to  a  clear  and 
unobstructed  track  for  the  running  of  their 
trains,  still  it  is  their  duty  to  keep  a  sharp 
lookout  to  avoid  collisions  at  their  cross- 
ings. Garland  v.  Maine  C.  R.  Co.,  85  Me. 
519,  27  Atl.  Rep.  61  r. 

A  railway  company  is  liable  for  the  kill- 
ing of  an  animal  by  one  of  its  trains  at  a 
public  crossing  01  its  road,  if  the  engineer 
in  charge  of  the  train  saw,  or  by  the  exer- 
cise of  reasonable  care  could  have  seen,  the 
exposed  condition  of  the  animal  in  time  to 
have  averted  the  accid-^nt  by  the  exercise  of 
like  care,  and  without  risk  of  injury  to  the 
train  or  passengers,  /go  v.  Chicago  &'  A. 
R.  Co..  38  Mo.  App.  377.— Reviewing  Kelly 
V.  Union  R.  &  T.  Co..  95  Mo.  279. 

•  See  aft/*-,  62-64,  115,  120,  164, 
173. 


An  engineer  in  charge  of  a  train  must  use 
reasonable  diligence  to  discover  animals 
near  or  approaching  crossings;  and  if  the 
animal  could  have  been  seen  by  the  use  of 
ordinary  diligence  in  time  to  have  avoided 
the  injury,  the  company  will  be  liable,  the 
owner  of  the  animal  not  being  guilty  of 
contributory  negligence.  Chicago,  St.  L.  &* 
P.  R.  Co.  V.  Nash,  i  Ind.  App.  298,  27  A'.  E. 
Rep.  564.— Followed  in  Chicago,  St.  L.  & 
P.  R.  Co.  V.  Fenn,  3  Ind.  App.  250. 

196.  and  attempt  to  prevent 

collisions.* — In  case  of  an  animal  tres- 
passing upon  a  track  at  a  public  railroad 
crossing  without  the  fault  of  the  company, 
there  is  no  duty  of  watchfulness  on  the 
part  of  those  in  charge  of  its  trains  to  as- 
certain if  the  animal  be  there  ;  and  the  rule 
that  their  duty  of  care  with  respect  to  it 
arises  only  upon  their  discovering  its  peril 
applies  as  well  in  the  case  of  an  animal 
wrongfully  upon  a  highway  at  a  railroad 
crossing.  Palmer  \.  Northern  Pac.  R.  Co., 
31  Am.  &^  Eng.  R.  Cas.  544,  37  Minn.  223, 
33  A^.  W.  Rep.  707,  5  Am.  St.  Rep.  S39.— FOL- 
LOWING Locke  V.  First  Div.  St.  P.  &  P.  R. 
Co.,  15  Minn.  283;  Witherell  71.  Milwaukee 
&  St.  P.  R.  Co.,  24  Minn.  410. 

A  company  is  not  necessarily  exempt  for 
killing  stock  because  the  train  was  too  near, 
when  the  stock  was  discovered,  to  stop  it  in 
time  to  avoid  a  collision,  as  there  m?.y  have 
been  negligence  in  not  discovering  the 
stock  sooner.  Kendig  v.  Chicago,  R.  I.  6^ 
P.  R.  Co.,  19  Am.  <S»  Eng.  R.  Cas.  493,  79 
Mo.  207.— Distinguishing  Wallace  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  74  Mo.  594. 

The  engineer  of  a  railroad  train  is  not 
guilty  of  gross  negligence  which  will  render 
the  company  liable  for  the  death  of  a  horse 
upon  its  track  at  a  highway  crossing,  not- 
withstanding the  negligence  of  the  owner, 
where,  after  seeing  that  the  horse  is  deter- 
mined to  go  down  the  road  and  cross  the 
track  ahead  of  the  train,  he  tries  to  scare 
him  off,  but,  when  he  sees  that  he  cannot  do 
it,  applies  the  brake  and  brings  the  train  to 
a  dead  stop  at  the  crossing,  and  there  is  an 
open  field  near  the  road  into  which  he  may 
suppose  that  the  horse  will  pass.  Lynch  v. 
Northern  Pac.  R.  Co.,  84  IVis.  348,  54  A^  IV. 
Rep.  610. 

197.  Duty  to  stop  train.f — An  engi- 
neer is  not  bound  to  stop  or  slow  up  his 

*  See  ante,  49,  51,  52,  63,  64, 
f  See  ante,  66,  67. 


mn 


ANIMALS,  INJURIES   TO,  108. 


201 


train  upon  seeing  s*  •  grazing  near  the 
tracic  and  a  crossing,  witli  notliing  else  to 
indicate  danger.  67.  Louis,  A.  <S>»  T.  H.  R. 
Co.  V.  Russell,  39  ///.  App.  443. 

When  a  team  has  become  stalled  on  a 
highway  crossing,  or  so  near  to  their  track 
as  to  be  in  danger  of  being  struck  by  a 
parsing  train,  railway  employes  must  be 
prompt  and  energetic  in  their  efforts  to 
sti  p  the  train  in  season  to  avoid  a  collision. 
Girland  v.  Maine  C.  R.  Co.,  85  Me.  519,  27 
All.  Rep.  615. 

108.  Duty  to  slacken  speed.'"— If  an 
engineer  discovers  stock  on  the  track  at  a 
crossing,  or  so  near  thereto  that  a  collision 
may  be  expected,  it  is  his  duty  to  stop  or 
slow  his  train  and  use  such  care  as  is  nec- 
essary to  avoid  a  collision.  St.  Lot  /.:,  A.&' 
T.  H.  R.  Co.  V.  Russell,  39  ///.  App.  443. 

VVhen  an  engine-driver  sees, or  can  see,  in 
time  to  slacken  the  speed  of  his  train,  a  lot 
of  cattle  crossing  the  track  upon  a  highway, 
but  does  not  stop  the  train  or  slacken  its 
speed,  and  kills  an  animal  which  has  es- 
caped from  the  owner's  inclosure,  this  will 
show  negligence  on  his  part  of  a  high  de- 
gree, and  the  company  will  be  liable  for  the 
animal  killed.  Such  a  case  is  not  like  cases 
wliere  the  cattle  were  quietly  grazing  along- 
side the  track  when  discovered.  Chicago 
&-  A.  R.  Co.  V.  Kellam.  92  ///.  245.— Dis- 
tinguishing Peoria,  P.  &  J.  R.  Co.  v. 
Cliamp.  75  ill.  577  ;  Chicago,  B.  &  Q.  R.  Co. 
V.  Bradticld,  63  III.  220. 

Due  diligence  in  operating  night  passen- 
ger trains  does  not  require  that  their  usual 
higli  rate  of  speed  shall  be  reduc-^d  at  every 
public  crossing  to  fifteen  miles  an  hour  in 
order  to  avoid  injury  to  cattle  which  may 
possibly  be  found  thereon.  Connyers  v. 
.Sioux  City  »&*  P.  R.  Co.,  78  Iowa  410,  43  yV. 
W.  Rep.  267. 

In  an  action  ;o  recover  for  a  heifer 
which  ran  before  defendant's  train  from  a 
highway  crossing  into  a  cattle-guard,  and 
was  killed,  defendant  asked  the  following 
instructions  :  "  Unless  you  find  that  the  en- 
gineer, in  the  exercise  of  ordinary  prudence, 
wiis  bound  to  anticipate  that  the  heifer 
would  stay  on  the  track,  or  run  into  the 
cattle-guard,  your  verdict  should  be  for  the 
defendant ;  "  and,  "  if  you  find  that  the 
natural  thing  for  cattle  on  a  crossing,  un- 
der  such   circumstances  as   shown  in  this 

*  See  ante,  69. 

Duty  to  check  speed  of  train  at  public  cross 
ings,  see  38  Am,  &  Eno.  R.  Cas.  307  abstr. 


case,  would  be  for  them  to  leave  the  track, 
instead  of  running  into  the  cattle  guard, 
then  the  engineer  was  justified  in  thinking 
that  the  cattle  would  leave  the  track,  and  it 
was  not  negligence  for  him  not  to  stop  or 
reverse  his  engine  sooner  than  he  did,  and 
the  defendant  would  not  be  liable  in  this 
case."  Held,  that  the  instructions  were 
properly  refused,  because  it  is  not  enough 
always  for  an  engineer  in  such  a  case  to 
provide  against  what  he  believes  or  antici- 
pates will  happen,  but  it  is  his  duty  to  pro- 
vide against  what  he  anticipates  may  hap- 
pen. Grimmell  v.  Chicago  &»  N.  IV.  R.  Co. 
31  Am.  &*  Eng.  R.  Cas.  537,  73  Iowa  93,  34 
A.  IV.  Rep.  758. 

Where  an  animal  is  seen  approaching  a 
crossing  only  30  or  40  feet  away  from  it, 
the  road  being  fenced  on  either  side,  it  is 
such  negligence  as  to  make  the  company  li- 
able, where  the  engineer  does  not  sound  an 
alarm,  ciieck  the  speed  of  his  train,  nor  do 
anything  to  prevent  injury  to  the  animal. 
Illinois  C.  R.  Co.  v.  Person,  65  Miss.  319,  3 
So.  Rep.  375. 

In  an  action  for  the  negligent  killing  of 
plaintiff's  cows  by  defendant's  trains,  on  a 
public  crossing,  mere  proof  that  the  speed 
of  the  trains  was  not  checked,  and  that  the 
'■"'tie  could  have  been  seen  eighty  rods  off, 
does  not  establish  defendant's  negligence. 
Milburn  v.  Kansas  City,  S  .  J.  &■*  C.  B.  R. 
Co.,  29  Am.  &*  Eng.  R.  Cas.  244,  86  Mo.  104. 

The  Great  W.  R.  crosses  a  highway  on  a 
level,  and  one  of  their  trains  going  at  its  us- 
ual rate  o(  speed  ran  into  and  killed  twocows, 
which  were  passing  along  the  highway  at 
their  usual  pace  but  without  an  attendant. 
The  owner  of  the  cows  sued  the  company  in 
an  action  on  the  case,  founding  his  claim  to 
damages  solely  on  the  ground  of  their  neg- 
lect in  not  slackening  speed  at  the  cross- 
ing. It  appeared  in  evidence  that  the  track 
was  not  fenced.  Held,  that  if  the  company 
were  bound  to  fence  in  their  road  where  the 
accident  occurred,  it  was  by  their  default 
the  cows  got  upon  the  track,  and  therefore 
they  could  not  object  that  the  cows  were 
not  legally  on  the  highway.  That  if  the 
company  were  not  bound  to  fence,  still  they 
were  guilty  of  negligence  as  charged  in  the 
declaration,  and  therefore  as  against  them 
the  cows  were  legally  there.  Renaud  v. 
Great  IVestern  R.  Co.,  12  U.  C.  Q.  B.  408.— 
Reviewing  Ricketts  v.  East  &  W.  I.  D.  & 
R.  Co.,  12  C.  B.  160.— Approved  in  Ham 
V.  Grand  Trunk  R.  Co..  11  U.  C.  C.  P.  86. 


30^ 


ANIMALS,  INJURrES   TO,  IIM),  tiOO. 


i! 


—Distinguished    in   McFic  v.  Canadian 
Pac.  R.  Co.,  2  Man.  6. 

9.  Injuries  at  Station  Grounds, —  Yards* 

101).  Geiieralliy.— (1)  Statement  of  rttle. 
— A  railroad  company  is  not  liable  in 
damages,  under  the  statute,  for  stock  killed 
by  its  trains  on  depot  grounds.  Kyser  v. 
Kansas  City,  St.  /.  &^  C.  B.  A\  Co.,  56  /twa 
207,  9  A'.  If.  Rep.  133. 

Where  the  board  of  county  commission- 
ers has  not,  under  Indiana  Rev.  St.  1881, 
<J  2637,  made  an  order  specifying  the  ani- 
mals that  may  run  at  large,  tlie  common- 
law  rule  as  to  trespassing  animals  remains 
in  force,  and  a  railway  company  is  not  liable 
for  killing  a  mule  which  strayed  on  its  sta- 
tion grounds.  Cincinnati,  IV.  &>  A/.  A'.  Co. 
V.  Stan/ey  {Ind.  App.),  27  N.  E.  Rep.  316.— 
Following  Indianapolis,  C.  &  L.  R.  Co.  v. 
Harter,  38  Ind.  557  ;  Jcffersonville,  M.  &  I. 
R.  Co.  V.  Huber,  42  Ind.  173;  Jeflfersonville, 
M.  &  I.  R.  Co.  V.  Adams,  43  Ind.  402 ; 
Stone  V.  Kopka,  100  Ind.  458. 

Section  1289,  Iowa  Code,  providing  a 
remedy  for  animals  killed  on  railways  at 
places  where  tlie  companies  have  the  right 
to  fence  but  fail  to  do  so,  and  upon  depot 
grounds  by  trains  operated  at  a  speed  ex- 
ceeding eight  miles  per  hour,  applies  only 
to  stock  running  at  large,  and  not  to  the 
case  of  a  horse  killed  while  being  driven 
across  the  track  upon  the  grounds  of  a 
depot.  Johnson  v.  Chicago  (S^»  A^.  \V.  R.  Co., 
35  Am.  &^  Eng.  R.  Cas.  131,  75  Iowa  157,  39 
JV.  IV.  Rep.  242. 

The  provisions  of  the  Oregon  statute 
(§§  4044  and  4045)  providing  that,  if  a  rail- 
road fails  to  fence  its  road  against  livestock, 
it  shall  be  liable  for  the  injuries  resulting 
from  such  failure,  etc.,  does  not  extend  or 
apply  to  depot  giounds  ;  and  in  the  absence 
of  negligence  ihe  company  is  not  liable 
for  stock  killed  thereon.  A/oses  v.  Southern 
Pac.  R.  Co.,  42  Am.  &^  Eng.  R.  Cas.  555,  18 
Oreg.  385,  23  Pac.  Rep.  498.—  QUOTING 
Davis  V.  Burlington  &  M.  R.  R.  Co.,  26 
Iowa  554. 

(2)  Sidings — Switch  limits— Approaches, 
f/c— Under  the  statute  railway  companies 
are  required  to  receive  and  discharge  pass- 
engers and  frei'jht  at  sidings,  and  a  com- 
pany is  not  liable  for  killing  stock  at  a  place 
where  there  is  a  flag  station,  siding,  and 
highway   crossing,  unless  there  was  other 

*  See  Stations  and  Depots  ;also  ante,\m. 


negiigt-ncc  besides  u  failure  to  fence.  Gulf, 
C.  &>  S.  E.  R.  Co.  V.  Wallace.  2  Tex.  Civ. 
App.  270,  21  S.  IV.  Rep.  973.— Quoting  In- 
ternational &  G.  N.  R.  Co.  V.  Cocke,  64  Tex. 
150. 

Railroads  are  not  bound  to  fence  within 
the  switch  limits  of  stations  where  it  is  nec- 
essary to  receive  and  discharge  freights; 
and  no  recovery  can  be  had  for  stock  killed 
within  such  limits.  Cleveland,  C,  C.  &*  St. 
L.  R.  Co.  v.  Roper,  47  ///.  App.  320.— Fol- 
lowing Louisville.  E.  &  St.  L.  Con.  R.  Co. 
V.  Scott,  34  III.  App.  635  ;  Cleveland,  C,  C.  & 
St.  L.  R.  Co.  V.  Abney,  43  111.  App.  92 ; 
Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Myers, 
43  111.  App.  251. 

In  the  absence  of  anything  to  show  neg- 
ligence in  the  management  of  the  train,  a 
company  is  not  liable  for  killing  a  horse 
near  its  depot,  and  within  switch  limits, 
where  it  was  not  practicable  to  maintain  a 
fence.  Swanson  v.  Melton,  4  Tex.  App. 
(Civ.  Cas.)  459,  17   S.  IV.  Rep.  1088. 

A  company  is  not  liable  for  the  value  of  a 
cow  killed  on  one  of  the  approaches  to  a 
station  by  an  engine  run  without  negligence. 
Chicago  &*  G.  T.  R.  Co.  v.  Camphell,  7  Am. 
<S^  Eng.  R.  Cas.  545,  47  Mich.  265, 1 1  A^.  W. 
Rep.  152. 

A  team  was  injured  on  ground  adjacent 
to  a  railroad  station  which  was  left  unfenced 
for  tlie  accommodation  of  adjoining  owners 
and  the  public,  but  which  was  not  strictly 
station  grounds  on  a  highway.  Held,  that 
the  company  was  not  liable,  independent  of 
the  question  of  the  negligence  of  the  driver 
of  the  team.  Dolan  v.  Newburgh,  D.  6^  C. 
R.  Co.,  42  Am.  Or'  Eng.  R.  Cas.  611,  120  A^. 
Y.  -71,  24  A'.  E.  /?<•/.  824.  31  N.  Y.  S.  R.  852; 
reversing  46  Hun  681,  mem. 

200.  Liability  for  negligence — 
Cross  negligenee.*— There  can  be  no 
recovery  for  stock  killed  on  depot  grounds, 
where  the  company  has  no  right  to  fence, 
without  proof  of  negligence.  Cleaveland\. 
Chicago  (S^  A^.  W.  R.  Co.,  35  Iowa  220 ;  Pack- 
ard \.  Illinois  C.  R.  Co.,  30  Iffiva  474. — Fol- 
lowing Davis?/.  Burlington  &M.  R.  R.  Co., 
26  Iowa  549;  Rogers  v.  Chicago  &  N.  W.  R. 
Co.,  26  Iowa  558;  Durand  v.  Chicago  &  N. 
W.  R.  Co.,  26  Iowa  559. — Moses  v.  Southern 
Pac.  R.  Co.,  42  Am.  ^^  Eng.  R.  Cas.  555,  18 
Oreg.  385,  23  Pac.  Rep.  498.  Flattes  v. 
Chicago,  R.  I.  &*  P.  R.  Co.,  35  Iowa   191. — 

♦  See  ,;»/<•.  37,  50,  CO,  187;  post,  217, 
218,284. 


!,i|  .  i 


ANIMALS,  INJURIES   TO,  201. 


203 


Approved  in  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Walton,  3  N.  Mex.  319. 

Unless  there  be  proof  of  a  want  of  ordi- 
nary care  on  the  part  of  those  in  charge  of 
a  train  killing  stock  while  running  at  large 
on  depot  grounds  in  a  town,  the  company  is 
not  liable.  International  &^  G.  N.  R.  Co.  v. 
Dunham,  31  Am.  &=  Eng.  K.  Cas.  530,  68 
Ti-x.  231,  4  .v.  {V.  Rep.  472. 

There  can  be  no  recovery  for  stock  killed 
on  station  grounds  which  it  is  necessary  to 
leave  open,  where  there  is  no  negligence 
charged  except  a  failure  to  fence.  Cleve- 
land, C,  C.  &>  St.  L.  R.  Co.  V.  Adney,  43  ///. 
App.  92.— Quoting  Chicago,  B.&Q.  R.  Co. 
V,  Hans,  11 1  111.  1 14.— Followed  in  Cleve- 
land, C,  C.  &  St.  L.  R.  Co.  V.  Roper,  47  111. 
App.  320. 

A  railroad  company  is  not  liable  for  kill- 
ing stock  on  depot  grounds  which  are  nec- 
essarily left  unfenced,  without  proof  of 
negligence  on  the  part  of  the  trainmen. 
S7vearingen  v.  Missouri,  A'.  (S^  T.  R.  Co.,  64 
Afo.72,  17  Am. Ry. Rep. 2gi .—  DiSTiNGVifiH- 
ING  Tiarks  v.  St.  Louis  &  I.  M.  R.  Co.,  5S 
Mo.  45.  Following  Lloyd  v.  Pacific  R. 
Co.,  49  Mo.  199;  Morris  v.  St.  Louis,  K.  C 
&  N.  R.  Co.,  58  Mo.  78. 

Neither  under  the  Missouri  damage  act,  § 
5,  nor  under  the  general  railroad  act,  §  43, 
are  railroad  companies  liable  for  killing 
stock  on  depot  grounds  in  incorporated 
towns  or  cities  by  reason  of  such  grounds 
not  being  fenced,  unless  there  be  negligence. 
Llojfd  v.  Pacific  R.  Co.,  49  Mo.  199. — Fol- 
lowed IN  Swearingen  v.  Missouri,  K.  &  T. 
R.  Co.,  64  Mo.  73 ;  Edwards  v.  Hannibal  & 
St.  J.  R.  Co.,  66  Mo.  567 ;  Pryori/.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  69  Mo.  215  ;  Pearson  v. 
Chicago,  B.  &  K.  C.  R.  Co.,  33  Mo.  App. 
543.  Quoted  in  Wymore  v.  Hanniba'  & 
St.  J.  R.  Co.,  79  Mo.  247.  Reviewed  in 
Morris  v.  St.  Louis,  K.  C.  &  N.  R.  Co.,  58 
Mo.  78. 

Where  a  railway  company  has  brought 
cattle  to  its  station-yard,  a  place  not  fenced 
from  its  track,  and  a  porter  comes  out  of  the 
office  in  the  night-time  with  a  lantern,  and 
the  light  startles  some  of  the  cattle  and 
causes  a  bull  to  run  upon  the  track,  where 
it  is  killed  by  a  passing  train,  the  company 
is  not  liable,  there  being  no  evidence  to 
show  negligence  on  the  part  of  its  servants. 
loberts  v.  Great  Western  R.  Co.,  4  C.  B,  N. 
S.  506,  4/«r.  N.  S.  1240,  27  L.J.  C.  P.  266. 

In  an  action  to  recover  for  injury  to  the 
plaintiff's  team,  which  he  had  driven  be- 


tween tracks  in  a  railway-yard,  in  a  space 
not  designated  for  standing  room — held, 
that  the  company  was  liable  if,  after  becom- 
ing aware  of  his  danger,  its  engineer  failed 
to  use  ordinary  care  to  avoid  doing  injury. 
Kansas  Pac.  R.  Co.  v.  Cranmer,  4  Colo.  524. 

In  an  action  for  killing  stock  at  a  depot, 
it  was  held  that  it  is  the  duty  of  those  oper- 
ating the  train,  if  they  discover  the  perilous 
condition  of  the  stock  in  time  to  avert  the 
injury,  to  use  every  reasonable  effort  at 
their  command  consistent  with  the  safety  of 
the  train,  etc.,  and  that  if  they  failed  to  do 
so  and  injury  thereby  resulted,  the  plaintiff 
is  entitled  to  recover.  Senate  v.  Chicago,  M. 
&^  St.  P.  R.  C(A,4i  Mo.  App.  295. 

Where  the  owner  of  stock  turns  them  out 
upon  commons  near  drpot  grounds,  and 
they  stray  therefrom  to  the  track  on  the  de- 
pot grounds  and  are  killed,  there  can  be  no 
recovery  without  proof  of  wilful  killing  or 
gross  negligence.  Bennett  v.  Chicago  &•  N. 
W.  R.  Co.,  19  Wis.  145.— Approved  in 
Cecil  V.  Pacific  R.  Co.,  47  Mo.  246.  Distin- 
guished IN  Bostwick  V.  Minneapolis  &  P. 
R.  Co.,  2  N.  Dak.  440. 

201.  Bate  of  speed.*— Cattle  which 
are  by  law  permitted  to  run  at  large  are  not 
trespassers  by  going  upon  depot  grounds; 
but  if  the  owner  turns  them  out  where  they 
are  liable  to  go  upon  such  grounds,  the 
company  is  not  bound  to  stop  its  trains  and 
drive  them  off,  nor  even  slacken  the  speed 
or  change  its  time-table,  in  order  to  avoid 
injuring  them.  Smith  v.  Chicago,  R.  I.  &^ 
P.  R.  Co.,  34  Iowa  506,  5  Am.  Ry.  Rep.  535.— 
Followed  in  Connyers  v.  Sioux  City  &  P. 
R.  Co.,  78  Iowa  410,  43  N.  W.  Rep.  267. 

Where  by  the  unlawful  speed  of  a  train 
upon  station  grounds  animals  at  large  there- 
on are  stampeded  and  run  upon  the  track 
beyond  the  grounds,  whether  by  breaking 
down  fences  or  otherwise,  and,  without 
checking  the  speed  of  the  train,  they  are  run 
down  and  killed  the  unlawful  speed  of  the 
train  may  fairly  be  said  to  be  the  proximate 
cause  of  the  injury,  and  the  company  is 
liable  therefor.  Story  v.  Chicago,  M.  &*.  St. 
P.  R.  Co.,  79  Icnua  402,  44  N.  W.  Rep.  690.— 
Distinguishing  Monahan  v.  Keokuk  &D. 
M.  R.  Co.,  45  Iowa  523. 

Iowa  Code,  §  1289,  providing  that  railroad 
companies  shall  be  liable  for  stock  killed  on 
depot  grounds  by  trains  running  faster  than 
eight   miles  an   hour,   imposes  no  rate  of 

»See  ante,  36,  69-72,  198 ;  />wr,  210, 
211. 


s;  '\ 


I 


i.'04 


ANIMALS,  INJURIES   TO,  li02-204. 


S 


speed  upon  trains  while  not  running  on  de- 
pot grounds.  So  held  in  a  case  where  stock 
were  killed  just  outside  the  depot  grounds. 
Monahan  v.  Keokuk  &"  D.  M.  K.  Co.,  45  Iowa 

52.V 

202.  Injuries  in  inclosed  railrosul- 
yards. — The  yard  of  defendant,  a  railroad 
company,  was  full  of  timber,  pitfalls,  etc., 
and  was  a  dangerous  place  for  cattle ;  it  was 
inclosed  by  a  high  fence,  with  proper  gates, 
which  during  the  day  were  opened  and  shut 
for  the  passage  of  cars  and  at  night  were 
closed  by  a  watchman.  One  afternoon  a 
cow  of  plaintiff's  strayed  into  the  yard  ;  she 
was  not  discovered  by  the  watchman,  who 
searched  the  yard  before  closing  the  gates. 
At  night  he  turned  dogs  loose  in  the  yard. 
They  chased  the  cow,  she  fell,  broke  her 
thigh,  and  died.  Held,  that  the  company 
was  not  liable  for  the  cow.  Leseman  v. 
South  Carolina  K.  Co.,  4  Rich.  (S.  C.)  413. 

One  who  has  often  been  in  a  railway-yard 
and  knows  the  place  well  cannot  complain 
of  the  insufficiency  of  a  fence  to  such  yard, 
whereby  his  horse,  having  been  frightened 
by  a  train,  received  injury,  there  being  no 
proof  of  want  of  reasonable  care  on  the  part 
of  the  company  to  prevent  damage  from  un- 
usual danger.  Manchester,  S.  <&<•  L.  H.  Co. 
V.  Woodcock,  25  Z,.  T.  N.  S.  333. 

A  company  is  liable  for  killing  a  horse 
which  strays  from  a  field  onto  a  public  road 
and  thence  into  a  yard  not  fenced  from  a 
railway,  the  gate  of  which  was  open  through 
the  neglect  of  the  company's  servants.  Alid- 
land  R.  Co,  v.  Daykin,  17  C.  B.  126,  25  L.  J. 
C.  P.  73. 

10.  Injuries  in  Cities,  Villages,  etc. 

203.  Generally.— The  Indiana  act  of 
'853,  §  3,  as  to  the  absolute  liability  of  a 
company  for  animals  killed  by  cars,  is  not 
applicable  to  a  case  where  the  injury  is  done 
by  the  cars  at  the  crossing  of  a  public  street 
in  a  city,  the  company  having  no  right  to 
erect  a  fence  thereon.  Lafayette  &*  I.  R.  Co. 
V.  Shri»er,(i  Ind.  141. — REVIEWED  IN  Davis 
V.  Burlington  &  M.  R.  R.  Co.,  26  Iowa  549. 

When  stock  are  killed  by  a  railroad  train 
the  company  is  not  necessarily  absolved 
from  liability  under  ch.  94  of  the  Kansas 
laws  of  1874,  by  proof  that  the  place  of  in- 
jury was  within  the  territorial  limits  of  an 
incorporated  city,  or  even  that  it  was  within 
such  portion  of  those  limits  as  Is  regularly 
laid  off  into  blocks  and  lots,  surrounded  by 
streets  and  alleys.     Union  Pac.  R.  Co.  v. 


Dychc,  1 1  Am.  &■■  Eng.  R.  Cas.  427,  iS  Kan. 
200.— Distinguished  in  Atchison,  T.  &  S. 
F.  R.  Co.  V.  Riggs,  15  Am.  &  Eng.  R.  Cas. 
531,  31  Kan.  622. 

In  Missouri  a  railroad  company  is  not  lia- 
ble for  killing  stock  within  the  limits  of  an 
incorporated  city,  under  Wagn.  Mo.  St.  p. 
310,  §  43.  Cousins  V.  Hannilial  &"  .St.  J.  R. 
Co.,  66  Mo.  572. — Followinc;  Edwards  v. 
Hannibal  &  St.  J.  R.  Co.,  66  Mo.  567 ;  Elliott 
V.  Hannibal  &  St.  J.  R.  Co.,  66  Mo.  683. 

The  general  terms  of  the  Texas  statute  im- 
posing a  liability  on  railway  companies  for 
injuries  to  animals  unless  the  tracks  are 
fenced,  do  not  apply  to  such  places  as  public 
necessity  or  convenience  requires  shall  be 
left  unfenced,  such  as  the  streets  of  a  city  or 
town,  depot  and  contiguous  grounds,  the 
crossings  of  highways  and  other  like  places. 
International  &•  G.  N.  R.  Co.  v.  Dunham,  31 
Am.  &•  Eng.  R.  Cas.  530,68  Tcx.2i\,/^S.W. 
y?<'/.  472.— Following  International  &  G. 
N.  R.  Co.  %>.  Cocke,  64  Tex.  151. 

204.  No  liability  without  proof  of 
actual  negligence.*— In  a  suit  in  Illinois 
against  a  company  for  injury  to  stock  by  its 
train  within  the  limits  of  a  city,  town,  or  vil- 
lage, there  can  be  no  recovery  without  an 
averment  and  proof  that  the  servants  of  the 
company  were  guilty  of  negligence  in  run- 
ning the  train  through  such  city,  town,  or 
village.  Peoria,  P.  &*  J.  R.  Co.  v.  Barton, 
80  ///.  72. 

Where  stock  are  killed  by  a  railroad  at  a 
place  where  the  law  does  not  require  the 
company  to  fence,  the  party  seeking  a  recov- 
ery must  prove  that  the  killing  of  the  stock 
was  caused  through  the  negligence  of  the 
company ;  and  where  the  proof  shows  that 
the  stock  were  killed  within  the  limits  of  a 
city,  and  there  is  no  evidence  of  negligence 
on  the  part  of  the  company,  no  recovery  can 
be  had.    Illinois  C.  R.  Co.  v.  Bull,  72  III. 

537. 

There  can  be  no  recovery  in  Missouri  for 
the  killing  by  a  railroad  train  of  a  domestic 
animal  within  the  limits  of  an  incorporated 
city,  without  allegation  and  proof  of  negli- 
gence. Evans  <S~»  H.  F.  Brick  Co.  v.  St, 
Louis  &'  S.  F.  R.  Co.,  21  Mo.  App.  648. 

To  hold  a  company  liable  for  injuries 
to  live  stock  inflicted  within  the  corporate 
limits  of  a  city  and  near  its  depot,  the  plain- 
tiff must  prove  actual  negligence  on  the  part 
ot  the  company,  as,  for  instance,  that,  after 

*  See  antf,  20-32,  47,  57,  187,  200. 


ANIMALS,  INJURIES   TO,  205-209. 


205 


P- 
Ji. 


the  stock  were  discovered,  the  company 
could,  without  imperilling  the  persons  or 
property  intrusted  to  it  for  transportation, 
iiave  avoided  the  injury.  Fitsgeraldv.  Chi' 
aii^o,  R.  I.  &>  P.  /?.  Co.,  18  Mo.  App.  391.— 
Following  Wallace?/.  St.  Louis,  I.  M.&  S. 
R.  Co.,  74  Mo.  594. —  Wallace  v.  St.  Louis, 
I.  M.  &>  S.  R.  Co.,  74  Mo.  594.— Distin- 
guished IN  Kendig  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  19  Am.  &  Eng.  R.  Cas.  493,  79  Mo. 
207.  Followed  in  Fitzgerald  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  18  Mo.  App.  391.  Not 
FOLLOWED  IN  Wymore  z/.  Hannibal  &  St.  J. 
R.  Co.,  79  Mo.  247. 

Where  nothing  is  shown  by  the  plaintiflf 
save  the  injury  and  the  passing  of  the  train, 
at  the  rate  of  twenty  or  twenty-five  miles  an 
hour,  over  a  tract  of  land  within  a  village, 
midway  between  public  thoroughfares  nine 
hundred  feet  apart,  and  there  is  no  evidence 
that  those  in  charge  of  the  train  saw  the  cow 
before  or  after  she  was  killed,  or  that  they 
might,  with  due  care,  have  seen  her  in  time 
to  prevent  the  injury,  there  can  be  no  recov- 
ery, and  a  demurrer  to  the  evidence  should 
be  sustained.  Lord  v.  Chicago,  R.  I.  &»  P. 
R.  Co.,  82  Mo.  139.— Followed  in  Sloop  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  22  Mo.  App.  593. 

A  company  is  not  liable  for  killing  stock 
by  reason  of  a  failure  to  fence  where  its 
track  runs  through  grounds  that  are  plotted 
for  a  town,  where  streets  are  laid  off  and 
dedicated  to  public  use,  unless  there  be 
proof  of  actual  negligence,  where  the  town 
exists  otherwise  than  on  paper;  but  it  is  not 
necessary  that  it  be  incorporated.  Gerren 
V.  Hannibal  &*  St.  J.  R.  Co.,  60  Mo.  405. 

205.  Rule  as  to  aninuUs  lawfully 
riinuing  at  large.*— Where  a  city  ordi- 
nance permits  cattle  to  run  at  large  during 
certain  hours  of  the  day,  it  is  not  negli- 
gence per  se  for  the  owner  of  a  cow  to  turn 
her  loose  upon  the  street,  unattended  and 
near  a  railroad  track,  and  it  is  the  duty  of 
the  company  to  operate  its  trains  with  refer- 
ence to  the  right  of  the  owner  to  permit 
his  cow  to  go  at  large,  and  to  use  reasonable 
and  ordinary  diligence  to  avoid  injuring 
her.  Fritz  v.  First  Drv.  St.  Paul  &*  P.  R. 
Co.,  22  Minn.  404,  19  Am.  Ry.  Rep.  404. 

206.  Kiile  as  to  aniinals  nnlawt\illy 
running  at  large  t  —  Gross  negli- 
gence.) — If  there  be  a  city  ordinance  mak- 

•  See  post,  24a-250. 

+  Set  ante,  53-60,  152-159,  187;/^/, 
260-270. 

tSee  ante,  il7,  50,  60,  200;  post. 
217,  218,  28^. 


ing  it  unlawful  for  stock  to  run  at  large  at 
the  time  and  place  where  the  injury  occurs, 
the  railroad  will  only  be  liable  for  gross  neg- 
ligence. International  &^  G.  N.  R.  Co,  v. 
Code,  23  Ant.  &>  Eng.  R,  Cas.  226,  64  Tex, 
151. 

When  the  owner  of  stock  knowingly  per- 
mits it  to  run  at  large  in  a  town,  city,  or  vil- 
lage in  violation  of  statute,  and  it  is  injured 
by  a  railway  train  at  a  place  where  the  rail- 
way company  is  not  under  legal  obligation 
to  fence  its  road,  tiie  railway  company  is 
responsible  to  the  owner  if  the  injury  was 
caused  by  tlie  gross,  wanton,  or  wilful  negli- 
gence of  its  employes,  but  not  if  such  injury 
resulted  merely  from  the  violation  of  a  mu- 
nicipal ordinance  limiting  the  rate  of  speed 
of  railroad  trains.  Windsor  v.  Hannibal  Or* 
St.  J.  R.  Ct>.,  45  Mo.  App.  123.— Distin- 
guishing Spence  v.  Chicago  &  N.  W.  R. 
Co.,  25  Iowa  139  ;  Fritz  v.  Milwaukee  &  St. 
P.  R.  Co.,  34  Iowa  337.  Reviewing  Bow- 
man 21.  Chicago  &  A.  R.  Co.,  85  Mo.  533; 
Schwarz  v.  Hannibal  &  St.  J.  R.  Co.,  58  Mo. 
207  ;  Owens  v.  Hannibal  &  St.  J.  R.  Co.,  58 
Mo.  386. 

207.  Presumption  as  to  place  of 
killing.'*' — While  a  company  is  not  required 
to  fence  its  track  within  the  limits  of  a  vil- 
lage, yet  when  an  animal  is  killed  near  the 
village  by  cars,  the  presumption  is  that  the 
houses  compose  the  village,  and  if  the  place 
where  the  animal  is  killed  is  beyond  them, 
it  is  beyond  the  village;  and  if  the  town  ex- 
t(.  ids  beyond  the  houses  the  company  must 
prove  it  in  order  to  relieve  itself  of  the  ne- 
cessity of  fencing  its  roads  at  such  point. 
Ewing  V.  Chicago  &>  A.  R.  Co.,  72  ///.  25. — 
Followed  in  Rockford,  R.  I.  &  St.  L.  R. 
Co.  V.  Irish,  72  111.  404. 

208.  Right  to  sound  alarm  to  drive 
stock  from  track. — It  is  not  negligence, 
affirmative  or  negative,  for  a  locomotive  en- 
gineer to  blow  the  stock  alarm-whistle  in  a 
town  or  city  to  frighten  an  animal  from  the 
track,  in  case  of  a  sudden  emergency,  more 
especially  where  the  scene  of  the  occur- 
rence, though  within  the  corporate  limits,  is 
not  in  a. populous  quarter,  but  in  the  woods 
or  fields  adjacent  to  the  city  proper.  Port 
Royal  &*  W.  C.  R.  Co.  v.  Phinizy,  40  Am.  &* 
Eng.  R.  Cas.  212,  83  Ga.  192.  9  5.  E.  Rep. 
609. 

200.  Failure  to  give  signals.!  — 
Where    it  appeared     that    plaintiff's   gate 

»Sce  ,««/<■,  128. 
tSee<i»/<^,  35,65,  192. 


206 


ANIMALS,  INJURIES  TO,  210,  ail. 


^ 


*.s; 


was  broken  open  in  the  night,  so  that  his 
mule  escaped  and  got  upon  defendant's 
traci<,  where  it  was  killed;  that  the  train 
passed  over  two  public  streets  in  the  village 
without  ringing  a  bell  orsounding  a  whistle, 
just  before  reaching  the  mule ;  and  that  the 
only  signal  given  was  that  something  was 
upon  the  track — Ae/tf,  that  the  company 
was  liable.  Chicago  &*  A.  R.  Co.  v.  Hender- 
son, 66  ///.  494. 

But  if  an  animal  suddenly  leap  upon  the 
track,  so  near  in  front  of  an  engine  that  it 
is  impossible  to  stop,  within  a  village,  where 
fencing  the  track  is  not  required,  and  where 
cattle  are  accustomed  to  graze,  it  is  not  neg- 
ligence on  the  part  of  the  engineer  to  omit 
to  sound  the  alarm-whistle  or  "  slow  "  the 
train,  although  he  may  have  seen  the  ani- 
mal grazing  near  the  track  from  a  distance 
of  sixty  rods.  Chicago,  B.  &*  Q.  K.  Co.  v. 
Bradfield,  63  ///.  220.*— Distinguished  in 
Chicago  &  A.  R.  Co.  v.  Kellam,  92  111.  245. 

Where  no  statute  requires  a  bell  to  be 
rung  or  a  whistle  to  be  blown,  a  company  is 
not  liable  for  fpiling  to  ring  a  bell  or  blow  a 
whistle  while  going  through  a  town  at  the 
rate  of  twenty-live  miles  per  hour,  in  the 
night-time,  under  which  circumstances  a 
horse  was  killed.  Potter  v.  Hannibal  &* St. 
J.  R.  Co.,  18  Mo.  App.  694. 

210.  Bate  or  speed,  generally.!— 
As  a  matter  of  law  no  rate  of  speed  is 
prescribed  at  which  a  train  may  run.  No 
rate  of  speed  is  per  se  negligence.  Where 
a  horse  was  killed  in  a  town  at  9  o'clock  at 
night  by  a  train  running  25  miles  an  hour,  it 
was  held  that  negligence  could  not  be  in- 
ferred from  the  rate  of  speed,  nor  from  the 
fact  that  no  signals  were  given,  in  the  ab- 
sence of  a  s^ru'.i  V  .  irirg  them.  Potter 
V.  Hanniho'  <  -  -  •/  -*  >-"•  '8  Mo.  App. 
694. 

Acompa;  v  .-.  :k.'  Iia  l^:  'u''  killing  a  cow 
at  a  crossing  wh.l-  .-,1  !.  jperly  allowed 
to  run  at  large,  where  iici  vocape  was  pre- 
vented by  a  rope  attached  to  her  being 
caught  around  a  loose  board  on  the  cross- 
ing, where  the  speed  of  the  train  was  a  rea- 
sonable one,  considering  the  place  of  the 
killing,  it  being  in  a  sparsely-settled  suburb 
of  a  town.  Peoria,  D.  &*  E.  R.  Co.  v.  Mil- 
ler, II  ///.  App.  375.— Quoted  in  Wabash, 
St.  L.  &  P.  R.  Co,  V.  Hicks,  13  111.  App.  407. 

The  evidence  showed  that  the  engine,  at 
the  moment  it  struck  the  horse,  was  thrown 

*  See  ante,  52. 

t  See  ante,  36,  69-72, 198,  201. 


from  the  track,  and  that  the  momentum  oi 
the  train  carried  it  forward  for  a  distance  of 
more  than  ninety  paces,  with  the  flanges  of 
tlie  wheels  striking  almost  squarely  against 
the  lies,  from  which  fact  it  appeared  that 
tlie  train  must  have  been  running  at  a  very 
high  rate  of  speed.  The  employes  of  the 
company  certainly  knew  that  the  track  was 
not  fenced  through  the  village  through 
which  the  train  was  running.  They  also 
knew  that  persons,  cattle,  or  horses  might 
be  on  the  track  or  crossing  over  it.  Know- 
ing this  danger,  it  was  their  duty  to  have 
run  whilst  in  the  village  at  such  a  rate  of 
speed  as  to  have  tlieir  train  under  control, 
and,  failing  to  do  this,  the  company  was 
guilty  of  gross  negligence,  and  the  jury 
were  warranted  in  so  finding.  Chicago  &* 
A.  R.  Co.  V.  Engle,  84  ///.  397. 

211.  Biiniiiug  at  a  prohibited  rate 
of  speed.  —  (i)  Generally.  —  In  Illinois, 
where  a  company  runs  trains  through  an 
incorporated  city  or  village  at  a  greater  rate 
of  speed  than  the  ordinances  of  such  city  or 
village  permit,  if  any  live  stock  is  killed  by 
such  trains,  the  killing,  by  the  statute,  will 
be  presumed  to  have  been  done  through 
negligence;  and  proof  of  the  killing  and 
violation  of  the  ordinance  will  make  out  a 
prima-facie  case  and  throw  the  ontis  upon 
the  company.  Toledo,  P.  &>•  IV.  R.  Co.  v. 
Deacon,  63  ///.  91.  Cleveland,  C,  C.  &>  St. 
L.  R,  Co.  V.  Ahrens,  42  ///.  App.  434. 

Under  the  Mississippi  Code  1880,  §  1047, 
where  an  animal  is  killed  by  a  train  run- 
ning at  a  greater  rate  of  speed  than  six 
miles  an  hour  within  the  corporate  limits  of 
a  city  the  company  is  liable.  Louisville  &* 
N.  R.  Co.  V.  Saucier,  (Miss.)  i  So.  Rep.  511. 

And  the  company  is  liable  in  such  cases, 
under  Mississippi  Code  1880,  §  1047,  al- 
though the  engine  is  checked  when  the 
animal  is  seen,  and  collides  vith  less  mo- 
mentum. New  Orleans,  M.  <S^  T.  R.  Co.  v. 
Toulmi,  59  Miss.  284. 

Nor  is  it  a  defence  in  such  cases,  under 
Mississippi  Code  1880,  §  1047,  that  a  train 
which  killed  a  horse  in  a  town  was  not  run- 
ning at  a  greater  rate  at  the  actual  time  of 
killing,  where  it  appeared  that  just  previous 
to  the  killing  it  had  been  running  at  a  much 
greater  rate.  Illinois  C.  R.  Co.  v.  Jordan, 
63  Miss.  458. 

Running  a  train  in  an  incorporated  town 
at  a  greater  rate  of  speed  than  six  miles  an 
hour  does  not,  under  §  1047  of  the  Missis- 
sippi Code,  impose  absolute  liability  on  a 


ANIMALS,  INJURIES  TO,  2ia. 


io: 


railroad  company  for  killing  cattle.  It  is 
negligence  on  the  part  of  tlie  company  to 
so  run  its  train,  but  unless  the  killing  of  the 
cattle  resulted  from,  or  was  rendered  un- 
avoidable by,  the  rate  of  speed  at  which  the 
train  was  running,  the  company  was  not 
liable.  Louisville,  N.  O.  &>  T.  K.  Co.  v. 
Caster,  (Miss.)  5  So.  Rep.  388. 

Running  a  railroad  train  within  the  limits 
uf  a  municipal  corporation  at  a  greater  rate 
of  speed  than  permitted  by  its  ordinance  is 
negligence  per  se,  and  the  road  is  liable  for 
the  killing  of  stock  occasioned  by  reason  of 
such  illegal  rate  of  speed.  Bowman  v.  Chi- 
cago &>  A.  K.  Co..  85  Mo.  533.— Following 
Karle  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co., 
55  Mo.  476;  Kelley  v.  Hannibal  &  St.  J.  R. 
Co.,  75  Mo.  138.— Reviewed  in  Boyle  v. 
Missouri  Pac.  R.  Co.,  21  Mo.  App.  416; 
Windsor  v.  Hannibal  &  St.  J.  R.  Co,,  45 
Mo.  App.  123.  See  also  Robertson  v. 
IVabas/i,  St.  L.  &•  P.  R.  Co.,  84  Mo. 
119. 

The  railroad  would  still  be  liable  when 
running  in  a  city  at  a  greater  speed  than  by 
ordinance  allowed,  although  the  stock  were 
running  at  large  in  violation  of  the  city 
ordinance,  provided  they  had  escaped  from 
the  owner's  inclosure  without  his  knowl- 
edge or  consent,  and  the  defendant,  by  the 
exercise  of  ordinary  care  and  prudence, 
could  have  stopped  the  train  so  as  to  pre- 
vent the  killing.  Bmvman  v.  Chicago  &•  A. 
R.  Co.,  85  Mo.  533.— Reviewing  Spence  v. 
Chicago  &  N.  W.  R.  Co.,  25  Iowa  139. 

The  imposition  of  a  fine  by  an  ordinance 
for  running  a  train  at  a  rate  of  speed  pro- 
hibited by  the  ordinance  does  not  relieve 
the  company  so  violating  the  ordinance  of 
pecuniary  liability  for  an  injury  done  to 
another  by  so  doing.  On  the  contrary,  the 
imposition  of  the  fine  prohibited  the  act, 
and  such  prohibition  by  a  valid  ordinance 
rendered  such  an  act  negligent  per  se,  and 
the  one  doing  the  act  liable  for  all  injury 
caused  thereby.  Backenstoe  v.  Wabash,  St. 
L.  &>  P.  R.  Co.,  23  Mo.  App.  148  ,•  affirmed 
in  86  Mo.  492,  i   West.  Rep.  743. 

(2)  Illustrations.— PtooI  that  stock  were 
killed  on  a  street  where  there  was  nothing 
to  obstruct  the  view  for  two  hundred  and 
fifty  feet ;  that  the  speed  of  the  train,  which 
was  running  at  a  rate  prohibited  by  a  city 
ord inance,  was  not  slackened ;  that  no  signals 
were  given ;  and  that  the  trainmen  were 
looking  at  a  gathering  of  people  at  the  side  of 
the  car,  is  suflicient  to  render  the  company 


liable.  Colorado  C.  R.  Co.  v.  Caldwell,  n 
Colo.  545,  i<)Pac.  Rep.  542. 

Where  stock  is  killed  within  the  corporate 
limits  of  a  village  by  a  train  that  is  running 
at  a  prohibited  rate  of  speed,  to  relieve  the 
company  from  liability  there  must  be  a  pre- 
ponderance of  evidence  showing  that  the 
killing  did  not  result  from  such  wrong.ul 
act  of  the  company.  St.  Louis,  V.  &>  T.  H. 
R.  Co.  V.  Morgan,  12  ///.  App.  356. 

Proof  that  stock  were  killed  within  city 
limits  by  a  train  running ac  a  prohibited  rate 
of  speed  raises  a  presumption  of  negligence, 
yet  it  is  error  to  instruct  the  jury  that  the 
company  must  show  by  a  preponderance  of 
evidence  that  the  injury  was  not  caused  by 
the  excessive  speed  of  the  train.  Chicago 
6-  N.  W.  R.  Co.  V.  Carpenter,  45  ///.  App. 
294. 

Where  in  an  action  for  the  killing  of  an 
animal  at  a  street  crossing  the  evidence 
showed  that  th»,  plaintiff  was  without  fault 
or  negligence,  that  the  defendant's  train 
was  running  at  the  time  at  a  greater  rate  of 
speed  than  that  allowed  by  the  city  ordi- 
nance, and  that  the  bell  was  not  rung  while 
passing  over  said  .street,  it  was  a  question  of 
fact  to  be  determined  by  the  jury  whether 
said  failure  to  ring  the  bell  or  the  rate  of 
speed  caused  the  injury  to  the  animal.  Ohio 
&>  M.  R.  Co.  V.  Craycraft,  5  Ind.  App.  335, 
32  N.  E.  Rep.  297. 

A  company  was  sued  for  killing  a  cow  at  a 
street  crossing  where  cattle  were  permitted 
to  run  at  large  under  an  ordinance  of  the 
city.  It  appeared  that  the  train  at  the  time 
was  running  at  a  rate  of  speed  much  greater 
than  the  limit  fixed  by  an  ordinance,  and 
there  was  a  conflict  of  evidence  as  to  whether 
a  bell  was  rung  or  a  whistle  sounded.  Held, 
sufficient  evidence  to  show  negligence,  and  a 
verdict  for  plaintiff  would  not  be  disturbed. 
Fritz  V.  First  Div.  St.  Paul  ^  P.  R.  Co.,  22 
Minn.  404,  19  Am.  Ry.  Rep.  404. 

212.  Rule  where  voiupaiiy  can  but 
does  not  fence.*— A  company  is  liable 
for  killing  stock  within  city  and  village  lim- 
its, under  the  laws  of  Indiana,  if  it  appears 
that  it  was  at  a  place  where  the  company 
might  have  fenced  but  failed  to  do  so.  Pitts- 
burgh, C.  <S-  St.  L.  R.  Co.  V.  Laufman,  78 
Ind.  319. 

For  the  statute  making  railroad  companies 
liable  for  injuries  to  animals,  without  regard 
to  wilful   misconduct,  negligence,  or  acci- 

*See  <»«/-•,  »J),  117. 


Wf 


•v»08 


ANIMALS,  INJURIES  TO,  213. 


m'^ 


dci.t,  where  the  railroatl  is  not  fenced,  applies 
to  a  place  within  the  limits  of  a  city  where 
it  woulO  not  be  illegal  or  improper  to  main- 
tain a  fence.  Jcffersonville,  M.  &•  I.  A'.  Co. 
V.  Parkliurst,  34  Iiui.  501. 

The  Indiana  statute  of  i88i,not  being  re- 
pealed by  act  of  1885,  the  corporation  owning 
a  railroad  and  its  lessee,  etc.,  are  jointly  and 
severally  liable  for  the  killing  of  animals 
upon  the  track  thereof  within  such  portions 
of  an  incorporated  town  as  are  laid  out  and 
platted,  if  the  right  of  way  could  have  been 
fenced  at  the  place  of  the  killing;  and  the 
manner  of  commencing  and  prosecuting 
actions  and  of  collecting  judgments  is  the 
same  as  formerly.  Jcffersonville,  M.  &^  /.  K. 
Co.  V.  Diniliip,  31  Am.  &>  Eng.  R.  Cos.  512, 
1 12  I  lid.  93,  13  N.  E.  Rip.  403. 

The  evidence  showed  that  the  stock  were 
killed  between  two  streets  of  a  city  on  de- 
fendant's track,  which  was  not  there  fenced, 
though  a  fence  might  have  been  built  there 
without  interfering  with  any  street  or  alley, 
or  with  the  usual  running  of  the  road.  Ilcld, 
that  the  company  was  liable.  Indianapolis, 
P.  <S-  C.  R.  Co.  v.  Lifidlty,  1 1  Am.&^Eng.  R. 
Cas.  495,  75  /nd.  426. 

The  Missouri  damage  act,  §  5  (Rev.  St. 
1879,  §2124),  making  railroad  companies  lia- 
ble for  stock  killed  through  a  failure  to  fence 
without  proof  of  negligence,  applies  to  cases 
arising  within  the  corporate  limits  of  a  town 
or  city  where  the  track  might  have  been 
fenced  but  is  not.  Hyniore  v.  Hannibal  &* 
St.  J.  R.  Co.,  12  Aw.  (S~»  Eug.  R.  Cas.  524, 
79  A/o.  247.— Following  Edwards  v.  Han- 
nibal &  St.  J.  R.  Co.,  66  Mo.  567  ;  Tiarks  v. 
St.  Louis  &  I.  M.  R.  Co.,  58  Mo.  45. 
QuoTiN(;  Lloyd  v.  Pacific  R.  Co.,  49  Mo. 
199;  Ellst'.  Pacific  R.  Co., 48  Mo.  231.  Nor 
KOLLOWiNG  Wier  ?'.  St.  Louis  &  L  M.  R. 
Co.,  48  Mo.  558;  Wallace  ?'.  St.  Louis,  L  M. 
&  S.  R.  Co.,  74  Mo.  594. — Followed  in 
Young  7>.  Hannibal  &  St.  J.  R.  Co.  79  Mo. 
336;  Lane  v.  Chicago,  R.  L  &  P.  R.  Co.,  18 
Mo.  App,  555 ;  Vanderworker  7k  Missouri 
Pac.  R.  Co.,  48  Mo.  App.  654.  Quoted  in 
Rhea  v.  St.  Louis  &  S.  F.  R.  Co.,  84  Mo. 

345- 

So  that  if  stock  are  killed  within  the  cor- 
porate limits  of  a  town  or  city,  at  a  place 
where  the  track  might  have  been  fenced,  it 
is  not  necessary  to  prove  actual  negligence 
to  hold  the  company  liable.  Vottitg-  v.  Nan- 
nibal  <S-  Si.  J.  R.  Co.,  igAm.  &*  Eng.  R.  Cas. 
512,  79  Mo.  336. — Following  Wymore  v. 
Hannibal  &  St.  J.  R.  Co.,  79  Mo.  247.— Fol- 


lowed IN  Lane  v.  Chicago,  R.  {.  &  P.  R. 
Co.,  18  Mo.  App.  555.  See  also  Iha  v.  Han- 
nibal Sf  St.  J.  R.  Co.,  45  Mo.  469. 

A  company  is  liable  for  killing  stock, 
without  proof  of  actual  negligence,  by  reason 
of  a  failure  to  fence  at  a  point  within  the 
lini'ts  of  a  municipal  corporation,  as  shown 
by  a  plat,  but  in  fact  only  unimproved 
prairie-lands  lying  open,  and  where  the  mu- 
nicipal corporation  was  at  the  time  dissolved 
or  suspended.  Iba  v.  Hannibal  i&^  St.  /.  R. 
Co.,  45  Mo.  469. — Criticised  in  Gerrcn  v. 
Hannibal  &  St.  J.  R.  Co.,  60  Mo.  405.  Ex- 
plained IN  Ells  t/.  Pacific  R.  Co.,  48  Mo. 
231.  Reviewed  in  Wier  v.  St.  Louis  &  I. 
M.  R.  Co.,  48  Mo.  558. 

Under  the  New  York  act  of  1850,  ch.  140,  § 
44,  making  it  the  duty  of  railroad  companies 
to  fence  their  track  at  all  points  where  it  can 
be  done,  a  company  may  be  liable  for  stock 
killed  by  reason  of  a  failure  to  fence  a  vacant 
lot  in  a  city.  Crawford  v.  Nov  York  C.  6» 
//.  R.  R.  Co.,  18  Hi/n  (N.  V.)  108.— Review- 
ing Corwin  v.  New  York  &  E.  R.  Co.,  13  N. 
Y.  42. — Followed  in  Lackin  v.  Delaware 
&  H.  C.  Co.,  22  Hun  (N.  Y.)  309. 

IV.   CONTRIBUTORT    NEOLIOENCE.* 

I.  /«  General.^ 

a.  What  is  Contributory  Negligence  and  Its 
Eflfect. 

213.  Effect  of  owner's  negligence. 

— (i)  Generally. — If  the  negligence  of  the 
owner  of  stock  contributed  to  the  immediate 
injury  causing  t'*.:  loss,  he  cannot  recover  for 
it  against  the  company.  Toledo  &>  W,  R, 
Co.  v.  Thomas,  18  Ind.  215. 

Where  the  negligence  of  the  owner  of 
stock  has  contributed  directly  to  an  injury 
to  his  cattle,  there  can  be  no  recovery  with- 
out proof  of  gross  carelessness  or  wilful  mis- 
conduct on  the  part  of  the  company  injur- 
ing them ;  and  a  mere  mistake  of  judgment 
on  the  part  of  an  engineer  as  to  what  meas- 
ures would  best  prevent  an  injury  will  not 
render  the  company  liable.  Fisher  v.  Far- 
mers'  L.  &*  T.  Co.,  21  IVis.  73. 

Under  the  Maryland  acts  of  1838  and  1846, 
railroad  companies  are  bound  to  show  that 
the  injury  to  animals  was  the  result  of  in- 
evitable accident  only  in  cases  where  the 

*  See  ante,  126,  148 ;  /w/.  364,  373, 
374,  306,  307,  483. 

t  Contributory  negligence  of  owner  of  cattle 
killed  or  injured  by  trains,  see  notes,  20  Am.  & 
F..N(;.  R.  Cas.  473  ;  i  L.  R.  A.  449. 


ANIMALS,  INJURIES  TO,  214-216. 


800 


party  complaining  has  noi  contributed  in 
any  manner,  by  hia  own  negligence  or  vio- 
lation of  law,  to  the  injury  complained  of. 
Baltimore  St*  0.  R.  Co.  v.  Lamborn,  I2  Md. 

257. 
Although  a  person  has  a  right  to  use  the 

highway  for  the  passage  of  his  cows  to  and 
from  the  pasture,  yet  he  must  use  ordinary 
and  proper  care  and  diligence  in  driving 
them,  having  reference  to  the  situation  of 
the  road  and  the  manner  '.»  which  it  is  used. 
Clark  V.  Syracuse  Sf  U.  R.  Co.,  ii  Barb. 
(.V.  Y.)  112. 

(2)  Where  company  has  failed  to  fence.* — 
Railroad  companies  are  not  liable  by  reason 
of  a  failure  to  fence  where  cattle  go  upon 
the  track  through  the  negligence  of  their 
owner.  Marsh  v.  A'ew  Vork  &*  E.  R.  Co.,  14 
Barb.  {N.  Y.)  364.— Followed  in  Halloran 
V.  New  York  &  H.  R.  Co..  2  E.  D.  Smith 
(N.  Y.)  257. 

Under  the  New  York  act  of  1 850,  requiring 
the  owners  of  railroads  to  properly  fence 
the  same,  a  foreign  railroad  company  that 
has  the  privilege  of  running  its  cars  over 
the  track  of  a  domestic  corporation  is  not 
liable  for  killing  stock  thereon  by  reason  of 
a  failure  to  fence.  There  can  be  no  common- 
law  recovery  in  such  case ;  and  the  owner's 
contributory  negligence  may  defeat  a  recov- 
ery. Shanchan  v.  New  York  &•  N,  H.  R, 
Co.,  10  Abb.  Pr.  {N.  Y.)  398. 

In  an  action  against  a  company  for  injury 
to  stock  occasioned  by  failure  to  erect  or  to 
maintain  fences  on  the  line  of  its  road,  as  in 
other  actions  for  negligence,  contributory 
negligence  of  the  plaintiff  is  a  defense.  Curry 
V.  Chicago  &>  N.  IV.  R.  Co.,  43  IVis.  665.— 
Quoted  in  Murphy  v.  Chicago  &  N.  W.  R. 
Co.,  45  Wis.  222 ;  McCandless  v.  Chicago  & 
N.  W.  R.  Co.,  45  Wis.  365. 

(3)  Where  company  has  failed  to  repair.] — 
A  railroad  company  is  not  liable  for  in- 
juries to  live  stock  that  go  upon  the  track 
over  a  fence  that  is  allowed  to  become  de- 
fective, where  it  appears  that  the  owner's 
negligence  contributed  to  the  injury.  Jones 
v.  Sheboygan  &'  F.  du  L.  R.  Co.,  42  Wis.  306. 
—Reviewed  in  Murphy  v.  Chicago  &  N. 
W.  R.  Co.,  45  Wis.  222. — Martin  v.  Stewart, 
38  Am.  &*  Eng.  R.  Cas.  316,  73  Wis.  553,  41 
N.  W.  Rep.  538. 

214.  Effect  of  uegligeuce  of  owu- 
er*8  servant.^— One  whose  team  is  injured 

•Seea«/^  122-130. 
f  Seeow/*-,  140-151. 
X  See  ante,  30,  37. 
I  D.  R.  D.— 14. 


by  a  collision  with  a  train  at  a  railroad  cross- 
ing while  it  is  in  the  charge  of  his  servant, 
is  responsible  for  the  conduct  of  the  servant 
at  the  time  of  the  accident ;  and  if  he  did 
not  exercise  due  care  the  owner  is  charge- 
able with  such  want  of  care,  and  cannot  re- 
cover. Louisville,  N.A.&*C.R. Co. v. Stom- 
tnel,  126  Ind.  35,  25  N.  E.  Rep.  863. 

215.  Effect  of  drunkenness  of  per- 
sou  in  charge.— Unless  the  agents  of  a 
company  while  operating  a  train  are  guilty 
of  gross  negligence,  the  company  is  not  lia- 
ble for  a  horse  killed  at  a  place  on  the  track 
where  it  has  no  right  to  be,  and  it  appears 
that  the  man  in  charge  of  the  horse  was 
drunk  and  that  the  employer  had  notice  of 
his  bibulous  propensities.  Cleveland,  C,  C. 
&*  St.  L.  R.  Co.  V.  Ducharme,  49  ///.  App. 
520. 

A  company  is  not  liable  for  killing  a  horse 
where  the  owner  has  loaned  it  to  a  man 
who  got  drunk  and  took  the  horse  along  a 
highway,  where  it  intersected  the  track,  and 
thence  on  the  track,  where  the  horse  be- 
came frightened  and  ran  onto  a  trestle, 
where  it  was  caught  and  killed ;  and  the  fact 
that  the  person  who  borrowed  the  horse 
had  voluntarily  made  himself  drunk  could 
not  affect  the  liability  of  the  company. 
Welty  v.  Indianapolis  &•  V.  R.  Co.,  105  Ind. 
55,  24^»/.  &-  Eng.  R,  Cas.  371,  4  N.  E.  Rep. 
410. 

Horses  hitched  to  a  sleigh,  and  in  charge 
of  a  driver  who  has  become  intoxicated  and 
fallen  into  a  drunken  stupor,  are  not,  when 
wandering  about  on  the  prairie,  "stock  run- 
ning at  large  "  within  the  meaningof  §  1289 
of  the  Code ;  and  for  the  killing  of  such 
horses  by  a  passing  train  at  a  place  where  it 
had  the  right  to  fence  its  track  but  did  not, 
defendant  was  not  liable  under  said  section. 
Grave  v.  Burlington,  C.  R.  &*  N.  R.  Co.,  75 
Iowa  163, 39  A';  W.  Rep.  248.— Distinguish- 
ing Hinman  v.  Chicago,  R.  I.  &  P.  R.  Co., 
28  Iowa  491. 

216.  What  amounts  to  negligence 
on  part  of  owner,  generally.— Negli- 
gence in  managing  and  restraining  domestic 
animals  is  the  absence  of  such  methods  and 
means  of  care  as  would  be  employed  by  men 
of  ordinary  prudence.  Chicago,  St.  L.  &* 
P.  R.  Co.  v.  Fenn,  3  Ind.  App.  250,  29  A';  E. 
Rep.  790.— Quoting  Dennis  v.  Louisville, 
N.  A.  &C.  R.  Co..  116  Ind.  42. 

One  who  goes  off  the  highway  and  at- 
tempts to  avoid  an  approaching  train  by 
crossing  the  track  at  a  private  crossing,  can- 


210 


ANIMALS,  INJURIES  TO,  217,  218. 


■t 


izt 


not  recover  (or  a  hurac  ihut  is  killed  by  rea- 
son of  getting  his  foot  fast  in  a  hole  in  the 
track,  which  detained  him  until  struck  by 
the  train.  Cornell  v.  Skaneateles  R.  Co.,  40 
A',  v.  S.  K.i,6i  Hun  618,  15  N.  Y.  Supp. 
581.— Reviewing  Spooner  v,  Delaware,  L. 
&  \V.  R.  Co.,  IIS  N.  Y.  22,  23  N.  Y.  S.  Rep. 

554- 

Where  a  cow  is  turned  out  with  a  block 
and  chain  fastened  to  her,  the  owner  can- 
not recover  if  she  be  killed  on  the  track  by 
reason  of  such  block  and  chain  preventing 
her  escape.  Guess  v.  Soutli  Carolina  R,  Co., 
30  So.  Car.  163,  9  S.  E.  Rep.  18. 

Though  a  company  may  have  been  negli- 
gent in  failing  to  erect  and  maintain  neces- 
sary fences  and  cattle-guards,  yet  if  a  party, 
with  full  knowledge  that  there  are  no  fences 
or  cattle-guards,  turns  his  horse  out  where 
he  can  go  on  the  track,  he  cannot  recover 
if  the  horse  is  killed  by  a  passing  train, 
where  there  is  no  negligence  on  the  part  of 
the  company  in  the  management  of  the 
train.  Trow  v.  Vermont  C.  R.  Co.,  24  Vt. 
487. 

One  who,  knowing  that  a  severe  storm  on 
Saturday  had  prostrated  fences,  on  Monday 
evening  turned  his  cattle  upon  uninclosed 
lands  without  inquiry  as  to  whether  the 
railroad  fences  abutting  thereon  were  un- 
injured, was  guilty  of  such  contributory 
negligence  as  would  defeat  his  recovery  for 
injuries  received  by  such  cattle  on  the  rail- 
road track;  and  such  facts  appearing  from 
his  own  evidence,  a  nonsuit  should  have 
been  granted.  Carey  v.  Chicago,  M.  &*  Si. 
P.  R.  Co.,  20  Am.  &•  Eng.  R.  Cas.  469,  61 
Wis.  71,20  N.  IV.  Rep.  648. 

217.  Abandonment  or  wilful  ex- 
posure.— An  owner  who  knowingly  aban- 
dons his  animals  to  destruction  by  passing 
trains,  or  wilfully  exposes  them  upon  the 
track  of  a  railroad  company,  cannot  recover, 
although  the  company  may  not  have  per- 
formed the  statutory  duty  of  fencing  its 
track.  Welly  v.  Indianapolis  &*  V.  R.  Co., 
105  Ind.  S5,  24  Am.  &*  Eng.  R.  Cas.  371,  4 
N.  E.  Rep.  410. 

Should  a  person  voluntarily  place  his  ani- 
mal upon  the  track,  it  seems  he  could  not 
recover,  but  might,  perhaps,  be  regarded  as 
having  abandoned  his  property.  Indian' 
apolis  &*  C.  R.  Co.  v.  Townsend,  10  Ind.  38. — 
Followed  in  Jeflersonville  R.  Co.  v. 
Applegate,  10  Ind.  49;  Jeflersonville  R.  Co. 
V.  Dougherty,  10  Ind.  549;  Indianapolis  & 
C.  R.  Co.  V.  Paramore,  12  Ind.  406;  Hart  v. 


Indianapolis  &  C.  R.  Co.,  12  Ind.  478;  New 
Albany  &  S.  R.  Co.  v.  McAhren,  12  Ind. 
552  ;  New  Albany  &  S.  R.  Co.  v.  Beeler,  13 
Ind.  560;  Indianapolis  &  C.  R.  Co.  z/.  Mc> 
Kinney.  24  Ind.  283. 

Where  the  owner  of  animals  voluntarily 
places  them  on  the  track,  or  purposely  ex- 
poses them  to  danger,  no  recovery  for  their 
injury  can  be  had.  Missouri  Pac.  R,  Co,  v. 
Roads,  23  Am.  <S-  Eng.  R.  Cas.  165,  33  Kan. 
640,  7  Pac.  Rep.  213. 

The  fact  that  the  plaintifl  by  a  voluntary 
act  exposed  a  colt  to  danger  from  defend- 
ant's train,  if  the  act  was  done  for  a  lawful 
purpose,  and  the  danger  was  merely  inci- 
dental thereto,  does  not  make  the  act  wilful. 
Smith  V.  Kansas  City.  St./.  &*  C.  B.  R.  Co., 
58  Iowa  622,  12  A^.  W.  Rep.  619. 

218.  Failure  to  use  ordinary  care 
— Wilful  act.* — There  can  be  no  recovery 
for  a  team  of  horses  killed  by  driving  madly 
against  a  slowly-moving  train,  while  hitched 
to  a  fire-patrol  wagon,  though  the  driver 
claimed  that  it  was  so  dark  he  could  not  see 
the  train,  and  that  the  signals  displayed  indi- 
cated that  the  gates  were  open.  Chicago 
Bd.  of  Underwriters  v.  Chicago  &*  E.  I.  R. 
Co.,  44  ///.  App.  253. 

The  owner  of  a  blind  horse  who  turns 
him  out  upon  the  common  of  a  town  through 
which  a  railroad  runs,  is  guilty  of  such  gross 
negligence  as  to  prevent  a  recovery  if  the 
horse  is  killed  where  the  track,  is  not  fenced, 
though  it  be  not  on  any  street  or  alley. 
Knight  v.  Toledo &*  W.  R.  Co.,  24  Ind.  402.— 
Distinguished  in  Louisville,  N.  A.  &  C. 
R.  Co.  V.  Cahill,  63  Ind.  340.  Reviewed 
IN  Sinram  v.  Pittsburgh,  Ft,  W.&  C.  R.Co., 
28  Ind.  244. 

Where  it  appears  that  plaintifl  knew  that 
his  animal  had  gone  upon  the  track,  and  he 
had  the  opportunity  and  power  to  prevent 
the  injury  to  it,  but  wilfully  refused  to  do 
so,  he  cannot  recover  damages  therefor  un- 
der §  1289,  Iowa  Code,  which  provides  that 
railway  companies  who  fail  to  fence  their 
track  against  live  stock  running  at  large,  at 
points  where  such  right  to  fence  exists, 
"shall  be  liable  to  the  owner  of  such  stock 
injured  or  killed  by  reason  of  the  want  of 
such  fence  for  the  value  of  the  property  or 
damage  caused,  unless  the  same  was  occa- 
sioned by  the  wilful  acts  of  the  owner  or 
his  agents."  Moody  v.  Minneapolis  &*  St.  L. 


*  See  post,  248. 


ANIMALS,  INJURIES  TO,  210,  21S0. 


211 


Ji.  Co.,  38  Am.  &*  Eng,  R.  Cas.  319,  77  Iowa 
29.  41  N.IV.  Rep.  477. 

Where  the  owner  ut  cattle  sees  them  in 
diiiiKcr  uii  the  track,  uiid  can,  by  reasunable 
exertion,  jjet  them  off,  if  he  does  not,  and 
tlicy  are  injured  by  a  passing  train,  tie  can- 
not recover.  The  owner  has  no  right  to 
rely  npuii  the  performance  of  the  duty 
which  ihe  law  imposes  on  the  company  of 
^ivin^  warning  signals.  Milburn  v.  Kansas 
Lily.  St.  /.  (So  C.  B.  R.  Co.,  29  Am.  6-  Eng. 
li.  Cas.  244,  86  Mo.  104. 

'£\\i,  liiterluriiig  with  railrond 
I'eiiceM. — Wlierc  a  company  securely  fences 
its  track,  and  the  owner  of  animals,  for  liis 
own  accommodation  or  through  his  own 
neglij{ence,  makes  a  change  in  such  fence, 
whereby  his  animals  reach  such  track  and 
are  killed  by  the  cars  of  such  company,  the 
latter  is  not  liable  therefor.  Koutz  v.  Toledo, 
W.  &*  IV.  R.  Co.,  54  Ind.  515. 

The  owner  of  cattle  who  takes  down  the 
wires  of  a  railroad  fence  and  turns  his  cat- 
tic  into  an  adjoining  dose,  and  replaces 
the  wires  by  winding  them  around  a  post 
in  such  a  way  that  cattle  can  slip  them  off, 
cannot  recover  uliere  they  return  and  pass 
tlir<)u<;h  the  same  place  to  the  track  and  are 
injnred.  Davidson  v.  Central  /owa  R.  Co., 
35  Am.  St*  Eng.  R,  Cas.  158,  75  lofwa  22,  39 
N.  \V.  Rep.   163. 

When  the  company  has  properly  fenced 
its  track  and  put  up  gates  in  the  right 
places  at  crossings,  and  an  adjoining  land- 
owner has  so  changed  the  structure  of  one 
gate  that  cattle  may  push  it  open,  he  cannot 
recover  for  animals  killed  or  injured  by  a 
passing  train,  it  appearing  that  they  had 
come  upon  the  track  through  the  gate. 
Chicago,  B.  &>  Q.  R.  Co.  v.  Dannel,  48  ///. 
App.  251. 

220.  Fniliire  to  rebuikl  or  repair- 
feiioes.*— Plaintiff  turned  his  colt  into  a 
pasture  beside  a  railroad  track  knowing 
that  there  was  nothing  to  prevent  the  animal 
from  going  upon  the  track,  and  using  no 
precaution  to  prevent  it  from  doing  so  by 
repairing  or  rebuilding  the  railroad  fence, 
which  had  been  destroyed  by  lire,  which, 
under  the  statute,  he  had  a  right  to  do,  and 
the  animal  went  upon  the  track  and  was 
killed.  Held,  such  contributory  negligence 
as  to  defeat  a  recovery.  The  fact  that  he 
had  no  other  pasture  was  of  no  importance. 


»Sce«w/^  140-151. 


Martin  v.  Stewart,  38  Am,  ^  Eng,  R.  Cas. 
316,  73  Wis.  553.  41  A'.  IV.  Rep.  538- 

Where  cattle  break  through  a  fence  on  the 
side  of  a  railroad,  and  the  owner  repairs  it 
with  defective  materials,  but  it  is  apparently 
.sufficient,  and  his  cattle  again  break  through 
the  same  place  and  are  killed,  and  he  knew 
that  the  fence  was  defeciive,  and  failed  to 
notify  the  company — /leld,  that  he  was 
guilty  of  negligence  and  could  not  recover. 
Chicago,  B  ijr'  (J.  R.  Co.  v.  Seirer,  60  ///,  295. 

Under  the  Ohio  act  of  March  35,  1859(1. 
S.  &  C.  331),  where  a  railroad  fence  forms 
the  boundary  of  an  inclosed  field,  it  is  the 
duty  of  the  landowner,  as  well  as  the  rail- 
road company,  to  maintain  the  fence  in 
proper  order.  If  the  landowner  knows 
that  such  fence  is  insufficient,  and, omitting 
to  repair  it,  turns  his  stock  into  a  field 
which  it  incloses,  and  by  reason  of  such 
insufficiency  the  stock  is  killed  upon  the 
track  without  fault  of  the  company  in  run- 
ning its  trains,  the  landowner  is  guilty  of 
such  contributory  negligence  as  will  prevent 
a  recovery  by  him.  Sandusky  &•  C.  R.  Co.  v. 
S/oan,  27  Ohio  St.  341,  11  ^lin.  Ry.  Rep.  264. 
— FoLLowKi)  IN  Dayton  &  M.  R.  Co.  v. 
Miami  County  Inlirniary,  32  Ohio  St.  566. 

Where  a  fence,  constructed  by  an  indi- 
vidual and  landowner;  serves  as  a  partition 
fence  between  a  railroad  track  and  the  in- 
closed fields  of  such  individual  owner,  but 
not  so  divided  that  each  owner  is  charged 
with  maintaining  in  repaira distinct  portion 
thereof,  the  railroad  company  and  indi- 
vidual landowner  are  each  under  equal  ob- 
ligations to  keep  and  maintain  the  entire 
fence  in  repair  until  so  divided,  and  if  the 
landowner,  knowing  the  partition  fence  to 
be  out  of  repair,  turns  his  stock  into  a  field 
inclosed  by  such  defective  fence,  and,  by  rea- 
son of  its  insufficiency,  his  stock  go  upon 
the  railroad  track  and  are  killed  by  a  passing 
train  run  without  negligence,  such  land- 
owner is  chargeable  with  contributory  neg- 
ligence, and  cannot  recover  for  the  loss. 
Dayton  &•  M.  R.  Co.  v.  Miami  County  Infirm- 
ary, 32  Ohio  St.  566.— Following  Sandusky 
&  C.  R.  Co.  V.  Sloan,  27  Ohio  St.  341.— 
Distinguished  in  Busby  7/.  St.  Louis,  K. 
C.  &  N.  R.  Co.,  81  Mo.  43. 

Where  the  owner  of  stock  knows  that  the 
fastening  of  a  gate  between  his  lands  and 
a  railroad  track  is  insecure,  and  takes  no 
measures  to  inform  the  company,  nor  to 
render  it  safe  himself,  cannot  recover  if  his 
stock   pass  through  it  and  are  injured  on 


212 


ANIMALb,  INJURIES  TO,  221,222. 


"I! 


« 


~  *,  iM 


the  track.  Chicago  &*  A.  Ji.  Co.  s.Buck,  14 
///.  App.  394- 

221.  Leavltiir  gato  open  or  burH 
dowu.* — A  railroad  company  that  is  with- 
out fault  itself  is  not  liable  tor  injuries  to 
tttock  that  go  upon  the  track  through  a  gate 
left  open  by  a  landowner.  Hook  v.  Worcester 
&'N.  A\  Co..  58  A'.//.  351. 

Where  gates  arc  allowed  at  farm  crossings 
for  the  convenience  of  an  adjoining  land- 
owner, he  is  bound  to  keep  them  closed,  and 
if  he  fails  to  do  so,  and  his  animals  pass 
through  them  to  the  railroad  and  arc  in- 
jured or  killed,  he  cannot  recover  from  the 
company  on  the  ground  that  it  has  neg- 
lected to  fence  its  track  as  required  by  the 
statute.  In  such  case,  and  as  to  such  land- 
owner, the  company  is  not  bound  to  main- 
tain cattle-pits  at  such  crossing.  Bon//  v. 
Kwumnlle  &•  T.  //.  R.  Co.,  23  Am.  &»  Eng. 
K.  Cas.  200,  100  /hi/.  301. — Followed  in 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Goodbar, 
102  Ind.  596. 

Where  the  owner  of  land  is  permitted  for 
his  own  convenience  to  maintain  drawbars 
or  gates  in  the  fence  along  the  line  of  a  rail- 
road, the  company  is  not  liable  for  dam- 
ages done  to  his  stock  passing  onto  the 
track  through  such  bars  or  gates,  by  reason 
of  his  own  neglect  or  default  in  maintaining 
them.  Indianapo/is,  P.  &^  C.  R.  Co.  v.  S/ttmer, 
17  Ind.  295.— DiSTiNtiUiSHED  IN  Bartlctt 
V.  Dubuque  &  S.  C.  R.  Co..  20  Iowa  i88. 
Quoted  in  Bond  v.  Evansville  &  T.  H.  R. 
Co.,  23  Am.  &  Eng.  R.  Cas.  200, 100  Ind.  301. 

The  tenant  of  the  landowner  using  the 
crossing  is  subject  to  the  same  rule.  In- 
dianapolis, P.  &-  C.  R.  Co.  V.  Shimer,  ly  Ind. 
295. 

Where  a  landowner  leaves  a  gate  open 
between  his  lands  and  a  railroad  track, 
neither  he  nor  his  lessees  nor  employes  can 
hold  a  railroad  company  liable  for  a  horse 
that  passes  through  the  gate  and  goes  upon 
the  track  and  is  injured.  Diamond  Brick  Co, 
V.  Neiv   York    C.  &•  H.  R.  R.  Co.,  58  Hun 

(N.  y.)  396,  34  N.  y.  s.  R.  637,  12  A.  y. 

Supp.  22. 

The  owner  of  stock  cannot  recover  from 
a  railroad  company  where  his  son  leaves  a 
gate  open  through  which  they  pass  onto 
the  track  and  are  injured.  Richardson  v. 
Chicago  <S-  N.  W.  R.  Co.,  56  Wis.  347,  14  N. 
W.  Rep.  176. 

222.  Allowing  animal  to  be  in 
dangerous   place.  —  (i)  Generally.  —  A 

*  See  ante,  181. 


company  is  entitled  to  the  use  of  its  track  at 
highway  crossings  free  from  unnecessary 
obstructions  by  owners  of  live  stock,  and  if 
such  owner  negligently  allows  his  stock  to 
remain  on  the  track  at  such  crossing,  and 
those  in  charge  of  the  train  give  the  statu- 
tory signals,  the  company  is  not  liable  for 
the  killing,  as  the  loss  is  due  to  the  owner's 
own  negligence,  Besides  not  being  allowed 
to  recover  for  the  loss,  the  owner  may  be 
liable  to  any  persons  on  the  train  that  may 
be  injured  by  a  collision  with  his  stock. 
Chicago,  li,  <Sm  Q.  R.  Co.  v.  Cauffman,  28  ///. 

5"3- 

In  the  absence  of  proof  of  negligence  on 
the  part  of  a  company's  employes,  an  owner 
of  live  stock  cannot  recover  if  he  knowingly 
permits  them  to  go  on  the  track  where 
they  are  killed.  Connyers  v.  Sioux  City  &* 
P.  R.  Co.,  78  lo^t/a  410,  43  A'.  ;;'.  Rip.  267.— 
DisriNdUisHiNG  Whitbcck  v.  Dubuque  & 
P.  R.  Co.,  21  Iowa  103;  Evans  v.  Burling- 
ton &  M.  R.  R.  Co.,  21  Iowa  374;  Searlcs?/. 
Milwaukee  &  St.  P.  R.  Co.,  35  Iowa  490. 
FoLM^wiNG  Smith  7/.  Chicago,  R.  I.  &  P.  R. 
Co.,  34  Iowa  506. 

Where  a  landowner  grants  a  right  of  way 
to  a  railroad  company  without  any  agree- 
ment as  to  fencing  it,  the  company  is  not 
liable  for  cattle  killed  unless  the  killing 
could  have  been  avoided,  where  the  owner 
permits  such  cattle  to  run  and  graze  near 
such  unfenced  road.  Louisi'ille  <S-  F.  R. 
Co.  V.  Milton,  14  B.  Mon.  (hy.)  61.— Criii- 
cisiNO  New  York  &  E.  R.  Co.  v.  Skinner, 
19  Pa.  St.  298.— Changed  nv  .statute  in 
Kentucky  C.  R.  Co.  7/.  Lebus,  14  Bush  (Ky.) 
518.  Followed  in  Louisville  &  F.  R.  Co. 
V.  Ballard,  2  Mete.  (Ky.)  177. 

The  fact  of  the  time  of  the  accident  was 
important,  and,  perhaps,  conclusive  on  the 
question  of  contributory  negligence  on  the 
part  of  the  plaintiff's  intestate.  It  was  neg- 
ligence on  his  part  to  have  his  teams  on  the 
track  at  a  time  when  he  knew  that  loaded 
cars  were  likely  to  be  sent  over  it.  Goods. 
New  York,  L.  E.  &*  W.  H.  Co.,  \%  N.  Y.  S. 
R.  773,  50  Hun  601,  2  A^.  Y.  Supp.  419. 

(2)  Illustrations. — It  was  negligence  on 
the  part  of  the  landowner  to  confine  his 
animals  to  an  inclosure  embracing  a  por- 
tion of  the  track,  where  it  was  crossed  by  a 
private  lane,  with  no  bars  or  other  appli- 
ances to  restrain  them  from  loitering  on  the 
track,  and  that  where,  being  so  confined, 
they  were  injured  without  carelessness  of 
the  persons  running  the  cars,  the  company 


ANIMALS,  INJUKlliS    lO,  2^:1  •-'•-•«. 


213 


was  not  liable.  Indianapolis,  /'.  ilr-  C.  A".  ( '<». 
V.  lirmonenburi^,  32  /;/</,  199. 

Where  the  owner  of  stock,  in  violation  of 
the  law,  tethers  his  stock  on  the  public  high- 
way, such  act  bars  a  recovery  aj^ainst  the 
railway  for  injuries  to  such  stock,  notwith- 
stan(lin><  its  failure  to  fence,  ration  v.  West 
End  iXarnrw  Gallic  A*.  Co.,  14  Mo.  App.  589. 

One  driving  an  unbroken  or  vicious  horse, 
or  one  easily  frightened  by  a  locomotive, 
alon^  a  public  road  running  side  by  side 
with  a  railroad,  docs  so  at  his  own  peril ;  the 
right  of  the  company  to  move  its  trains 
on  its  road  is  as  high  as  that  of  the  indi- 
vidual to  use  the  public  road.  Philadclpliia, 
ir.  &*  li.  R.  Co.  V.  Stini^er,  78  Pa.  St.  219. 

Near  where  the  cattle  were  killed  was  a 
small  brook  over  which  the  company  had 
built  a  culvert ;  below  the  culvert  was  the 
plaintiff's  pasture  in  which  the  cattle  were 
kept,  and  across  the  creek  in  this  pasture  he 
had  made  a  fence  of  long  poles.  A  freshet 
brought  down  driftwood,  which  floated 
through  the  culvert  and  against  the  fence, 
and  the  company  aided  it  through  the  cul- 
vert to  prevent  its  accumulating  above  to 
an  unsafe  amount.  At  sunset  the  plaintiff 
knew  of  the  exposed  situation  of  his  fence 
but  would  not  remove  his  cattle,  and  in  the 
night  the  fence  was  swept  away,  the  cattle 
went  upon  the  road,  and  were  killed.  /Md, 
that  the  plaintiff  could  not  recover.  Indian- 
apolis &*  C.  A'.  Co.  v.  Wrig/it,  1 3  Ind.  2 1 3. 

A  farmer  turned  his  stock  loose  upon  the 
track  of  a  railroad  on  Sunday,  not  expecting 
any  trains  to  pass.  Hearing  a  train  ap- 
proaching, he  got  upon  the  track  to  drive 
his  stock  off;  and,  although  the  train  was  in 
plain  sight  from  the  time  it  was  several  hun- 
dred yards  off,  he  failed  to  escape  in  time,  and 
was  killed,  /hid,  that  he  had  been  guilty 
of  such  conduct  as  precluded  all  right  of 
recovery,  the  railroad  company  not  being  in 
fault.  Schittenhchn  v.  Louisville  i5^  N.  K. 
Co.,  (Ky.)  19  Ant.  (S-  En^^.  R.  Cas.  1 1 1.— Dis- 
tinguished IN  Bostwick  V.  Minneapolis  & 
P.  R.  Co.,  2  N.  Dak.  440. 

The  charter  of  a  railroad  company  not 
obliging  them  to  fence  the  road  against  ad- 
joining lands,  unless  requested  so  to  do  by 
the  owners,  they  agreed  with  the  owner  of 
a  certain  adjoining  piece  of  land  not  to  fence 
the  road  against  his  land,  and  a  cow  placed 
upon  the  above-mentioned  land  strayed  on- 
to the  track  and  was  killed  by  the  passing 
of  the  cars.  NM,  that  the  owner,  having 
contributed,  by  his  own  neglect  in  permitting 


iIhtkw  to  |)asM  II  pi  Ml  till'  riiad.lu  its  destruc- 
tion, was  not  eiititkd  to  damages  for  its 
loss,  and  that  the  charge  of  the  court,  that. 
"  if  the  cow  was  killed  by  the  neglect  of  the 
defendants  to  use  ordinary  care  and  skill  in 
the  common  and  ordinary  use  of  the  lands 
for  railnjad  purp(jses,  then  the  defendants 
would  be  liable  to  the  owner  for  damages, ' 
was  erroneous.  7'o7i'ir  v.  Providence  &*  W. 
R.  Co.,  2  A". /.  404.— KKVii;wiN(i  Tonawanda 
R.Co.  V.  Munger,  5  Den.  (N.  Y.)  255.— Dis- 
Ai'i>K(n'Ki)  IN  Cranston  v.  Cincinnati,  H.  \' 
D.  K.  Co.,  I  Handy  (Ohio)  193. 

22:1.  Turning  cattlu  Into  rifrlit  of 
way.  —  Where  one  habitually  turns  his 
lu)rses  into  the  right  of  way  of  a  railroad 
company,  through  a  gate  maintained  for  his 
accomodation,  in  order  that  they  may  reach 
a  pasture-field  adjoining  the  right  of  way, 
between  which  and  the  latter  there  is  no 
fence,  he  cannot  recover  their  value  if  killed. 
/■'/.  Wayne,  C.  &^  L.  R.  Co.  v.  Woodward, 
31  Am.  &•  Enif.  R.  Cas.  546,  112  Ind.  118,  11 
ll'est.  Rep.  101.  13  A'.  A".  Rep.  260.—QVOI- 
INO  Loui-sville,  N.  A.  &  C.  K.  Co.  v.  Good- 
bar,  102  Ind.  596.  —  DlSTINUUiSHKD  IN 
Heller  7'.  Abbot,  79  Wis.  409. 

224.  IlriviiiK  ciittlu  upon  truck.— 
If  one  wantonly  or  carelessly  drives  stock 
upon  the  track  of  a  railroad  he  is  guilty  of 
contributory  negligence,  and,  if  the  stock  is 
injured,  cannot  recover  in  an  action  against 
the  company.  Forbes  v.  Atlantic  &*  N.  C. 
R.  Co.,  76  A^.  Car,  454,  14  Am,  Ry,  Rep.  313. 

225.  I>riviiig  colts  along  right  of 
way. — One  who  drives  colts  along  a  rail- 
road track  which  is  fenced  cannot  recover  if 
they  are  injured  by  a  passing  train  without 
negligence  on  the  part  of  those  in  charge  of 
it.  Davidson  v.  Central  Iowa  R.  Co.,  35  Am. 
&^  Eng.  R.  Cas.  158,75  Iowa  22,  39  A'.  W. 
Rep.  163. 

220.  Failure  to  look  and  listen  be- 
fore driving  cattle  [over  crossing.— 
A  person  who  drives  his  cattle  over  a  rail- 
road crossing  without  looking  or  listening 
is  guilty  of  negligence ;  but  where  the  cattle 
are  killed  by  a  train,  and  it  is  shown  that  the 
company's  employes,  by  the  use  of  ordinary 
care  and  diligence,  could  have  avoided  the 
injury  after  discovering  the  danger,  a  recov- 
ery cannot  be  defeated  on  account  of  the 
owner's  contributory  negligence.  Wooster  v. 
Chicago,  M.  &>  St.  P.  R,  Co,,  35  Am.&'Eng. 
R.  Cas.  1 52,  74  Iowa  593,  38  A^.  W.  Rep.  425. 
—Following  Morris  v.  Chicago.  B.  &  Q 
R.  Co.,  45  Iowa  29. 


iH 


ANIMALS,  INJURIES   TO,  tJ27-2;J2. 


:s  Si 
is 


Plaintiff's  wagon  was  beiiiy'drivcn  by  his 
son  along  a  street,  anotlierman  sitting  beside 
him,  and  in  attempting  to  pass  over  a  rail- 
way crossing  with  which  both  were  familiar 
a  locomotive  struck  the  wagon,  by  which  it 
and  the  horses  were  injured.  It  appeared 
that  neither  of  them  was  looking  out  for 
or  thinking  of  the  train ;  and  it  was  not  un- 
til they  were  within  fifteen  yards  of  the 
track  that  the  man  saw  the  train,  when  he 
sharply  told  the  son  to  put  on  the  whip,  but 
he  said  the  son  appeared  confused  and  did 
nothing ;  he  then  attempted  to  get  the  whip 
and  whip  the  horses  across,  but  it  was  too 
late.  The  son  acknowledged  having  heard 
what  the  man  said,  but  said  he  did  not  un- 
derstand him.  The  weight  of  evidence  went 
to  show  that  the  whistle  was  sounded  and 
bell  rung,  and  that  the  train  was  not  going 
more  than  six  or  seven  miles  an  hour. 
//(■/</,  that  there  was  such  contributory  neg- 
ligence on  the  driver's  part  as  prevented 
plaintiff  from  recovering.  Boggs  v.  Great 
Western  R.  Co.,  23  U.  C.  C.  P.  573. 

227.  Leading  frightened  horse 
nearer  the  engine. —  Where  a  horse  be- 
comes frightened  at  an  engine,  the  owner  is 
guilty  of  such  contributory  negligence  as  to 
defeat  a  recovery,  where  he  leads  him  still 
nearer  the  engine,  and  the  horse  becomes 
unmanageable  and  is  killed.  Louisville  &* 
N.  R.  Co.  V.  Schmidt,  8  Am.  &>Eng.  R.  Cas. 
248,  81  Ind.  264. 

228.  Leading  liorse  on  traulc  when 
train  iff  coming. — Plaintiff  working  upon 
a  bridge  across  defendant'  ailroad  track, 
with  knowledge  of  an  appr.  aching  train, 
called  to  his  little  boy,  eleven  years  old,  to 
lead  his  horse  across  the  track.  In  doing 
so  the  horse,  tinough  fright,  escaped  and 
got  upon  the  rrack  and  was  killed  by  the 
train.  The  proof  failed  to  show  negligence 
in  the  company.  Held,  that  a  verdict 
against  the  company  for  the  value  of  the 
horse  could  not  be  sustained ;  that  plaintiff 
was  guilty  of  great  negligence  on  his  part; 
that  the  law  did  not  require  a  railroad  to 
ring  a  bell  at  such  a  place,  it  being  only  a 
farm  crossing.  Toledo,  P.  &•  W.  R.  Co.  v. 
Head,  62  ///.  233. 

220.  Leaving  horse  unhitched  near 
tlie  track.— Where  the  plaintifl  left  his 
horse  unguarded  and  unhitched,  and  in 
close  proximity  to  a  railroad  track,  upon 
which,  as  he  knew,  it  was  morally  certain  a 
train  would  pass  within  a  few  feet  of  where 


his  horse  was  standing,  with  another  train 
standing  on  the  track  not  more  than  fifty 
feet  away,  ready  to  pull  out,  and  the 
thoroughfares  in  the  immediate  vicinity 
blockaded  with  horses  and  vehicles,  a  re- 
covery was  denied,  although  the  defend- 
ant was  guilty  of  negligence  in  failing  to 
ring  the  bell,  in  failing  to  place  a  man  on 
the  rear  end  as  it  backed  up  at  night,  and 
in  failing  to  place  any  head  or  other  light 
at  such  rear  etid.  Louisville  &*  N.  R.  Co.  v. 
Eves,  I  Ind.  App.  224,  27  A^.  E.  Rep.  580.— 
Quoting  Deville  v.  Southern  Pac.  R.  Co., 
50  Cal.  383. 

Plaintiff's  servant  drove  to  one  of  defend- 
ant's stations,  and,  leaving  the  horse  un 
hitched,  went  into  the  station.  The  horse 
was  frightened  by  the  whistle  of  an  ap- 
proaching train,  ran  upon  the  track,  and  was 
killed.  Held,  that  there  could  be  no  re- 
covery.  Edwards  v.  Philadelphia  <&*  R.  R. 
Co.,  148  Pa.  St.  531,  23  Atl  Rep.  894. 

230.  lliding  unbridled  horse  upon 
the  track.— Sending  a  boy  to  ride  a  horse 
without  a  bridle  is  such  negligence  as  will 
defeat  a  recovery  where  the  horse  goes 
upon  a  railroad  track,  and,  by  reason  of  not 
having  a  bridle,  the  boy  is  unable  to  move 
him  in  time  to  avoid  a  collision  with  the 
train.  Wabash,  St.  L.  &*  P.  R.  Co.  v. 
Krough,  13  ///.  App.  431- 

231.  Bushing  cattle  across  track 
in  front  of  approaching  train. — In 
actions  based  on  negligence  there  can  be 
no  recovery  where  the  plaintiff  and  defend- 
ant stand  in  pari  delicto.  So  held,  in  an 
action  where  it  appeared  that  plaintiff,  who 
was  driving  cattle,  was  told  by  a  companion 
that  he  believed  a  train  was  approaching, 
and  replied  that  he  thought  not,  and  that 
they  would  "  rush  "  the  cattle  over  the  track 
anyway,  and  where  some  of  them  were 
killed  by  a  train  running  without  the  re- 
quired signals.  Ohio  &•  M.  R.  Co.  v.  Eaves, 
42  ///.  288. 

232.  Stoppf  ngr  team  close  to  track 
when  train  is  approaching.— It  is  the 
duty  of  those  in  charge  of  a  team  unaccus- 
tomed to  trains  and  easily  frigiitened,  to 
exercise  proper  care  when  trains  are  ap- 
proaching, and  they  should  not  stop  the  team 
close  to  the  track ;  and  if  they  do  so  the 
railroad  company  is  under  no  obligation  to 
provide  against  their  failure  to  exercise 
proper  care.  Hargis  v.  St.  Louis,  A.  &•  T. 
R.  Co..  71  Tex.  19,  12  5.  W.  Rep.  953. 


ANIMALS,  INJURIES   TO,  233,234. 


215 


d.  What  Is  Not  Contributory  Negligence. 

233.  What  does  not  amount  to 
negligence  on  part  of  owner,  gener- 
ally.— The  plaintiff,  who  sued  to  recover  for 
cattle  killed  by  defendant's  train,  having,  as 
he  had  a  right  to  do,  built  his  pasture-fence 
and  located  the  gate  for  his  cattle  on  his 
own  land,  the  maintaining  and  use  of  this 
fence  and  gate  did  not  constitute  contrib- 
utory negligence  on  his  part,  and  the  court 
committed  no  error  in  failing  to  instruct  the 
jury  on  contributory  negligence.  Chatta- 
nooga, R.  <S-  C.  R.  Co.  V.  Palmer,  8g  Ga.  i6i, 
ISS.  E.Rep.  34. 

A  party  lawfully  crossing  a  railroad  at 
grade  with  a  drove  of  cattle  is  not  bound  to 
give  a  signal  to  an  approaching  train.  If 
necessary,  it  is  the  duty  of  the  company  to 
employ  a  person  to  give  signals.  Reeves  v. 
Delaware,  L.  &*  IV.  R.  Co.,  30  Pa.  St.  454. 

Maintaining  a  pasture-field  through  which 
an  unfenced  railroad  tracic  runs  is  not  such 
contributory  negligence  as  will  prevent  the 
owner  of  stock  killed  from  recovering  from 
the  company.  Harmon  v.  Columbia  &*  G. 
R.  Co.,  32  So.  Car.  127,  10  S.  E.  Rep.  877.— 
Quoting  Simkins  v.  Columbia  &  G.  R.  Co., 
20  So.  Car.  258. 

The  owner  of  horses  is  not  chargeable 
with  an  unlawful  act  or  with  negligence  in 
allowing  them  to  get  upon  a  railroad  track, 
if  it  be  uninclosed.  But  he  by  so  doing 
takes  the  risk  of  their  loss  or  injury  by  un- 
avoidable accident.  But  if  killed  by  the  neg- 
ligence of  the  servants  of  the  railroad  com- 
pany in  running  the  train,  it  is  responsible. 
Washington  v.  Baltimore  &*  0.  R.  Co.,  10  Am. 
&^  Eng.R.  Cas.  749,  17  IV.  Va.  190.— QUOT- 
ING Loui-sville  &  N.  R.  Co.  v.  Wainscott, 
3  Bush  (Ky.)  149;  Louisville  &  F.  R.  Co.  v. 
Ballard,  2  Mete.  (Ky.)  177.  ^''OT  FOLLOWING 
Tonawanda  R.  Co.  v.  Munger,  5  Den.  (N.  Y.) 
255, 4  N.  Y.  349 ;  Clarke  r-  Syracuse  &  U.  R. 
Co.,  1 1  Barb.  112;  Talma^ige  v.  Rensselaer  & 
S.  R.Co.,  13  Barb.  493 ;  Terrey  v.  New  York 
C.  R.  Co.,  22  Barb.  574.— Followed  in  John- 
son V.  Baltimore  &  O.  R.  Co.,  25  W.  Va. 
570;  Layne  v.  Ohio  River  R.  Co.,  35  W.  Va. 
438.  Quoted  in  Riley  v.  West  Virginia  C. 
&  P.  R.  Co.,  27  W.  Va.  145 ;  Nuzum  v.  Pitts- 
burgh, C.  &  St.  L.  R.  Co.,  30  W.  Va.  228. 

In  such  a  case  the  servants  of  the  railroad 
company  are  bound  to  use  ordinary  precau- 
tion to  discover  that  the  horses  are  on  the 
track,  as  well  as  to  avoid  injuring  them 
after  they  are  seen.  Washington  v.  Baltimore 


&•  O.  R.  Co.,  I o  Am.  &'Eng.  R.  Cas,  741,,  1 7  U^. 
Va.  190. 

In  such  a  case,  if  the  plaintiff  be  present 
and  fail  to  give  any  signal  to  the  approach- 
ing train  or  to  drive  his  horses  off  the  track, 
when  he  could  have  done  so,  the  company 
would  still  be  responsible,  if  the  engineer  of 
the  train  saw  the  horses  on  the  track  in 
ample  time  to  avoid  injuring  them,  or  could 
have  so  seen  them  in  such  ample  time  by 
the  use  of  ordinary  care.  The  plaintiff, 
under  such  circumstances,  could  not  reason- 
ably anticipate  that  the  engineer  of  the  com- 
pany would  be  guilty  of  such  negligence,  and 
therefore  he  cannot  be  considered  as  con- 
tributing to  the  accident.  Washington  v. 
Baltimore  &•  O.  R.  Co.,  10  Am.  &•  Eng.  R. 
Cas.  749,  17   W.  Va.  190. 

234.  Illustrations. — Plaintiff's  mule, 
in  care  of  a  driver,  broke  loose  at  night 
from  where  he  was  camping  and  went  over 
a  stone  gap  of  a  railroad  into  a  plantation, 
where  it  was  run  over  by  the  cars  and 
killed.  Held,  that  contributory  negligence 
could  not  be  imputed  to  plaintiff,  either 
from  the  fact  that  the  driver  was  negligent 
in  allowing  it  to  escape,  or  from  the  fact  that 
the  mule  was  loose ;  and  that  in  such  case 
no  question  as  to  the  sufficiency  of  the  fence 
of  the  plantation  is  raised.  South  &•  N.  Ala. 
R.  Co.  V.  Williams,  65  Ala.  74.— Distin- 
guished in  Alabama  G.  S.  R.  Co.  v.  Powers, 
19  Am.  &  Eng.  R.  Cas.  502,  73  Ala.  244. 

It  is  not  contributory  negligence,  defeat- 
ing a  recovery  for  stock  killed,  for  a  sheep- 
herder,  after  having  rounded  up  his  sheep 
in  a  field  about  one  quarter  of  a  mile  from 
a  railroad  track,  to  leave  them  there  over- 
night and  go  home.  McCoy  v.  Southern  Pac. 
R.  Co.  iCal.),  26  Pac.  Rep.  629. 

Where  a  team  was  stalled  at  a  railroad  cross- 
ing, near  a  curve  in  the  railroad,  the  driver 
could  not  be  charged  with  negligence  in  try- 
ing to  extricate  the  team,  instead  of  going 
around  the  curve  to  stop  any  train  that 
might  be  approaching.  Chicago  &*  A.  R.  Co. 
V.  Ht^arth,  38  ///.  370. 

Where  the  evidence  showed  that  the 
plaintiff  had  taken  his  horses  upon  the  com- 
pany's right  of  way,  and  allowed  them  to 
gra. .  there  a  short  time,  but  before  the 
train  arrived  he  had  taken  them  upon  the 
public  highway,  he,  with  the  two  horses  he 
was  leading,  being  fifty  or  sixty  feet,  and  the 
animal  that  was  killed,  which  was  following, 
being  about  thirty  feet,  west  of  the  crossing 
when  said  train  approached  that  frightened 


■l-jj 


g; 


I 


.1 


216 


ANIMALS,  INJURIES   TO,  '-i.sr.  2;t7. 


if 


SZ; 


im 


it  and  afterwards  killed  it,  the  fact  tiiat  lie 
had  previously  taken  said  animals  upon  and 
over  said  company's  right  of  way  will  not 
prevent  his  recovery,  provided  he  is  other- 
wise entitled  to  recover.  Toledo.  St,  L.  <S^• 
K.  C.  R.  Co.  V.  Jackson,  5  Ind.  App.  547,  32 
A'.  E.  Rep.  793.— Quoting  Louisville,  E.  & 
St.  L.  R.  Co.  V.  Hart,  2  Ind.  App.  130. 

If  plaintiff's  horse  is  injured  through  a 
defect  in  a  railroad's  premises  while  loading 
freight  on  the  cars,  if  the  loading  might 
have  been  done  more  speedily  and  without 
the  use  of  horses  if  some  other  means  had 
been  adopted,  the  plaintifT  was  not  at  fault 
if  the  method  made  use  of  by  him  was 
rersonably  well  adapted  to  the  particular 
work  in  hand,  and  was  in  all  respects 
attended  with  ordinary  care,  such  care  as 
men  of  ordinary  prudence,  sense,  and  dis- 
cretion would  be  expected  to  use  under  the 
same  circumstances.  Chicago  &*  I.  C.  R. 
Co.  v.  DeBaum,  2  Ind.  App.  281,  28  N.  E. 
Rep.  447. 

Where  it  appeared  that  the  stock  was 
killed  through  the  negligence  of  the  train- 
men on  a  passing  train  ;  tliat  the  stock  was 
running  at  large,  and  strayed  on  the  track; 
that  the  night  preceding  the  injury  it  had 
been  shut  up  in  the  plaintifl's  barn,  but 
without  his  knowledge  had  gotten  out  of 
the  barn  into  the  barn-lot,  and  thence 
through  a  gate  onto  the  road,  and  thus 
strayed  away  to  the  place  of  injury — held, 
that  the  fact  that  plaintifT  had  another 
horse  which  was  in  the  habit  of  opening  the 
gate  of  the  barn-lot,  and  did  in  fact  open  the 
gate  at  that  time,  did  not  amount  to  such 
contributory  negligence  as  to  defeat  the 
plaintiff's  recovery.  Pacific  R.  Co.  v.  Brown, 
14  Kan.  469. 

Plaintiff  turned  his  mule  into  a  field  ad- 
joining a  railroad  track,  which  was  suf- 
ficiently fenced  on  all  sides,  but  during  the 
night  the  division  fence  between  that  and 
another  field  blew  down,  and  the  mule 
passed  to  the  other  field,  and  from  it  over 
an  insufRcient  fence  onto  the  railroad 
track.  Held,  that  the  facts  would  not  sup- 
port a  charge  of  contributory  negligence. 
IVilliams  v.  Missouri  Pac.  R.  Co.,  74  Mo. 

453. 

PlaintifT  owned  a  farm  bisected  by  a  rail- 
road, which  the  company  fenced,  as  required 
by  statute.  PlaintifT  corralled  twenty-three 
head  of  cattle  on  an  inclosure  of  about  three 
acres  on  one  side  of  the  track,  the  company's 
fence   being  one  side  of    the    inclosure, 


having  first  looked  along  the  railnjad  fence, 
which  apparently  was  in  good  condition ; 
inil  in  the  morning  a  board  was  found 
broken  and  part  of  the  cattle  had  gone  upon 
the  track  and  been  killed  or  injured.  "The 
evidence  as  to  the  soundness  of  the  fence 
was  conflicting.  Held,  not  sufficient  evi- 
dence to  show  contributory  negligence,  and 
a  verdict  for  plaintiff  would  be  upheld. 
Union  Pac.  R.  Co.  v.  Schwciick,  1 3  Neb.  478. 

235.  Escape  of  niiiintil  without 
owner's  fault.— The  owner  of  animals 
killed  by  a  railroad  train  is  not  chargeable 
with  contributory  negligence  where  they 
escape  and  get  upon  an  unfenced  railroad 
track  without  his  fault.  Cox  v.  Minneapolis, 
S.  St.  M.  &>  A.  R.  Co.,  38  Am.  &^  Eng.  R. 
Cas.  287,  41  Minn.  101,  42  N.  //'.  Rep.  924. 

236.  Escape  of  animal  from  se- 
curely-fenced inclosure.— Negligence 
cannot  be  imputed  to  a  person  simply  from 
the  fact  that  his  beasts  have  escaped  from 
his  well-fenced  field  onto  a  railroad  track. 
Spinner  v.  New  York  C.  &^  H.  R.  R.  Co., 
67  N.  v.  133;  ajgirming  6  Hun  Coo. — Fol- 
lowing Corwin  v.  New  York  &  E.  R.  Co., 
13  N.  Y.  42.— Quoted  in  White  v.  Utica  & 
B.  R.  Co.,  15  Hun(N.  Y.)  333. 

One  who  places  a  horse  in  an  inclosure 
securely  fenced  along  the  line  of  a  railroad 
is  not  chargeable  with  contributory  negli- 
gence because  the  horse  leaps  the  fence  and 
escapes,  unless  it  appears  the  horse  was  one 
that  ordinary  fences  would  not  confine. 
Dennis  v.  Louisi>ille,  N.  A.  <S^C.  R.  Co.,  35  Am. 
<S-  Eng.  R.  Cas.  141,  116  Ind.  ^2,  15  West. 
Rep.  547,  i8yV.  E.Rep.  179,  i  L.  R.  A.  448.— 
Quoted  in  Chicago,  St.  L.  &  P.  R.  Co.  v. 
Fenn,  3  Ind.  App.  250. 

The  owner  of  stock  who  resides  where 
the  herd  law  is  not  in  force,  and  who  places 
his  cattle  in  a  field  inclosed  by  a  fence  rea- 
sonably sufficient,  is  not  precluded  from  re- 
covering for  injuries  thereon  inflicted  by  a 
railroad  train.  Story  v.  Chicago,  M.  &-  St. 
P.  R.  Co. ,  79  Iowa  402,  44  N.  IV.  Rep.  690. 

237.  Gates  left  open  by  third  per- 
sons.*—The  owner  of  horses  left  them  in  a 
pasture  adjoining  a  railroad,  which  was  se- 
curely fenced,  and  went  to  another  state, 
not  leaving  any  person  to  look  after  the 
horses,  which  went  upon  the  railroad  track 
through  a  gate  which  had  been  recently  left 
open  by  trespassers,  and  the  horses  were 
negligently   injured    by   a    passing    train. 

*  See  ante,  182. 


ANIMALS,  INJURIES   TO,  iJ;J8-24<). 


217 


llthl,  that  tlie  owner  was  not  guilty  of  con- 
tributory negligence.  Toledo,  \V.&^  IV.  R. 
Co.  V.  Mi'lligan,  52  Iiid.  505. 

238.  Turning  cattle  into  fields 
where  track  is  nntcnce<l.*— Where  a 
railroad  company  has  failed  to  fence  its 
track  as  required  by  statute,  it  is  not  con- 
tributory negligence  for  an  adjoining  land- 
owner to  turn  his  stock  into  a  field  border- 
ing the  track  which  is  not  fenced.  Wilder 
V.  Maine  C.  R.  Co.,  'o^  Me.  332. — Review- 
ing Rogers  7/.  Newburyport  R.  Co.,  i  Allen 
(Mass.)  17;  Gardners.  Smith,  7  Mich.  410; 
McCoy  V.  California  Pac.  R.  Co.,4oCal.  532; 
Kellogg  V.  Chicago  &  N.  W.  R.  Co.,  26  Wis. 
223.— Approved  in  Cleveland,  C.,C.  &  I.  R. 
Co.  V.  Scudder,  13  Am.  &  Eng.  R.  Cas.  561, 
40  Ohio  St.  173.  Quoted  in  Cressey  ?'. 
Northern  R.  Co.,  15  Am.  &  Eng.  R.  Cas. 
540,  59  N.  H.  564,  47  Am.  Rep.  227. — Dono- 
van v.  Hannibal  iS^*  St.  J.  R.  Co.,  26  Am.  &» 
Eng.  R.  Cas.  588,  89  Mo.  147,  i  5.  IV.  Rep. 
232. 

It  is  not  contributory  negligence  to  turn 
stock  into  a  field  that  the  owner  knows  is 
not  fenced  on  the  side  adjoining  a  railroad 
track.  McCoy  v.  California  Pac.  R.  Co.,  40 
Cal.  532.— Quoted  in  Cressey  v.  Northern 
R.  Co.,  15  Am.  &  Eng.  R.  Cas.  540,  59  N.  H. 
564,  47  Am.  Rep.  227.  Reviewed  in 
Wilder  v.  Maine  C.  R.  Co., 65  Me.  332. 

It  is  not  contributory  negligence  in  a 
plaintiflf  to  put  cattle  in  an  inclosure  of 
forty  acres  through  which  a  railroad  runs. 
The  fact  that  the  stock  law  was  in  force 
where  the  inclosure  was  situate  makes  no 
difference.  Horner  \.  Williams,  I'j  Am.  &> 
Eng.  R.  Cas.  155,  100  A^.  Car.  230,  5  S.  E. 
Rep.  734. 

239.  Turning  cattle  into  fields 
'vliere  railroad  fences  are  defective.! 
-Where  a  statute  makes  a  railroad  com- 
pany liable  for  stock  killed   by  reason  of 

lit  'ing  to  fence  its  track,  it  is  no  defense  to 
an  action  for  killing  stock  that  the  owner 
turned  his  stock  out  knowing  that  the  fence 
was  down  or  defective.  Bellefontaine  R. 
Co.  v.  Reed,  33  Ind.  476. 

It  is  not  conclusive  evidence  of  contrib- 
utory negligence  for  one  to  allow  his  do- 
mestic animals  to  run  in  his  pasture  adjoin- 
ing a  railroad,  although  he  knew  that  the 

*See/o.f/,  281. 

Contributory  negligence   in  placing   cattle   in 


unfenced  field,  see   notes,  15 
Cas.  540 ;  20  Id.  468 
tSee/«/,  281. 


Am.  &  Eno.  R. 


dividing  fence,  which  tlie  railroad  company 
was  bound  to  maintain,  was  defective. 
Evans  v.  St.  Paul  (3~>  S.  C.  R.  Co.,  30  Minn, 
489,  16  A^  W.Rep.  271. 

Where  a  cow  is  sent  by  the  owner  'o  a 
lot  adjoining  a  railroad  track  in  charge  of  a 
boy  who  permits  her  to  go  through  an  open- 
ing temporarily  made  by  the  railroad  com- 
pany while  making  certain  improvements, 
proof  that  the  owner  knew  that  the  fence  was 
open  will  not  excuse  the  company  for  kill- 
ing her.  Brady  v.  Rensselaer  &•  S.  R.  Co.,  i 
Hun  {N.  y.)  378.  3  T.  &-  C.  537. 

It  is  not  contributory  negligence  for  the 
owner  of  hogs  to  turn  them  into  a  field 
adjoining  a  railroad  track  which  he  knows 
the  company  hiis  not  fenced  as  required  by 
statute.  Cleveland,  C,  C.  &•  I.  R.  Co.  v. 
Scudder,  i^Am.  &^  Eng.  R.  Cas.  ^61, 40  0/tio 
St.  173. — .Approving  Rogers  v.  Newbury- 
port R.  Co.,  I  Allen  (Mass.)  16;  Shepard  v. 
Buffalo,  N.  Y.  &  E.  R.,  35  N.  Y.  641 ;  Toledo, 
W.  &  W.  R.  Co.  V.  Cory,  39  Ind.  218;  Ham- 
mond V.  Chicago  &  N.  W.  R.  Co.,  43  Iowa 
168;  McCoy  V.  California  Pac.  R.  Co.,  40 
Cal.  532;  Wilder  v.  Maine  C.  R.  Co.,  65 
Me.  332.  Following  Pittsburgh,  C.  &  St. 
L.  R.  Co.  V.  Smith,  38  Ohio  St.   1.10. 

Under  the  Vermont  statute,  Rev.  Laws,  § 
3184,  one  is  not  guilty  of  contributory  neg- 
ligence in  turning  his  cattle  into  his  pas- 
ture, although  he  has  knowledge  that  the 
division  fence  of  an  adjoining  landowner  is 
insufficient,  and  that  if  his  cattle  should 
escape  into  such  owner's  field  they  would 
be  liable  to  injury ;  and  in  an  action  to  re- 
cover for  injuries  to  the  plaintiff's  cattle 
evidence  is  not  admissible  in  behalf  of  the 
defendant  to  prove  such  knowledge.  Eddy 
V.  /Finney,  60  Fi.  554,  15  All.  Rep.  198. 

c.  Comparative  Negligence. 

240.  In  Georgia.— Where  neither  the 
railroad  company  nor  the  owner  of  stock  is 
required  to  fence,  but  the  rights  of  each  on 
uninclosed  lands  are  the  same,  if  stock  be 
injured  on  such  lands  by  passing  trains  the 
diligence  of  both  the  owner  and  the  railroad 
company  is  material.  Georgia  R.  6-  B.  Co. 
V.  Neely,  56  Ga.  540. 

In  an  action  for  killing  a  mule,  the  con- 
tributory negligence  of  plaintiff,  however 
slight,  will  count  against  him  in  mitigation 
of  damages,  but  the  plaintiff  is  only  bound 
to  exercise  ordinary  care  or  reasonable  dili- 
gence. Georgia  R.  &•  B.  Co.  v.  Neely,  56 
Ga.  540.— Approved  in  Western  &  A.  R. 


218 


ANIMALS,  INJURIES   TO,  241-246. 


ill 


Co.  V.  liloomingdale,  74  Ga.  604.  Distin- 
guished IN  Georgia  R.  Co.  v.  Thomas,  68 
Ga.  744- 

241.  Ill  Illinois.— Whether  permitting 
male  aniniais  lu  run  at  large,  whicli  are  in- 
jured by  trains,  is  contributory  negli},'ence, 
depends,  lirst,  upon  whether  permitting 
them  to  run  at  large  was  a  proximate  or 
only  a  remote  cause  of  the  injury ;  and  if 
it  was  a  proximate  cause,  then,  secondly, 
whether  such  neglijjenci;  of  the  owner  was 
slight  and  that  of  the  company  gross. 
Rockford,  R.  I.  &^  S/.  L.  R.  Co.  v.  /ns/i.  72 
III.  \o\. 

It  appearing  from  the  evidence  that  tiie 
coir  was  on  the  railroad  track  when  a  train 
of  several  cars  approached,  and  the  engine- 
driver  whistled  for  putting  on  brakes,  which 
was  not  done,  and  that  if  the  brakes  had 
been  applied,  in  obedience  to  the  signal,  the 
train  could  have  been  controlled  so  as  to 
prevent  the  accident,  and  no  explanation 
was  made  why  the  brakes  were  not  applied 
— held,  that,  even  if  the  plaintiff  was  negli- 
gent in  permitting  tlie  colt  to  run  at  large, 
his  negligence  was  slight  and  that  of  the 
defendant  gross,  and  that  plaintifT  was  enti- 
tled to  recover.  Toledo,  VV.  &^  IV.  R.  Co.  v. 
McGinnis,  71  ///.  346.— Distinguishing 
Rockford.  R.  I.  &  St.  L.  R.  Co.  v.  Linn,  67 
111.  109. 

242.  In  Wisconsin. — An  ownerof  live 
stock  who  is  guilty  of  negligence  in  permit- 
ting them  to  go  upon  a  railroad  track  can- 
not recover  from  the  company  damages  for 
an  injury  thereto,  on  proof  showing  slight 
negligence  on  the  part  of  the  company. 
Calpin  V.  Chicago  Ssr^  N.  W.  R.  Co.,  19  Wis. 
604. 

2.  Animals  Running  at  Large.* 
a.  When  Owner  May  Recover. 

243.  Rule  where  animal  is  law- 
ftilly  riinniiiiir  ft*  larjfe— Alabama.— 

One  living  on  the  line  of  a  railroad  that  runs 
through  his  pasture  is  guilty  of  no  negli- 
gence in  allowing  his  stock  to  run  upon 
his  own  pastures  or  upon  the  commons.  He 
is  not  required  in  Alabama  to  fence  against 


*Stcante,  53-00,  152-150,187-206; 
/>w/,  288,  337,411. 

Contributory  negligence  in  allowing  animals 
to  run  at  large,  see  notes,  1 3  Am.  &  Eng.  R.  Cas. 
578,  584  ;  15  Id.  557;  20/</.  485;  22  Id.  62$. 

Allowing  stock  to  run  loose  in  vicinity  of  un- 
fenced  track,  see  43  Am.  &  Eng.  R.  Cas.  573 
aistr. 


a  railroad.  Birmingham  Mineral  R.  Co.  v. 
Harris,  g8  Ala.  326,  13  So.  Rep.  317. — QUOT- 
ING Mobile  &  O.  R.  Co.  7/.  Williams,  53  Ala. 

595- 

Apart  from  the  influence  of  any  special 
statute,  the  law  in  Alabama  is,  that  it  is  not 
such  contributory  negligence  for  the  owner 
of  stock  to  suffer  them  to  run  at  large  as 
to  prevent  him  from  recovering  damages 
for  injuries  negligently  done  to  them  by  per- 
sons or  corporations  owning  or  controlling 
railroads.  Alabama  G.  S.  R.  Co.  v.  McAl- 
pine,  1 5  Am.  &*  Eng.  R.  Cas.  544,  71  Ala.  545. 
—Distinguished  in  Alabama  G.  S.  R.  Co. 
V.  Powers,  19  Am.  &  Eng.  R.  Cas.  502,  73 
Ala.  244. — Alabama  G.  S.  R.  Co.  v. /ones,  15 
Am.  &>  Eng.  R.  Cas.  549,  71  Ala.  487. 

244.  California.  —  In    California 

the  owner  is  not  guilty  of  negligence  in  al- 
lowing his  horse  to  run  at  large.  Waters 
V.  Moss,  12  Cal.  535. 

Permitting  animals  to  run  at  large  near  a 
railroad  is  not  such  contributory  negligence 
as  to  prevent  a  recovery  from  the  company 
which  failed  to  use  ordinary  precautions 
and  reasonable  care  and  diligence  to  avoid 
injuring  them.  Richmond  v.  Sacramento  Val- 
ley R.  Co.,  18  Cal.  351. 

245.  Florida.— A  company  is  lia- 
ble for  injuring  or  killing  cattle  or  other 
live  stock  upon  its  track  by  its  trains  when- 
ever such  killing  or  injury  is  the  result  of 
negligence  upon  the  part  of  the  agents 
operating  the  train.  The  fact  that  the  owner 
of  the  live  stock  permits  them  to  run  at 
large  does  not  constitute  contributory  neg- 
ligence. Savannah,  F.  &^  W.  R.  Co.  v.  Gei- 
ger,  :.g  Am.  &*  Eng.  R.  Cas.  274,  21  /7a.  669, 
58  Am.  Rep.  697. 

246.  Illinois.  — Owners  of  stock 

killed  by  a  train  are  not  chargeable  with  con- 
tributory negligence  because  the  stock  are 
running  at  large  at  the  time.  Individuals 
may  permit  their  stock  to  run  on  the  com- 
mons and  highways  of  the  country,  and  in 
doing  so  they  are  guilty  of  no  wrong.  Chi- 
cago. B.  &•  Q.  R.  Co.  V.  Cauffman,  38  ///.  424. 
—Distinguished  in  Rockford,  R.  I.  &  St. 
L.  R.  Co.  V.  Linn,  67  111.  109. 

It  being  lawful  for  animals  to  run  at  large 
upon  the  commons,  the  owner  of  a  cow, 
who  lives  in  the  country,  and  turns  her 
out  upon  the  commons,  whence  she  strays 
upon  a  railroad,  at  a  public  crossing,  and 
is  killed,  will  not  be  guilty  of  negligence. 
Rockford,  R.  I.  <S-  St.  L.  R.  Co.  v.  Rafferty, 
73  III-  58. 


ANIMALS,  INJURIES   TO,  tit7  *J.-»«». 


P.V.) 


The  owner  of  a  horse  killed  I)y  a  rail- 
road train  has  not  been  guilty  of  negligence 
in  c  Mowing  the  animal  to  run  at  large 
through  the  streets  of  a  village  through 
which  an  unfenced  railroad  track  ran,  he 
having  the  legal  right  to  the  use  of  the 
street  in  common  with  the  railroad.  C/it- 
cago  &*  A.  K.  Co.  V.  Engle,  84  ///.  397. 

247.  lucliaua.  —  Where  an  order 

of  the  board  of  county  commissioners  au- 
thorizes an  animal  to  run  at  large,  the 
owner  is  not  prevented  from  recovering  for 
a  negligent  injury  to  the  animal  at  a  pub- 
lic railroad  crossing  by  the  mere  fact  that 
he  permitted  it  to  run  at  large,  such  fact 
not  being  imputed  to  him  as  a  contributory 
fault.  Chicago,  Sf.  L.  &•  P.  R.  Co.  v.  Nash, 
I  Iiui.  App.  298,  27  .V.  E.  Rep.  564. 

248.  lowu.  —  (i)  Generally.  —  The 

owner  of  stock  who  is  guilty  of  no  contrib- 
utory negligence  further  than  permitting 
it  to  run  at  large  may  recover  from  a  rail- 
road company  who  negligently  kills  it. 
Searles  v.  Milwaukee  &*  St.  P.  R.  Co.,  35 
Imva  490,  5  Am.  Ry.  Refi.  524.— DiSTiN- 
(;uisHED  IN  Connyers  v.  Sioux  City  &  P.  R. 
Co..  78  Iowa  410,  43  N.  W.  Rep.  267.  Rf- 
viEWEU  IN  Moses  T/.  Southern  Pac.  R.  Co., 
42  Am.  &  Eng.  R.  Cas.  555,  18  Oreg.  385. 

In  Iowa,  permitting  cattle  to  run  at  large 
is  not  negligence  on  the  part  of  the  owner ; 
neither  is  he  a  trespasser  if  the  cattle  go 
upon  an  unfenced  railroad  track.  Alger  v. 
Mississippi  6-  M.  R.  Co.,  10  hma  268.— Ap- 
proving Kerwhacker  v.  Cleveland,  C.  &  C. 
R.  Co.,  3  Ohio  St.  172 ;  Stadwell  v.  Rich,  14 
Conn.  293 ;  Barnum  v.  Van  Dusen,  16  Conn. 
200;  Beaufort  w.  Danner,  i  Strobh.  (So.  Car.) 
176;  Seeley  v.  Peters,  10  111.  130.  Fol- 
lowing Wagner  7/.  Bissell,  3  Iowa  396; 
Heath  v.  Coltenback,  5  Iowa  490. — Dis- 
tinguished in  Pearson  v.  Milwaukee  & 
St.  P.  R.  Co.,  45  Iowa  497.  Followed  in 
Evans  v.  Burlington  &  M.  R.  R.  Co.,  21 
Iowa  374. 

Permitting  stock  to  run  at  large  in  the 
vicinity  of  a  railroad  crossing  which  is  known 
to  be  dangerous  is  not  such  contributory 
negligence  as  will  prev  jnt  a  recovery  if  they 
are  negligently  killed  by  the  company. 
Kii/in  V.  Chicago,  R.  I.  &•  P.  R.  Co.,  42  Iowa 
420. — Distinguished  in  Van  Horn  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  7  Am.  &  Eng.  R. 
Cas.  591,  59  Iowa  33.  Followed  in  Miller 
V.  Chicago  &  N.  W.  R.  Co.,  59  Iowa  707- 

The  owner  of  cattle  allowing  them  to 
run  at  large  on  the  public  highway  is  not 


guilty  of  contributory  negligence  when  such 
running  at  large  is  not  prohil)ited  by  munici- 
pal ordinance.  Whitheck  v.  Dubuque  &•  P. 
R.  Co.,  21  /ov.>a  103.— Distinguished  in 
Connyers  v.  Sioux  City  &  P.  R.  Co.,  78  Iowa 
410,  43  N.  W.  Rep.  267. 

(2)  Under  §  1289  of  the  Code.* — Allowing 
swine  to  run  on  one's  own  land  in  close 
proximity  to  an  unfenced  railroad  track  is 
not  that  "wilful  act  of  the  owner"  which, 
under  §  1289  of  the  Code,  exonerates  the 
railroad  company  from  liability  in  case  they 
go  on  the  track  and  are  killed.  Lee  v.  Min- 
neapolis (Sm  St.  L.  R.  Co.,  20  Atn.  &*  Eng.  R. 
Cas.  476,  66  Io7va  1 3 1 ,  23  A'.  IV.  Rep.  299. 

The  mere  negligence  of  the  owner  of  a 
team  injured  while  running  at  large  will  not 
defeat  his  recovery.  The  statute  provides 
that  the  company  shall  be  liable  unless  the 
damage  was  caused  by  the  wilful  act  of  the 
owner  or  his  agent.  Inman  v.  Chicago,  M. 
&•  St.  P.  R.  Co.,  60  Iowa  459,  15  A^.  W.  Rep. 
286. 

An  instruction  that  "  if  plaintiff  know- 
ingly allowed  his  horse  to  be  upon  and  to 
frequent  the  depot  and  station  grounds  of 
defendant,  where  it  was  not  required  to 
fence,  and  where  there  was  danger  of  the 
horse  being  struck  by  the  trains  of  defend- 
ant, he  is  guilty  of  contributory  negligence, 
and  cannot  recover  in  this  action,"  i.e.,  for 
double  damages,  under  Iowa  Code,  §  1289 — 
held,  properly  refused.  Miller  v.  Chicago  &^ 
N.  W.  R.  Co.,  59  Iowa  707,  13  A^.  W.  Rep. 
859.— Distinguishing  Van  Horn  v.  Bur- 
lington, C.  R.  &  N.  R.  Co.,  59  Iowa  33. 
Following  Kuhn  v.  Chicago,  R.  I.  &  P.  R. 
Co,,  42  Iowa  420. 

240.  Kansas.— In  counties  where 

no  order  has  been  made  by  the  board  of 
county  commissioners  regulating  or  pro- 
hibiting the  running  at  large  of  animals,  in- 
dividuals may  permit  their  stock  to  run  on 
public  highways,  and  in  so  doing  they  are 
not  necessarily  guilty  of  negligence.  Mis- 
souri Pac.  R.  Co.  v.  Wilson,  1 1  Am.  &•  Eng. 
R.  Cas.  447,  28  A'an.  "^37.— Distinguishing 
Union  Pac.  R.  Co.  v.  Rollins,  5  Kan.  167. 

250.  Mississippi.— An  owner  of 

domestic  animals  in  Mississippi  has  the  right 
to  pasture  them  on  the  commons  of  incor- 
porated towns,  in  the  absence  of  local  regu- 
lations to  the  contrary,  and  such  conduct, 
though  dangerous  and  reprehensible,  does 
not  diminish  his  right  to  compensation  from 

*Seea/(/^  217,218. 


ANIMALS,  INJURII'S   TO,  251-254. 


Ik 


those  who  inji're  them.  Cliicago,  St.  L,  &* 
A'.  O.  A'.  Co.  v./lvics,  1 1  Am.  &•  Eng.  R.  Cas. 
450,  59  M/ss.  465. 

But  in  so  doing  he  takes  the  risk  of  their 
loss  or  injury  by  unavoidable  accident,  such 
as  going  upon  a  railroad  track.  Rai/ordv. 
Mississippi  C.  R.  Co.,  43  A/iss.  233.  Me»i- 
phis  <S>'  C.  R.  Co.  V.  Bhikeney,  43  Miss.  218. 

Persons  in  Mississippi  living  near  rail- 
roads have  the  same  right  as  those  living  at 
a  greater  distance  to  turn  their  cattle  upon 
the  range,  but  in  doing  so  they  assume  uv 
increased  danger  of  accidents  that  cannot  be 
avoided.  Xe^v  Orhans,J.  &^  G.  iX.  R.  Co.  v. 
Field,  46  Afiss.  573,  2  Am.  Ry.  Rep.  439. 

251.  Missouri.— It  is  not  negli- 
gence in  Missouri  to  permit  stock  to  run  at 
large  near  a  railroad.  Nolon  v.  Chicago  &» 
A.  R.  Co.,  23  Mo.  App.  353. 

By  the  law  of  Missouri  the  owner  of  ani- 
mals is  not  bound  to  confine  his  stock 
within  his  own  inclosures,  and  he  is  guilty 
of  no  negligence  in  not  confining  them. 
Hannibal  &*  St.  /.  R.  Co.  v.  Kenney,  41  M ). 
271. 

It  is  no  defence  to  an  action  under  §  38  of 
Missouri  act  for  killing  stock,  that  the  plain- 
tiff allowed  his  animals  to  run  at  large  upon 
the  highway  near  the  railroad.  Turner  v, 
Kansas  City,  St.  J.  &>  C.  B.  R.  Co.,  19  Am. 
(S-  Eng.  R.  Cas.  506,  78  Mo.  578.— Quoted 
IN  Apitz  V.  Missouri  Pac.  R.  Co.,  17  Mo. 
App.  419. 

For  the  owner  has  the  lawful  right  to 
turn  out  his  horse  upon  the  uninclosed 
lands  adjoining  the  railroad.  Tarwater  v. 
Hannibal  <S-  St.  /.  R.  Co.,  42  Mo.  193. 

Railroad  companies  may  be  liable  in  such 
a  case  for  unavoidable  accidents  or  simple 
misadventure,  but  the  owner  of  cattle  would 
not  be  guilty  of  negligence  unless  he  wil- 
fully drives  cattle  upon  a  railroad  track. 
Tarwater  v.  Hannibal  <S^»  St.  J.  R.  Co.,  42 
Mo.  193. 

Although  an  owner  is  not  bound  to  fence 
in  his  stock  he  may  be  guilty  of  such  wilful- 
ness or  negligence  in  regard  to  his  animals 
as  to  render  himself  liable  to  a  railroad 
company  for  damages  caused  by  their  being 
upon  the  track.  Hannibal  <S»  St.  J.  R.  Co. 
v.  Kenney,  41  Mo.  271. — Referring  to 
Gorman  v.  Pacific  R.  Co.,  26  Mo.  441 ;  Clark 
V.  Hannibal  &  St.  J.  R.  Co.,  36  Mo.  202. 

An  owner  of  stock  may  allow  it  to  run  at 
large,  notwithstanding  that  he  knows  that 
salt  has  been  left  exposed  near  the  railroad 
track,  and  such  knowledge  will,  therefore, 


not  affect  his  riglil  to  recover  for  the  loss  of 
the  stock  in  consequence  of  the  negligence 
of  the  railway  company.  Burger  v.  St. 
Louis,  K.  (Sx  a;  W.  R.  Co.,  52  Mo.  App.  119. 

Where  the  evidence  showed  that  plaintilT 
lived  in  the  village  where  defendant's  sta- 
tion was,  and  where  salt  was  on  the  track, 
and  that  he  turned  his  horse  out  about 
a  half-hour  before  it  was  killed,  know- 
ing that  the  salt  was  upon  the  track  and 
•tracting  stock,  this  was  not  contribu- 
T  -triigence  in  plaintiff.  It  was  his  legal 
urn  his  horse  outside  an  inclosure, 
and  ho  ouglit  not  to  be  forced  to  lose  the 
benefit  of  the  commons  because  defendant 
fails  '  f  its  di)'"  Brown  v.  Hannibal  &*  St. 
/.  R.  ^0.,  2/  ,  LU.App.  394. 

252. Mciitaia.— The  fact  that  the 

owner  of  a  ranch  in  Montana  turns  his 
horses  out  to  graze  on  the  public  domain  in 
the  vicinity  of  his  ranch  does  not  make  him 
guilty  of  contributory  negligence,  so  as  to 
prevent  recovery  for  the  value  of  the  horses 
killed  by  a  passing  train.  Mc Master  v. 
Montana  Union  R.  Co.,  56  Am.  &*  Eng.  R. 
Cas.  195,  12  Mont.  163. 

253.  Nortli  Carolina.  —  When 

plaintiff  permitted  his  steer  to  leave  home 
and  wander  upon  defendant's  track,  he  was 
not  guilty  of  contributory  negligence  under 
the  rule  as  applied  in  North  Carolina. 
Bethea  v.  Raleigh  &*  A.  R.  Co.,  106  N.  Car. 
279,  10  5'.  E.  Rep.  1045. 

254.  Ohio. — In  Ohio  the  owner  of 

cattle,  horses,  hogs,  and  other  live  stock  is 
not  compelled  to  keep  them  on  his  own 
land  or  within  inclosures.  Allowing  them 
to  run  at  large  on  uninclosed  lands  is  not 
contributory  negligence.  Kerwhacker  v. 
Cleveland,  C.  &*  C.  R.  Co.,  3  Ohio  St.  172.— 
Approved  in  Isbell  v.  New  York  &  N.  H. 
R.  Co.,  27  Conn.  393;  Alger  v.  Mississippi 
&  M.  R.  Co.,  10  Iowa  268  ;  Gorman  v.  Pacific 
R.  Co.,  26  Mo.  441.  Explained  in  Scott 
V.  Third  Ave.  R.  Co.,  36  N.  Y.  S.  R.  838,  59 
Hun  456,  13  N.  Y.  Supp.  344.  Quoted  in 
Cincinnati,  H.  &  D.  R.  Co.  v.  Kassen,  49  Ohio 
St.  230.  Reviewed  in  Hicks  v.  Pacific  R. 
Co.,  64  Mo.  430;  Cresseyw.  Northern  R.  Co., 
15  Am.  &  Eng.  R.  Cas.  540,  59  N.  H.  564,  47 
Am.  Rep.  227;  Pendleton  St.  R.  Co.  v. 
Stallmann,  22  Ohio  St.  i. 

The  mere  fact  that  plaintiffs'  cattle 
strayed,  without  right,  on  the  track  of  the 
railroad  of  the  defendants,  neither  estab- 
lishes that  character  of  negligence  which 
precludes  a  claim  for  injury  done  to  them, 


ANIMALS,  INJURIES   TO,  255-200. 


221 


nor  justifies  a  want  of  proper  care  to  save 
and  preserve  them  from  destruction  on  the 
part  of  the  defendants.  Whetlier  the  neg- 
ligence of  the  plaintiffs  has  contributed  to 
the  injury  in  such  manner  as  to  preclude 
their  recovery,  and  whether  the  defendants 
have  used  proper  care,  arc  questions  de- 
pending on  the  facts  and  circumstances  of 
tlie  case.  Cranston  v.  Cincinnati,  H.  &*  D. 
A'.  Co.,  1  Handy  (Ohio)  193.— Disapproving 
Munger  v.  Tonawanda  R.  Co.,  4  N.  Y. 
349;  New  York  &  E.  R.  Co.  v.  Skinner, 
19  Pa.  St.  302  ;  Tower  v.  Providence  &  W. 
R.  Co.,  2  R.  I.  404. 

255.  Oregon. — In  those  jurisdic- 
tions in  which  the  common-law  rule  as  to 
the  duty  of  the  owner  of  cattle  to  keep  them 
within  his  own  inclosure  is  not  in  force — 
held,  that  a  plaintiff  in  allowing  his  stock  to 
run  at  large  commits  no  unlawful  act,  nor  is 
he  guilty  of  an  omission  of  ordinary  care  ; 
and  if  such  stock  stray  upon  an  uninclosed 
railroad  track  and  are  injured  or  killed 
whether  they  are  rightfully  there  or  not,  he 
is  not  guilty  of  contributory  negligence,  but 
the  company  is  liable  unless  it  or  its  agents 
exercised  ordinary  care  or  skill  in  the  man- 
agement of  its  train  to  prevent  their  injury 
or  destruction.  Moses  v.  Southern  Pac.  R. 
Co.,  42  Am.  &*  Eng.  R.  Cas.  555,  18  Oreg. 
385,  23  Pac.  Rep.  498.— Quoting  Blaine  v. 
Chesapeake  &  O.  R.  Co.,  9  W.  Va.  253. 

Stock  running  at  large  are  animals  that 
roam  and  feed  at  will,  and  are  not  under 
the  immediate  direction  and  control  of 
any  one;  and  .in  such  case,  if  they  wander 
upon  the  track  of  a  railroad  and  are 
killed,  the  owner,  in  allowing  them  to  run  at 
large,  is  not  guilty  of  contributory  negli- 
gence and  precluded  from  a  recovery. 
Keeney  v.  Oregon  R.  &*  N.  Co.,  42  Am.  &> 
Eng.  R.  Cas.  619, 19  Oreg.  291,  24  Pac.  Rep. 

233. 

The  act  of  1887,  §§  4044-4049,  Oregon 
Code,  respecting  cattleowner's  right  to  re- 
cover for  stock  killed  upon  unfenced  rail- 
road track  by  a  moving  train,  does  not 
relieve  the  owner  from  the  duty  of  keeping 
ills  stock  within  reasonable  confines.  He 
owes  a  duty  to  the  public,  which  requires 
him  to  use  reasonable  efforts  to  prevent  them 
from  going  where  they  will  imperil  the  safety 
and  security  of  persons  and  property ;  and 
while  he  is  allowed  to  depasture  his  horses 
and  cattle  upon  "the  common,  unfenced 
range  "  without  being  chargeable  with  con- 
tributory negligence  in  case  tliey  are  killed 


or  injured  as  mentioned,  yet  he  is  not  per- 
mitted to  turn  them  out  to  roam  wherever 
their  instmcts  incline  tliem.  Hindman  v. 
Oregon  R.  &•  N.  Co.,  38  Am.  ^^  Eng.  R.  Cas. 
310,  17  Oreg.  614,  22  Pac.  Rep.  1 16. 

250. South  Carolina.— An  owner 

who  permits  his  horse  to  roam  at  large  over 
uninclosed  land  is  not  guilty  of  such  negli- 
gence as  will  embarrass  his  recovery  should 
the  horse  be  killed  by  the  negligence  of  an- 
other. Murray  v.  South  Carolina  R.  Co.,  10 
Ri.h.  {So.  Car.)  227. 

Testimony  that  the  cow  was  turned  out 
into  the  street  to  graze  on  the  commons 
near  the  railroad  track,  that  she  was  found 
lying  in  the  ditch  near  the  track  with  two 
legs  broken,  and  that  the  land  on  both  sides 
of  the  track  at  that  point  belonged  to  the  de- 
fendant, is  sufficient  evidence  to  entitle  the 
plaintiff  to  have  his  case  submitted  to  the 
jury,  and  does  not  show  contributory  negli- 
gence on  the  part  of  plaintiff.  Rowe  v. 
Greenville  &*  C.  R.  Co.,  7  So.  Car.  167. 

257. Tennessee.— Tennessee  stat- 
utes recognize  the  running  out  of  stock 
on  the  commons  as  lawful,  and  the  fact  that 
the  owner  of  an  animal  allowed  it  to  be  out 
of  his  inclosure  cannot  be  relied  on  either  to 
defeat  the  action  or  in  mitigation  of  dam- 
ages. Memphis  &*  C.  R.  Co.  v.  Smith,  9 
Heisk.  ( Tcnn.)  860,  20  Am.  Ry.  Rep.  60. 

258.  Texas.— Under  the    law  of 

Texas  it  is  not  contributory  negligence  for 
an  owner  to  permit  his  cattle  to  run  at 
large  within  the  corporate  limits  of  the 
city  where  there  is  an  ordinance  which  ex- 
pressly authorizes  it.  Texas  <S-»  P.  R.  Co.  v. 
Cockrell,  2  Tex.  App.  (Civ.  Cas.)  629. 

259. Washington  Territory.— 

The  law  of  Washington  Territory  does  not 
require  cattle  to  be  fenced  in. or  herded,  and 
it  is  not  negligence  in  the  owner  to  permit 
them  to  go  upon  a  railway  track,  even 
though  he  knew  it  to  be  unfenced.  Timm 
V.  Northern  Pac.  R.  Co.,  3  IVasA.  T.  299, 
13  Pac.  Rep.  415.  —  Distinguished  in 
Dacres  v.  Oregon  R.  &  N.  Co.,  i  Wash.  525. 

200.  Animals  unlawfully  at  large 
without  fault  of  owner.— The  case  of  a 
person  whose  stock  escape  from  him  and 
stray  upon  a  railroad  against  his  will,  is  to 
be  distinguished  from  cases  where  owners 
voluntarily  turn  their  cattle  out  to  range 
where  it  is  probable  that  they  will  go  upon 
the  track.  Chicago  &^  N.  W.  R.  Co.  v. 
Goss,  17  Wis.  428.— Quoted  in  McCandless 
V.  Chicago  &  N.  W.  R.  Co..  45  Wis.  365. 


■    II 


m  ■  j; 


ANIMALS,  INJURIES  TO,  201. 


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■1 

4' 

; 

'I' 

i;' 

■1 

li     ' 

. 

I 

No  contributory  negligence  is  chargeable 
to  the  ownei  in  letting  the  stock  run  at 
large  when  it  breaks  out  of  its  pasture  with- 
out his  fault.  To/f(fo,  P.  &*  IV.  R.  Co,  v. 
Johnston,  74  ///.  83. 

To  charge  the  owner  of  stock  killed  by  a 
railroad  on  its  unfenced  track  with  contrib- 
utory negligence  in  allowing  it  to  run  at 
large  contrary  to  law,  it  must  appear  he  did 
so  under  such  circumstances  thut  the  natu- 
ral atid  probable  consequence  of  doing  so 
was  that  the  stock  would  go  upon  the  rail- 
road and  be  injured.  Cairo  &•  St.  L.  R.  Co. 
V.  Wooshy.  85  ///.  370. 

It  is  not  sufficient,  to  charge  a  plaintiff 
with  contributory  negligence  in  a  suit 
against  a  railroad  for  injury  to  stock,  to 
show  that  the  owner  permitted  the  stock 
to  run  at  large  in  violation  of  law,  but  it 
must  appear  tiiat  he  did  so  under  such  cir- 
cumstances that  the  natural  and  probable 
consequence  of  so  doing  was  that  the  stock 
would  go  upon  the  track  and  be  injured. 
Eiving  V.  Chicago  &*  A.  R.  Co.,  72  ///.  25.— 
Quoting  Chicago  &  N.  W.  R.  Co.  v.  Harris, 
54  111.  528;  St.  Louis,  A.  &  T.  H.  R.  Co.  v. 
Todd,  36  111.  409. 

Leaving  mules  unfastened  in  a  stable  with 
the  siable-door  open  for  about  twenty  min- 
utes during  a  heavy  rain,  whereby  one  of 
them  escaped  and  was  killed  by  a  moving 
train,  does  not  constitute  such  negligence 
on  the  part  of  the  person  so  leaving  them 
as  to  preclude  recovery  on  the  ground  that 
he  violated  a  municipal  oniinance  against 
permitting  any  mules  to  run  at  large.  Doran 
v.  Chicago,  M.  &•  St.  P.  R.  Co.,  73  Iffwa  1 1 5, 
34  N.   W.  Rep.  619. 

Where  plaintiff,  in  a  county  where  the 
herd  law  was  in  force,  turned  his  horses 
into  an  inclosure  upon  his  farm  fenced  with 
a  hedge-fence,  and  they  escaped  therefrom 
without  his  knowledge  and  strayed  upon 
the  defendant's  track,  where  they  were 
killed  by  a  passing  train— //^W,  that  he 
could  not  be  considered  guilty  of  contribu- 
tory negligence,  in  the  absence  of  proof  that 
the  fence  was  not  reasonably  sufficient. 
Moriarty  v.  Central  Io7va  R.  Co.,  20  Am.  &* 
Eng.  R.  Cas.  438,  64  Iowa  696,  n  N.  W. 
Rep.  143- 

The  company  is  not  released  from  its  duty 
to  exercise  ordinary  or  reasonable  care  to- 
wards animals  required  to  be  kept  in  in* 
closures  which  may  have  strayed  upon  its 
track,  unless  such  animals  are  at  large  by 
llie  owner's   sufferance.      Pcarsim   v,  Mil- 


waukee &*  St.  P.  R.  Co.,  45  Iowa  497.  — Dis 
TINGUISHING  Alger  V.  Mississippi  &  M.  R 
Co.,  10  Iowa  268.  Following  Buckley  v. 
New  York  &  N.  H.  R.  Co.,  27  Conn.  479, 

Where  a  colt  breaks  into  the  highway 
from  the  pasture  in  which  it  is  being  kept, 
without  the  knowledge  of  the  owner  or 
negligence  on  his  part,  and  gets  upon  a 
railroctd  track,  where  it  is  killed,  the  owner 
cannot  be  said  to  have  allowed  or  permitted 
0/  suffered  it  to  run  at  large.  Parker  v. 
Lake  Shore  &*  M.  S.  R.  Co.,  93  Mich.  607, 
53  A^.  W.  Rep.  834.  —  Distinguishing 
Robinson  v.  Flint  &  P.  M.  R.  Co.,  79  Mich. 
323.  Following  Great  Western  R.  Co.  v. 
Morthland,  30  111.  451. 

The  owner  of  animals  running  at  large  is 
not  guilty  of  a  breach  of  any  duty  imposed 
upon  him  by  the  Ohio  act  of  April  13,  1865 
(S.  &  S.  7),  if  they  be  at  large  without  the 
omission  on  his  part  of  reasonable  care. 
Marietta  &*  C.  R.  Co.  v.  Brown,  24  Ohio  St. 
48.— Distinguishing  Pittsburgh,  Ft.  W.  & 
C.  R.  Co.  V.  Methven,  21  Ohio  St.  586. 

Where  cattle  running  at  large,  without 
the  fault  of  the  owner,  enter  the  inclosed 
field  of  another  person,  through  which  a 
railroad  passes,  and  thence  go  upon  the 
track  of  the  road  by  reason  of  the  want  of 
fences  which  it  was  the  duty  of  the  railroad 
company  to  have  constructed,  so  as  to  sep- 
arate the  railroad  from  the  adjacent  lands, 
such  owner  is  not  guilty,  under  the  act  of 
April  7,  1865  (S.  &  S.  373),  of  contributing, 
by  his  own  wrong,  to  an  injury  done  by  a 
passing  train  to  the  cattle  while  upon  the 
railroad.  Marietta  &•  C.  R.  Co.  v.  Brawn,  24 
Ohio  St.  48, 6  Am.  Ry.  Rep.  428.— Followed 
in  Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Allen. 
19  Am.  &  Eng.  R.  Cas.  657,  40  Ohio  St.  206. 

b.   When  Owner  May  Not  Recover. 

201.  Generally.— Where  cattle  escape 
from  the  owner's  field  over  his  fence  and 
go  upon  a  track,  where  they  are  injured  by 
a  train  running  at  its  usual  rate  of  speed, 
the  owner  cannot  recover  for  the  injury, 
though  there  be  evidence  from  which  it 
might  be  inferred  that  the  engineer  could 
possibly  have  avoided  the  injury.  Price  v. 
New  Jersey  R,  &*  T.  Co.,  32  N.J.  L.  19. 

The  horse  of  theplainti^  escaped  from  I116 
stable  at  night  and  fell  into  a  cut  in  the 
public  highway  through  which  the  railnwd 
track  of  the  defendant  passed.  Held,  that 
it  was  the  duty  of  the  plaintiff  so  to  secure 
his  horse  that  it  could  not  stray  into  the 


ANIMALS,  INJURIES   TO,  2U2,  203. 


2",':} 


public  streets,  and  that  if  it  escaped,  and 
any  accident  occurred  tu  it  in  consequence 
thereof,  the  plaintiff  must  suffer  the  conse- 
quences. Mentges  v.  New  York  &*  H.  R. 
Co.,  I  Hilt.  {N.  V.)  425.  — FOLLOWINO 
Halloranz/.  New  York  &  H.  R.  Co.,  2  E.  D. 
Smith  257.  Reviewing  Munger  v,  Tona- 
wanda  R.  Co.,  4  N.  Y.  349. 

Where  the  owner  of  stock  lives  near  a 
railroad  track  and  knows  the  danger  to 
which  his  cattle  will  be  exposed  if  permitted 
to  go  at  large,  it  is  his  duty  to  exercise  the 
same  degree  of  care  to  prevent  his  cattle 
being  exposed  to  danger  as  the  railroad 
company  is  required  to  exercise  in  prevent- 
ing injuries  if  they  go  upon  the  track  ;  and 
while  it  may  be  negligence  of  a  railroad 
company  not  to  fence  its  track,  the  owner 
of  stock  is  guilty  of  the  same  degree  of  neg- 
ligence where  he  knowingly  permits  his 
stock  to  run  upon  a  highway  where  there  is 
nothing  to  prevent  their  going  upon  the 
railroad  track.  Trow  v.  Vermont  C.  R.  Co., 
24  Vt.  487. 

202.  Permitting  cattle  to  go  at 
large  unatteinlecl.— If  the  owner  of  an 
animal  carelessly  and  rashly  permit  it  to 
roam  at  large,  unattended,  in  the  vicinity  of 
a  railroad  where  the  company  cannot  be  re- 
quired to  fence  in  its  track,  and  it  is  there 
negligently  injured  by  such  company,  he 
cannot  recover,  for  he  is  chargeable  with 
contributory  negligence,  although  an  order 
of  the  board  of  county  commissioners  then 
in  force  allowed  such  an  animal  to  run  at 
large.  In  such  an  instance  he  is  chargeable 
with  actual  fault.  Chicago,  St.  L.  <S»  P.  R. 
Co.  v.  Nas/t,  I  I/id.  App]  298,  27  N.  E.  Rep. 
564.  Hanna  v.  Terre  Haute  &*  I.  R.  Co.,  iig 
Jnd.  i\6,  21  N.  E.  Rep.  903. 

In  turning  his  cattle  at  large  in  the  public 
highway  near  a  railroad  crossing,  without  a 
keeper,  the  owner  is  guilty  of  contributory 
negligence.  Robinson  v.  Flint  &•  P.  M.  R. 
Co.,  45  Am.  &■•  Eng.  R.  Cas.  496,  79  Mich. 
323,  44  N.  W.  Rep.  779. — Distinguishing 
Louisville  &  F.  R.  Co.  v.  Ballard,  2  Mete. 
(Ky.)  177.— Distinguished  in  Parker  v. 
Lake  Shore  &  M.  S.  R.  Co.,  93  Mich.  607. 
Followed  in  Niemann  v.  Michigan  C.  R. 
Co.,  80  Mich.  197. 

The  owner  of  cattle  is  guilty  of  contribu- 
tory negligence  in  turning  them  loose  in  a 
public  highway  near  a  railroad  crossing 
without  a  keeper,  the  road  being  properly 
fenced,  where  the  cattle  enter  upon  the 
grounds  of  the  company  at  a  place  where  it 


was  not  required  to  fence.  Niemann  v. 
Michigan  C.  R.  Co.,  80  Mich.  197,  44  ^V.  W. 
Rep.  1049.— Following  Robinson  v.  Flint 
&  P.  M.  R.  Co.,  79  Mich.  323. 

Voluntarily  turning  cattle,  unattended 
by  a  servant,  upon  a  highway,  from  which 
they  can  go  upon  a  railroad  track,  is  such 
negligence  as  will  prevent  the  owner  from 
recovering  for  injuries  to  them.  Fitch  v. 
Buffalo,  N.  V.  &^  P.  A.  C^.,  13  Hun  {A'.  )'.) 
668.— Applying  Corwin  v.  New  York  &  E. 
R.  Co.,  13  N.  Y.  42. 

PlaintifTs  premises,  in  a  city,  were  so 
nearly  surrounded  by  railroads,  running 
within  a  few  feet  of  them,  that  his  cow,  if 
suffered  to  be  at  large,  would  be  likely  to  get 
upon  some  one  of  said  roads.  She  was  accus- 
tomed to  go  for  water  to  a  canal  on  one  side 
of  his  premises,  and  might  go  to  a  river  on 
the  other  side,  but  to  reach  either  must 
cross  a  railroad.  Late  in  the  fall,  when 
grass  was  scarce,  and  there  was  none  grow- 
ing in  the  immediate  vicinity  of  plaintiff's 
barn,  his  cow,  after  being  housed  until  late 
in  the  day,  was  turned  int(j  the  street  with- 
out any  one  to  look  after  her ;  and  not  long 
after,  being  near  but  not  upon  the  track  of 
defendant's  road,  a  few  rods  from  plaintiff's 
premises  and  near  the  river,  feeding  on  grass 
growing  on  defendant's  embankment,  she 
started  on  the  approach  of  a  train,  and,  after 
running  a  short  distance,  was  struck  upon 
the  track  and  fatally  injured.  In  an  action 
for  the  damages,  the  above  facts  appearing 
from  plaintiff's  evidence— held,  as  matter  of 
law,  that  plaintiff  was  guilty  of  gross  con- 
tributory negligence,  and  could  not  recover 
in  the  absence  <>f  malice  or  wilfulness  on  de- 
fendant's part.  McCandless  v.  Chicago  &* 
N.  W.  R.  Co.,  45  Wis.  365,  19  Am.  Ry.  Rep. 
374.— Quoting  Curry  7'.  Chicago  &  N.  \V. 
R.  Co.,43  Wis.  665;  Chicago  &  N.  W.  R. 
Co.  V.  Goss,  17  Wis.  428.— Distinguished 
IN  Heller  v.  Abbot,  79  Wis.  409. 

203.  Rule  where  auiiiialH  are  un- 
lawfully running  at  large — Alabama. 
—The  Alabama  act  of  February  28,  1881, 
making  it  unlawful  for  stock  to  run  at  large 
in  certain  designated  portions  of  the  state, 
and  making  the  owner  liable  for  all  damages 
committed  by  them  on  the  lands  of  others, 
and  niaking  him  liable  for  a  misdemeanor  if 
he  knowingly  permits  his  stock  to  run  at 
large,  does  not  change  the  rule  as  to  con- 
tributory negligence  where  he  sues  to  re- 
cover from  a  railroad  company  for  injuries 
thereto,     Alabama,   G.    S.   R.    Co.  v.    Mc- 


nil 

m 
m 


22i 


ANIMALS,  iXJLUiKS   TO,  'JiU  li07. 


*••  "K,  ■ 


Alpine,  \\  Am,  &*  Eng.  R.  Cas,  544,  71  A/a. 

545- 

a«4. Colorado.— Although  the  stat- 

uic  makes  companies  liable  in  damages  to 
tile  owners  of  domestic  animals  killed  or  in- 
jured by  their  trains,  yet  where  such  animals 
are,  at  the  time  of  the  accident,  running  at 
large,  contrary  to  the  provisions  of  another 
section  of  the  statute,  and  tiie  injury  thereto 
results  without  wilful  or  gross  negligence 
on  part  of  the  railroad  company,  it  is  not 
liable  in  damages.  Denver  &^  R,  G.  R.Co. 
V.  S(enmri,  i  Colo.  App.  227,  28  Pac.  Rep. 
658. 

205. Illinois.— A  company    has  a 

right  to  the  use  of  its  track  free  from  ob- 
structions caused  by  animals  going  thereon, 
and  animals  which  are  permitted  to  stray  on 
the  track  are  thereat  the  risk  of  their  owner. 
Central  M.  T.  R.  Co.  v.  Rockafellow,  17  ///. 
541. — Distinguished  in  Toledo,  W.  &  W. 
R.  Co.  V.  Furgusson,  42  111.  449.  Over- 
ruled IN  Illinois  C.  R.  Co.  v.  Middles- 
worth,  46  III.  494. 

The  owner  of  a  horse,  who  voluntarily 
permits  it  to  run  at  large  contrary  to  law, 
cannot  recover  of  a  company  for  killing  the 
animal  by  one  of  its  trains,  upon  the  ground 
that  such  company  has  failed  to  fence  its 
track  at  the  place  where  the  animal  is  killed. 
In  such  a  case,  however,  the  railway  company 
will  not  be  relieved  from  its  duty  to  observe 
all  reasonable  precautions  to  prevent  injury 
to  the  property  of  plaintiff.  Peoria,  P.  &* 
J.  R.  Co.  v.  Champ,  75  ///.  577. —Distin- 
guished IN  Chicago  &  A.  R.  Co.  v.  Kellam, 
92  111.  245.  Quoted  in  Chicago  &  N.  W. 
R.  Co.  V.  Taylor,  8  111.  App.  108;  Cleveland, 
C.,C.  &St.  L.  R.  Co.  V.  Ahrens,  42  111.  App. 
434- 

266. Indiana.— One  who  voluntarily 

permits  his  cattle  to  run  at  large  near  a 
railroad  where  it  is  not  required  to  be  fenced 
is  guilty  of  contributory  negligence,  if  the 
cattle  stray  upon  the  track  and  are  killed 
by  the  negligent  management  of  the  train, 
and  he  cannot  recover.  Wabash,  St.  L.  &* 
P.  R.  Co.  v.  Nice,  23  Am.  &*  Eng.  R.  Cas. 
168, 99  /nd.  1 52.  Cincinnati,  H.  &*  D.  R.  Co. 
v.  Street,  50  Ind.  225. 

However,  the  rule  is  otherwise  where  the 
cattle  are  wilfully  killed.  Jeffersonville,  M. 
&*  I.  R.  Co.  V.  Underhill,  48  Ind.  389. 
Jeffersonville,  M.  6«  /.  R.  Co.  v.  Adams, 
43  Ind.  402.— Explaining  Jeffersonville. 
M.  &  I.  R.  Co.  V.  Underhill,  40  Ind.  229. 
Following  Indianapolis,  C.  &  L.  R.  Co.  v. 


Harter,  38  Ind.  557.  -  Ft.  Wayne,  C.&^L.  R, 
Co.  V.  O'Keefc,  4  Ind.  App.  249,  30  A'.  E, 
Rep.  916.  Chicago,  St.  L.  &>  P.  R.  Co.  v. 
A'ash,  I  Ind.  App.  298,  27  A'.  E.  Rep.  564. 

At  common  law  the  owner  of  animals  is 
obliged  to  keep  them  on  his  own  grounds, 
and  is  a  wrongdoer  if  he  suffers  them  to 
stray  upon  the  grounds  of  others,  which,  as 
a  rule,  is  the  law  of  Indiana.  So,  where 
there  is  no  order  of  the  county  commission- 
ers determining  what  animals  may  run  at 
large,  as  prescribed  by  statute,  and  the 
owner  of  live  stock  knowingly  permits  them 
to  run  at  large  in  the  immediate  vicinity  of 
a  railroad  where  fencing  is  not  required,  he 
is  guilty  of  negligence,  and  cannot  recover 
for  an  injury  thereto  without  proof  of  wan- 
tonness in  the  management  of  the  train. 
Indianapolis,  C.  &>  /..  R.  Co.  v.  Harter,  38 
Ind.  557.—  Followed  in  Jeffersonville,  M. 
&  I.  R.  Co.  V.  Adams,  43  Ind.  402.  Re- 
viewed IN  Jeffersonville,  M.  &  I.  R.  Co.  v. 
Huber,  42  Ind.  173. — Cincinnati,  W.  &*  M. 
R.  Co.  v.  Hiltzhauer,  99  Ind.  486.  Ft. 
Wayne,  C.  &-  L.  R.  Co.  v.  O'Keefe,  4  Ind. 
App.  249,  30  A^.  E.  Rep.  916.  Chicago,  St. 
L.  <S-  /'.  A'.  Co.  v.  Nash,  i  Ind.  App.  298, 
27  A^.  E.  Rep.  564. 

Where  there  is  no  evidence  from  which  it 
can  be  inferred  that  there  was  an  order  of 
the  board  of  commissioners  allowing  cattle 
to  run  at  large,  the  court  may,  as  a  matter 
of  law,  conclusively  infer  contributory  neg- 
ligence, and  there  can  be  no  recovery  by 
their  owner  for  their  killing  by  a  railroad 
train.  Lyons  v.  Terre  Haute  &*  I.  R.  Co., 
loi  Ind.  419. 

267. Iowa.  —Where  the  owner  of 

horses  allows  them  to  run  at  large,  in  viola- 
tion of  a  city  ordinance,  and  they  stray  upon 
a  railroad  track,  they  are  trespassers,  and  the 
owner  cannot  recover  for  injuries  to  them 
by  a  passing  train  unless  there  be  proof  of 
recklessness  and  wantonness  in  the  manage- 
ment of  the  train.  Vanhorn  v.  Burlington, 
C.  R.  &^  N.  R.  Co. ,  63  loTva  67, 18  A^.  W.  Rep. 
679- 

Where  a  person  in  a  city  allows  his  horses 
to  run  at  large  at  night,  and  to  lie  and  sleep 
on  a  railroad  track,  his  conduct  is  a  circum- 
stance tending  to  show  contributory  negli- 
gence, where  they  are  injured  by  a  passing 
train,  unless  he  had  a  legal  right  to  allow 
them  to  run  at  large ;  and  it  is  therefore  er- 
ror to  exclude  an  ordinance  which  is  offered 
to  show  that  he  had  not  such  right.  Van 
Horn  V.  Purling  ton  C.  R.  &^  N.   R.  Co.,  7 


ANIMALS,  INJURIES   TO,  2«8-27a. 


225 


,//«.  iS-  Eng.  R.  Cns.  591,  59  lorva  33.  12  A'. 
/»',;?<•/. 752.— Following  Halloran  t^Ncw 
Vork&  H.  K.  Co..  2  E.  D.  Smith  (N.  Y.) 
257  ;  Bowman  v.  Troy  &  H.  R.  Co.,  37  Barb. 
(N.  Y.)  516.  —  Distinguishing  Kuhn  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  42  Iowa  420. — 
Followed  in  Miller  v.  Chicago  &  N.  W. 
R.  Co,,  59  Iowa  707, 

208. KaiiNtis. — The  owner  of  live 

stock  who  permits  them  to  run  at  large,  in 
violation  of  the  Kansas  night-herd  law  of 
1 868,  cannot  recover  if  they  stray  upon  an  un- 
finccd  railroad  track  and  are  injured,  though 
it  is  the  duty  of  the  company  to  have  it 
fenced,  under  the  act  of  1 874,  ch.  94.  Central 
lUancli  R.  Co.  v.  Leii,  20  Kan.  353. — LiMir- 
ING  Hopkins  v.  Kansas  Pac.  R.  Co.,  18  Kan. 
462.— Distinguished  in  Sherman  v.  An- 
derson, 27  Kan.  333,  41  Am.  Rep.  414; 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Riggs,  1 5  Am. 
it  Eng.  R.  Cas.  531,  31  Kan.  622. — Not  fol- 
lowed IN  Missouri  Pac.  R.  Co.  v.  John- 
ston, 35  Kan.  58. 

The  conduct  of  the  owner  of  a  hog,  per- 
mitting it  to  run  at  large  in  violation  of 
Kansas  Comp.  Laws  1879,  ch.  105,  §  46,  is 
such  contributory  negligence  as  will  defeat 
a  recovery  where  it  is  negligently  killed  by 
a  train.  Kansas  City,  Ft.  S.  &*  G.  R.  Co.  v. 
Mc Henry.  24  Kan.  501. 

Piainiiif  turned  his  mule  at  night  on  lands 
that  were  surrounded  by  a  lawful  fence, 
within  the  meaning  of  the  Kansas  night-herd 
law,  but  through  which  a  railroad  track  ran 
which  was  unfenced  on  either  side,  and  the 
mule  was  injured  during  the  night  by  a  pass 
ing  train.  Held,  that  the  negligence  of  the 
company  in  failing  to  fence  was  ofifset  or 
equalled  by  that  of  the  plaintiff  in  turning 
his  animal  out  under  such  circumstances, 
and  though  the  animal  was  confined,  within 
the  meaning  of  the  night-herd  law,  still  he 
could  not  recover  for  the  killing.  Kansas 
Pac.  R.  Co.  V.  Landis,  24  Kan.  406.— Distin- 
guished IN  Krebs  ?/.  Minneapolis  &  St.  L. 
R.  Co.,  20  Am.  &  Eng.  R.  Cas.  478,  64  Iowa 
670;  Atchison,  T,  &  S.  F.  R.  Co.  v.  Riggs, 
15  Am.  &  Eng.  R.  Cas.  531,  31  Kan.  622; 
Gooding  7/.  Atchison,  T.  &  S.  F.  R.  Co.,  20 
Am.  &  Eng.  R.  Cas.  466,32  Kan.  150.  Fol- 
lowed in  St.  Louis  &  S.  F.  R.  Co,  v. 
Mossman,  30  Kan.  336.  Quoted  in  Bur- 
lington &  M.  R.  R.  Co.  V.  Brinkman,  11 
Am.  &  Eng.  R.  Cas.  438,  14  Neb.  70. 

209. Maryland.— At  common  law 

the  company  is  not  responsible  for  injuries 
t(j  cattle  or  stock  straying  upon  its  road 
I  D.  R   D.— 15. 


through  the  neglect  of  their  owners,  and 
this  rule  of  law  is  not  changed  by  the  Mary- 
land act  of  1838,  ch.  244,  and  the  act  of  1846, 
ch.  346.  Raltimore&^O.  R.  Co.  v.  Laniborn, 
12  Md.  257.— Following  Baltimore  &  S.  R. 
Co.  V.  Woodruff,  4  Md,  242.— Applied  in 
Keech  v.  Baltimore  &  W.  R.  Co.,  17  Md. 
32.  Approved  in  State  ?/.  Baltimore  &  O. 
R.  Co.,  24  Md.  84.  Distinguished  in  Bal- 
timore &  O.  R.  Co.  7',  Mulligan,  45  Md.  486. 

270. MiiiiieHota.— In  the  absence 

of  action  by  the  town,  imder  supervision  6, 
§  15,  ch.  10,  Gen.  St.  of  Minnesota,  the 
common-law  rule  whereby  every  man  is 
bound  to  keep  his  cattle  on  his  land  is  in 
force ;  so,  where  plaintiff  allowed  his  cow 
to  run  at  large  and  she  strayed  on  a  railroad 
track,  she  was  there  by  his  fault.  Locke  v. 
First  Div.  St.  P.  &^  P.  R.  Co.,  15  Minn. 
350,  Gill.  283. — Distinguished  in  Watier 
7/.  Chicago,  St.  P.,  M.  &  O.  R.  Co.,  13  Am. 
&  Eng.  R.  Cas.  582,  31  Minn.  91. 

It  \%  prima  facie  contributory  negligence 
for  one  to  voluntarily  allow  a  valuable  horse 
to  run  at  large  in  the  public  streets,  con- 
trary to  law,  in  the  immediate  vicinity  of 
unfenced  railroad  tracks.  Moser  v.  St.  Paul 
Sf  D.  R.  Co.,  42  Minn.  480,  44  N.  W.  Rep. 

530- 

But  it  is  not  negligence  per  se  to  turn  a 
cow  loose  upon  the  streets  unattended, 
where  there  is  a  city  ordinance  allowing  cat- 
tle to  run  at  large  during  certain  hours  of 
the  day.  Fritz  v.  First  Div.  St.  P.  &-  P.  R. 
Co.,  22  Minn.  404,  19  Am.  Ry.  Rep.  404. 

271. New  Jersey.  —  Where    an 

owner  of  stock  is  required  to  keep  them  on 
his  own  land  at  his  peril,  he  cannot  recover 
for  an  injury  to  them  while  running  at  large, 
against  a  railroad  engineer  who  was  shown 
to  be  a  careful  man  and  running  his  engine 
at  the  time  of  the  injury  at  a  lawful  rate  of 
speed,  and  where  there  is  no  evidence  to 
show  wilful  killing.  Vandegriftv.Rediker, 
22  N.  J.  L.  185.— Distinguished  in  Bost- 
wick  V.  Minneapolis  &  P.  R.  Co.,  2  N.  Dak. 
440. 

272. New  York.— It  is  contribu- 
tory negligence  for  the  owner  of  a  cow  to 
permit  her  to  run  at  large  upon  a  highway 
in  the  vicinity  of  a  railroad  crossing,  and  if 
she  be  killed  by  a  passing  train  the  owner 
cannot  recover.  Clark  v.  Syracuse  &•  U. 
R.  Co.,  11  Barb.  {N.  Y.)  112.— Not  Fol- 
lowed in  Washington  v.  Baltimore  &  O.  R. 
Co.,  17  W.  Va.  190. 

A  person  who  voluntarily  suffers  his  horse 


K    (I 


226 


ANIMALS,  INJURIES  TO,  147:i,  274. 


I> 


',9-1: 

$ 


•«» 


to  go  at  large  upon  tiie  public  streets  and 
stray  upon  u  ruilroad  cannot  recover  for 
injuries  to  the  horse  happeninfj  thn^ugh  the 
negligence  of  the  railroad  company,  the  neg- 
ligence of  both  parties  in  such  case  having 
contributed  to  the  injury,  Hulloran  v.  AVw 
York&'H.  K.  Co.,  2  E.  D.  Smith  (A'.  )'.) 
257.  — FoiXowiNii  Marsh  v.  New  York 
&  K.  R.  Co..  14  Barb.  (N.  Y.)  364.— 
F()i.l.owKi)  IN  Van  Horn  v.  Burling- 
ton. C.  R.  &  N.  R.  Co..  7  Am.  &  Eng.  R. 
Cas.  591,  59  Iowa  33 ;  Bowman  v.  Troy  &  B. 
R.  Co,,  37  Barb.  (N.  Y.)  516;  Mcniges  v. 
New  York  &  H.  R,  Co.,  i  Hilt.  (N.  Y.)  425. 

The  law  charges  the  owner  of  cattle  with 
a  wrongful  or  negligent  act  if  the  beasts 
stray  from  his  inclosure  and  go  upon  lands 
appropriated  by  a  railroad  corporation,  al- 
though his  inclosure  is  kept  well  fenced, 
and  he  is  guilty  of  no  actual  carelessness  in 
sullering  them  to  escape.  Miingcr  v.  Tona- 
•wanda  R.  Co.,  4  N.  V.  349.— Applied  in 
Hance  7/.  Cayuga  &  S.  R.  Co..  26  N.  Y. 
428.  DiSAPPROVEU  IN  Cranston  v.  Cincin- 
nati, H.  &  D.  R.  Co,,  I  Handy  (Oliio)  193. 
Distinguished  in  Alabama  G.  S.  R.  Co. 
V,  Powers,  19  Am.  &  Eng.  R.  Cas.  502,  73 
Ala.  244.  Followed  in  Price  v.  New 
Jersey  R,  &  T.  Co..  31  N.  J.  L.  229.  Re- 
viewed in  Mentgcs  v.  New  York  &  H.  R, 
Co.  I  Hilt.  (N.  Y.)425;  Moses  v.  Southern 
Pac.  R.  Co.,  42  Am.  &  Eng.  R.  Cas.  555, 
18  Oreg.  385. 

The  owner  of  a  cow  who  permits  her  to 
go  at  large,  and  unattended,  on  a  street  of 
a  city  on  which  railroad  tracks  are  laid,  is 
guilty  of  such  carelessness  as  to  defeat  a 
recovery  for  an  injury  thereto  by  a  passing 
train,  if  it  is  not  the  result  of  gross  negli- 
gence in  the  management  of  the  train.  Bow- 
man v.  Troy  &-  D.  R.  Co.,  37  Barb.  {N.  K.) 
516.— Distinguishing  Corwin  v.  New  York 
&  E.  R.  Co.,  13  N.  Y.  Rep.  42.  Following 
Halloran  v.  New  York  &  H.  R.  Co..  2  E.  D. 
Smith  (N.  Y.)  257.  Reviewing  Tonawanda 
R.  Co.  V.  Muiiger.  5  Den.  255;  affirmed  in  4 
N.  Y.  349.— Distinguished  in  Brady  v. 
Rensselaer  &  S.  R.  Co.,  i  Hun  (N.  Y.)  378, 
3  T.  &  C.  537.  Followed  in  Van  Horn  v. 
Burlington  C.  R.  &  N.  R.  Co.,  7  Am.  & 
Eng.  R.  Cas.  591,  59  Iowa  33.  Reviewed 
IN  Moses  7/.  Southern  Pac.  R.  Co.,  42  Am. 
&  Eng.  R.  Cas.  555.  18  Oreg.  385. 

It  is  gross  negligence  for  a  man  to  suffer 
his  cattle  to  go  at  large  on  the  highways  in 
the  immediate  vicinity  of  a  railroad.  Marsh 
V.  New  York  &*  E.  R.  Co.,  14  Barb.  (N.  V.) 


364.— Disapproved  in  Corwin  v.  New  York 
&  E.  R.  Co,.  13  N.  Y.  42. 

Where  the  owner  of  a  cow  wrongfully 
permits  her  to  go  upon  a  highway,  a  com- 
pany is  not  liable  for  failing  to  remove 
snow  from  a  cattle-guard,  whereby  the  cow 
passes  upon  the  track  and  is  injured,* 
Hance  v.  Cayuga  &^  S.  R.  Co.,  26  /V.  }'.  428, 
— Applying  Munger  ?'.  Tonawanda  R.  Co., 
4  N,  Y.  349.  Following  Corwin  7>.  New 
York  &  E.  R.  Co.,  13  N.  Y.  42.— Criti- 
cised IN  Bostwick  ?',  Minneapolis  «i  P.  R. 
Co.,  2  N.  Dak.  440.  Di.STiNc.uisHED  IN 
Brown  v.  Milwaukee  &  P.  du  C.  R.  Co.,  21 
Wis,  39. 

27a. North    Ciiroliiia.  —  If    the 

owner  of  cattle  permit  them  to  stray  off  and 
get  upon  the  track  of  a  railroad  and  they 
are  killed  or  hurt,  the  company  is  not  liable 
unless  the  train  was  being  carelessly  run, 
or  by  the  exercise  of  proper  care  after  the 
animals  were  discovered  the  injury  could 
have  been  avoided  or  prevented.  Doggett 
v.  Richmond  ^^  1),  R.  Co.,  81  A'.  Car.  459.— 
Quo  IKD  IN  Winston  v.  Raleigh  &  G.  R.  Co., 
19  Am.  &  Eng.  R.  Cas.  516,  90  N.  Car.  66. 

274. Ohio.— When  the  owner  suf- 
fers his  stock  to  run  at  large,  contrary  to 
the  statutes  of  the  state,  he  cannot  recover 
if  they  stray  upon  a  railroad  track  and  are 
killed,  although  they  may  have  done  so  by 
reason  of  the  track  not  being  fenced  as  re- 
quired by  law,  for  the  reason  that  in  such 
case  both  parties  arc  regarded  as  wrong- 
doers, and  neither  can  recover  for  injury 
resulting  from  the  unlawful  act  of  the  other. 
Baltimore  &-  O.  R.  Co.  v.  Wood,  45  Am.  <S- 
Et^.  R.  Cas.  464.  47  Ohio  St.  431,  24  A''.  E. 
Rep.  1077.— Following  Pittsburgh.  Ft.  W. 
&  C.  R.  Co.  V.  Methven,  21  Ohio  St.  586. 

Where  an  action  is  brought  against  a 
company  for  injuring  stock  after  the  adop- 
tion of  the  Ohio  act  of  April  13,  1865,  being 
an  act  to  restrain  certain  domestic  animals 
from  running  at  large,  and  it  is  charged  that 
the  damage  resulted  from  a  failure  on  the 
part  of  th«  company  to  fence  its  track  as 
required  by  the  act  of  March  25,  1859.  an 
answer  sets  up  a  good  defence  which  avers 
that  plaintiff  did  not  live  on  the  line  of  the 
road,  nor  was  the  animal  grazing  on  an  ad- 
jacent field;  that  plaintiiT.  knowingly,  un- 
lawfully, and  wilfully  permitted  his  animal 
to  go  at  large  upon  the  nninclosed  lands 
and  highways  bordering  the  railroad  track. 

*See<(;//^.  121,  160. 


ANIMALS,  INJUKIKS  TO,  aLVaTT. 


22'i 


V  '  '»»by  she  went  upon  iliu  track  and  was 
ilally  injured.  Pittsbm-^^fi,  Ft.  W.  diw 
t.  ii.  Co.  V.  MetfnuH.  21  Ohio  St.  586.— Kkc- 
ONCII.INO  Corwiii  7'.  New  York  &  Eric  R. 
Co..  13  N.  Y.  42.  — IJisTiNOUiSHFl)  IN  Krcbs 
7',  Minneapolis  &  St.  L.  R  Co.,  20  Am.  & 
Knj,'  R.  Ca8.  478,  64  Iowa  670;  Marietta  & 
f.  R.  Co.  V.  Sleplieiisoii,  24  Oiiio  St.  4.S. 
Foi.l.owKiJ  IN  Malliniorc  &  O.  R.  Co.  v. 
Wood,  47  (Jliio  St.  431.  RkvikwkI)  and 
Dl.siiNdUlsiiKD  IN  Uiirlinglon  &  M.  R.  R. 
Co.  V.  Brinkman,  11  Am.  &  Eng.  R.  Cas. 
438,  14  Neb.  70. 

275.  l*emiHji»Hiila.— Neglect  on 

the  part  of  a  plaintifT  in  allowing  his  animal 
to  run  at  large  will  prevent  a  recovery 
where  it  is  killed  on  the  track,  and  it  is 
CTor  to  instruct  the  jury  that  plaintiff  may 
vcr  notwithstandingsuch  neglect.  Hor- 
V.  Philadelphia  &»  T.  R.  Co.,  1  Phila. 
28. 
Where  companies  arc  not  required  to 
fence,  cattle  owners  who  permit  their  cattle 
to  go  at  large  cannot  recover  against  the 
company  or  its  servants  where  the  same  are 
killed  or  injured ;  but  such  owners  may  be 
liable  for  the  damages  done  by  them  to  the 
company  or  its  passengers.  New  York  &* 
E.  R.  Co.  V.  Skinner,  19  Pa.  St.  298.— A P- 
PMKl)  IN  North  Pa.  R.  Co.  v.  Rehman,  49 
I'a.  St.  101.  Disapproved  in  Cranston  v. 
Cincinnati.  H.  &  D.  R.Co.,  1  Handy  (Ohio) 
193.  DiHTlNcrisHKD  IN  Rehman  v.  Rail- 
road Co..  5  Phila.  (Pa.)  450.  Explained  in 
Sullivan  I/.  Philadelphia  &  R.  R.  Co.,  30  Pa. 
St.  234. 

270. Camula.— Where  the  animals 

get  upf)n  the  railway  track  in  consequence 
of  being  allowed  to  run  upon  the  highway 
near  a  crossing,  in  violation  of  the  statute, 
and  are  killed  at  the  point  of  intersection, 
the  owner  can  maintain  no  action  for  their 
loss.  McGee  v.  Great  Western  R.  Co.,  23  [/. 
C.  Q.  B.  293.— FoLi.owiNn  and  quoting 
Thompson  v.  Grand  Trunk  R.  Co.,  18  U.  C. 
Q.  B.  92. 

Where  there  was  evidence  to  show  that 
the  horse  escaped  from  the  plaintiff's  field 
into  the  street  within  half  a  mile  of  the  rail- 
way, and  thence  upon  the  track — held,  that 
if  so  the  plaintiff  was  precluded  from  recov- 
ering by  20  Vic.  ch.  12,  §  16,  forbidding 
cattle  to  run  at  large,  though  the  horse  was 
not  killed  at  the  very  point  of  intersection. 
Ferris  v.  Grand  Trunk  R.  Co.,  16  U.  C.  Q. 
P.  474,— Followed  in  Cooley  v.  Grand 
Trunk  R.  Co..  18  U.  C.  Q.  B.  96. 


Plaintiff's  son,  a  hoy  of  fourteen,  was 
driving  four  of  the  plaintiff's  horses  along 
the  highway  about  dusk  in  the  evening,  in- 
tending lo  put  them  in  a  held,  the  gate  of 
which  opened  into  the  road  about  sixty 
yards  from  the  railway  crossing.  While  he 
was  opening;  ^he  gate,  the  horses,  being 
loose,  passed  onto  the  track,  where  three  of 
them  were  killed  by  the  train,  which  was 
passing  at  its  usual  time.  J/eld.  that  the 
plaintiff  was  prevented  by  20  Vic.  ch.  12. 
§  16,  from  sustaining  any  action,  for  his 
horses  were  not  "in  charge  of"  the  boy, 
within  the  meaning  of  that  section ;  and, 
independently  of  that  statute,  he  was 
guilty  of  culpable  negligence  in  sending  his 
horses,  as  he  did.  in  cliargc  if  a  boy,  with- 
out a  bridle  or  any  means  >(  control,  after 
dark,  and  at  a  time  when  it  was  known  that 
the  train  might  be  expected.  The  neglect 
of  the  company  to  blow  the  whistle  or  ring 
the  bell  in  api)roa(liing  the  crossing  could 
not  affect  the  right  of  action,  Thompson  v. 
Grand  Trunk  R.  Co.,  18  U.  C.  Q.B.')2.— 
Followed  and  quoted  in  McGee  v. 
Great  Western  R.  Co.,  23  U.  C.  Q.  B.  293. 
Reviewed  in  Markhan  v.  Great  Western 
R.  Co.,  25  U.  C.  Q.  B.  572. 

Plaintiff  sent  three  of  his  horses  to  a  wa- 
tering-place on  the  highway  with  his  serv- 
ant, who  merely  drove  then)  before  him,  not 
having  any  further  means  of  control  by 
bridle,  halter,  or  otherwise.  They  passed 
the  watering-place  and  got  onto  the  railway 
over  the  cattle-guard,  which  was  filled  up 
with  snow,  and  one  of  them  was  killed  by 
the  train  some  distance  from  the  point  of 
intersection.  The  jury  found  that  tiie  plain- 
tiff was  guilty  of  no  negligence,  and  that, 
had  the  cattle-guard  been  kept  clear  of  snow 
the  horses  could  not  have  got  upon  the 
track.  Held,  that  the  plaintiff  nevertheless 
could  not  recover,  for  his  horses  were 
not  "in  charge  of"  any  person  within  the 
meaning  of  20  Vic.  ch.  12.  §  16,  when  they 
got  upon  the  railway.  Cooley  v.  Grand 
Trunk  R.  Co.,  18  U.  C.  Q.  B.  96.— FOLLOW- 
ING Simpson  v.  Great  Western  R.  Co.,  17 
U.  C.  Q.  B.  57 ;  Ferris  v.  Grand  Trunk  R. 
Co.,  16   U.    C.    Q.    B.  474.— DlSTINGULSHED 

IN  Hillyard  v.  Grand  Trunk  R.  Co.,  8  Ont. 

583. 

3.  Proximate  Cause.* 

*277.    Generally.  —  In    stock  -  killing 
cases,  to  establish  contributory  negligence, 

~*See  also  ante,  '34:-iW,  »5,  136,  188^ 
lU-iipost,  344,  350,  454. 


228 


ANIMALS,   INJURIES   TO,  278,  a7». 


if 


there  must  be  some  act  or  omission  of  the 
plaintiff  proximately  affecting  the  question 
of  the  exposure  of  the  animal  to  danger  or 
contributing  to  the  accident.  IVatii-r  v. 
Chicago,  Si.  P.,  M.  &'  0.  A'.  Co.,  13  Am.  &• 
Eitg.  R.  Cas.  582,  31  Afinn.  91,  16  A'.  IV. 
Rep.'in. 

Contributory  negligence,  debarring  the 
plaintiff's  riglit  of  recovery,  exists  only 
where  the  negligence  of  plaintiff  contributed 
proximately  to  the  injury  sued  for;  it  does 
not  exist  where  the  injury  sued  for  and  that 
resulting  from  the  fault  of  the  plaintiff  are 
disconnected.  Pittucllw.Si.Louis.A.  <S>«  T. 
Ji.  Co.,  49  Mo.  App.  170. 

The  negligence  of  the  owner  of  cattle  in 
permitting  them  to  stray  upon  a  railroad 
rack  will  not  prevent  a  recovery  for  their 
:  I'gligent  killing,  where  it  appears  that  the 
negligence  of  the  owner  is  not  the  proxi- 
mate cause  of  the  killing.  Needham  v.  .San 
Francisco  &*  S.  J.  R.  Co.,  37  Cal.  409. — 
Quoting  Isbell  v.  New  York  &  N.  H.  R. 
Co.,  27  Conn.  393. — Approved  in  Flynn  v, 
San  Francisco  &  S.  J.  R.  Co.,  40  Cal.  14. 
Explained  in  Toomey  v.  Southern  Pac.  R. 
Co.,  86  Cal.  374.  Followed  in  Kline  v. 
Central  Pac.  R.  Co.,  37  Cal.  400.  Quoted 
in  Meeks  v.  Southern  Pac.  R.  Co.,  8  Am.  & 
Eng.  R.  Cas.  314,  56  Cal.  513,  38  Am.  Rep. 
67  ;  Bostwick  v.  Minneapolis  &  P.  R.  Co.,  2 
N.  Dak.  440. 

The  fact  that  horses  run  at  large  where 
they  might  trespass  upon  a  railroad  track 
and  right  of  way,  contrary  to  the  California 
act  of  March  7,  1878,  requiring  all  cattle  to 
be  confined  by  their  owners,  is  not  contrib- 
utory negligence  constituting  a  defense, 
where  they  are  killed  by  the  railroad  com- 
pany, unless  it  appears  that  such  running  at 
large  was  the  proximate  cause  of  the  killing. 
Orcuit  V.  Pacific  Coast  R.  Co.,  85  Cal.  291, 
2^  Pac.  Rep.  66\. 

A  company  cannot  avoid  liability  for 
stock  killed  that  go  from  an  adjoining  field 
to  the  track  after  the  railroad  fence  has 
been  burned,  and  before  the  company  has 
rebuilt,  by  showing  that  the  owner  tres- 
passed upon  the  track  in  driving  the  stock 
to  the  field,  where  it  does  not  appear  that 
such  trespass  was  directly  connected  with 
the  killing.  Sika  v.  Chicago  <S-  A^.  W.  R. 
Co.,  21   Wis.  370. 

278.  Illustrations  of  what  is  proxi- 
mate cause.— Where  a  company  obtains 
a  right  of  way,  with  a  provision  in  the  deed 
that  it  shall  maintain  a  proper  fence  on  each 


side  of  its  track,  its  failure  to  do  so,  and  the 
negligent  killing  of  live  stock  which  go 
upon  the  track  at  sucli  unfenced  place,  will 
not  make  it  liable,  where  the  owner  of  the 
stock  was  guilty  of  contributory  negligence 
in  not  taking  proper  care  of  them,  which 
negligence  was  the  proximate  cause  of  the 
injury.  Joliet  &^  N.  I.  R.  Co.  v.  Jones,  20 
///.  221. 

Where  a  horse  escapes  from  the  owner 
and  runs  between  six  and  seven  hundred 
feet,  and  enters  a  railroad  track  where  there 
are  no  fences,  and  runs  on  the  track  between 
five  and  six  hundred  feet  before  it  is  in- 
jured, if  the  jury  find  that  the  injury  was 
the  proximate,  probable,  and  natural  result 
of  the  owner's  negligence  in  permitting  it  to 
escape,  there  can  be  no  recovery.  Amstein 
V.  Gardner,  16  Am.  &*  Eng.  R.  Cas.  585,  134 
Mass.  4.— Reviewing  Marble  t/.  Worcester, 
4  Gray  (Mass.)  395. 

Stock  in  charge  of  a  herder  and  subject 
to  his  control  are  not  stock  running  at  large, 
as  the  places  whither  they  wander  and  feed 
or  lie  down  to  rest  are  selected  by  him  and 
are  subject  to  his  direction  and  control ;  and 
if  he  voluntarily  drives  and  leaves  them  un- 
cared  for  in  a  place  of  danger  along  a  rail- 
road track  where  injury  is  likely  to  happen 
to  them  as  a  probable  consequence,  and  they 
are  killed,  his  act  will  be  regarded  as  the 
proximate  cause  of  the  injury,  and  will  pre- 
clude the  owner  from  recovery.  Keeney  v. 
Oregon  R.  <S-  A^.  Co.,  42  Am.  ^-Eng.  R.  Cas. 
619.  19  Oreg.  291,  24  Pac.  Rep.  233. 

279.  Illustrations  of  what  is  not 
proximate  cause.— As  a  rule,  where 
there  is  negligence  both  of  the  owner  of 
cattle,  in  permitting  them  to  run  at  large, 
and  of  the  trainmen,  in  killing  them,  the 
negligence  of  the  latter  will  be  regarded  as 
the  proximate  cause  of  the  killing,  and  that 
of  the  owner  as  a  remote  cause,  and  there- 
fore allowing  him  to  recover.  Cleveland,  C. 
&*  C.  R.  Co.  v.  Elliott,  4  Ohio  St.  474. 

The  principle  is  that  a  railway  company 
is  liable  in  damages  for  injuries  to  stock 
through  its  negligence,  where  the  plaintiff 
contributed  to  the  injury  no  further  than 
permitting  his  stock  to  run  at  large.  Such 
negligence,  if  it  may  '>t  called  negligence,  is 
not  the  proximate  cause  of  the  injury,  and, 
in  the  sense  of  the  law,  docs  not  constitute 
contributory  negligence.  Moses  v.  Southern 
Pac.  R.  Co.,  42  Am.  &•  Eng.  R.  Cas.  555.  18 
Ong.  385.  23  Pac.  Rep.  498.  Alabama  G. 
S.  R.  Co.  v.  .lie Alpine,  15  Am.  &•  Erg.  R, 


ANIMALS,  INJURIES   TO,  280. 


2-Z^ 


Cas.  544,  71  A/a.  545.— FOLLOWING  Cairo 
&  St.  L.  R.  Co.  V.  VVoosley,  85  111.  370; 
Ewing  V.  Chicago  &  A.  R.  Co.,  72  111.  25. 

The  plaintiff's  horse,  for  the  killing  of 
which  by  defendant's  train  of  cars  the  action 
is  brought,  having  escaped  from  the  car  in 
which  he  was  being  transported,  ran  several 
miles  along  a  public  road,  until  it  inter- 
sected the  railroad  track,  and  up  the  rail- 
road track  for  nearly  a  mile,  when  it  was 
overtaken  by  another  train  of  cars,  run  over, 
and  killed  ;  the  fact  that  it  escaped  from  the 
car  through  the  negligence  of  the  plaintiff 
himself,  who  had  charge  of  the  car  contain- 
ing his  horses,  is  not  the  proximate  cause  of 
the  injury,  and  does  not  constitute  such  con- 
tributory negligence  as  will  defeat  a  recovery. 
Louisville  <S»  N.  R.  Co.  v.  Kelsey,  42  Am.  &* 
Eng.  R.  Cas.  584,  89  Ala.  287,  7  So.  Rep. 
648. 

The  owner  of  a  mare  and  colt  saw  them 
feeding  in  a  lane  leading  to  a  railroad  track, 
but  about  half  a  mile  therefrom,  but  made 
no  effort  to  turn  them  back,  though  their 
heads  were  turned  toward  the  railroad. 
Held,  that  he  had  a  right  to  assume  that  the 
statutory  signals  would  be  given  to  frighten 
the  horses  back  on  the  approach  of  a  train, 
und  his  failure  to  turn  them  back  when  see- 
ing them  cannot  be  regarded  as  the  proxi- 
mate cause  of  their  killinj^.  Orctitt  v.  Paci- 
fic Coast  R.  Co.,  85  Cal.  291,  24  Pac.  Rep.  661. 

In  an  action  for  killing  plaintiJ's  cattle, 
it  appears  that  plaintiff  had  driven  them 
over  a  private  road  upon  the  right  of  way 
to  a  highway  crossing.  While  the  cattle 
were  being  herded  on  the  highway,  about 
sixty-four  yards  from  the  railroad,  they  be- 
came frightened  by  the  approaching  train, 
and  ran  through  an  unfenced  and  unin- 
closed  tract  of  land  upon  the  railroad  track, 
where  they  were  killed  and  injured  by  the 
train.  Held,  that  the  fact  that  the  animals 
had  been  previously  driven  over  the  private 
road  would  not  defeat  plaintiff's  right  to 
recover.  Louisville,  E.  &*  Si.  L.  R.  Co.  v. 
Hart,  2  Ind.  App.  130,  28  N.  E.  Rep.  218. 

Plaintiff's  ox  escaped  from  his  field  to  the 
company's  right  ot  way,  over  a  defective 
fence  that  the  company  was  bound  to  main- 
tain, and,  after  wandering  about,  passed 
from  uninclosed  lands  of  plaintiff  to  an  ad- 
joining tract,  and  from  it  to  the  track,  and 
was  killed.  By  a  special  contract  with  the 
owner  the  company  was  not  bound  to  fence 
wiiere  the  killing  occurred.  Held,  that  the 
defect  in  the  fence  where  the  the  ox  escaped 


from  the  owner's  field  was  the  cause  of  the 
accident,  and  that  it  was  not  contributor 
negligence  in  plaintiff  to  fail  to  securely 
fence  between  his  lands,  where  he  did  not 
allow  his  cattle  to  pasture,  and  the  track 
on  which  the  ox  was  killed.  Gilman  v. 
European  &*  N.  A.  R.  Co.,  60  Me.  235.— Dis- 
tinguishing Eames  v.  Salem  &  L.  R,  Co., 
98  Mass.  561. 

If  the  plaintiff  has,  by  his  own  negligence 
or  misconduct,  contributed  directly  and  im- 
mediately to  the  production  of  the  injury 
complained  of,  he  is  regarded  as  the  author 
of  his  misfortune,  and  he  is  as  much  pre- 
cluded from  recovering  damages  therefor 
since  the  statute  as  before.  But  if  he 
merely  allows  his  stock  to  escape  from  his 
inclosure,  and  to  stray  at  large  unattended, 
and  thus  get  upon  the  railroad  of  the  com- 
pany, and  there  be  injured, — while  the  entry 
of  the  stock  upon  the  road  may  be  an  act 
of  negligence  as  well  as  trespass  on  the 
part  of  the  plaintiff  in  thus  allowing  his 
stock  to  stray  at  large  unattended, — such 
negligence  is  not  of  that  direct  and  proxi- 
mate character  as  to  be  so  contributory  to 
the  production  of  the  injury  as  to  preclude 
the  plaintiff  the  right  to  recover,  if  the  acci- 
dent could  have  been  avoided  by  the  use  of 
reasonable  and  proper  care  on  the  part  of 
the  defendant  or  its  agents,  under  the  cir- 
cumstances of  the  case.  Western  Md.,  R. 
Co.  v.  Carter,  13  Am.  &•  Etig.  R.  Cas.  573, 
59  Md.  306.— Applied  in  Central  R.  Co.  v. 
Smith,  74  Md.  212. 

4.  Liability  Notwithstanding  Owner's  Neg- 
ligence.* 

280.  Generally.— Where  cattle  at  large, 
without  the  fault  of  the  owner,  go  upon  the 
track  and  are  killed  through  the  negli- 
gence of  the  company,  the  owner  is  not 
shut  out  from  the  right  to  damages  by  the 
fact  that  the  cattle  were  trespassers  on  the 
railroad,  for  the  owner  must  be  guilty  of 
actual  negligence,  not  a  mere  technical 
wrong.  Isbell  v.  New  York  &*  N.  H.  R.  Co., 
27  Conn.  393. — Approving  Kerwhacker  v. 
Cleveland,  C.  &  C.  R.  Co.,  3  Ohio  St.,  172.— 
Approved  in  Grant  7/.  Baltimore  &  P.  R. 
Co.,  2  MacArth.  (D.  C.)  277.  Quoted  in 
Meeks  v.  Southern  Pac.  R.  Co.,  8  Am.  & 
Eng.  R.  Cas.  314,  56  Cal.  513,  38  Am.  Rep. 
67 :  Fritts  V.  New  York  &  N.  E.  R.  Co.,  62 

*  Liability  of  company  for  negligence  not* 
withstanding  contributory  negligence  of  plaintiff, 
see  note,  23  Am.  &  Eng.  R.  Cas.  539. 


'%\ni 


':i 


230 


ANIMALS,  INJURIES   TO,  281. 


If 


Conn.  503;  Bostwick  v.  Minneapolis  &  P. 
R.  Co.,  2  N.  Dak.  440. 

Under  the  Indiana  act  of  1853  (p.  113), 
providing  compensation  to  owners  of  ani- 
mals killed  or  injured  by  the  cars,  the  owner 
might  be  passively  a  wrongdoer,  by  suffer- 
ing his  animal  to  run  at  large,  and  yet  re- 
cover. Nftii  Albany  &•  S.  R.  Co.  v.  MaUen, 
12  Ind.  10.— Quoted  in  Chicago,  St.  L.  & 
P.  R.  Co.  V.  Fenn,  3  Ind.  App.  250. 

281.  Where  coiiipiiiiy  lias  failed  to 
fence  as  required  by  statute.*  — (i) 
Illinois. — The  fact  that  stock  are  running  at 
large  in  violation  of  the  statute  does  not  re- 
lieve companies,  under  the  Illinois  statutes, 
from  liability  for  an  injury  to  them  result- 
ing from  a  neglect  to  fence  their  road  ;  and 
no  other  negligence  need  be  shown.  Cairo 
<S«  St.  L.  R.  Co.  v.  Murray,  %?.  III.  76.  Ohio 
i&-  M.  R.  Co.  v.  Fowler,  85  ///.  2 1 .  Ewing  v. 
Chicago  &*  A.  R.  Co.,  72  ///.  25. —  Fol- 
lowed IN  Alabama  G.  S.  R.  Co.  v.  McAl- 
pine,  15  Am.  &  Eng.  R.  Cas.  544,  71  Ala.  545. 

Permitting  stock  to  run  at  large  in  viola- 
tion of  the  statute  will  not  prevent  a  recov- 
ery where  they  are  killed  upon  an  unfenced 
track  which  the  law  requires  to  be  fenced, 
where  the  killing  is  the  result  of  a  lack  of 
reasonable  care  on  the  part  of  those  in 
charge  of  the  train.  Louisville.  E  &*  St.  L. 
R.  Co.  v.  Dulaney,  43  ///.  App.  297. 

(2)  Indiana. — Where  the  suit  is  founded 
on  the  Indiana  statute,  anr^  the  liability  of 
the  company  is  based  solely  on  a  failure  to 
fence  the  track,  the  question  of  contributory 
negligence  does  not  arise ;  and  if  cattle  are 
killed  or  injured  at  a  point  on  the  railway 
where  the  company  could  lawfully  fence  the 
track,  and  it  was  not  fenced,  the  company  is 
liable.  Toledo,  W.  <S-  W.  R.  Co.  v.  Cory,  39 
Ind.  218.— Following  Toledo.  VV.  &  W.  R. 
Co.  V.  Weaver,  34  Ind.  298. — Followed  in 
Louisville,  N.  A.  &  C.  R.  Co.  v.  Wilkerson. 
83  Ind.  i^-^.— Indianapolis.  P.  &- C.  R.  Co. 
v.  Wolf,  47  Ind.  250.  Terre  Haute  &*  I.  R. 
Co.  V.  Schaefer,  5  Ind.  App.  86,  31  A^.  E.  Rep. 
557.  Chicago  &»  E.  R.  Co.  v.  Brannegan,  5 
Ind.  App.  540,  12  N.  E.  Rep.  790. 

And  this  is  true  though  the  plaintiff  is 
not  an  adjoining  proprietor  and  has  been 
guilty  of  negligence  in  permitting  the  ani- 
mal to  stray  upon  the  railroad.  Indianap- 
olis &*  C.  R.  Co.  v.  McKinney,  2\Ind.  283.— 
Following  Indianapolis  &  C.  R.  Co.  v. 
Townsend,  10  Ind.  38. 

*  See  ante,  238,  239. 


Contributory  negligence  is  no  defense  to 
an  action,  under  the  statute,  against  a  rail 
road  company  for  killing  stock  at  a  point  on 
its  road  not  securely  fenced.  Louisville,  N. 
A.&'C.R.  Co.v.  lVhitesell,6iInd.  297.  Louis- 
ville, N.  A.  &>  C.  R.  Co.  v.  Cahill,  63  Ind.  340. 
—Approving  Toledo,  W.  &  W.  R.  Co,  v. 
Cory,  39  Ind.  218;  Toledo.  W.  &  W.  R.  Co. 
V.  Cory,  37  Ind.  172;  JelTerscmville,  M.  &  I. 
R.  Co.  V.  Ross,  37  Ind.  545 ;  Toledo,  W.  & 
W.  R.  Co.  V.  Weaver,  34  Ind.  298 ;  Jeffer- 
sonville,  M.  &  I.  R.  Q,o.7>.  O'Connor, 37  Ind. 
95 ;  Cleveland,  C,  C.  &  I.  R.  Co.  v.  Crossley, 
36  Ind.  370 ;  Bellefontaiiie  R.  Co.  v.  Reed, 
33  Ind.  476 ;  Indianapolis  &  C.  R.  Co.  v. 
Parker,  29  Ind.  471. 

In  such  cases  neither  contributory  negli- 
gence on  the  part  of  the  owner  nor  the  fact 
that  the  animal  was  a  trespasser  will  consti- 
tute a  defense.  Such  statutory  liability  is 
in  the  nature  of  a  police  penalty,  and  was 
designed  to  promote  the  public  safety.  Chi- 
cago, St.  L.  6r*  P.  R.  Co.  v.  Fenn,  3  Ind.  App. 
250.  29  N.  E.  Rep.  790.— Quoting  New  Al- 
bany &  S.  R.  Co.  V.  Maiden,  12  Ind.  10. 

Where  the  streets  and  alleys  of  a  town  end 
at  a  railroad  track  and  terminate  at  a  high 
bank,  which  cannot  be  used  for  loading  or 
unloading  cars,  it  is  the  duty  of  the  railroad 
company  to  fence,  and  it  is  liable  for  injury  t<  > 
cattle  when  it  does  not  do  so,  without  regard 
to  the  negligence  of  the  owner  of  the  ani- 
mals. Toledo,  W.  6-  W.  R.  Co.  v.  Cary.  37 
Ind.  172,  5  Am.  Ry.  Rep.  557. 

If  a  horse  be  killed  at  a  crossing  where 
the  company  is  not  required  to  fence  con- 
tributory negligence  on  the  part  of  the 
owner  will  defeat  a  recovery ;  but  if  the  kill- 
ing be  at  a  place  where  the  company  was 
bound  to  fence  and  had  not  securely  fenced, 
then  contributory  negligence  will  not  defeat 
a  recovery.  Baltimore,  O.  &•  C.  R.  Co.  v. 
Evarts,  112  Ind.  533,  14  N.  E.  Rep.  360.  11 
West.  Rep.  875. 

{"^Massachusetts— Michigan— Minnesota. 
—A  company  which  is  bound  by  statute  to 
erect  and  maintain  a  sufficient  fence  is  lia- 
ble in  damages  if  a  horse,  feeding  in  an  ad- 
jacent pasture,  escapes  through  a  defect  in 
the  fence  and  is  run  over  and  killed  by  the 
cars,  without  proof  of  any  care  on  the  part 
of  the  owner  to  preveni  such  an  escape ;  and 
evidence  of  notice  to  the  owner  that  his 
horse  had  escaped  two  or  three  times  before, 
and  l)een  upon  the  track,  is  immaterial. 
Rogers    v.  Newburyport    R.    Co.,    i    Allen 


ill 


ANIMALS,  INJURIES  TO,  282. 


231 


(Mass.)  i6.— Approved  in  Cleveland,  C,  C. 
&  I.  R.  Co.  V.  Scudder,  13  Am.  &  Eng.  R. 
Cas.  561,  40  Ohio  St.  173.  Reviewed  in 
Wilder  v.  Maine  C.  R.  Co.,  65  Me.  332 ; 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Smith,  13 
Am.  &  Eng.  R.  Cas.  579,  38  Ohio  St.  410. 

The  statutory  liability  of  a  company  for 
injuries  to  cattle  resulting  from  its  neglect 
to  put  up  and  maintain  side-fencing  is  not 
affected  by  the  contributory  negligence  of 
the  owner  of  the  cattle.  Act  198  of  1873. 
Grand  Rapids  &^  I,  R.  Co.  v.  Cameron,  45 
Mich.  451,  8  N.  IV.  Rep.  99.— Following 
Flint  &  P.  M.  R.  Co.  v.  Lull,  28  Mich.  510. 

Merely  permitting  cattle  to  run  at  large  in 
violation  of  a  special  law  prohibiting  it  in  a 
certain  town  is  not  such  contributory  neg- 
ligence as  prevents  recovery  by  the  owner 
where  they  have  been  killed  by  straying  on- 
to the  track  of  a  railroad  company  through 
the  latter's  failure  to  fence.  Watier  v.  Chi- 
cago, M.  &^  St.  P.  R.  Co.,  12  Am.  6-  E/tg.  R. 
Cas.  582,  31  Minn.  91,  16  A^.  IV.  Rep.  537.— 
Distinguishing  Locke  v.  First  Div.  St. 
P.  &  P.  R.Co.,  15  Minn.  283;  Witherell  v. 
Milwaukee  &  St.  P.  R.  Co.,  24  Minn.  410. 
Following  Gillam  v.  Sioux  City  &  St.  P. 
R.  Co.,  26  Minn.  268. 

(4)  Missouri — New  Hampshire  —  New 
York. — Allowing  stock  to  run  at  large  in 
violation  of  the  Missouri  act  of  1883  is  not 
a  defence  to  an  action  against  a  railroad  com- 
pany for  killing  them  at  a  point  where  its 
track  was  not  fenced,  as  required  by  the 
statute.  Boyle  v.  Missouri  Pat  R.  Co.,  21 
Mo.  App.  416.— Reviewing  Stanley  v.  Mis- 
souri Pac.  R.  Co.,  84  Mo.  625 ;  Bowman  v. 
Chicago  &  A.  R.  Co.,  85  Mo.  533 ;  Spence  v. 
Chicago  &  N.  W.  R.  Co.,  25  Iowa  139;  Fritz 
V.  Milwaukee  &  St.  P.  R.  Co.,  34  Iowa  337. 

The  fact  that  plaintiff's  animals  escaped 
from  a  pasture  in  which  they  were  confined, 
situated  about  a  mile  and  a  half  from  the 
point  where  they  went  upon  defendant's 
road,  and  were  killed,  cannot  avail  as  a  de- 
fense unless  it  is  further  shown  that  tliey 
passed  through  intervening  lawful  fences  to 
reach  defendant's  road.  Emmerson  v.  St. 
Louis  &•  H.  R.  Co.,  35  Mo.  App.  621.— 
Reviewing  Berry  v.  St.  Louis,  S.  &  L.  R. 
R.  Co.,  65  Mo.  172;  Peddicord  v.  Missouri 
Pac.  R.  Co.,  8s  Mo.  i6o. 

The  neglect  of  a  company  to  fence  its 
road  will  make  it  liablefor  injury  to  animals 
upon  its  track  although  the  owner  of  such 
animals  was  aware  of  that  neglect  when  he 
turned  them  put  to  graze  on  his  own  adjoin- 


ing land.  Cressey  v.  Northern  R.  Co.,  1 5  Am. 
&*  Eng.  R.  Cas.  540,  59  A'.  //.  564,  47  Am. 
Rep.  227.— Quoting  Flint  &  P.  M.  R.  Co.  v. 
Lull,  28  Mich.  510;  McCoy  v.  California 
Pac.  R.  Co.,  40  Cal.  532;  Wilder  z/.  Maine  C. 
R.  Co.,  65  Me.  332,  20  Am.  Rep.  698;  Cook 
V.  Champlain  Transp.  Co.,  i  Den.  (N.  Y.)  91. 
Reviewing  Kerwhacker  v.  Cleveland,  C.  & 
C.  R.  Co..  3  Ohio  St.  172. 

Where  a  company  neglects  to  maintain 
fences  and  cattle-guards  along  its  line,  as  re- 
quired by  statute,  and  cattle  get  upon  the 
track  and  are  injured,  the  corporation  is 
liable,  although  the  owner  is  not  an  adjoin- 
ing proprietor,  and  it  does  not  appear  how  or 
when  the  cattle  came  upon  the  track.  The 
mere  negligence  of  the  owner  in  permitting 
his  cattle  to  stray  upon  the  land  of  another 
adjoining  the  railway,  or  to  run  at  large  in 
the  highway  which  crosses  the  track,  is  not 
a  defense  to  the  corporation.  Rhodes  v. 
Utica,  I.  &'  E.  R.  Co.,  5  Hun  (N.  V.)  344.— 
Following  Corwin  v.  New  York  &  E.  R. 
Co.,  13  N.  Y.  42  ;  Bradley  v.  Buffalo,  N.  Y, 
&  E.  R.  Co.,  34  N.  Y.  ^2T.— Sheaf  v.  Utica 
&»  B.  R.  R.  Co.,  2T.&*C.  (N.  v. )  388. 

A  cow  owned  by  the  plaintiff  was  left  in 
charge  of  a  boy,  who  drove  her  from  plain- 
tiff's stable  to  an  open  lot  adjoining  defend- 
ant's track,  near  a  crossing,  in  the  vicinity 
of  which  some  of  the  fences  were  tempo- 
rarily and  necessarily  down  for  the  purpose 
of  repairing  the  roadway  of  defendant.  The 
boy  having  left  the  cow  for  a  short  time  she 
strayed  upon  the  track  and  was  killed  by  a 
passing  train.  Heid,  that  the  defendant  was 
liable.  Brady  v.  Rensselaer  &*  S.  R.  Co.,  i 
Hun  (N.  Y.)  378,  3  r.  (S-  C  537.— Distin- 
guishing Bowman  v.  Troy  &  B.  R.  Co.,  37 
Barb.  (N.  Y.)  516. 

The  negligence  of  the  owner  of  a  horse 
in  permitting  him  to  run  at  large  on  a  high- 
way and  to  trespass  upon  a  neighbor's  prem- 
ises is  not  a  defense  to  an  action  against  a 
railway  company  for  killing  him,  where  it 
appears  that  the  horse  went  through  an 
opening  in  a  fence  onto  the  right  of  way, 
which  it  was  the  duty  of  the  company  to 
keep  closed.  Munch  v.  New  York  C.R.  Co., 
29  Barb.  {N  Y.)  647. 

282.  Where  company  could  linve 
prevented  the  accident.  —  Although 
the  owner  of  stock  kno\vin{;ly  permits  it  to 
run  at  large  in  violation  of  statute,  he  may 
recover  for  an  injury  to  it  by  a  railway  train, 
if  such  injury  was  due  to  the  negligence  of 
the  employes  of  the  railway  company  in 


23d 


ANIMALS,  INJURIES   TO,  283,284. 


ill 

m 

•?*>■: 


running  the  train  ;  and  the  railway  company 
is  thus  liable,  whether  such  negligence  was 
gross  or  wanton,  or  consisted  only  of  the 
want  of  ordinary  or  reasonable  care.  Wind- 
sor V.  Hannibal  &*  St.  J.  R.  Co.,  45  Mo.  App. 
123. — Following  Dunckman  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  95  Mo.  232. 

Plaintiff's  mule  was  killed  by  defendant's 
train.  Held,  that  even  if  the  plaintiff  was 
guilty  of  contributory  negligence  in  turning 
the  mule  out  of  his  inclosure,  he  is  entitled 
to  recover  damages  if  defendant  could  have 
prevented  the  accident.  But  the  plaintiff 
had  the  right  to  turn  out  the  mule,  and  his 
act  could  in  no  sense  be  considered  as  con- 
tributory negligence.  Farmer  v.  Wilming- 
ton <S-  W,  R.  Co.,  20  Am.  &»  Eng.  R.  Cas.  481 , 
88  N.  Car.  564.— Distinguished  in  Emry 
V.  Raleigh  &  G.  R.  Co.,  109  N.  Car. 
589. 

283.  by  the  use  of  ordinary 

care. — A  company  is  liable  for  injury  to 
animals  which,  by  the  use  of  ordinary  care 
on  its  part,  might  have  been  prevented,  even 
though  the  owner  of  the  animals  is  in  some 
degree  negligent.  Central  R.  &•  B.  Co.  v. 
Davis,  19  Ga.  437. — Applying  Macon  & 
W.  R.  Co.  V.  Davis,  18  Ga.  679.— Distin- 
guished in  Macon  &  W.  R.  Co.  v.  Baber, 
42  Ga.  300. 

Although  one  may  not  be  altogether  free 
from  negligence  in  permitting  his  stock  to 
go  at  large  in  the  immediate  vicinity  of  a 
railroad,  yet,  in  doing  so,  he  assumes  only 
the  risk  of  an  accident  which  might  not  be 
avoided  by  ordinary  care  and  watchfulness 
of  the  agents  and  employes  of  the  railroad 
company.  Little  Rock  &*  Ft.  S.  R.  Co.  v. 
Finley,  37  Ark.  562,  1 1  Am.  <S-  Eng.  R.  Cas. 
469.  Rockford,  R.  I.  &*  St.  L.  R.  Co.  v. 
Irish,  72  ///.  404.— Following  Illinois  C. 
R.  Co.  V.  Middleworth,  46  111.  495  ;  Illinois 
C.  R.  Co.  V.  Baker,  47  111.  295  ;  Toledo,  P.  & 
W.  R.  Co.  V.  Ingraham,  58  111.  120.  Toledo, 
P.  &•  W,  R.  Co,  V.  Ingraham,  58  ///.  120,  10 
Am.Ry. Rep.  393.— Followed  in  Rockford, 
R.  I.  &  St.  L.  R.  Co.  V.  Irish,  72  111.  404. 

Where  stock  running  at  large  go  upon  the 
railroad  track  and  are  killed  by  a  passing 
train  at  a  point  where  the  railroad  company 
is  not  required  to  fence  its  road,  the  com- 
pany is  held  to  the  exercise  of  reasonable 
care,  and  is  liable  for  ordinary  negligence. 
The  mere  fact  that  the  plaintiff  in  this  rase 
permitted  his  cow  to  run  at  large  does  not 
constitute  such  negligence  as  will  defeat  a 
recovery.    Prickett  v.  Atchison,  T.  &*  S.  F. 


R.  Co.,  23  Am.  6^  Eng.  R.  Cas.  232,  33  A'an. 
748,  7  Pac.  Rep.  611. 

If  an  engineer  or  person  conducting  a 
train  sees  cattle  on  the  track,  and  can  by 
ordinary  care,  caution,  and  diligence  avoid 
injury  to  them,  he  is  bound  to  do  so;  and  if 
he  fails  the  railroad  company  is  liable,  no 
matter  if  the  owner  of  the  stock  was  neg- 
ligent in  allowinj^  his  cattle  to  get  on  the 
track.  Chicago,  M.  &>  St.  P.  R.  Co.  v.  Phil- 
lips, 14  ///.  App.  265. 

In  an  action  under  article  77  of  the 
Maryland  Code,  to  recover  damages  for  kill- 
ing the  plaintiff's  colts,  the  plaintiff  is  enti- 
tled to  recover,  though  guilty  of  negligence 
in  allowing  the  colts  to  be  on  the  railroad 
track,  if  the  proof  show  that  the  killing 
could  have  been  avoided  by  the  observance 
of  proper  care  and  caution  on  the  part  of 
the  defendant's  agents.  Northern  C.  R.  Co. 
V.  Ward,  63  Md.  362. 

If  the  plaintiff  were  guilty  of  negligence, 
or  even  of  positive  wrong,  in  allowing  his 
cattle  or  horses  to  run  in  the  highway,  from 
whence,  through  the  want  of  a  fence  wiiich 
it  was  the  duty  of  the  railroad  corporation 
to  maintain,  they  strayed  upon  the  railroad 
track,  the  corporation  is  yet  bound  to  the 
exercise  of  reasonable  care  and  diligence  in 
the  usi;  of  its  road  and  the  management  of 
the  engine  and  train;  and  if  for  want  of  that 
care  the  injury  arose,  they  are  liable.  Troiv 
V.  Vermont  C.  R.  Co.,  24  Ft.  487. 

Where  cattle  have  wrongfully  got  upon  a 
railroad  through  the  negligence  of  the 
owner,  the  company  are  still  obliged  to  use 
ordinary  care  and  caution  to  avoid  a  colli- 
sion ;  and  in  this  case,  where  horses  had  es- 
caped upon  the  track  through  a  gate  at  a 
farm  crossing  which  the  owner  had  left 
open,  but  although  they  were  seen  by  the 
engineer  the  speed  was  not  slackened  and 
no  precaution  was  taken  except  sounding 
the  whistle,  the  company  were  held  liable. 
Campbell V.  Great  Western  R.  Co.,  is  U.  C.  Q. 
B.  498.— Quoting  Butterfield  v.  Forester, 
II  East.  60.— Distinguished  in  Hurd  v. 
Grand  Trunk  R.  Co.,  15  Ont.  App.  58. 

284.  Where  company  is  f^uilty  of 
wilfkil  or  gross  negligence.*— (i)  Gen- 
erally.— Tiie  fact  that  the  owner  of  an  ani- 
mal knowingly  permitted  it  to  run  at  large 
is  not  such  contributory  negligence  as  will 
defeat  an  action  by  him  against  a  railroad 

*  See  also  ante,  37-50,  60,  187,  200, 
217,218. 


ANIMALS,  INJURIi:s   TO,  285. 


233 


company  (or  wilfully  killing  it.    Detroit,  E, 
R.  <S~»/.  R.  Co.  V.  Barton,  6i  Ind.  293. 

But  it  is  a  question  whether  a  company 
is  liable,  under  §  6,  ch.  169,  of  the  Iowa 
laws  of  1862,  for  killing  a  bull  unlawfully 
running  at  large,  even  in  case  of  gross  neg- 
ligence. McCool\.  Galena  dr*  C.  U.  R,  Co., 
17  Iowa  461. 

The  owner  of  livestock  j,,;rmittingthem  to 
knowingly  go  upon  lands  of  a  railroad  com- 
pany over  which  tracks  are  laid  cannot  re- 
cover for  injuries  by  passing  trains,  unless 
such  injuries  result  from  the  most  wanton 
and  gross  negligence.  Union  Pac.  P.  Co.  v. 
Rollins,  5  Kan.  167. — QUOTING  New  World 
V.  King,  16  How.  (U.  S.)  469;  Galena &C.  U. 
R.Co.  T/.Jacobs,  20  111.  478.— Distinguished 
IN  Missouri  Pac.  R.  Co.  v.  Wilson,  28  Kan. 
637 ;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Davis, 
15  Am.  &  Eng.  R.  Cas.  521,  31  Kan.  645. — 
Williams  v.  Northern  Pac.  R.  Co.,  \  i  Atn.  dw 
Eiifi'.  R.  Cas.  421,  3  Dak.  168, 14  A^.  W.  Rep. 
97.  Illinois  C.  R.  Co.  v.  Phelps,  29  ///.  447. 
—Applied  in  Louisville  &  N.  R.  Co.  v. 
Shelton,  43  III.  App.  220.  Followed  in 
Illinois  C.  R.  Co.  v.  Goodwin,  30  111.  1 17. — 
Illinois  C.  R.  Co.  v.  Goodwin,  30  ///.  117. — 
Following  Illinois  C.  R.  Co.  v.  Phelps,  29 
111.  447.— Distinguished  in  Great  West- 
ern R.  Co.  V.  Geddis,  33  III.  304;  Toledo,  W. 
&  W.  R.  Co.  V.  Furgusson,  42  111.  449;  St. 
Louis,  J.  &  C.  R.  Co.  V.  Terhune.  50  111.  151; 
Illinois  C.  R.  Co.  v.  Phillips,  55  III.  194. 
— See  also  Windsor  v.  Hannibal  &>  St.  J.  R. 
Co.,  45  Afo.  App.  123.— Distinguishing 
Fritz  V.  Milwaukee  &  St.  P.  R.  Co.,  34  Iowa 
337 ;  Spence  v.  Chicago  &  N.  W.  R.  Co.,  25 
Iowa  139.  Reviewing  Bowman  7/.  Chicago 
&  A.  R.  Co.,  85  Mo.  533  ;  Schwarz  v.  Han- 
nibal &  St.  J.  R.  Co.,  58  Mo.  207;  Owens z/. 
Hannibal  &  St.  J.  R.  Co.,  58  Mo.  386.— 
Cleveland,  C,  C.  <S-  St.  L.  R.  Co.  v.  Duck- 
arm  e,  49  ///.  App.  520.  International  &^  G. 
N.  R.  Co.  V.  Cocke,  23  Am.  <S-  Eng.  R.  Cas. 
226,  64  Te.v.  151.  Fisher  v.  Farmers'  L.  &* 
T.  Co.,  21  Wis.  73. 

(2)  Illustrations.— 1\i^  Georgia  act  of 
1847,  which  provides  that  railroads  shall  be 
liable  in  law  for  injuries  done  to  property  in 
running  their  cars  and  locomotives — held, 
to  be  only  declaratory  of  the  common-law 
rule  of  liability  in  such  cases.  They  are 
bound  to  ordinary  care  and  diligence,  and 
liable  for  gross  neglect.  In  such  cases  the 
plaintiff  cannot  recover  if  the  injury  com- 
plained of  is  with  his  consent  or  caused  by 
his  negligence.     If  both  plaintiff  and   de- 


fendant are  in  default,  the  plaintiff  cannot 
recover  unless  the  injury  was  intentional 
on  the  part  of  the  defendant,  or  unless  it  was 
impossible  with  ordinary  care  and  diligence 
for  the  plaintiff  to  avoid  the  consequences  of 
defendant's  neglect.  Individuals  are  in  like 
manner  liable  to  corporations  for  injuries 
done  to  their  property  by  the  negligent  use 
of  their  own.  Macon  <&*  W.  R.  Co.  v.  Davis, 
13  Ga.  68.— Followed  in  Sioux  City  &  P. 
R.  Co.  V.  Stout,  17  Wall.  (U.  S.)  657. 

Where  throughout  a  whole  country  stock 
customarily  run  at  large,  the  owner  of  a 
horse  which  is  killed  by  a  train  is  not  inpari 
delicto  with  the  company,  because  his  horse 
is  upon  the  track  of  the  company,  so  as  to 
relieve  it  from  liability  for  the  negligence  of 
the  engineer  of  the  train.  Macon  &*  W. 
R.  Co.  v.  Lester,  30  Ga.  911. 

A  company  is  liable  for  animals  killed 
where  it  appears  that  the  engineer,  upon 
seeing  them,  blew  the  whistle  and  then  wil- 
fully ran  over  them,  though  the  train  might 
have  been  stopped  in  time  to  have  avoided 
a  collision  ;  and  such  liability  is  not  affected 
by  the  fact  that  the  owner  of  the  stock  had 
wrongfully  appropriated  the  company's 
fence  as  one  side  of  an  inclosure  for  the 
stock,  and  they  had  gone  upon  the  track 
by  breaking  down  the  fence.  Illinois  C. 
R.  Co.  V.  Middlesworth,  46  ///.  494. — Over- 
ruling Central  Military  Tract  R.  Co.  v. 
Rockafellow,  17  111.  541  ;  Great  Western  R. 
Co.  V.  Thompson,  17  III.  ^31 ;  Illinois  C. 
R.  Co.  V.  Reedy,  17  111.  580;  Chicago  &  M. 
R.  Co.  V.  Patchin,  16  III.  198.  —  Disap- 
proved IN  Illinois  C.  R.  Co.  v.  Noble, 
142  111.  578.  Followed  in  Rockford,  R.  I. 
&  St.  L.  R.  Co.  V.  Irish,  72  111.  404. 

5.  Burden  of  Proofs 

285.  When  on  the  company. — In  a 

suit  by  an  owner  of  stock  suffered  to  go  at 
large  contrary  to  law  against  a  railroad  to 
recover  damages  for  killing  the  same  in 
consequence  of  its  track  being  unfenced, 
where  it  does  not  otherwis-i  appear  the 
burden  of  showing  contributory  negligence 
on  the  part  of  the  owner  is  upon  company. 
Cairo  &•  St.  L.  R.  Co.  v,  Woosley,  85  ///. 
370. 

Under  Iowa  act  of  1862,  ch.  169,  railroad 
companies  are  liable  absolutely  for  killing 
stock  at  all  points  where  they  have  a  right 
to   fence  their  tracks  but   fail   to  do  so, 

»  See /oj/,  495-523. 


«i 

si 

9 


334 


ANIMALS,  INJURIES   TO,  2»«,  287. 


unless  the  injury  be  the  result  of  the  wil- 
ful act  of  the  owner;  and  the  bur'^eii  of 
proof  to  show  sucli  wilful  act  reslr.  upon  the 
defendant.  StCiVart  v.  Burlington  &•  M.  K. 
R.  Co.,  32  Imva  561,  10  Am.  Ry.  Rep.  \. — 
Following  Spence  v.  Chicago  &  N.  \V.  R. 
Co.,  25  Iowa  139;  Corwin  v.  New  York  &  E. 
R.  Co.,  13'N.  Y.  42 — FoLLOwKD  IN  Fritz  v. 
Milwaukee  &  St.  P.  R.  Co.,  34  Iowa  337. 

286.  When  on  the  owner  to  show 
absence  ut'  uet;Ii{;eiice  uii  liiM  part.— 
Where  plaintiff's  horse  was  injured  in 
consequence  of  a  defective  crossing,  in 
order  to  recover  he  must  not  only  show 
negligence  of  the  company,  but  also  that 
the  driver  of  the  horse  was  exercising  ordi- 
nary care  and  vigilance  at  the  time  the  in- 
jury occurred,  Bergert  v.  Davenport  City 
R.  Co.,  ■^^Jowa  571. 

To  support  trespass  for  an  injury  done  by 
a  railroad  company  in  the  exercise  of  its 
lawful  rights,  it  must  appear  that  no  neglect 
or  want  of  care  on  the  part  of  the  plaintiff 
co-operated  in  producing  the  injury.  IVal- 
dron  v,  Portland,  S.  &•  P,  R.  Co.,  35  Me. 
422. — Followed  in  Eames  v.  Boston  &  W. 
R.  Co,,  14  Allen  (Mass.)  151, 

Plaintiff  must  show  the  exercise  of  ordi- 
nary care  on  liis  part,  and  the  omission  of 
some  duty  or  the  commission  of  some  wrong 
on  the  part  of  the  defendant  by  which  the 
injury  was  produced.  Waldron  v.  Portland, 
S.  iS"*  P.  R.  Co.,  35  Me.  422. — Quoting 
Bradley  v.  Boston  &  M,  R.  Co.,  2  Cush. 
(Mass.)  539. 

A  company  which  is  not  bound  to  erect 
and  maintain  a  fence  is  not  liable  in  dam- 
ages if  a  cow,  feeding  in  an  adjacent  pasture, 
escapes  through  a  defect  in  the  fence  and 
is  run  over  and  killed  by  the  cars,  without 
proof  of  due  care  on  the  part  of  the  owner 
to  prevent  such  an  escape.  Stearns  v.  Old 
Colony  &-  F,  R,  R.  Co.,  i  Allen  {Mass.)  493. 

6.  Question  of  Law  or  Fact.* 

287.  When  question  of  law  for  the 
court. — Plaintiff  lived  in  a  city  on  prem- 
ises nearly  surrounded  by  railroad  tracks. 
In  order  for  his  cow  to  reach  water  on 
either  side  she  must  cross  a  track.  She 
was  turned  out  unattended  at  a  season 
when  pasture  was  scarce,  and  soon  after- 
ward was  grazing  on  the  defendant's  right 
of  way,  near  where  she  usually  went  for  water, 
and  upon  the  approacii  of  a  train  ran  onto 

•  See /^x/,  532-664. 


the  track  and  was  killed.  Held,  that  there 
was  such  evidence  of  contributory  negli- 
gence as  to  warrant  a  nonsuit.  McCandless 
V.  Chicago  &*  N.  W.  R.  Co.,  45  Wis.  365.— 
Quoting  Curry  v.  Chicago  &  N.  W.  R.  Co., 
43  Wis.  665 ;  Chicago  &  N.  W.  R.  Co.  v. 
Goss,  17  Wis.  428.— See  also  Lyons  v.  Terre 
Haute  &^  I.  R.  Co.,  101  Ind.  419, 

In  a  suit  against  .1  railroad  for  killing  a 
cow,  in  a  county  where  the  law  provided  that 
stock  should  not  run  at  large,  requests  to 
charge  that  if  the  plaintiff  permitted  her 
cow  to  run  at  large,  and  it  was  killed  by  the 
defendant's  cars,  the  former  would  be  guilty 
of  negligence  and  could  not  recover,  were 
properly  refused.  It  was  not  for  the  court 
to  single  out  any  one  of  a  number  of  facts 
and  tell  the  jury  that  it  constituted  such 
negligence  as  would  deprive  the  plaintiff  of 
her  right  to  recover.  Central  R.  Co.  v. 
Hamilton,  23  Am.  6-  Eng.  R.  Cas.  207,  71 
Ga.  461. 

Permitting  stock  to  run  at  large  cannot 
be  said,  as  a  matter  of  law,  to  be  such  con- 
tributory negligence  on  the  part  of  the 
owner  as  will  defeat  a  recovery  if  they  go 
upon  a  railroad  track  and  are  killed.  It  is 
a  question  of  fact,  depending  upon  all  the 
circumst  mces  of  the  case,  whether  merely 
permitting  them  to  run  at  large  is  negli- 
gence or  not;  and  if  so,  whether  it  contrib 
uted  to  the  injury,  Cincinnati,  L.  F.  &»  C. 
R.  Co.  v.  Ducharme,  4  III  App.  178. 

Where  a  person  permits  his  jack,  about 
one  year  old,  to  run  upon  his  own  premises, 
which  are  inclosed  with  a  fence,  but  through 
which  a  railroad,  not  inclosed  with  a  fence, 
is  constructed  and  operated,  and  the  jack  is 
unattended  by  any  one,  and  passes  from  the 
plaintiff's  premises  onto  the  unfenced  rail- 
road track,  and  is  there  killed  by  the  railroad 
company  in  the  operation  of  its  railroad — 
held,  that  the  plaintiff  is  not,  as  a  matter  of 
law,  guilty  of  contributory  negligence ;  and 
this,  whether  the  herd  law  of  1872  is  in 
operation  in  the  county  where  the  animal 
is  killed  or  not.  Atchison,  T.  &•  S.  F.  R. 
Co.  v.  Gabber t,  22  Am.  <S>»  Eng.  R.  Cas.  621, 
34  Kan.  132,  8  Pac.  Rep.  218.— QUOTING 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Riggs,  31 
Kan.  622. 

The  fact  that  a  horse  was  frightened  and 
lot  under  the  control  of  any  one  at  a  time 
.vhen  it  was  struck  by  a  railroad  train  on  a 
highway  crossing  is  not  conclusive,  as  mat- 
ter of  law,  of  such  a  want  of  care  on  the 
part  of  its  owner  as  to  defeat  an  action 


ANIMALS,  INJURIKS   TO,  288. 


235 


brought  by  him  against  the  railroad  corpora- 
tion to  recover  for  the  injury  caused  by  its 
negligence.  Soutlnvorth  v.  Old  Colony  (S-»  W 
R.  Co.,  105  Mass.  342,  2  Am.  Ry.  Rep.  436. 

Evidence  that  a  servant,  whom  traders 
employed  to  deliver  goods,  upon  stopping 
with  his  horse  and  wagon  to  deliver  a  parcel 
at  a  house  from  fifty  to  a  hundred  rods  from 
a  railroad  crossing,  left  the  horse  unfastened 
for  four  or  five  minutes  while  he  was  in  the 
house,  knowing  that  it  was  not  afraid  of 
cars,  and  having  used  it  for  three  or  four 
months  without  ever  hitching  it  or  know- 
ing it  to  start,  is  not  conclusive,  as  matter 
of  law,  of  a  want  of  due  care  on  his  part ;  but 
the  question  is  for  the  jury.  Southworth  v. 
Old  Colony  6-  A'.  R.  Co.,  105  Mass.  342. 

288.  When  question  of  fact  for  the 
jury.  —  (i)  Generally.  —  The  contributory 
negligence  of  a  boy  in  riding  a  horse,  sup- 
posed to  be  gentle,  to  within  seventy- five  feet 
of  a  track,  where  he  became  frightened  and 
jumped  over  an  insufficient  fence  and  was 
killed,  is  for  tue  jury.  Hynes  v.  San  Fran- 
cisco &<»  A'.  P.  R.  Co.,  20  Am.  Sf  Eng  R.  Cas. 
486,  65  Cal.  316,  4  Pac.  Rep.  28. 

In  a  suit  to  recover  for  killing  plaintiff's 
cow,  whether  there  was  contributory  negli- 
gence on  the  part  of  plaintiflf,  and  if  so,  to 
whiit  extent,  and  whether  the  negligence  of 
the  company  probably  caused  or  contributed 
to  the  injury,  are  questions  of  fact  to  be  de- 
termined by  the  evidence.  Illinois  C.  R. 
Co.v.  Gillis,  68/11.  317. 

Whether  or  not  the  owner  of  a  blind 
horse  was  guilty  of  negligence  in  turning 
out  the  horse  to  graze  where  he  might  be 
exposed  to  danger  from  passing  railroad 
trains,  was  properly  admitted  to  the  juiy. 
Hammond  v.  Siou.x  City  <&*  P.  R.  Co.,  49 
Iowa  450. 

Plaintiff's  cow  was  killed  by  a"  wild  "train 
at  a  highway  crossing.  Plaintiff  lived  near 
the  crossing  and  knew  the  time  when  trains 
passed,  but  more  than  an  hour  before  a  train 
would  be  due  the  cow  was  turned  onto  the 
highway,  with  the  intention  soon  to  drive 
her  to  a  pasture  beyond  the  track,  but  she 
was  soon  afterward  killed.  Held,  that  the 
question  of  plaintiff's  contril)utory  negli- 
gence was  for  the  jury.  Courson  v.  Chicago, 
M.  a-  St.  P.  R.  Co.,  71  Iowa  28,  32  N.  IV. 
Rep.  8. 

In  an  action  for  injury  to  horses  which  go 
upon  the  track  over  an  alleged  insufficient 
cattle-guard,  while  the  jury  might  not  infer 
the  insufficiency  of  the  cattle-guard  from 


the  fart  iliut  the  horses  passed  over  it  by 
.stepping  between  or  upon  the  cross-ties, 
and  further  from  the  fact  that  cattle-guards 
somewhat  differently  constructed  were  in 
use,  yet  they  iniglit  properly  consider  such 
facts,  in  connection  with  others,  in  determin- 
ing the  question  of  its  sufficiency.  Timins 
v.  Chicago,  R.  I.  &•  P.  R.  Co.,  31  Am.  &•  Eng. 
R.  Cas.  541,  72  Iowa  94,  33  A^.  W.  Rep.  379. 
—Reviewing  Krebs  v.  Minneapolis  &  St.  L. 
R.  Co.,  64  Iowa  670;  McKinley  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  47  Iowa  76. 

Where  cattle  escape  from  the  owner's 
barnyard  to  a  track  through  a  gate  tliat  the 
company  is  bound  to  maintain,  and  it  ap- 
pears that  it  had  been  down  or  insufficient 
for  some  time,  the  negligence  of  both  the 
company  and  the  owner  is  for  the  jury. 
Estes  V.  Atlantic  &*  St.  L.  R.  Co.,  63  Me. 
308. 

In  actions  for  negligence  in  failing  to 
erect  or  maintain  fences  under  the  statute, 
contributory  negligence  on  the  part  of 
plaintiff  is  a  defence ;  but  whether  merely 
permitting  stock  to  run  in  a  pasture  after 
notice  that  it  had  several  times  passed 
through  the  railroad  fence  adjoining,  which 
was  defective  and  insufficient,  and  went  onto 
the  track  and  was  killed,  is  such  contributory 
negligence  or  not,  is  for  the  jury.  Johnson 
V.  Chicago,  M.  <&*  St.  P.  R.  Co.,  29  Minn.  425, 
13  a;  IV.  Rep.  671. 

Whether,  in  exercising  his  right  to  use 
his  land,  the  landowner  has  been  guilty  of 
negligence,  contributing  to  an  injury  to  his 
cattle,  is  ordinarily  a  question  of  fact  for  the 
jury,  to  be  determined  with  reference  to  all 
the  circumstances  of  the  case,  and  to  the 
duty  of  the  company  as  above  indicated. 
Merely  suffering  his  cattle  to  graze  upon  his 
land,  or  to  go  to  a  spring  thereon,  in  broad 
daylight,  is  not  such  negligence  on  the  part 
of  the  landowner  in  law,  notwithstanding 
the  company's  road  is  unfenced,  and  not- 
withstanding there  is  another  railroad  with- 
in a  few  hundred  feet.  Schubert  v.  Minne- 
apolis &•  St.  L.  R.  Co.,  27  Minn.  360,  7  A^. 
W.  Rep.  366. 

Whether  a  person  was  in  the  lawful  use 
of  a  highway  as  a  "  traveller."  and  whether  he 
was  in  the  exercise  of  due  care  at  the  time 
of  an  injury  to  his  horse,  are  questions  for 
the  jury.  Sleeper  v.  Worcester  &*  A'.  R.  Co., 
58  N.  H.  520. 

Plaintiff,  living  about  three-fourths  of  a 
mile  from  defendant's  track,  which  he  knew 
to  be  unfenced,  permitted  his  cow  to  pasture 


236 


ANIMALS,  INJURIES  TO,  280-201. 


»i» 


w 


in  summer  (presumably  with  other  cuttle) 
on  a  large  tract  of  uti inclosed  grass-land, 
extending  from  the  neighborhood  of  his 
residence  to  the  track,  and  she  passed 
upon  the  track  from  said  land,  and  was  in- 
jured. Ne/d,  that  upon  these  facts  the 
question  of  contributory  negligence,  being 
open  to  doubt  and  debate,  was  for  the  jury. 
Citrry  v.  Chicago  (S-  N.  W.  R.  Co.,  43  Wis. 
665. — Reviewing  Blair  v.  Milwaukee  &  P. 
du  C.  R.  Co.,  20  Wis.  254. 

In  an  action  for  the  value  of  plaintid's 
horse,  which  escaped  upon  defendant's  rail- 
way track  from  an  adjoining  field,  and  was 
killed  by  a  train  in  consequence,  as  was 
alleged,  of  a  defect  in  defendant's  fence  at 
that  place — held,  that  if  it  had  appeared  that 
the  horse  was  breachy  and  accustomed  to 
jump  or  break  lawful  fences,  and  that  plain- 
till,  knowing  these  facts,  had  turned  him 
loose  in  the  field  adjoining  the  track,  the  jury 
might  have  found  upon  this  evidence  that 
plaintiff  was  guilty  of  contributory  negli- 
gence, though  the  court  could  not  so  hold  as 
matter  of  law.  Jones  v.  Sheboygan  &^  F.  du  L. 
A'.  Co.,  42  IVis.  306,  1 5  Am.  Ry.  Rep.  229. 

Where  a  landowner  leaves  open  a  gate  at 
a  private  crossing,  and  some  of  his  horses 
escape  onto  the  track  and  are  killed,  it  is  a 
question  for  the  jury  whether  he  was  guilty 
of  contributory  negligence.  Ellis  v.  London 
&-  S.  IV.  R.  Co.,  2H.&'N.  424,  ijur.  N.  S. 
1008,  26  L.J.  Exch.  349. 

A  horse  that  escapes  from  plaintiff's  ser- 
vant onto  a  highway,  and  thence  by  a  rail- 
road gate  onto  the  track,  is  not  a  trespasser, 
but  the  question  as  to  whether  the  servant 
was  negligent  in  allowing  the  horse  to  escape 
is  for  the  jury.  Towne  v.  Nashua  &*  L.  R. 
Co.,  124  Mass.  loi. 

(2)  Animals  running  at  large. — In  Dakota 
it  is  lawful  to  allow  cattle  to  run  at  large, 
but  it  is  the  duty  of  the  owner  to  exercise 
reasonable  care  to  prevent  their  going  on 
a  railroad  track;  but  the  question  as  to 
whether  such  care  has  been  exercised  in  a 
given  case  is  for  the  jury.  Williams  v. 
Northern  Pac.  R.  Co.,  1 1  Am.  &^Eng.  R.  Cas. 
421,  3  £>ah.  168,  14  N.  W.  Rep.  97. 

In  a  suit  in  Illinois  against  a  railroad  for 
stock  killed  in  consequence  of  its  neglect  to 
fence  its  road,  where  it  appears  such  stock 
were  permitted  to  run  at  large  in  violation 
of  law,  the  question  whether  the  owner  has 
been  guilty  of  contributory  negligence  in 
permitting  them  to  run  at  large  is  one 
of    fact,   to    be    determined    by  the    jury. 


Cairo  6-  St.  L.  R.  Co.  v.  Woos/ey,  85 /tf.  370. 
—Followed  in  Alabama  G.  S.  R.  Co.  v. 
Mc Alpine,  15  Am.  &  Eng.  R.  Cas.  544,71 
Ala.  i\y—Rock/ord,  R.  I.  <S-  St.  L.  R.  Co.  v. 
Irish,  72  ///.  404.  Ewing  v.  Chicago  &•  A. 
R.  Co.,  72  ///.  25. 

▼.  PBOOXDUSE. 

I.  Jurisdiction* — Process. 

280.  Jurisdiction,  generally. t— The 

Indiana  act  of  1853,  relating  to  the  liability 
of  companies  which  fail  to  fence  their  road 
according  to  law,  by  reason  of  which  injury 
occurs  to  stock,  does  not  apply  to  actions  in 
courts  of  common  pleas  or  in  circuit  courts. 
Evansville  &*  C.  R.  Co.  v.  Ross,  1 2  Ind.  446. 
Indianapolis,  P.  &*  C.  R,  Co.  v.  Fisher,  1 5 
Ind.  203.  Jeffersonville  R.  Co.  v.  Martin,  10 
Ind.  416.  Toledo.  W.  &*  W.  R.  Co.  v.  Hibbert, 
14  Ind.  509. 

But  the  act  of  1859,  amending  the  act  of 
1853,  extends  the  rule  established  by  the 
former  act  to  actions  brought  either  in  the 
courts  of  common  pleas  or  in  circuit  courts. 
Evansville  &»  C.  R.  Co.  v.  Ross,  1 2  Ind.  446. 

200. as  dependent  upon  county 

lines. — The  word  "  may,"  as  used  in  the 
Arkansas  act  of  February  3,  1875,  §  4,  pro- 
viding that  the  owner  of  stock  killed  "  may 
sue  the  company  running  such  train  ♦  ♦  ♦ 
in  any  court  having  jurisdiction  in  the 
county  where  the  killing  or  wounding  oc- 
curred—^<r///,  to  mean  "  must,"  and  there- 
fore restricting  the  right  of  action  to  the 
county  where  the  killing  occurred.  Little 
Rock  &*  Ft.  S.  R.  Co.  v.  Clifton,  38  Ark.  205. 

Where  an  action  for  killing  stock  is  based 
upon  the  failure  of  the  company  to  fence,  it 
must  be  brought  in  the  county  where  the 
killing  occurred  ;  but  when  it  is  based  upon 
alleged  negligence,  it  maybe  brought  in  any 
county  through  which  the  railroad  runs.  If 
such  action  be  based  on  both  these  grounds, 
the  supreme  court,  in  the  absence  of  evi- 
dence of  the  venue,  will  presume  that  a  gen- 
eral finding  or  verdict  was  based  upon  the 
paragraph  alleging  negligence.  Terre  Haute 
&*  I.  R.  Co.  v.  Pierce,  19  Am.  <S-  Eng.  R.  Cas. 
581,  95  Ind.  496. 

201. as  dependent  upon  parish 

lines. — The  company  may  be  sued  for  dam- 
ages for  the  killing  of  a  mule  in  any  parish 

*See/0j/,  605-600. 

t  Suit  must  be  brought  in  a  court  having  juris- 
diction over  place  of  accident,  see  note,  19  Am. 
&  Eno.  R.  Cas.  500. 


ANIMALS,  INJURIES  TO,  202,293. 


in  which  the  act  was  done.    State  ex  rtl. 
V.  Judge,  33  La.  Ann.  954. 

202.  as  dependent  upon  state 

lines. — A  recovery  may  be  had  in  the 
courts  of  Iowa  for  an  animal  icilled  by  a  rail- 
road in  Illinois,  the  statutes  in  each  state 
giving  a  remedy  being  similar,  lioyce  v. 
Wabash  R.  Co.,  23  Am.  &*  Eng.  K.  Cas.  172, 
63  /(m/a  70,  50  Am.  Hep.  730,  18  A'.  /F.  Mep. 
673.— Distinguishing  Whitfordv.  Panama 
R.  Co.,  23  N.  Y.  465  ;  Hyde  v.  Wabash,  St. 
L.  &  P.  R.  Co.,  61  Iowa  441 ;  Woodard  v. 
Michigan  S.  &  N.  I.  R.  Co.,  10  Ohio  St.  121 ; 
Richardson  v.  New  York  C.  R.  Co.,  98  Mass. 
85 ;  McCarthy  v.  Chicago.  R.  I.  &  P.  R.  Co., 
18  Kan.  46. 

In  an  action  for  the  killing  uf  plaintiff's 
cow  by  defendant's  train,  the  complaint  re- 
cited a  statute  of  Iowa,  and  the  facts  neces- 
sary under  it,  for  the  recovery  of  double 
damages  in  such  cases,  and  prayed  judgment 
for  such  double  damages.  NeM,  that  it 
must  be  treated  as  an  action  under  that  stat- 
ute, and  that,  no  such  action  being  known  to 
the  law  of  this  state,  it  cannot  be  maintained 
here.  Betty's  v.  Milwaukee  6-  St.  P.  R.  Co., 
37  Wis.  323.— f'oLLOWiNG  Andersons.  Mil- 
waukee &  St.  P.  R.  Co..  37  Wis.  321.— Dis- 
tinguished IN  Burns  v.  Grand  Rapids  & 
I.  R.  Co.,  113  Ind.  169,  12  West.  Rep  688, 
15  N.  E.  Rep.  230;  Herrick  v.  Minneapolis  & 
St.  L.  R.  Co.,  31  Minn.  11,  47  Am.  Rep.  771. 

It  is  not  material  to  a  recovery  whether 
the  "  local  habitation  "  of  the  company  was 
or  is  within  or  without  the  state,  or  was  or 
is  a  creature  of  the  laws  of  the  state  of  the 
forum  or  some  other  state.  Pittsburgh,  C. 
&•  St.  L.  R.  Co.  V.  Hunt,  71  Ind.  229. 

At  common  law  the  owner  of  a  dog  may 
maintain  an  action  against  one  who  wrong- 
fully kills  or  injures  it ;  therefore  the  owner 
of  a  dog  may  maintain  a  common-law 
action  in  Texas  against  a  railroad  company 
for  killing  his  dog  in  another  state,  where 
the  service  of  process  can  be  legally  had  in 
Texas.  St.  Louis,  A.  &*  T.  R.  Co.  v.  Hoi- 
den,  3  Tex.  App.  {Civ.  Cas.)  391.* 

203. as        dependent       upon 

amount.— Under  the  Indiana  laws  of 
1863,  "to  provide  compensation  to  the 
owners  of  animals  killed,"  etc.  (Acts 
1863,  p,  25),  all  animals  killed  at  any 
one  time  constitute  a  separate  and  in- 
divisible cause  of  action,  and  two  of 
these  causes  cannot  be    united   to  aggre- 

*  See  ante,  82-84. 


gate  an    amount    sufficient 
diction  to  the  circuit  court. 
&*  C.  R.  Co.  V.  Kercheval, 
Followed    in    Louisville, 


237 

to  give  juris- 
Indianapolis 
24  Ind.  139. — 
N.  A.  &  C. 
R.  Co.  v.  Quade,  loi  Ind.  2fi^.— Toledo,  B. 
<^  L.  R.  Co.  V.  TiltoH,  27  Ind.  71.— Fol- 
lowed IN  Louisville,  N.  A.  &  C.  R.  v. 
Quade,  101  Ind.  364. 

All  animals  killed  on  the  truck  of  a  rail- 
road company  at  any  one  time  constitute  a 
separate  and  indivisible  cause  of  action ; 
and  where  their  value  exceeds  $50,  the  cir- 
cuit court  or  common  pleas  has  original 
jurisdiction,  but  not  otherwise.  Indian- 
apolis &*  C.  R.  Co.  v.  Elliott,  20  Ind.  430. — 
Followed  in  Louisville,  N.  A.  &  C.  R. 
Co.  V.  Quade,  loi  Ind.  364. 

Two  or  more  causes  of  action  cannot  be 
united  in  the  same  suit  for  the  purpose  of 
giving  the  circuit  or  common  pleas  court 
jurisdiction,  which  is  wanting  when  the 
value  of  the  animal  or  animals  killed,  or 
the  injury  done,  at  the  same  time  does  not 
exceed  $50.  Jeffersonville,  M.  &*  I.  R.  Co. 
v.  Brevoort,  30  Ind.  324. 

Under  i  Indiana  Rev.  St.  1876,  p.  752, 
§  2,  jurisdiction  is  given  to  the  circuit 
courts  or  courts  of  common  pleas  in  actions 
against  railroad  companies  for  killing  stock 
"  in  all  cases  when  the  value  of  any  animal 
or  animals  so  killed  or  the  injury  done 
should  exceed  $50,"  and  below  that  amount 
the  jurisdiction  is  given  to  justices  of  the 
peace.  So  where  an  action  is  commenced 
in  court,  if  the  jury  find  that  the  value  of 
the  stock  killed  is  less  than  $50.  the  court 
should  at  once  dismiss  tlic  suit,  though  the 
complaint  alleges  that  such  value  exceeds 
that  amount.  Louisville,  N.  A.  6^  C. 
R.  Co.  V.  Johnson,  67  Ind.  546. — Re- 
viewing Indianapolis  &  C.  R.  Co.  v. 
Elliott,  20  Ind.  430;  Indianapolis  &  C. 
R.  Co.  V.  Kercheval,  24  Ind.  139;  To- 
ledo, B.  &  L.  R.  Co.  V.  Tilton,  27  Ind.  71 ; 
JefTersonville,  M.  &  I.  R.  Co.  v.  Brevoort, 
30  Ind.  324.— Explained  in  Denver,  W.  & 
P.  R.  Co.  V.  Church,  14  Am.  &  Eng.  R. 
Cas.  320,  7  Colo.   143. 

Complaint  in  the  circuit  court,  in  two 
paragraphs,  for  stock  killed  at  different 
times :  the  first  paragraph  was  for  a  horse 
worth  $200,  and  the  second  for  a  cow  worth 
$50.  Held,  that  as  to  the  second  paragraph 
of  the  complaint  the  circuit  court  had  no 
jurisdiction,  as  the  value  of  the  cow  did  not 
exceed  $50.  Indianapolis  &*  C.  R.  Co.  v. 
Kercheval,  24  Ind.  1 39. 


l! 

f 

» * 


t 


.& 


268 


ANIMALS,  INJUKlliS   TO,  tiU-t-tiUl. 


i»."4iS: 


In  ui)  action  for  double  duiiiages  fur  in- 
jury to  slucit,  tiic  jurisdiction  as  to  the 
amount  will  be  governed  by  the  sum 
claimed  as  single  damages,  and  not  by  the 
amount  uiler  the  damages  arc  doubled. 
IV/WtiMs  V.  Iliinnibid  iS-*  St.J.Ii.  t't^.,  So 
Mo.  5y/. 

204.  Aetiuii,  wlietlic'i'  luuul  or 
truiiHitory.— An  action  for  killing  stock 
byieasoii  of  the  company  failing  to  erect 
and  maintain  sutlkient  fences  along  its 
track  is  transitory  in  its  nature,  whether  it 
be  brought  under  the  statute  or  at  common 
law.  Illinois  C.  A'.  Co.  v.  S^viarinf^en,  33 
///.  289.  Detroit,  K.  A'.  ^  /.  A'.  Co.  v. 
Barton,  61  Ind.  293. 

An  action  against  a  railroad  company, 
based  on  its  common-law  liability  for  neg- 
ligently killing  or  injuring  animals,  is  a 
transitory  action,  and  may  be  brought  in 
any  county  through  which  the  railroad 
passes.  Toledo,  IV.  &•  IV.  R.  Co.  v.  Milli- 
gan,  52  Ind.  505. 

Under  Indiana  Rev,  St.  1881,  1;  4026,  the 
right  of  action  against  a  railroad  company 
for  stock  injured  or  killed  is  local,  and  the 
plaintifl  must  allege,  as  a  jurisdictional 
fact,  that  the  animals  were  killed  or  injured 
in  the  county  where  he  brings  suit;  but 
where  the  complaint  contains  a  description 
of  the  land  where  the  railroad  was  located 
and  the  animals  were  injured,  and  avers  that 
the  land  so  described  was  in  the  county 
where  the  suit  was  brought,  the  complaint 
is  sufficient  on  demurrer.  Louisville,  N.  A. 
&*  C.  R.  Co.  V.  Davis,  83  Ind.  89, 

205.  Jiirisdictioii  of  particular 
courts.* — Under  the  provision  of  the  act 
of  congress  of  July  4,  1884,  which  confers 
upon  the  United  States  circuit  court  for  the 
western  district  of  Arkansas  jurisdiction 
"  over  all  controversies  arising  between  said 
Southern  Kansas  R.  Co.  and  the  nations 
and  tribes  through  whose  territory  the  said 
railroad  shall  be  constructed,"  the  circuit 
court  has  jurisdiction  of  an  action  to  recover 
damages  for  the  killing  of  cattle  by  the  neg- 
ligence of  the  company's  servants  in  oper- 
ating its  railroad.  Briscoe  v.  Southern  Kan- 
sas R.  Co.,  40  Am.  &*  Eng.  K.  Cas,  599,  40 
Fed.  Rep.  273. 

The  Southern  Kansas  R.  Co.  being  au- 
thorized to  construct  its  railroad  through 
the  Indian  Territory  by  act  of  congress, 
such  claim  for  damages  is  a  suit  arising 

♦  See  antf,  28» ;  post,  »05-G0U. 


under  a  law  of  the  United  States.  Briscoe 
v.  Southern  Kansas  R.  Co.,  40  ^hn.  ^  Eng. 
R.  Cas.  599,  40  ^'■«''.  R'-/>-  273. 

aUO.  l»roce(*».»— In  an  action  against  a 
company  f<jr  injuries  to  stock,  the  summons 
and  c(jmpluint  may  be  served  on  a  "  depot- 
agent  "  without  the  affidavit  required  in 
other  actions  against  corporations,  when  the 
service  is  on  any  other  person  than  the 
"  president,  or  other  head  thereof,  secretary, 
cashier,  or  managing  agent."  East  Tenn., 
V.  iS"*  G,  R.  Co.  v.  liayliss,  \f)  Am.  &>  Eng. 
R.  Cas.  480,  74  Ala.  1 50. 

Under  the  provisions  of  the  Georgia  Code, 
S^  3049,  33^9t  34u6>  itii  action  against  a  rail- 
road company  for  killing  stock  cannot  be 
instituted  in  a  superior  court  by  serving 
written  notice  on  the  company  and  tiling 
the  san)e  in  the  clerk's  office,  without  other 
pleadings.  Hodges  v.  Atlantic  &*  U.  R,  Co., 
51  Ga.  244. — UibllNLiulSHiNU  Jones 7/. Cen- 
tral R.  &  B.  Co..  18  Ga.  247. 

Where  in  an  action  brought,  under  the 
provisions  of  §  2988  of  the  Georgia  Code, 
for  stock  killed,  the  notice  required  was 
served  personally  by  the  plaintitT,  who  at- 
tached his  affidavit  of  such  service  thereto. 
Held,  that  such  allidavit  was  sufficient  evi- 
dence of  such  service,  and  not  being  tra- 
versed, it  was  not  necessary  to  produce  the 
witness  on  the  stand  to  prove  the  same. 
Macon  &*  IV.  R.  Co.  v.  liabcr,  42   Ga.  300. 

In  trespass  for  killing  a  cow  the  summons 
was  returned,  "  served  by  leaving  copy  at 
Enon  Station  office ; "  defendants  not  hav- 
ing appeared,  service  held  insufficient,  not 
having  been  made  upon  an  officer  or  agent 
of  the  company.  Ohio  &•  P.  R.  Co.  v.  Brit- 
tian,  I  Pittsb.  (Pa.)  271. 

Semble,  that  in  an  action  against  a  railroad 
company  for  killing  cattle,  the  ten  days' 
service  of  summons  is  not  sufficient  notice 
under  the  act  of  March  4,  1853.  Ne7i< 
Albany  &*  S.  R.  Co.  v.  Welsh,  9  Ind.  479. 

2.  Right  of  Action  —  Form  of  Action  — 
Demand. 

207.  Rigrlit  of  action,  geiierally.f 

— The  remedy  provided  by  Dakota  Code 
for  an  appraisement  of  stock  killed  or  in- 
jured is  merely  cumulative,  and  a  compli- 
ance therewith  is  not  necessary  to  enable 
the  party  to  sue  in  court.  Volkman  v.  Chi- 
cago, St.  P.,  M.  &>  O.  R.   Co.,  35  Am.  <S- 

*See/w/,  610. 

f  When  owner  of  stock  killed  on  track  cannot 
recover,  see  note,  I  L.  R.  A.  450. 


ANIMALS,  INJURIES  TO,  208-301. 


S30 


Etfg.  H.  Cos.  204,  5  Dai.  69,  37  N.  W.  Rep. 

731. 

The  appraisement  of  value  of  live  stock 
injured  by  moving  trains  on  unfenccd  rail- 
road tracks,  provided  by  acts  1891,  cli.  101, 
is  not  made  a  condition  precedent  10  rail- 
road company's  liability.  The  owner  of 
the  live  stock  may,  at  his  option,  proceed 
by  appraisement  and  suit,  or  by  suit  without 
appraisement.  If  he  proceeds  without  ap- 
praisement, he  cannot  recover  his  attorney 
fees,  but  only  the  actual  damage  sustained. 
Cincinnati,  N.  O.  &*  T.  P.  K.  to.  v.  Jiusscll, 
92  I'enn.  108,  20  S.  IV.  Kep.  784. 

The  Maryland  acts  of  1838,  ch.  244,  and 
1846,  ch.  346,  give  a  right  of  action  to  the 
owner  of  stock  killed  or  injured  on  a  rail- 
way only  when  such  stock  are  on  the  railway 
without  any  fault  on  the  part  of  the  plaintiff. 
Baltimore  &*  O.  R.  Co.  v.  Lamborn,  \2  Mil. 
257. 

298. for    acts    of   nervmits.*— 

An  action  of  trespass  does  not  lie  against  a 
railroad  company  for  injury  to  animals  run 
over  by  its  cars  or  engines,  unless  the  act 
was  done  by  the  company's  direction  or 
assent;  and  the  conductor,  engineer,  or 
other  subordinate  agent  who  has  charge  of 
the  train  at  the  time  is  not,  for  this  purpose, 
the  representative  of  the  corporation.  Helma, 
R.  ^^  D.  R.  Co.  v.  IVebb,  49  Ala.  240. 

A  railroad  company  is  not  liable  to  the 
owner  of  stock  killed  by  an  engineer  who 
was  in  charge  of  a  construction  engine,  by 
running  the  engine  when  he  is  not  on  duty, 
and  for  business  not  connected  with  the 
railroad  company  and  against  its  orders. 
N.  v.,  T.  df'  Af.  R.  Co.  V.  Sutherland,  3 
Tex.  App.  {Civ.  Cas.)  177. 

200. under  §  43  Wagii.  (Mo.) 

Statutes.— Under  §  43  of  the  Missouri 
railroad  act  (Wagn.  Stat.  310-11),  no  re- 
covery can  be  had  for  injuries  resulting  from 
the  negligent  management  of  the  locomo- 
tive or  train.  For  that  purpose  suit  must 
be  brought  under  §  5  ot  the  damage  act. 
Crutchfield  v.  St.  Louis,  K.  C.  <S-  N.  R.  Co., 
64  A/o.  255.— Reviewing  Cary  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  60  Mo.  2og.— Edwards 
V.  Hannibal  6-  St.  J.  R.  Co.,  66  Afo.  567.— 
Following  Cary  v.  St.  Louis,  K.  C.  &  N.  R. 
Co.,  60  Mo.  209;  Crutchfield  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  60  Mo.  209. 

An  action  cannot  be  brought  under  the 
43d  section  of  the  corporation  law,  and  a 

*Seea«//,  30,  37. 


recovery  be  had  under  the  5th  section  of 
the  damage  act.  Edwards  v.  Hannibal  &* 
St.  J.  R.  Co.,  66  Alo.  567.— FoLLowKD  IN 
Cousins  V.  Hannibal  &  St.  J.  K.  Co.,  66  Mo. 
572 ;  Elliott  V.  Hannibal  &  St.  J.  R.  Co.,  66 
Mo.  683. 

An  action  for  damages  for  killing  stock 
cannot  be  brought  under  both  the  43d 
section  of  the  Missouri  railroad  law,  Wagn. 
St.  317,  and  the  5tli  sccuun  oi  the  damage 
act,  Wagn.  St.  520.  Such  action  must 
be  brought  under  only  one  of  them,  and 
should  be  tried  under  the  one  which  ap- 
plies to  the  facts  of  the  case  as  made  by  the 
petition  and  evidence;  and  instructions 
which  leave  it  uncertain  under  which  act 
they  are  to  proceed  in  estimating  damages, 
tend  to  confuse  and  mislead  the  jury,  and 
are  improper.  Wood  v.  St.  Louis,  K.  C.  &> 
N.  R.  Co.,  58  Afo.  109.— Distinguished  in 
Lincoln  v.  St.  Louis,  L  M.  &  S.  R.  Co.,  75 
Mo.  27;  Carpenters.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  20  Mo.  App.  644.  Followed  in 
Rhea  v.  St.  Louis  &  S.  F.  R.  Co.,  84  Mo. 

345- 
No  action  can  be  maintained,  under  the 

43d  section  of  the  Missouri   railroad  law 

(Wa^n.  St.  310),  for  animals  killed  within 

the    limits    of  a  town    or    city;    in    such 

cases,   where    fences  have    not    been    but 

might  lawfully  be  erected,  the  action  should 

be  brou;;lit  under  section  5  of  the  damage 

act  (Wagn.  St.  520),  which  dispenses  with 

the  proof   of    negligence ;    or   the   action 

should  be  brought  at  common  law.    Elliott 

v.  Hannibal  &•  St.  J.  R.  Co.,  66  Afo.  683.— 

Following  Edwards  7).  Hannibal  &  St.  J. 

R.  Co.,  66  Mo.,  567.— Followed  in  Cousins 

V.  Hannibal  &  St.  J.   R.  Co.,  66  Mo.  572. 

300. under  ^  800,  Rev.  St.   of 

Missouri.— When  the  action  is  founded 
on  §  809,  Rev.  St.  of  Missouri,  there  can  be 
no  recovery  under  Rev.  St.  §  2124.  Rhea 
v.  St.  Louis  &^  S.  F.  R.  Co.,  84  Afo.  345.— 
Following  Cary  v.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  60  ivio.  209;  Wood  V.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  58  Mo.  109. 

Under  §  809,  Rev.  St.  of  Missouri, 
there  can  be  no  recovery  for  injuries  to 
stock  resulting  from  the  negligent  manage- 
ment of  trains.  Rhea  v.  St.  Louis  &*  S.  F. 
R.  Co.,  84  Afo.  345.— Following  Cary  v. 
St.  Louis,  K.  C.  &  N.  R.  Co.,  60  Mo.  209; 
Crutchfield  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
64  Mo.  355. 

301.  Election  between  statutory 
and     voninioii-law     actions.- Where 


n 


:  ..jKi.  ■    . 
%      ■ 


■  "K'l'"*!^ 


■??■ 


MO 


ANIMALS,  INJURIES  TO,  U02-:t04. 


stock  arr  killed  by  a  railroad  which  has  w^m- 
lectcd  to  fence  its  track  in  the  time  pie- 
scribed,  the  owner  of  such  stock  may  elect, 
according  to  the  (acts  of  the  case,  to  base 
his  action  upon  the  sutute  of  1855,  or  up<>!i 
the  common-law  grounds  of  neglii^ciice. 
Kockford,  R.  I.  &*  S/.  L.  A'.  Co,  v.  I'hiUips, 
66  ///.  548. 

The  owner  of  stock  killed  by  a  railroad 
company  may  have  his  common-law  action 
against  the  company  for  negligence,  al- 
thoii^'li  there  is  w  statute  making  railroad 
companies  liable  for  killing  stock,  without 
regard  to  the  question  of  negligence,  pro- 
vided the  owner  complies  with  the  method 
of  procedure  laid  down.  Denver  &*  A'. 
(/.  A'.  Co.  V.  Henderson,  31  Am.  &*  Eitg. 
R.  Cits.  559,  10  Co/o.  I,  13  /'<u:  Rep.  910. 
Sec  also  Denver  &•  R.  G.  R.  Co.  v.  Hender- 
son, 10  C'o/f'.  4,  13  Pttc.  Rep.  912.— Rkcon- 
cii.iNii  Atchison,  T.  &  S.  F.  R.  Co,  v.  Lu- 
jaii,  6  Colo.  338.— Followed  in  Colorado 
C.  K.  Co.  7'.  Caldwell,  11  Colo.  545,  19  Pac. 
Kep.  542.  yuoTED  IN  Denver  &  R.  G.  R. 
Co.  V.  Ouicalt,  2  Colo.  App.  395.  Re- 
viewed IN  Wadsworth  v.  Union  Pac.  R. 
Co.,  18  Colo.  600. — CoUrado  C.  R.  Co.  v. 
Caldwell,  II  Colo.  545,  19  I'ac.  Rep.  542.— 
Following  Denver  &  R.  G.  R.  Co.  v. 
Henderson,  10  Colo.  4,    13  Pac.  Rep.  912. 

The  Missouri  statute  for  the  recovery  of 
single  damages  against  railroad  companies 
for  the  killini^  of  stock  (Rev.  St.  1889,  ^ 
4428)  does  not  provide  for  an  exclusive 
remedy,  but  is  cumulative,  and  does  not  dis- 
place the  common  law  in  the  situation  to 
which  it  applies.  Hill  v.  Missouri  Pac.  R. 
Co.,  49  Afo.  App.  520.  — Quoting  Calvert  v. 
Hannibal  &  St.  J.  R.  Co.,  34  Mo.  243  ;  Iba  v. 
Hannibal  &  St,  J.  R.  Co.,  45  Mo.  469. 

302.  Form  of  autiuii— CiiHO  not 
trespnsH.— A  railway  company  is  not  lia- 
ble in  trespass  for  injury  to  animals  run 
over  by  a  train  in  charge  of  its  agent.  The 
proper  form  of  action  is  on  the  case. 
Sharrod  v.  London  &*  N.  W.  R.  Co.,  6 
Railw.  Cas.  239,  7  D.  Sf*  L.  213,  i^Jur.  23, 
20  L.  J.  Exch.  185,  4  Exch.  580.  Price  v. 
New  Jersey  R.  &*  T.  Co.,  31  N.  J.  L. 
229. 

303.  Splitting;  actions  where  more 
Hum  one  animal  is  liilled.— The  kill- 
ing or  injuring  of  a  number  of  cattle  at  the 
same  time  by  railroad  cars  constitutes  but 
one  cause  of  action,  but  when  they  are 
killed  or  injured  at  different  times  each  in- 
jury constitutes  a  separate  cause  of  action. 


Pucket  v.  St.  Louis,  /.  J/.  &-  S.  R,  Co.,  35 
Afo.  Apfi.  650.  Rinicker  v.  Hannibal  ^  S/, 
J.  R.  Co. ,  83  Mo.  660.  Indianapolis  &*  C.  R. 
Co.  V.  Elliott,  20  Ind.  430. 

Where  animals  arc  killed  by  railroad 
trains  at  different  times  the  causes  of  action 
are  separate,  and  if  one  cause  of  action  is 
for  an  amount  under  $50  the  action  must  be 
before  a  justice  of  the  peace.  Louisville,  N, 
A  &*  C.  R.  Co.  V.  Quade,  101  Ind,  364. — 
Following  Indianapolis  &  C.  R.  Co.  v. 
Elliott.  20  Ind.  430;  Indianapolis  &  C.  R. 
Co.  7'.  Kercheval,  24  Ind.  139;  Toledo,  B. 
&  L.  R.  Co.  V.  Tilton.  27  Ind.  71  ;  Jefferson- 
ville,  M.  &  I.  R.  Co.  v.  Urevoort,  30  Ind. 
324. — Compare  Brickcr  s.  Missouri  Pac.  R, 
Co.,  83  Mo,  391. 

A  claim  for  stock  killed  after  suit  is  com* 
menced  cannot  be  united  with  a  claim  for 
stock  killed  before  suit  was  commenced. 
Toledo.  P.  &>  IV,  R.  Co,  v.  Arnold,  49  ///. 
178. 

And  in  such  ca.se,  where  there  is  no  posi- 
tive proof  that  the  defendant  opera,ted  the 
railway  which,  it  is  claimed,  committed  the 
injury,  but  such  fact  is  infcrentially  shown  by 
the  fact  that  the  defendant  was  incorporated 
by  the  name  it  bears  at  a  session  of  the 
legislature  next  previous  to  the  injury  com- 
plained of, — under  such  circumstances  the 
inference  is  that  such  injury  was  done  by 
the  defendant's  road,  there  being  no  proof 
that  any  other  road  was  operated  in  that 
portion  of  the  county  where  the  damage 
was  done.  Toledo,  P.  &•  W.  R.  Co.  V.Arnold, 
49  ///.  178. 

Where  two  cattle  standing  but  a  few  feet 
apart  are  killed  by  a  passing  train  there  is 
but  one  cause  of  action,  and  where  the  value 
of  the  two  together  exceeds  $50  the  com- 
mon pleas  court  has  jurisdiction.  Lafayettt 
<S-  /.  R.  Co.  V.  Ehman,  30  Ind.  83. 

304.  Mertjrer  of  cause  of  action  in 
Judgment. — A  cause  of  action  upon  which 
a  judgment  is  rendered  becomes  merged  in 
the  judgment  and  cannot  be  the  basis  of  a 
new  action  so  long  as  the  judgment  is  in 
force.  Where,  therefore,  upon  appeal  from 
a  judgment  of  a  justice  of  the  peace  in  an 
action  against  a  railroad  for  killing  stock, 
plaintiff  dismissed  his  suit  in  the  circuit 
court,  that  did  not  save  another  action  be- 
gun by  him  before  the  dismissal  on  the 
same  cause  of  action.  Cooksey  v.  Kansas 
City,  St,  J.  &*  C.  B.  R.  Co.,  74  Mo.  477.— DlS- 
TiNGuisHED  IN  Wilson  V.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  87  Mo.  431. 


ANIMALS,  INJURIES  TO,  ;I05-;I08. 


Ml 


306t  Action  over  ogaiiiNt  engineer. 

— A  failure  on  the  part  of  an  engineer  to 
ring  a  bell  or  sound  a  whistle,  as  required 
by  law,  will  render  him  liable  over  tu  the 
company  for  any  damages  that  it  has  been 
subjected  to  by  reason  of  such  failure. 
Chicago  6-  R.  /.  R,  Co.  v.  Hutchins,  34  ///. 
ro8. 

:<00.   over  ogaintit  ntijolning 

landowner. — Where  a  conjpany  sues  an 
aliutting  landowner  for  removing  a  fence 
along  the  track  which  it  was  bound  to 
maintain,  there  can  be  no  recovery  of 
money  which  the  company  has  paid  tu  a 
tliird  person  for  stock  that  went  upon  the 
track  by  reason  of  the  removal  of  sucii 
fence  and  were  killed,  where  it  does  not 
appear  that  such  killing  was  the  direct  con- 
sequence of  the  removal  of  the  fence,  nor 
that  the  company  was  free  from  negligence. 
Louisville  &*  N.  R.  Co,  v.  Guthrie,  10  Lea 
(  Teiin.)  432.— Compare  Warren  v,  Keokuk 
&*  D,  M.  R.  Co.,  41  Iowa  484. 

Where  defendant  wrongfully  removed  a 
gate,  whereby  the  horse  of  a  third  person 
strayed  upon  plaintiff's  track  and  was  in- 
jureil,  and  plaititill  was  obliged  to  [)ay  be- 
cause of  its  negligence  in  not  replacing  the 
gate — held,  that  plaintiff  could  recover  the 
amount  so  paid.  Chicago  Ss^  A'.  IV.  Co.  v. 
Dunn,  59  Lowa  619,  13  N.  IV.  Rep.  722. 

.'107.  Necessity  of  demand  or  no- 
tice of  claim.— Under  Alabama  Code,  § 
i7or,  it  is  necessary  to  present  a  claim 
a^dii  '  >:ompany  for  killing  stock  to  an 
agent  ot  the  company,  or  to  bring  suit, 
within  sixty  days;  and  when  the  case  is 
tried  by  e  court  without  a  jury,  and  the 
statute  1.  set  up  as  a  defence,  and  the 
..mount  claimed  is  less  than  $20,  it  is  error 
to  render  judgment  for  plaintiff  without 
proof  that  such  demand  was  made,  or  that 
the  suit  was  commen  -d  as  provided  by 
statute.  SouiA  6-  N. .  ita.  R.  Co.  v.  Reid,  66 
Ala.  250. 

The  original  affidavit  of  loss  must  be 
served  on  a  railway  company  to  render  it 
liable  for  stock  killed  vipon  its  track,  the 
delivery  of  a  copy  of  ich  affidavit  not  ful- 
filling the  requirement  of  the  statute.  Cole 
V.  Chicago  &*  N.  W.  R.  Co.,  38  Iowa  311. — 
Distinguished  in  Brentner  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  7  Am.  &  Eng.  R.  Cas. 
574.  58  Iowa  625. 

To  sustain  an  action,  under  Kansas  Laws 
1874,  ch.  94.  against  a  railroad  company  for 
the  killing  of  stock,  proof  must  be  made  of 
I  D.  R.  D.— If). 


a  demand  in  accordance  with  the  provisions 
of  §  2.  Kansas  l\\c.  R.  Co.  v.  Hall,  19  Kan, 
535.— FOLLCJWKU  IN  Kansas  City,  Ft.  S.  & 
G.  R.  Co.  11.  Frazier,  23  Kan.  6y8. 

308.  I'rool'  mid  Niifllcit'ncy  of  de- 
mand or  notice— (1)  ^llaluiwa.— Sec- 
tion 1701  of  the  Alabama  Code  of  1876  was 
superseded  by  the  later  enactment,  now 
embodied  in  §  171 1  of  that  Code,  as  to  the 
time  within  which  the  claim  for  damages 
for  injuries  done  to  stock  by  a  railroad 
company  should  be  presented ;  but  that 
section  still  stands  as  a  regulation  as  to  the 
manner  in  which  the  claim  must  be  preferred. 
Hence,  the  claim  must  still  be  in  writing, 
and  must  be  presented  to  one  of  the  officers 
or  employes  named  in  that  section.  Ala- 
batna  G.  .S.  R,  Co,  v.  Killian,  69  Ala.  277. 

Suit  brought  in  less  than  six  months  is  of 
itself  sufficient  presentment  of  claim.  South 
(5-  A^.  Ala.  R.  Co.  v.  Hci  s,  82  Ala,  340,  2  So. 
Rep.  752. 

In  an  action  to  recover  damages  for  in- 
juries to  stock  (Alabama  Code,  §  1711),  it 
being  proved  that  plaintiff's  claim  was  pre- 
sented, within  six  months  after  the  injury, 
to  an  agent  of  the  company,  who  promised 
to  forward  it  to  the  proper  officer  or  depart- 
ment, and  afterward  told  plaintiff  that  he 
had  forwarded  it,  and  that  he  would  pay  it 
on  his  return  trip;  and  the  evidence  show- 
ing, also,  that  other  similar  claims  had  been 
presented  to  said  agent  and  had  been  paid 
by  him,  and  that  he  held  himself  out  as  the 
agent  to  whom  such  claims  could  properly 
be  presented ;  this  is  sufficient  evidence  of 
due  presentation  to  authorize  the  submis- 
sion of  the  question  to  the  jury,  although 
the  defendant's  evidence  tended  to  show 
that  said  agent  had  no  authority  to  receive 
the  presentation  of  claims,  but  was  only 
authorized  to  adjust  and  pay  claims  referred 
to  him  by  the  higher  officers  of  the  com- 
pany. Alabama  G.  S.  R,  Co,  v.  Roebuck,  23 
Am.  &*  Eng.  R.  Cas,  176,  76  Ala,  277. 

Proof  that  an  agent,  appointed  for  the 
purpose  of  investigating  and  paying  such 
claims,  inquired  after  plaintiff  to  settle  his 
claim  within  sixty  days  after  it  accrued,  and 
offered  to  pay  his  attorney  half  the  amount 
claimed,  will  authorize  a  jury  to  infer  due 
presentment.  South  <&-  A^.  Ala,  R,  Co.  v. 
Brown,  53  Ala.  651,  13  Am.  Ry.  Rep,  166. 

(2)  Arkansas. — Under  Mansfield's  Arkan- 
sas Digest,  §  5538,  providing  that  when  any 
stock  are  killed  by  a  railroad  train  the  rail- 
road company  must  post  at  the  station- 


i'1 


'mil 


J. 


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943 


ANIMALS,  INJURIES  TO,  300. 


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house  nearest  to  the  killing  a  description 
of  the  animal  killed  and  the  time  and  place 
of  killing,  or  forfeit  double  damages  for 
such  killing,  the  posting  of  such  notice  at 
such  station-house  in  any  public  place  where 
it  could  be  seen  is  a  sufi^cient  ompliance 
with  the  statute.  St.  Louis,  /.  M.  &■•  S.  R. 
Co.  V.  Wrig/it,  57  Ark.  327. 

Proof  that  no  advertisement  of  the  kill- 
ing of  an  animal  was  posted  at  the  nearest 
station-house,  either  at  the  place  where 
such  notices  were  usually  placed  or  in  front 
of  the  building,  will,  in  the  absence  of  evi- 
dence that  there  were  other  places  suitable 
for  such  posting,  justify  a  finding  of  the 
jury  that  no  notice  was  posted.  St.  Louis, 
/.  AT.  &*  S.  R.  Co.  V.  Wright,  57  Ark.  327. 

(3)  Iowa.* — Where  stock  were  killed  by 
the  "Central  Iowa  Railway  Company,"  a 
notice  served  upon  the  "  Iowa  Central  Rail- 
way Company  "  is  a  sufficient  compliance 
with  Iowa  Code,  §  1289,  requiring  notice  to 
be  served  on  the  company  killing  stock  in 
order  to  recover  double  damages.  Martin 
V.  Central  Iowa  R.  Co.,  59  Iowa  411,  13  A'^ 
W.  Rep.  424. 

The  affidavit  served  for  the  purpose  of 
entitling  claimant  to  double  damages  for 
stock  killed  by  a  railroad  train  need  not 
specially  designate  the  place  where  the  in- 
jury was  done.  The  jurat  to  such  affidavit 
may  be  amended  within  such  reasonable 
time  as  not  to  cause  essential  injury  to  the 
other  party,  and  the  notice  of  claim  and  the 
accompanying  affidavit  may  be  served  by 
the  plaintiff  or  any  other  person.  Mund- 
henk  v.  Central  Iowa  R.  Co.,  1 1  Am.  &*  Eng. 
R.  Cas.  463,  57  Iowa  718,  11  A^.  IV.  Rep. 
656.— Following  Mackie  v.  Central  R.Co., 
54  Iowa  540. 

Proof  that  a  notice  and  affidavit  of  the 
killing  of  stock  served  on  a  railroad  com- 
pany were  similar  to  others  introduced  in 
evidence  is  sufficient.  Keyser  v.  Kansas  City, 
St.  J.  6-  C.  B.  R.  Co.,  56  Iowa  440,  9  A^.  IV. 
Rep.  338.— Reviewing  McNaught  v.  Chi- 
cago &  N.  W.  R.  Co.,  30  Iowa  236. 

It  is  not  essential  that  the  notice  and  affi- 
davits required  to  be  served  upon  the  rail- 
road company,  where  damages  are  claimed 
for  stock  killed,  should  contain  anything 
more  than  a  statement  of  the  claim  and  the 
fact  of  the  injury.  Mackie  v.  Central  R.  Co., 
54  Iowa  540, 6  A^.  W.  Rep.  723. 

*  Notice  of  injury  to  stock  and  tender  by 
company  of  amount  of  claim  under  Iowa  stat- 
ute, see  49  Am.  &  Eng.  R.  Cas.  585,  abstr. 


A  notice  to  a  railroad  company  of  stock 
killed  which  contains  a  statement  of  the 
loss  complained  of,  and  is  sworn  to,  is  a  suf- 
ficient compliance  with  the  laws  of  9th  Gen. 
Assembly  of  Iowa,  ch.  169,  §  6,  and  i:  is  not 
necessary  that  the  notice  and  affidavit  be 
on  separate  papers.  Mendell  v.  Chicago  &• 
N.  W.  R.  Co.,  20  Iowa  9. — Reviewed  in 
Manwell  v.  Burlington,  C.  R.  &  N.  R.  Co., 
45  Am.  &  Eng.  R.  Cas.  501,  80  Iowa  662. 

Service  of  such  notice  may  be  made  by 
delivering  to  the  defendant  either  the  orig- 
inal or  a  copy.  Mendell  v.  Chicago  &*  N. 
W.  R.  Co.,  20  Iowa  9. 

(4)  Kansas. — In  an  action  under  par.  1252 
of  the  Kansas  General  Statutes  of  1889,  for 
injuries  to  stock,  where  there  was  evidence 
tending  to  show  that  there  were  both  a 
verbal  and  a  written  demand,  but  the  trial 
court  rejected  the  copy  of  the  notice  of  the 
written  demand  upon  the  ground  that  it 
was  not  the  best  evidence,  and  the  jury 
found  that  there  were  both  a  written  and  a 
verbal  demand — held,  that  the  finding  that 
there  was  a  written  demand  was  immate- 
rial, and  that  a  new  trial  should  not  be 
granted  for  that  reason.  Missouri  Pac.  R. 
Co.  V.  Gill,  49  Kan.  441,  30  Pac.  Rep.  414. 

Where  the  owner  of  a  steer,  killed  by  a 
company  in  the  operation  of  its  trains, 
makes  out  a  bill  in  wri'.  „,  stating  an  ac- 
count in  favor  of  himself  and  against  the 
company,  for  the  value  of  the  animal  killed, 
giving  the  date  of  the  accident,  and  presents 
said  bill  to  the  company  within  thirty  days 
from  the  date  of  the  accident— //<-/</,  that 
the  making  and  delivery  of  said  bill  is  u  suf- 
ficient demand  upon  the  company  for  the 
value  thereof.  Ft.  Scott,  W.  Sf  W.  R.  Co. 
v.  Holman,  45  Kan.  167,  25  Pac.  Rep.  585. 

In  an  action  under  the  railroad  stock  law 
of  1874,  to  recover  for  the  value  of  a  heifer 
killed  by  the  railway  company  in  the  opera- 
tion of  its  road,  it  was  shown  that  the  plaintiff 
made  a  demand  upon  the  railway  companv 
for  the  value  of  the  heifer,  which  demand 
was  suffic'  .nt  and  proper  in  every  respect, 
except  that  the  plaintifl  placed  the  value  of 
the  heifer  at  $50,  when  in  fact  she  was 
worth  only  $30.  Held,  that  such  demand  is 
not  void  so  as  to  prevent  the  plaintifl  from 
maintaining  an  action  against  the  railway 
company  under  said  railway  stock  law  for 
the  real  value  of  the  heifer.  Missouri  Pac. 
R.  Co.  V.  Abney,  30  Kan.  41,  i  Pac.  Rep.  385. 
300.  Upon  whom  demand  may  be 
made.— An  ownerof  stock  can  maintain  an 


ANIMALS,  INJURIES   TO,  310-812. 


243 


action,  under  the  Kansas  act  of  1874  (Gen.  St. 
of  1889,  par.  :2;i-i256),  against  a  railroad 
company  for  injuring  his  stock,  only  after  a 
demand  for  payment  for  such  injurj'  has 
been  made  upon  some  ticket  agent,  station 
aj^ent,  or  other  agent  of  the  railroad  com- 
pany having  authority  to  collect  or  settle 
claims  for  such  injuries.  St.  Lout's  &*  5.  F. 
H.  Co.  V.  Kinman,  49  Kan.  627,  31  Pec.  Rep. 
126. 

A  demand  under  the  Kansas  act  of  1874  is 
sufficient  if  made  upon  one  who  is  the  "  stock 
and  claim  adjuster,  and  authorized  to  settle 
for  stock  killed."  Union  Trust  Co.  v.  Ken- 
dall, 20  Kan.  515,  20  Am.  Ry.  Rep.  294.— 
Followed  in  Kansas  City,  Ft.  S.  &  G.  R. 
Co.  V.  Frazier,  23  Kan.  698. 

Under  the  special  Kansas  statute  of  1874, 
imposing  liability  on  railroad  companies  for 
stock  killed,  a  demand  made  upon  the  gen- 
eral superintendent  of  a  railway  company 
is  a  sufficient  demand  upon  the  company. 
Central  Branch  R.  Co.  v.  Ingram,  20  Kan. 
66. — Followed  in  Union  Trust  Co.  v. 
Kendall,  20  Kan.  515;  Kansas  City,  Ft.  S. 
&  G.  R.  Co.  V.  Frazier,  23  Kan.  698. 

:{10.  To  whom  notice  may  be  given. 
— A  return  of  service  on  a  notice  for  a  claim 
for  stock  killed  by  a  railroad  company, 
which  recites  that  service  was  made  upon 
tiie  station  agent  of  the  road  at  a  certain 
place,  is  sufficient.  Welsh  v.  Chicago,  B.  &* 
Q.  R.  Co.,  53  Iowa  632,  6  A^.  VV.  Rep.  13,  21 
Am.  Ry.  Rep.  181.— Followed  in  Schlen- 
gener  v.  Cliicago,  M.  &  St.  P.  R.  Co.,  19 
Am.  &  Eng.  R.  Cas.  625,  61  Iowa  235. 

In  the  absence  of  all  proof  to  the  con- 
trary, it  will  be  presumed  that  a  station 
agent  of  a  railroad  company  is  employed  in 
the  management  of  su''h  business  of  the 
corporation  as  usually  devolves  upon  such 
agents,  and  service  in  due  manner  and  form 
upon  him  of  a  notice  and  affidavit  of  killing 
stock  is  sufficient  to  bind  the  company. 
Smith  V.  Chicago,  M.  &*  St.  P.  R.  Co..  13 
Am.  &•  Eng.  R.  Cas.  534,  60  Iowa  512, 15  A^. 
W.  Rep.  303. 

311. or  ciaim  presented.— The 

provision  of  Alabama  Code  1876,  §  1701, 
providing  iliat  a  claim  against  a  railroad 
company  for  stock  killed  shall  be  presented 
to  the  "  president,  treasurer,  superintendent, 
or  some  depot  agent "  of  the  company,  is  not 
sufficiently  complied  with  by  giving  notice 
to  a  section  boss.  Alabama  G.  S.  R.  Co.  v. 
Killian,  69  Ala.  277. 

Rut   presentment   of   such   claim  to  an 


agent  specially  appointed  by  the  company  for 
the  purpose  of  repotting  such  claims  is  a  suf- 
ficient compliance  with  the  statute.  South 
dr'  N.  Ala.  R.  Co.  V.  Brown,  53  Ala.  651,  13 
Am.  Ry.  Rep.  166,— Followed  in  South  & 
N.  Ala.  R.  Co.  T'.  Hagood,  53  Ala.  647. 

Proof  that  the  auditor  of  the  company 
had  frequently  acted  as  depot  agent  and  re- 
ceived and  paid  claims  for  stock  killed, 
there  being  no  proof  that  there  was  any 
depot  agent  at  the  place  where  the  !uim 
was  presented,  shows  a  sufficient  com]  'ance 
with  the  Revised  Code,  requiring  claims  for 
stock  killed  to  be  presented  in  writing  in 
sixty  days  to  the  president,  treasurer,  super- 
intendent, or  some  depot  agent  of  the  cor- 
poration. Mobile  &•  O.  R.  Cc.  v.  Malone, 
46  Ala.  391, 

312.  Notice  and  affidavit  in  claims 
for  double  damagres.— The  statutory 
notice  required  to  be  given  by  the  owner 
of  stock  killed  on  a  railroad,  in  order  to  re- 
cover double  damages  therefor  (Code,  §  1976), 
may  be  duly  served  by  the  delivery  of  a 
copy  thereof  instead  of  the  original,  as  the 
statute  does  not  prescribe  the  mode  of  ser- 
vice. Van  Slyke  v.  Chicago,  St.  P.  &•  K.  C. 
R.  Co.,  80  Iowa  620,  45  A^.  IV.  Rep.  396. 

But  under  the  Iowa  act  1862,  ch.  169, 
providing  for  a  recovery  of  double  damages 
for  stock  killed  on  a  railroad  track,  a  pro- 
vision requiring  notice  of  the  killing  to  be 
accompanied  by  an  affidavit  of  the  injury  is 
not  complied  with  by  serving  a  copy  of  the 
affidavit.  McNaught  v.  Chicago  &>  N.  W. 
R.  Co.,  30  Iowa  336.— Distinguished  in 
Brentner  v.  Chicago,  M.  &  St.  P.  R.  Co.,  7 
Am.  &  Eng.  R.  Cas.  574,  58  Iowa  625.  Re- 
viewed IN  Keyser  v.  Kansas  City,  St.  J.  ^ 
C.  B.  R.  Co.,  56  Iowa  440. 

Proof  of  the  service  of  notice  and  affidavit 
of  loss,  to  entitle  plaintiff  to  double  daniiif>cs 
for  injury  to  animals,  may  be  made  by 
copies  shown  to  be  correct,  without  notice 
to  defendant  to  produce  the  originals.  Smith 
V.  Kansas  City,  St.  J.  &*  C.  B.  R.  Co.,  58 
Iowa  622,  12  N.  IV.  Rep.  619. — FOLLOWING 
Brentner  v.  Chicago,  M.  &  St.  P.  R.  Co..  58 
Iowa  625. 

Upon  the  trial  of  an  action  against  a  rail- 
road company  to  recover  double  the  value 
of  a  horse  killed  by  a  train,  the  value 
not  having  been  paid  after  notice  and  pr  of 
of  the  injury  by  affidavit,  the  statement  in 
the  return  of  the  constable  who  served  the 
affidavit  upon  the  agent  of  the  railroiid  com- 
pany, that  such  service  was  made  by  giving 


244 


ANIMALS,  INJURIES   TO,  313. 


a  copy  of  the  affidavit  to  the  agent,  may  be 
corrected  by  the  constable's  evidence  show- 
ing that  he  served  the  original  affidavit. 
Liston  V.  Central  Iowa  R.  Co.,  26  Am.  &* 
Eng.  R.  Cas.  593,  70  Iowa  714,  29  N.  W. 
Rep.  445. 

On  a  trial  to  recover  for  injury  to  stock 
killed  by  a  train,  a  copy  of  the  notice  and 
affidavit  served  on  the  company  under  the 
statute  is  admissible  when  accompanied  by 
the  oath  of  the  person  who  made  the  ser- 
vice, to  prove  it.  McLenon  v.  Kansas  City, 
St.  J.  6-  C.  B.  R.  Co.,  69  Iowa  320.  28  .V.  W. 
Rep.  619. 

The  notice  and  affidavit  of  the  killing  of 
stock  by  a  railroad  company,  required  by 
§  1289  of  the  Code  of  Iowa,  in  order  to 
recover  double  damages,  muy  be  served 
by  simply  delivering  them  to  the  proper 
officer  or  agent  of  the  company  without 
reading  them.  Brentner  v.  Chicago,  M.  &» 
St.  P.  R.  Co.,  19  Am.  St*  Eng.  R.  Cas.  448, 
68  lofwa  530.  23  A';  W.  Rep.  245,  27  N.  W. 
Rep.  605. 

Proof  of  the  service  of  the  notice  and 
affidavit  of  loss  required  by  statute  to  be 
served  upon  the  defendant,  to  entitle  the 
plaintif!  to  double  damages  for  injury  to 
cattle,  may  be  made  by  copies  or  duplicate 
originals,  without  serving  notice  upon  the 
defendant  to  ptoduce  the  originals.  Brent- 
ner V.  Chicago,  M.  &*  St.  P.  R.  Co.,  7  Am.  Sf 
Eng.  R.  Cas.  574.  58  Iowa  625,  12  A^.  l^'^. 
Rep.  615.— Distinguishing  McNaught  v. 
Chicago  &  N.  W.  R.  Co.,  30  Iowa  336;  Cole 
V.  Chicago  &  N.  W.  R.  Co.,  38  Iowa  311 ; 
Campbell  v.  Chicago,  R.  I.  &  P.  R.  Co.,  35 
Iowa  334.  —Followed  in  Smith  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co..  58  Iowa  622. 

Under  Iowa  act  1862,  ch.  469,  authorizing 
a  recovery  of  double  damages  for  stock 
killed  or  injured  by  a  company,  the  affidavit 
of  injury  provided  for  by  the  act  may  be 
made  either  by  the  claimant  or  by  any 
other  person  cognizant  of  the  facts.  Hen- 
derson V.  St.  Louis.  K.  C.  &>  N.  R.  Co.,  36 
Iowa  387. 

In  proceedings  under  Iowa  act  1862,  ch. 
169,  providing  for  the  recovery  of  double 
damages  for  stock  killed  by  railroad  com- 
panies, the  original  affidavit  required  to  be 
made  under  the  act  must  accompany  the 
written  notice  of  killing  which  is  required  to 
be  served  on  the  company.  A  copy  of  the 
affidavit  does  not  meet  the  requirements  of 
the  law.  Campbfll  v.  Chicago,  R.  I.  6r*  P.  R. 
Co.,  35  Io:va  334.  -DisriNouisHKi)  in  Brent- 


ner V.  Chicago,  M.  &  St.  P.  R.  Co.,  7  Am.  & 
Eng.  R.  Cas.  574,  58  Iowa  625. 

Where  a  railroad  is  being  operated  by  a 
receiver,  the  service  of  notice,  in  due  form, 
of  a  claim  for  damages  for  an  injury  to  stock 
upon  the  receiver  and  a  station  agent  in  the 
county  where  the  stock  were  injured,  is  suffi- 
cient to  entitle  the  claimant  to  recover  from 
the  receiver,  under  section  1289  of  the  Code 
Iowa,  double  damages  for  such  injury,  if 
payment  is  not  made  within  thirty  days  after 
the  service  of  such  notice.  Brockert  v.  Cen- 
tral Iowa  R.  Co.,  82  Iowa  369, 47  A'^  W.  Rep. 
1026. 

3.  Parties. 

313.  Who  may  sue,  generally.— One 

who  has  a  special  ownership  in  an  animal 
killed  by  a  railway  train  is  empowered  by  the 
statute  to  recover  its  full  value.  St.  Louis, 
I.  M.  &*  S.  R.  Co.  V.  Taylor,  57  Ark.  136. 

Before  a  party  can  recover  against  a  rail- 
road for  injury  to  property,  he  must  show 
that  he  is  either  the  absolute  or  qualified 
owner  of  it.   Ohio  &*  M.  R.  Co.  v.  Jones,  27  ///. 

41- 

In  an  action  for  injuries  to  animals,  it  is 
necessary  to  show  that  plaintiff  was  the 
owner  or  had  possession  of  the  property. 
Ohio  6-  M.  R.  Co.  v.  Saxton,  27  ///.  426. 

A  man  must  be  the  owner  of  property  be- 
fore he  can  recover  for  injury  it  has  sustained  ; 
and,  where  several  persons  sue,  if  any  por- 
tion of  the  property  belongs  to  other  persons 
than  the  plaintiffs,  or  if  any  portion  of  it  be- 
longrs  to  any  one  of  them  individually,  they 
cannot  recover  for  it.  When  several  sue  for 
injury  to  property  belonging  to  them  jointly, 
they  can  recover  only  for  such  property  as 
they  prove  so  belonged  to  them.  Si.  Louis, 
A.  &*  T.  H.  R.  Co.  V.  Linder,  39  ///.  433. 

One  having  sheep  in  his  possession,  under 
an  arrangement  by  which  he  is  accountable 
for  them  or  for  any  injury  thereto,  is  the 
owner  thereof  within  the  meaning  of  the 
Indiana  statute  providing  that  the  owners  of 
stock  killed  may  sue  therefor.  New  York, 
C.  &*  St.  L.  R.  Co.  V.  Auer,  24  Am.  6-  Eng. 
R.  Cas.  383,  106  Ind.  219,  55  Am.  Rep.  734, 
6  A^.  E.  Rep.  330. 

In  an  action  for  damages  for  the  killing  of 
a  cow,  evidence  that  the  cow  was  given  to 
the  plaintiff  by  a  third  person,  coupled  with 
a  request  that  at  a  future  time  the  plaintiff 
give  another  cow  to  the  plaintiff's  son,  is 
siilTicieiit  evidence  of  ownership  to  support 


ANIMALS,  INJURIES  TO,  :n4-;»10. 


245 


a  judgment.  PFood  v.  5/.  Louis,  I.  M.  &*  S. 
R,  Co.,  20  Mo.  App.  601. 

In  a  suit  against  a  railroad  for  double 
damages  for  injuries  to  cattle,  brought  under 
the  statute  (Wagn.  Missouri  St.  310,  §  43),  the 
p;irty  injured  is  the  proper  plaintiff.  Fickle 
V.  .S7.  Louis,  K.  C.  &•  N.  K.  Co.,  54  Mo.  219,  1 2 
Am.  Ay.  Rep.  376. — FOLLOWING  Hudson  v. 
St.  Louis,  K.  C.  &  N.  R.  Co.,  53  Mo.  525. 

Plaintiff, owning  land  adjacent  to  the  rail- 
way, permitted  one  D.,  a  servant  of  the 
company  living  within  their  fences,  to  culti- 
vate A  small  piece  free  of  rent.  D.  made  a 
gate  in  the  railway  fence  to  give  him  access 
to  this  land,  and  the  plaintiff's  horses  passed 
through  it  to  the  railway  track  and  were 
killed.  Held,  that  the  plaintiff  was  suffi- 
ciently in  possession  of  the  close  from  which 
the  horses  escaped  to  entitle  him  to  recover. 
Henderson  v.  Grand  Trunk  R.  Co.,  20  U.  C. 
Q.  B.  602. 

314.  Bailee.— Under  Mansf.  Arkansas 
Dig.  §  5540,  providing  that  actions  for  dam- 
ages may  be  maintained  by  any  person  who 
has  either  a  special  or  an  absolute  property 
in  stock  killed  or  injured  by  a  railroad,  one 
who  has  a  horse  hired  under  an  agreement 
to  return  it  in  good  condition  may  maintain 
an  action  against  a  railroad  for  killing  it. 
SI.  Louis,  /.  A/.  &*  S.  R.  Co.  v.  Bt£g^s,  50  ArJk. 
169,  6  S.  W.  Rep.  724.— Quoting  Heydon 
&  Smith's  case,  13  Coke  489;  Whiter.  Webb, 
1 5  Conn.  302 ;  T  Tarker  v.  Dement,  9  Gill  (Md.) 
7 ;  note  to  Armory  v.  Delamarie,  1  Smith's 
Leading  Cases  701.  Reviewing  Poole  v. 
Symonds,  i  N.  H.  289;  Lyle  v.  Barker,  5 
Binn.  (Pa.)  457. 

315.  Person  who  takes  up  an  es- 
tray. — One  in  possession  of  a  cow,  taken  up 
as  an  estray,  may  recover  of  a  railroad  where 
the  cow  is  killed  through  the  negligence  of 
the  company.  Peoria,  P.  &*  J.  R.  Co.  v. 
Mclntire,  39  ///.  298. — Distinguished  in 
Chicago  &  N.  W.  R.  Co.  v.  Shultz,  55  111.  214. 

A  party  had  taken  up  a  colt  as  an  estray, 
and  after  he  had  been  in  possession  about 
eight  months  it  was  killed  by  a  train  by  rea- 
son of  the  negligence  of  the  company. 
The  party  so  taking  up  the  estray,  in  at- 
tempting to  comply  with  the  law,  failed  to 
post  the  animal  in  the  proper  manner,  yet 
he  could  recover  against  the  company  for 
the  injury,  and  such  recovery  would  be  a 
bar  to  any  subsequent  action  against  the 
company  by  the  true  owner  for  the  same 
injury.  Chicago  &-  N.  W.R.Co.  v.  Shults, 
55  ///.  421.— Distinguishing  Peoria,  P.  & 


I.  R.  Co.  V.  Mclntire,  39  III.  298.— DISTIN- 
GUISHED IN  Toledo,  P.  &  W.  R.  Co.  v. 
Johnston,  74  III.  83. 

310.  Licensee  of  a  lessee.— A  licen- 
see who  has  acquired  from  the  lessees  of  land 
the  right  to  pasture  his  sheep  thereon  occu- 
pies no  more  favorable  position  to  recover 
from  a  railroad  company  for  the  loss  of 
sheep  .which  strayed  upon  the  track  through 
an  opening  in  the  fence,  made  by  the  lessees 
for  their  own  convenience,  than  that  occu- 
pied by  the  lessees,  who  could  not  recover 
if  the  stock  lost  had  been  their  own. 
McCoy  V.  Southern  Pac.  R.  Co.,  $6  Am.  &^ 
Eng.  R.  Cas.  132,  94  Cal.  568,  2g  Pac.  Rep. 
mo. 

317.  Vendor. — A  cow  was  agreed  to 
be  sold  for  thirty  dollars,  but  the  price  had 
not  been  paid  nor  the  cow  delivered,  and 
the  cow  was  killed  by  railroad.  Another 
cow  was  delivered  to  the  purchaser,  and  the 
vendor  sued  for  the  value  of  cow  killed. 
Held,  the  suit  might  well  lie.  The  title  to 
the  cow  was  still  in  the  vendor.  Railroad 
Co.  V.  Ford,  1 1  Heisk.  ( Tenn.)  388, 

318.  Inliabitant  of  the  Chickasaw 
nation.  — Under  the  act  of  Congress  of 
July  4,  1884,  granting  a  right  of  way  through 
the  Indian  Territory  to  the  Southern  Kan- 
sas Railway  Company,  and  providing  that 
the  United  States  circuit  and  district  courts 
for  the  northern  district  of  Texas,  western 
c. strict  of  Arkansas,  and  district  of  Kansas 
shall  have  concurrent  jurisdiction  over  all 
controversies  arising  between  said  railroad 
company  and  the  Indian  tribes  through 
whose  territory  the  road  passes,  without 
reference  to  the  citizenship  of  the  parties 
or  the  amount  involved,  confers  jurisdiction 
upon  such  courts  of  a  suit  by  an  innabitant 
of  the  Chickasaw  nation  to  recover  for 
stock  killed  by  the  cars  of  said  company. 
Southern  Kansas  R.  Co.  v.  Briscoe,  144  U. 
S.  133,  12  Sup.  Ct.  Rep.  538 ;  affirming  40 
Fed.  Rep.  273. 

319.  Assignee  of  cause  of  action. 
— The  assignee  of  a  cause  of  action  against 
a  company  for  killing  cattle  may  sue  in  his 
own  name.  East.  Tenn,,  G.  &*  V.  R.  Co.  v. 
Henderson,  i  Lea  (Tenn.)  i. 

And  this  rule  holds  good  in  Indiana,  not- 
withstanding a  statute  provides  that,  in 
actions  for  killing  animals,  the  owner  must 
make  complaint  and  may  sue.  Louisville, 
N.  A.  &-  C.  R.  Co.  V.  Goodbar,  13  Am.  &- 
Eng.  R.  Cas.  599,  8&/nd.  213. 

And  under  the  Iowa  Code,  §  1289,  if  ihe 


h, 


%, 


246 


ANIMALS,  INJURIES    TO,  ;I20-;J2«. 


claim  is  not  paid  within  tliiriy  days  after 
notice  to  company  by  assignee,  he  may  sue 
for  and  recover,  in  his  own  name,  double 
damages,  just  as  the  assignor  might  have 
done.  Everett  v.  Central  Iowa  Ji.  Co.,  31  Am. 
&'Eng.  R.  Cas.  550,  73  loTi/a  442,  35  iV.  /F. 
A'ep.  609. 

Where  cattle  were  run  over  and  killed  by 
the  cars  of  a  railroad  company,  and  the 
owner  of  the  stock  assigned  the  right  to 
sue  the  company  for  the  damage  sustained, 
the  assignment  conveyed  the  right  to  sue, 
the  tort  being  not  to  the  person  but  to  the 
estate.  Galveston,  H.  <S-  S.  A.  R.  Co.  v. 
Freeman,  i7  Tex.  156.— APPROVING  Butler 
V.  New  York  &  E.  R.  Co.,  22  Barb.  (N.  Y.) 
no.  Quoting  Hodgman  v.  Western  R. 
Co.,  7  How.  Pr.  (N.  Y.)  493. 

320.  Action  need  not  be  in  name 
of  state,  under  §  43  of  Mo.  railroad 
act. — Suit  against  a  railroad  company  to 
recover  double  damages  for  injuries  to  stock 
need  not  be  brought  in  the  name  of  the 
state,  under  §  42  of  the  railroad  statute 
(Wagn.  St.  310),  but  may  be  instituted 
under  §  43  thereof,  in  the  name  of  the 
owner.  Double  damages,  although  looked 
upon  as  punitive,  may  be  also  treated  as 
compensatory.  Seaton  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  55  Afo.  416.— Followed  in  Mis- 
souri River,  Ft.  S.  &  G.  R.  Co.  v.  Shirley, 
20  Kan.  660;  Saunders  v.  St.  Louis,  K.  C.  & 
N.  R.  Co.,  57  Mo.  117;  Sparr  v.  St.  Louis,  K. 
C.  &  N.  R.  Co.,  57  Mo.  152.  Reviewed  in 
Barnett  v.  Atlantic  &  P.  R.  Co.,  68  Mo.  56. 
—Sparr  v.  St.  Louts,  K.  C.  6-  A'.  R.  Co.,  57 
Mo.  152. 

321.  Not  in  the  name  of  one  for 
the  use  of  another.— An  action  of  dam- 
ages for  killing  ani  nals  on  its  track,  being 
ex  delicto,  should  not  be  brought  in  the 
name  of  one  for  the  use  of  another.  And  in 
an  action  so  brought  a  recovery  against  the 
defendant  will  not  be  disturbed  for  want  of 
proof  that  the  usee  had  an  interest  in  the 
suit.  His  connection  with  the  case  will  be 
disregarded  in  passing  upon  the  correctness 
of  the  verdict.  Katnas  City,  M.  &*  B.R. 
Co.  V.  Cantrell,  70  Miss.  329,  12  So.  Rep. 
344- 

322.  Who  cannot  sue.— A  husband 
cannot  recover  anything  for  the  killing  of 
an  animal  belonging  to  his  wife  worth  $150, 
although  it  may  have  been  procured  in 
exchange  for  a  similar  animal  belonging  to 
her,  with  the  addition  of  $25  paid  by  him  in 
cash  out  of  his  own  means.    Central  R,  &* 


B.  Co.  v.  Bryant,  89  Ga.  457,  1 5  S.  E.  Rep. 

537. 

The  tenant  of  the  landowner  who  is 
bound  by  contract  to  maintain  the  fence,  or 
a  person  whose  animals  trespass  upon  the 
land,  is  in  no  better  position  to  maintain  an 
action  than  the  proprietor.  Indianapolis, 
P.  Sr*  C.  R.  Co.  v.  Petty,  25  Ind.  413. 

A  father  cannot  recover  damages  from  a 
railroad  company  for  killing  stock  owned  by 
his  son,  although  the  latter  is  a  minor. 
Morris  v.  St.  Louis,  K.  C.  6-  A'.  R.  Co.,  58 
Mo.  78,  9  Am.  Ry.  Rep.  96. 

323.  Who  may  be  sued,  generally. 
— A  railroad  company  that  holds  itself  out 
to  the  public  as  the  operator  of  a  railroad  is 
liable  for  damages  resulting  to  third  per- 
sons by  reason  of  a  negligent  management 
and  operation  of  said  road.  Jacksonville,  T. 
&•  K.  W.  R.  Co.  V.  Garrison,  ytFla.  557,  11 
So.  Rep.  929. 

324.  Engineer  and  fireman.— The 
engineer  who  conducts  a  train  of  cars  upon 
a  railroad,  and  a  fireman  who  is  hired  by  him 
and  has  charge  of  the  brake  under  his  direc- 
tion, are  both  servants  of  the  railroad  com- 
pany, and  they  and  the  company  are  all  re- 
sponsible, either  jointly  or  severally,  for  an 
injury  resulting  from  negligence  in  conduct- 
ing the  train.  Suydam  v.  Moore,  8  Barb. 
(N.  Y.)  358.— Reviewed  in  St.  Johnsbury 
&  L.  C.  R.  Co.  V.  Hunt,  59  Vt.  294. 

325.  State. — The  onlv  purpose  of  Ala- 
bama Rev.  Code,  §  2534,  was  to  afTord  to 
persons  who  had  claims  against  the  state 
the  mode  of  ascertaining  whether  or  not  they 
were  well  founded,  and  if  they  were,  what 
sum  of  money  or  other  thing  was  due  to 
them  ;  and  said  section  does  not  operate  to 
make  the  state  liable  for  stock  killed  by  a 
railroad  while  being  operated  by  a  state  re- 
ceiver.   State  V.  Hill,  54  Ala.  67. 

4.  Pleadings, 
a.  Declaration— Complaint— Petition.* 

326.  Generally.- Under  the  liberal 
construction  placed  on  the  Alabama  statute 
requiring  brevity  in  pleadings  (Code,  §  2664), 
a  general  averment  of  negligence  on  the 
part  of  defendant's  servants,  and  consequent 
injury  to  plaintiff's  horse,  may  be  sufficient 
in  a  complaint  claiming  damages,  without  a 
statement  of  the  particular  facts ;  but,  if  the 
particular  facts  are  stated,  they  must  show 
that  the  injuries  were  the  natural  conse- 

•  See  post,  615. 


Ill 


ANIMALS,  INJURIES  TO,  .'12 7,  328. 


347 


quence  thereof,  or  the  damages  not  too  re- 
mote. Stanton  v.  Louisville  &•  N.  R.  Co., gi 
Ala.  382,  8  So.  Rep.  798.— APPLYING  South 
&  N.  Ala.  R.  Co.  V.  Thompson,  62  Ala.  494 ; 
Western  R.  Co.  v.  Lazarus,  88  Ala.  453. 

A  declaration  alleging  that  defendant,  by 
reckless  negligence  in  running  its  trains, 
etc.,  in  the  month  of  October,  1889,  did  kill 
five  head  of  cattle,  the  property  of  peti- 
tioner, of  the  said  value  of  $129,  etc.,  and 
which  said  defendant  refuses  to  pay,  not- 
withstanding often  asked  to  do  so  by  peti- 
tioner, was  held  good  on  demurrer.  Chat- 
tanooga, R.  &*  C.  R.  Co.  V.  Palmer,  89  Ga. 
161,  155.  E.Rep.  34. 

A  plaintiff  to  recover  double  damages  for 
killing  stock  is  required,  somewhat  strictly, 
to  allege  and  prove  all  the  facts  prescribed 
by  the  statute,  yet  if  such  facts  appear  by  ex- 
press averment,  or  by  necessary  implication 
from  such  express  averment,  the  petition 
will  be  held  sufficient.  Lainiger  v.  Kansas 
City,  St.J.&-C.  B.  R.  CV?.,  41  Mo.  App.  165. 

A  complaint  in  the  following  words  and 
form,  to  wit,  "  The  Toledo  and  Wabash 
Railway  Co.,  to  Emanuel  F.  Lurch,  Dr., 
1 86 1,  November.  To  one  cow  killed  by 
your  locomotive,  within  Clinton  township, 
Cass  county,  Indiana,  $50,"  fails  to  state  a 
cause  of  action.  Toledo  &*  W,  R.  Co.  v. 
Lurch,  23  Ind.  10. 

The  second  count  of  a  declaration  averred 
defendant's  possession  of  their  railway,  and 
of  the  engines  thereon,  and  charged  that 
they  so  carelessly  managed  the  same  that 
the  said  engine  ran  against  the  plaintiff's 
mare,  and  threw  the  said  mare  unto  and 
upon  the  said  railway,  and  injured  her  so 
that  she  died — //fW,  bad  on  demurrer:  ist, 
because  no  value  was  stated  for  the  mare  ; 
2d,  because  the  count  implied  that  the  mare 
was  trespassing  on  the  railway.  Connors  v. 
Great  Western  R.  Co.,  13  [/.  C.  Q.  B.  401. 

327.  Interpretation,  generally.— 
To  determine  whether  a  petition  states  a 
statutory  or  common-law  cause  of  action  for 
the  killing  of  stock  by  a  railway  company, 
it  is  necessary  to  consider  whether,  in  order 
to  recover  under  the  pv'tition,  the  plaintiff 
must  prove  the  kind  of  negligence  named 
in  the  statute,  that  is,  the  failure  on  the  part 
of  'the  railway  company  to  erect  and  main- 
tain a  lawful  fence,  or  whether  he  can  suc- 
ceed by  proving  what  would  be  neglir"*nce 
at  common  law.  Hill  v.  Missouri  Pac.  R. 
Co.,  49  Mo.  App.  520. 

Where  plaintiff's  petition  in  suit  against  a 


railroad  company  for  injuries  to  stock  al- 
leges the  duty  of  defendant  to  erect  and 
maintain  fences,  the  breach  of  that  duty,  and 
the  prayer  for  double  damages;  and  direct 
reference  is  made  in  the  body  of  the  petition 
to  §  43  of  the  railroad  law,  the  pleading  will 
be  treated  as  brought  under  that  section, 
although  containing  the  further  averment 
that  the  injury  was  negligently  done.  Crutch- 
field  V.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  64  Mo. 
255.  17  Am.  Ry.  Rep.  250.— Followed  in  ' 
Rhea  v.  St.  Louis  &  S.  F.  R.  Co..  84  Mo.  345. 

In  the  Indian  Territory,  a  complaint  alleg- 
ing simply  that  defendant,  while  operating 
its  railway  through  plaintiff's  pasture,  negli- 
gently killed  his  stock,  and  that  the  stock 
were  killed  solely  through  defendant's  inex- 
cusable neglect,  is  sufficient  to  withstand  a 
general  demurrer,  since,  under  Mansf.  Dig. 
Ark.  §  5065  (in  force  in  the  territory),  a  com- 
plaint will  be  treated  as  alleging  every  fact 
which  can  be  implied  from  its  averments  by 
the  most  liberal  intendment.  Gulf,  C.  &* 
S.  F.  R.  Co.  V.  Washington,  49  Fed.  Rep. 
347,  4  U.  S.  App.  121,1  C.  C.  A.  286.— Ap- 
plied IN  Gulf,  C.  &  S.  F.  R.  Co.  V.  Ellidge, 
49  Fed.  Rep.  356, 4  U.  S.  App.  136,  1  C.  C.  A. 
295. 

328.  Interpretation  of  particular 
words  and  phrases.— The  word  "  reck- 
less," as  employed  in  the  complaint  in  an  ac- 
tion against  a  railroad  company  to  recover 
damages  for  "the  negligent,  careless,  and 
reckless  killing "  of  live  stock,  implies  no 
more  than  a  want  of  that  degree  of  care  re- 
quired by  law  of  the  defendant's  employ6s. 
Louisville  <S>»  N.  R.  Co.  v.  Barker,  96  Ala. 
435.  1 1  So.  Rep.  453. 

A  complaint  which  charges  that  the  de- 
fendant "  wilfully  and  willingly  killed  "  the 
plaintiff's  animal  is  sufficient  to  show  an  in- 
tentional killing.  Chicago,  St.  L.  6r*  P.  R. 
Co.  V.  Nash,  I  /nd.  App.  298,  27  N.  E.  Rep. 
564.— Quoting  Lewis  v.  Great  Western  R. 
Co.,  3  Q.  B.  D.  19s ;  Pittsburgh.  C.  &  St.  L.  R. 
Co.  V.  Stuart,  71  Ind.  500;  Carters.  Louis- 
ville, N.  A.  &  C.  R.  Co..  98  Ind.  552 ;  Palmer 
V.  Chicago.  St.  L.  &  P.  R.  Co.,  112  Ind.  250; 
Cincinnati  &  M.  R.  Co.  w.  Eaton,  53  Ind.  307. 

In  an  action  for  killing  livestock,  an  aver- 
ment that  the  horses  went  upon  the  railroad 
*'  by  reason  of  the  company's  failure  to  main- 
tain sufficient  fences  and  cattle-guards " 
must  be  held  to  be  the  practical  equivalent 
of  an  allegation  that  they  went  upon  the 
railroad  at  a  point  "where  it  was  not 
securely  fenced."     Wabash  R.  Co.  v.  Ferris 


11 


If 

*'  *. 
t;  ; 


m 


?il  ^ 


m 


J48 


ANIMALS,  inji:kii:s  to,  ;J2«. 


{Ind.  App.),  32  A'^.  E.  Rep.  1 1 2.     Evaiisi'///,- 
&*  r.  H.  R.  Co.  V.  Tipton,  loi  Ind.  197. 

Where  there  was  an  allegation  tliat  the 
"  right  of  way  "  was  not  securely  fenced,  it 
was  considered  equivalent  to  an  allegation 
that  the  "  road  "  was  not  securely  fenced. 
Louisville,  N.  A.  &»  C.  R.  Co.  v.  Hi.xon,  loi 
Ind.  337. 

An  allegation  that  a  railroad  was  not  se- 
curely fenced  will  be  held  to  mean  that  it 
was  not  inclosed  with  a  good  and  lawful 
fence.  Missouri  Pac.  R.  Co,  v.  Morrow,  31 
Am.  &> Eng. R.  Cas.  520,  36  Kan.  495,  i^Pac. 
Rep.  789. 

Where  a  complaint  in  an  action  for  killing 
a  horse  was  in  two  paragraphs,  and  in  the 
first  it  was  charged  that  the  agents  and  ser- 
vants of  th'i  railway  company  "  wilfully  and 
willingly  "  killed  the  horse  by  striking  and 
running  upon  it  with  the  locomotive  and 
train  of  cars,  and  the  second  paragraph 
charged  th.it  the  defendant  company,  by 
carelessness,  negligence  of  its  servants  and 
employes,  ran  its  locomotive  and  train  of 
cars  on  plaintiff's  animal  and  killed  it  at  a 
highway  crossing,  that  he  was  without  fault, 
etc., — an  objection  that  the  first  paragraph  is 
not  sufficient  because  it  did  not  aver  that  the 
animal  was  wrongfully  or  unlawfully  killed 
is  not  well  taken.  The  word  "  wilfully," 
when  employed  to  characterize  the  purpose 
for  which  an  act  was  done  or  omitted,  signi- 
fies that  it  was  done  or  omitted,  not  vol- 
untarily, but  without  any  justifiable  excuse, 
and  with  the  evil  design  to  do  or  omit  the 
act.  Chicago,  St.  L.  &*  P.  R.  Co.  v.  Nash 
(Ind.).  24  A^  E.  Rep.  884. 

The  words  "  or  by  any  other  person  at  its 
special  instance  and  request,"  as  occurring 
in  the  complaint,  which  alleges  that  the 
track  was  not  fenced  by  the  company  "  or 
by  any  other  |)erson  at  its  special  instance 
and  request "  at  the  point  where  the  animal 
entered,  do  not  imply  that  the  track  was 
fenced  by  some  other  person  not  at  the  spe- 
cial instance  and  request  of  the  company. 
So  held,  on  a  motion  in  arrest  of  judgment. 
Ft.  Wayne,  M.  &»  C.  R.  Co.  v.  Mussetter,  48 
Ind.  286. 

The  declaration  averred  that  on  a  day 
named  defendant  was  operating  a  railroad 
through  a  certain  county;  but  did  not 
charge  directly  the  day,  or  place  of  killing, 
but  "  at  the  time  and  place  aforesaid."  Held, 
on  demurrer,  that  the  time  and  place  must 
be  understood  to  be  that  named  for  the  op- 
eration of  the  train,  and  that  the  averment 


was  sufficient.     .sV.  Louis.  J.  iS-  C  A'.  Co.  v. 
Kiipatrick,  61  ///.  457.  '2  ^''"-  ^/-  R<^P-  438- 

320.  Alle;;atiouH  laying  the  venue. 
— The  deciciratioii  need  not  be  more  specific 
in  its  allegation  as  to  locality  than  to  state 
the  county  in  which  the  killing  occurred. 
Jacksonville,  T.  (S>»  A'.  W.  R.  Co.  v.  Wellman, 
26  Fla.  344,  7  So.  Rep.  845. 

Where,  in  an  action  of  trespass  on  the 
case  against  a  company  for  killing  stock, 
the  first  count  in  the  declaration  alleges 
the  act  complained  of  to  have  been  com- 
mitted "  at  the  circuit  aforesaid,"  and  that 
the  defendant  "was,  tlien  and  there,  a  cor- 
poration, operating  and  doing  business,  un- 
der and  by  virtue  of  the  laws  of  the  State 
of  Illinois,  and  was,  then  and  there,  pos- 
sessed of  a  certain  railroad  track,  over  and 
upon  which  the  said  defendant  was,  then 
and  there,  running  divers  locomotive  en- 
gines and  railroad  cars," — although  not  ac- 
curate in  form,  the  words  "then  and  there  " 
obviously  refer  to  the  time  and  place  pre- 
viously mentioned,  which  appear  in  the  cap- 
tion ;  no  other  time  and  place  having  pre- 
ceded the  phrase  ','  at  the  circuit  aforesaid," 
in  the  averment,  the  venue  is  laid  with  suf- 
ficient accuracy.  So,  where  the  second  and 
subsequent  counts  in  the  declaration  allege 
the  act  complained  of  to  have  been  com- 
mitted "at  the  circuit  aforesaid,"  and  that 
the  defendant  "  was  then  and  there  running 
certain  other  locomotive  engines  and  rail- 
road cars,"  wiiereby  certain  other  described 
stock  were  killed,  and  the  plaintiff  thereby 
sustained  great  damage,  the  venue  in  these 
subsequent  counts  in  the  declaration  was 
laid  with  sufficient  accuracy.  St.  Louis,  J. 
&*  C.  R.  Co.  V.  Thomas,  47  ///.  116. 

In  an  action  under  the  Indiana  statute, 
against  a  company,  to  recover  damages  for 
killing  or  injuring  stock,  the  plaintiff  must 
allege  in  his  comp'.aint,  and  prove  on  the 
trial,  as  a  jurisdictional  fact,  that  the  injury 
complained  of  occurred  within  the  county 
wherein  such  action  is  commenced.  Evans- 
ville   &*   C.   R.   Co.  V.   Epperson,    59    Ind. 

438- 

If  such  averment  is  omitted,  the  objec- 
tion to  the  complaint  may  be  raised  by 
answer  or  by  demurrer  assigning  want  of 
jurisdiction,  but  not  by  demurrer  assigning 
failure  to  state  facts  sufficient.  If  the  ques- 
tion of  jurisdiction  is  not  so  raised,  it  is  not 
waived,  but  the  objection  may  be  raised  by 
motion  in  arrest  of  judgment.  The  failure 
to  prove  such  fact  is  not  a  ground  for  a 


ANIMALS,  INJURlliS  TO,  liitO,  :t:il. 


249 


motion  in  arrest  of  judgment.     Toledo,  W. 
&*  W.  R.  Co,  V.  Milligan,  52  Ind.  505. 

But  it  is  not  necessary  that  tiie  proof  be 
made  by  direct  or  positive  testimony;  it 
will  be  sutiicient  if  facts  are  proved  from 
which  it  can  be  reasonably  inferred.  Louis- 
ville,  N.  A.  &•  C.  A'.  Co.  v.  /C/ous,  82  /nd.  357. 
In  an  action  prosecuted  under  the  Kan- 
sas stock  law  of  1874,  the  bill  of  particulars 
must  state  or  show  that  the  stock  were  in- 
jured or  killed  in  the  county  in  which  the 
suit  was  commenced,  St.  Louis  &•  S.  F.  R. 
Co.  V.  Byron,  24  Kan.  350.  Hadley  v.  Cen- 
tral Branch  U.  P.  R.  Co.,  22  Kan.  359.  Kan- 
sas City,  Ft.  S.  <S-  G.  R.  Co.  v.  Burge,  40 
A/n.  &>  Eng.  R.  Cas.  i8i,  40  Kan.  734, 
19  Pac.  Rep.  791.  IVic/tita  &-  C.  R.  Co.  v. 
adds,  47  Kan.  274,  27  Pac.  Rep.  991. 

In  an  action  for  damages  arising  out 
of  its  neglect  to  fence  its  railroad  where 
it  crossed  the  plaintiff's  land,  the  want  of 
venue  in  the  declaration — held,  cured  by 
the  statute  (Com  p.  L.  1871,  §  6051),  where 
the  injury  complained  of  was  located  terri- 
torially upon  land  in  the  county  where  the 
suit  was  brought.  Trial  by  the  court  stands 
in  the  same  equity  in  this  regard  as  trial  by 
jury.  Grand  Rapids  &*  I.  R.  Co.  v.  South- 
wick,  30  Mich.  444. 

The  venue  was  sufficiently  laid  in  the  fol- 
lowing cases : 

Where  the  complaint  in  an  action  under 
the  statute  showed  the  killing  to  have  oc- 
curred in  the  county  where  the  action  is 
brought.  Detroit,  E.  R.  &*  /.  R.  Co.  v.  Bar- 
ton, 61  /nd.  293. 

Where  the  complaint  in  action  under 
statute  alleged  that  the  killing  had  occurred 
in  the  county  where  the  action  was  brought, 
and  that,  at  the  point  where  the  stock  en- 
tered upon  the  defendant's  railroad  and  were 
killed,  such  road  was  not  "  securely  fenced." 
Detroit,  E.  R.  &*  /.  R.  Co.  v.  Blodgett,  61 
/nd.  315. 

Where  the  complaint  in  an  action  under 
the  statute  (§  4026)  averred  that  the  road 
was  located  upon  a  certain  section  of  land 
in  the  county  where  the  action  was  brought, 
that  a  portion  of  the  road  upon  said  section 
was  not  fenced,  and  by  reason  thereof  the 
stock  went  upon  the  road  and  were  then  and 
there  injured.  Louisville,  N.  A.  &*  C.  R. 
Co.  v.  Wilkerson,  83  Ind.  153.— Following 
Toledo,  W.  &  W.  R.  Co.  v.  Cory,  39  Ind. 
218. 

Where  the  complaint  alleged  that  the 
company  was  indebted  to  the  plaintiff  in  a 


certain  sum  "  for  a  brown  mule  killed  by 
the  cars  and  locomotive  of  the  defendant, 
run,"  etc.,  "and  passing  through  the  said 
county  of  Dearborn,  state  of  Indiana,  at 
said  county  of  Dearborn."  /ndianapolis &• 
C.  R.  Co.  V.  McKinney,  24  /nd.  283. 

Where  the  plaintiff  alleged  that  the  de- 
fendant company  owned  and  operated  the 
road  over  and  across  the  plaintiff's  premises 
in  Reno  county,  and  that  the  defendant 
killed  the  plaintiff's  cow  "on  the  said  rail- 
way track  of  said  defendant  and  by  the 
operation  of  said  railway,"  and  no  other 
railroad  or  railway  track  is  mentioned  in 
the  pleadings  except  the  one  through  the 
plaintiff's  farm.  Wichita  &•  C.  R.  Co.  v. 
Gidds,  47  Kan.  274,  27  /'ac.  Rep.  991. 

330.  Must  not  allege  legal  couclu- 
sioiiN.— A    complaint    against    a    railroad 
company  for  killing  live  stock,  which  al- 
leges that  the  "  road  was  not  fenced  as  re- 
quired by  law,"  states  a  legal  conclusion 
and  is  bad.    /ndianapolis,  /'.  &*  C.  R.  Co.  v. 
Bishop,  29  /nd.  202.— Distinguishing  In- 
dianapolis &  C.  R.  Co.  V.  Adkins,  23  Ind. 
340.    Overruling  Toledo  &  W.  R.  Co.  v. 
Fowler,  22  Ind.  316.— Distinguished  in 
Indianapolis,  B.  &  W.  R.  Co.  v.  Lyon,  48 
Ind.  119.    Followed  in  Indianapolis,  C.  & 
L.  R.  Co.  V.  Robinson,  35  Ind.  380;  Pitts- 
burgh, C.  &  St.  L.  R.  Co.  V.  Keller,  49  Ind. 
zw.—JeffersonvilU,  M.  &*  /.  R.  Co.  v.  Under- 
hill,  40  /nd.  229.— Distinguished  in  In- 
dianapolis, B.  &  W.  R.  Co.  V.  Lyon,  48  Ind. 
119.    Explained  in  Jeffersonville,  M.  &  I. 
R.  Co.  V.  Adams,  43  Ind.  402. 

But  in  an  action,  under  the  statute,  against 
a  company  for  injury  to  an  animal,  the  alle- 
gation that  "the  road  was  not  securely 
fenced  as  required  by  law  "  is  not  the  state- 
ment of  a  mere  conclusion  of  law,  and  is  a 
sufficient  allegation  as  to  the  fencing  of  the 
road,  /ndianapolis,  B.  &*  W.  R.  Co.  v.  Lyon, 
4,% /nd.  119. — Distinguishing  Indianapo- 
lis, P.  &  C.  R.  Co.  V.  Bishop,  29  Ind.  202 ; 
Indianapolis,  C.  &  L.  R.  Co.  v.  Robinson,  3$ 
Ind.  380;  Jeffersonville,  M.  &  T.  R.  Co.  v. 
Underbill,  40  Ind.  229. 

331.  Need  not  allege  evidential 
facts.— The  degree  of  negligence  on  the 
part  of  the  company  is  an  evidential  fact, 
and  gross  negligence  may  be  proved  under 
an  allegation  of  negligence.  Chicago,  B.  &• 
Q.  R.  Co.,v.  Carter,  20  ///.  390. 

A  petition  by  a  railroad  company  charg- 
ingthat  the  animals  of  defendant  unlawfully 
and  by  reason  of  the  negligence  of  defend- 


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AiNIMALS,  1NJIRII<:S   TO,  ;i.*<a,  JJJW. 


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ant  entered  upon  the  track  uf  the  loml,  and 
llicreby  plaintifT  was  injured,  shows  a  jjood 
cause  of  action;  plaintifl  is  net  required  U) 
set  forth  the  evidence  in  liis  pleading's,  nor 
to  set  out  the  facts  which  show  negligence 
in  the  defendant.  Hannibal  &^  St.  J.  A'. 
Co.  V.  Kenney,  41  Mo.  271.  Indianapolis,  C. 
&•  L.  R.  Co.  V.   Warner,  35  Iiul.  515. 

A  declaration  against  a  company  for  neg- 
ligently and  wrongfully  killing  the  plain- 
tiff's cattle  on  its  track  need  not  state  the 
acts  of  omission  or  commission  which  con- 
stituted the  negligence  and  wrong.  Hawker 
V.  Baltimore  &>  O.  R.  Co.,  ij  W.  Va.  628.  - 
FoLLOWKD  IN  Searle  v.  Kanawha  &  O.  R. 
Co.,  37  Am.  &  Eng.  R.  Cas.  179,  32  W. 
Va.  370,  9  S.  E.  Rep.  248;  Unfried  v.  Balti- 
more &  O.  R.  Co.,  34  W.  Va.  260. 

832.  Certainty  —  Iiideflniteiiess.— 
(l)  What  allegations  are  sufficient.— 10  x^- 
cover  damages  for  killing  a  cow,  an  averpient 
in  the  complaint  that  the  engine  was  "so 
negligently  operated  by  defendant's  agents 
that  plaintiff's  cow  was  killed,"  and  that 
said  cow  was  killed  on  account  of  said  neg- 
ligence, is  sufficiently  certain  and  definite. 
Western  R.  Co.  v.  Lazarus,  88  Ala,  453, 
6  So.  Rep.  877.— Applied  in  Stanton  v. 
Louisville  &  N.  R.  Co.,  91  Ala.  382. 

To  recover  damages  for  injuries  to  plain- 
tiff's horse,  which  was  run  over  and  killed 
by  a  passing  train,  an  averment  that  the 
defendant  did,  "because  of  the  negligence 
or  want  of  skill  of  its  employ6s  in  the  man- 
agement or  running  of  said  train,  locomo- 
tive, or  cars,  run  over,  kill,  or  disable"  the 
animal ;  or  did,  "  because  of  the  negligence 
or  want  of  skill  of  the  employes  of  said  de- 
fendant, run  over,  kill,  or  injure"  it — is 
each  sufficiently  certain  and  definite  in  the 
statement  of  facts  constituting  negligence. 
East  Tenn.,  V.  «S-  G,  R.  Co.  v.  Watson,  90 
Ala.  4\,7  So.  Rep.  Si y 

An  averment  in  the  complaint  for  the 
killing  of  a  mule,  "that  the  defendant, 
without  any  fault  or  negligence  on  plain- 
tiff's part,  carelessly,  negligently,  and 
wrongfully  ran  its  train  over  and  upon  the 
plaintiff's  brown  horse  mule,"  is  a  sufficient 
allegation  of  the  pirticular  act  of  negli- 
gence complained  of  to  withstand  a  motion 
to  make  more  specific.  Ohio  &*  M.  R.  Co. 
V.  Craycraft,  5  Ind.  App.  335,  32  A^.  E.  Rep. 
297.— Following  Cincinnati,  H.  &  D.  R. 
Co.  V.  Chester,  57  Ind.  297. 

In  a  complaint  for  killing  a  horse  which 
had  wandered   upon  the  track,  the  com- 


plaint, among  other  things,  stated  that  the 
liorse  entered  upon  the  track  immediately 
north  of  the  city  of  La  Fayette.  A  motion 
to  make  the  complaint  more  specific  as  to 
the  point  where  the  horse  entered  the  track 
was  correctly  overruled.  Louisville,  N.  A. 
&*  C.  R.  Co.  v.  Consolidated  Tank  Line  Co,, 
4  Ind.  App.  40,  30  N.  E.  Rep.  1 59. 

A  complaint  which  charges  that  the 
company,  by  its  servants,  purposely  and 
wilfully  ran  its  locomotive  engine  and  train 
upon  and  against  the  plaintiff's  cattle, 
thereby  killing  and  injuring  them,  is  suf- 
ficiently specific.  Louisville,  E.  &*  St.  L, 
R.  Co.  V.  Hart,  2  Ind.  App.  130,  28  N.  E. 
Rep.  218. 

To  recover  for  negligently  killing  a 
horse,  the  complaint  alleged  that  the  de- 
fendant was  a  corporation  and  operated  a 
railroad;  that  because  of  its  negligence  in 
failing  to  repair  a  certain  fence,  culvert,  and 
cattle-guard,  which  it  was  bound  to  repair, 
the  plaintiff's  horse,  without  plaintiff's 
fault,  came  on  the  track,  and  by  reason  of 
defendant's  negligence  in  moving  its  cars 
was  killed.  Held,  that  the  complaint  stated 
a  cause  of  action  in  a  sufficiently  definite 
manner.  Downs  v.  Central  Vt.  R.  Co.,  38 
A'.  Y.  S.  R.  228,  14  N.  Y.  Supp.  573,  60 
Hun  580. 

(2)  W/tat  a/legations  are  not  sufficient. — 
In  an  action  under  Alabama  Code,  §  171 1,  to 
recover  for  stock  killed,  it  is  necessary  to 
state  in  the  complaint  the  time  when  and 
the  place  where  the  killing  or  injury  oc- 
curred, whether  the  action  be  before  a  jus- 
tice of  the  peace  or  in  the  circuit  court, 
and  a  complaint  stating  only  the  month 
and  the  county  is  bad  on  demurrer.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  Carloss,  77  Ala. 
443.— Distinguished  in  South  and  N. 
Ala.  R.  Co.,  V.  Schafner,  78  Ala.  567. 

The  general  allegation,  in  a  declaration, 
of  "  damages  done  to  this  plaintiff's  stock 
by  defendant's  engines  passing  over  said 
railroad,"  etc.,  is  not  sufficiently  precise  to 
warrant  a  recovery  for  the  destruction  of  a 
colt  run  over  by  a  train  ;  this  was  a  specific 
act,  not  so  necessarily  caused  by  the  neglect 
of  fencing  that  defendant  could  be  ex- 
pected to  meet  the  charge  without  having 
it  pointed  out  directly.  Grand  Rapids  &* 
/.  R.  Co.  v.  Southwick,  30  Mich.  444. 

333.  Duplicity— Statini;  more  than 
one  cause  of  action  in  one  count.— 
(i)  Bad  because  of  duplicity, — A  count  in  a 
declaration  averred  that  a  company  failed  to 


to 
ford 
of 
ini 


ANIMALS,  INJURIliSTO,  :);{4-3.')0. 


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fence  its  road,  und  iluit  a  iiaiii  was  run,  con- 
ducted, and  directed  carelessly,  wliercby 
plaintitl's  liorse  was  killed.  Held,  that 
plaintilT  might  recover  on  proving  either 
ground ;  that  the  declaration  was  obnoxious 
to  a  demurrer  for  duplicity,  but  that  both 
grounds  were  traversed  by  filing  the  general 
issue.  Chicago,  B.  tS>»  Q.  R.  Co.  v.  Magee, 
fxtlll.  529. 

In  an  action  brought  to  recover  for-  the 
value  of  a  cow  allegcJ  to  have  been  killed  at 
a  crossing  by  a  train  of  defendant,  plaintiff 
charged  negligence  in  not  performing  a 
statutory  duty  to  ring  a  bell  or  blow  a  whis- 
tle before  crossing  a  public  highway,  and, 
by  leave  of  trial  court,  filed  what  he  called 
an  amendment  to  his  declaration,  stating 
facts  which  would  show  that  the  crossing  was 
a  very  dangerous  one,  and  that  the  railroad 
company  ran  its  trains  over  the  crossing  at  a 
high  rate  of  speed,  and  in  a  reckless,  dan- 
gerous manner.  This  amendment  attempted 
to  make  out  a  case  of  common-law  negli- 
gence. Held,  on  a  general  and  special  de- 
murrer by  defendant,  that  two  distinct  causes 
of  action  cannot  be  set  up  in  a  single  count 
of  a  declaration,  and  that  judgment  for 
plaintifl  be  reversed  for  error  of  court 
below  in  overruling  demurrer  to  the 
amended  declaration,  which  set  up  both  a 
common-law  and  a  statutory  cause  of  action. 
Louisville,  E.  &*  St.  L.  R.  Co.  v.  Hill,  29  HI. 
App.  582. 

A  petition  against  a  railroad  for  killing 
stock,  uniting  in  one  count  a  cause  of  action 
for  not  maintaining  fences,  etc.,  also  a  cause 
of  action  at  common  law  for  not  sounding 
the  bell,  etc.,  at  a  crossing,  and  a  cause  of 
action  for  negligence,  is  bad.  Harris  \.  IVa- 
bash  R.  Ctf.,  51  Mo.  App.  125. 

(2)  Not  bad  because  of  duplicity. — In  an 
action  for  killing  stock,  brought  under 
§  261 1,  Missouri  Rev.  St.  1889,  the  plain- 
tiff may  allege  a  failure  to  maintain  fences 
witli  openings  and  gates  therein,  and  to 
maintain  cattle-guards,  and  proof  of  either, 
with  proof  of  the  other  necessary  allegations, 
will  authorize  a  recovery,  and  there  is  but 
one  cause  of  action  stated.  Woods  v.  Mis- 
souri, K.  &*  T.  R.  Co.,  51  Mo.  App.  500. 

Negligence  in  fact  may  consist  of  any 
number  of  negligent  acts  preceding  the  in- 
jury and  leading  up  to  it  and  contributing 
to  it.  In  stating  a  cause  of  action,  there- 
fore, the  plaintifT  is  not  obliged  to  select  one 
of  these  acts  and  rely  upon  it.  And  held, 
in  this  action,  which  was  one  for  the  killing 


of  stock  by  a  railway  train,  that  the  petition, 
which  alleged  in  one  count  a  number  of  neg- 
ligent acts  on  the  part  of  the  company  con- 
ducing to  the  injury  complained  of,  stated 
but  a  single  cause  of  action.  Hill  \.  Mis- 
souri Pac.  K.  Co.,  49  Mo.  App.  520. — Not 
FOLLOWING  Hoffman  v.  Missouri  Pac.  R. 
Co.,  24  Mo.  App.  546;  Welch  w.  Hannibal  & 
St.  J.  R.  Co.,  20  Mo.  App.  477. 

:I34.  Several  euiiutN  lor  sniiie  ciuin« 
of  action.— In  a  complaint  to  recover  for 
stock  killed,  in  one  count  whereof  the  stock 
are  described  as  common  stock,  and  in 
another  as  stock  of  full  blood,  such  dif- 
ference is  sufficiently  material  to  sustain  and 
render  proper  separate  counts.  Toledo  &* 
IV.  R.  Co.  V.  Daniels,  21  //id.  256. 

Plaintiff  can  unite  in  the  same  petition 
two  counts  for  the  same  cause  of  action,  one 
under  §  2124,  Missouri  Rev.  St.  1889,  and 
is  entitled  to  go  to  the  jury  on  both,  and 
will  not  be  compelled  to  elect.  Straub  v. 
Eddy,  47  Mo.  App.  189.— Following  Lin- 
coln V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  75  Mo. 
27 ;  Browncll  7'.  Pacific  R.  Co.,  47  Mo.  239. 

Where  several  cattle  are  killed  by  an  en- 
gine at  one  and  the  same  time,  all  damages 
resulting  therefrom  belong  to  one  cause  of 
action,  and  the  peiitioii  should  contain  but 
one  count.  Binicker  v.  Hannibal  iS~»  St.  J. 
R.  Co.,  83  Mo. 660.— Quo'lF.i)  IN  Lanibt/.  St. 
Louis  Cable  &  W.  R.  Co.,  33  Mo.  App.  489. 

Under  §  3220,  Compiled  Laws  of  Utah, 
1888,  providing  for  ihe  joinder  of  several 
causes  of  action  arising  out  of  injuries  to 
property,  the  plaintiff  may  unite  two  causes 
of  action,  each  for  the  killing  of  the  same 
horse,  charged  in  different  ways.  Jensen  v. 
Union  Pac.  R.  Co.,  6  Utah  253,  21  Pac.  Rep. 

994- 

335.  Joinder  of  causes  of  action 
—Several  counts.*— When  a  pleader  in- 
cludes in  his  statement  or  petition  three 
distinct  causes  of  action  for  killing  live 
stock,  it  is  unnecessary  for  him  to  repeat 
allegations  which  are  applicable  to  them  all. 
It  is  sufficient  that  such  allegations  refer  to 
and  are  applicable  to  each  count  which 
might  be  defective  without  them.  Bricker 
v.  Missouri  Pac.  R.  Co.,  83  Mo.  391. 

336.  Mi^oinder.— Where  a  complaint 
for  killing  plaintiff's  live  stock  alleged  that 
the  road  was  not  securely  fenced,  and  was 
otherwise  sufficient  for  an  action  founded 
on  the  statute,  and  in  addition  charged  the 

*Seea»/r,  203,  303. 


i 

:: 
I 


5ii    ' 


869 


ANIMALS,   INJURIES   TO,  MM-iiiiiK 


M 


\ 

\ 


company  with  negligence,  biii  did  nut  ullcgc 
thai  tlie  plaintiff  was  free  fruin  negligence, 
it  was  insufficient  as  a  complaint  nt  common 
law.  But  instead  of  treating  the  complaint 
as  bad,  for  misjoinder  o(  causes  of  action, 
the  allegations  as  to  negligence  might  be 
disregarded  ;is  surplusage.  JeffersotrvilU, 
M.  &*  I.  A*.  Co.  V.  Lyon,  55  Ind.  477. 

Two  or  more  causes  of  action  cannot  be 
united  in  the  same  suit  for  the  purpose  of 
giving  the  circuit  court  or  the  common 
pleas  court  jurisdiction.  Jeffersonville,  M. 
&*  I.  R,  Co.  V.  Brei'oort,  30  Ind,  324.  Indi- 
anapolis &»  C.  A'.  Co.  V.  Kercheval,  24  Ind. 
139.  Toledo,  B.  <S-  L.  R.  Co.  v.  Til/on,  27 
/nd.  71. 

U37.  Negativing  the  fact  that  ani- 
mals were  running  at  large. — The 
statement  alle.^ed  that  the  horses  "  escaped  " 
from  the  plai'itifTs'  farm,  passed  down  the 
road  to  the  point  of  intersection,  and  thence 
along  the  railway  to  the  place  where  they 
were  struck  by  a  passing  train.  The  only 
negligence  charged  was  that  the  defendants 
had  not  constructed  and  maintained  cattle- 
guards  or  fences.  It  was  not  alleged  that 
the  horses  were  in  charge  of  any  person. 
//eld,  upon  demurrer,  that  the  horses,  being, 
contrary  to  the  provision  of  §  271  of  the 
Railway  Act  of  Canada,  51  Vic.  ch.  28, 
within  half  a  mile  of  the  intersection,  and 
not  in  charge  of  any  person,  did  not  get 
upon  the  railway  from  an  adjoining  place 
where,  under  the  circumstances,  they  might 
properly  be,  within  the  meaning  of  53  Vic. 
ch.  28,  §  2  (D.),and  that  therefore  the  de- 
fendants were  not  liable.  A'ixon  v.  Grand 
Trunk  R.  Co.,  23  Ont.  124. 

338.  Alleging  actual  contact  with 
engine  or  ears.*— In  an  action  under  the 
statute  for  killing  stock,  the  complaint  must, 
to  be  sufficient,  clearly  allege  that  the  kill- 
ing complained  of  was  done  by  the  defend- 
ant's locomotive  or  cars.  Pittsburgh,  C.  &* 
St.  L.  R.  Co.  V.  I/annon,  60  /nd.  417. — Dis- 
tinguished IN  Louisville,  N.  A.  &  C.  R. 
Co.  z/.  Harrington,  19  Am.  &  Eng.  R.  Cas. 
606,  92  Ind.  457. 

And  such  a  complaint  which  does  not  al- 
lege that  such  injury  or  death  was  caused 
by  the  defendant's  locomotive,  cars,  or  other 
carriages  is  bi'.d,  even  in  the  court  of  a 
justice  of  the  peace,  on  demurrer,  motion 
in  arrest,  or  motion  to  dismiss,  Pittsburgh, 
C.  &*  St.  L.  R.  Co.  V.  Troxell,  57  /nd.  246. 

» See  ante,  73,  74,  135 ;   fosf,  456. 


330.  Alicging  owncrNliip,  poHMcs- 
Hiou,  etc.,  of  r«ia(l  by  dctendant.*— 

(I)  Allegations  siij/iiiint.  —  A  complaint 
against  a  railroad  cc^nipany  fur  running 
over  stock  of  plaintiff,  to  be  good  at  com mun 
law  or  under  the  Indiana  statutes,  must 
aver  that  the  train  by  which  the  mischief 
was  done  belonged  to  defendant,  or  was  run 
over  its  road.  Toledo,  II'.  &^  11'.  R.  Co.  v. 
Weaver,  34  /nd.  298.— UisriN(;ui.SHED  IN 
Wabash  R.  Co.  v.  Forshee,  77  Ind.  158. 

In  an  action  for  the  killing  of  cattle  while 
operating  the  road  of  another  company  it  is 
not  necessary  to  allege  in  the  cumplainl  in 
what  name  the  road  was  being  operated. 
See  §§  4001  and  4025,  Rev.  St.  Indiana  1891. 
Wabash  R.  Co.  v.  Williamson,  3  Ind.  App. 
190,  29  A^.  E.  Rep.  455.— Rkvikwing  Cin- 
cinnati, H.  &  D.  R.  Co.  %>.  Levistun,  97  Ind. 
488. — Cincinnati,  H.  &*  D.  R.  Co.  v.  Levis- 
ton,  19  Am.  (S-  Eng.  R.  Cas.  633, 97  Ind.  488. 
—Distinguishing  Indianapolis  «S  M.  R. 
Co.  v.  Solomon,  23  Ind.  534.— Reviewed  in 
Wabash  R.  Co.  v.  Williamson,  3  Ind.  App. 
190. 

An  allegation  that  the  cattle  "  entered 
upon  the  said  railway,  and  were  then  and 
there  by  the  locomotive,  cars,  and  carriages 
of  the  said  defendant  killed,"  is  sufficient  to 
show  that  defendant  was  in  possession  of 
the  road  and  operating  the  train.  Wabash, 
St.  L.  &*  P.  R.  Co.  V.  Lash,  103  /nd.  80,  2 
^V.  E.  Rep.  250.— Distinguishing  Wabash, 
St.  L.  &  P.  R.  Co.  V.  Rooker,  90  Ind.  581. 
—Pittsburgh,  C.  &*  St.  L.  R.  Co.  v.  Hunt, 
71  /nd.  229. 

In  a  joint  action  against  two  railroad 
companies  for  killing  stock,  the  action  being 
in  the  nature  of  a  tort,  it  is  not  necessary  to 
show  in  the  complaint  the  relation  that  the 
roads  sustain  to  each  other.  That  is  mattrr 
of  proof,  and  there  may  be  a  joint  or  several 
liability,  according  to  the  facts.  Indian- 
apolis, C.  &>  L.  R.  Co.  v.  Warner,  35  /nd. 
515.— Distinguished  in  Jeffersonville,  M. 
&  I.  R.  Co.  V.  Downey,  61  Inri.  287. 

(2)  Allegations  not  sufficient. — A  complaint 
under  the  statute  against  a  railroad  company 
for  killing  stock,  which  avers  that  the  act 
was  done  by  "the  defendant,  or  some  lessee 
thereof,  or  other  person  unknown  to  the 
plaintiff,"  is  bad  on  demurrer.  Wabash,  St. 
L.  &*  P.  R.  Co.  V.  Rooker,  \  j  Am.  <S*  Eng.  R. 
Cas,  5s8,  90  /nd.  581.— Distinguished  in 
Wabash,St.  L.  &  P.  R.  Co.  v.  Lash,  103  Ind.  80. 

•Swpost,  440,  470,  477. 


cei 

su 

SUi 

thi 
su 


ANIMALS,  INJURIES  TO,  340-342'. 


253 


An  action  was  brought  to  recover  for 
cattle  run  over  and  killed  on  a  railroad  oc- 
cupied and  used  by  tlie  defendants.  The 
declaration  alleged  that  the  cattle  were 
killed  by  reason  uf  the  want  uf  cuttle-guards 
and  fences  where  the  road  crossed  the  plain- 
tiff's farm  and  at  the  plaintiff's  farm-cross- 
ings on  his  land,  but  it  did  not  allege  that 
the  defendants  were  a  railroad  corporation, 
but  only  described  them  as  being  in  the  pos- 
session, use,  and  occupation  of  said  railroad 
as  individuals,  without  stating  thiit  they 
were  the  agents  of  a  railroad  corporation, 
or  in  what  character  or  capacity  they  were 
using  the  road,  and  it  was  held  that,  so  far 
as  the  counts  were  based  on  the  neglect  of 
the  defendants  to  maintain  fences  and  cattle- 
guards,  they  were  insufficient,  not  coming 
within  the  words  of  the  statute,  §  47,  ch.  28, 
Gen.  St.     Cooley  v.  lirainerd,  38  I't.  394. 

The  action  being  for  the  killing  of  plain- 
tiff's horses  by  a  train  on  the  road  of  the 
Ohio  &  M.  R.  R.  R.  Co.,  held  and  operated 
by  defendant  as  lessee,  and  the  only  negli- 
gence alleged  being  defendant's  failure  to 
construct  one  of  said  cattle-guards  on  plain- 
tifii's  land,  the  complaint  was  held  bad  on 
demurrer.  Cook  v.  Milwaukee  &*  S/,  P.  A'. 
Co.,  36  IVt's.  45. 

340.  Alleging  ownership  or  oc- 
cupancy of  adjoining  preniifieH  by 
|>laiiitiir.'*'— Under  the  stock-killing  act  of 
Colorado  as  amended  in  1885,  before  a  per- 
son could  claim  that  a  railway  company 
owed  him  any  duty  in  respect  to  fencing  its 
railway,  it  was  necessary  for  him  to  allege 
that  he  was  the  owner  or  holder  of  land  ad- 
jacent to  such  railway,  and  that  he  had  re- 
quested the  railway  company  to  fence  its 
line  and  put  in  cattle-guards  and  gateways; 
moreover,  according  to  said  act,  the  railway 
company  could  not,  by  complying  with  such 
reqiiest.exempt  itself  from  the  unconditional 
liability  otherwise  imposed,  except  as  against 
the  party  making  the  request.  Wadsworlh 
V.  Union  Pac.  R.  Co.,  56  Am.  <&*  Eng.  R. 
Cas.  145,  18  Colo.  600. 

Where  the  plaintiff  is  the  mere  occupant 
of  the  land,  and  not  the  owner,  he  must  al- 
lege that  neither  he  nor  the  owner  has  re- 
ceived compensation  for  fencing;  it  is  not 
sufficient  to  allege  that  he  has  not  received 
such  compensation  ;  and  from  the  allegation 
that  he  "  occupied  "  the  premises  the  pre- 
sumption must  arise  that  he  was  not  the 

*See  ante,  313-310 ;  MA  445.  471. 


real  owner.  Louisville  &*  X.  Co.  v.  Belcher, 
40  Am.  &>  Eng.  R.  Cas.  328,  89  Ky.  193,  I3 
.V.  W.  Rep.  195. 

A  declaration  against  the  Ontario,  Sim- 
coe,  &  Huron  Railway  Co.,  alleging  that 
plaintiff's  horses  were  hiwfully  upon  certain 
la;id  belonging  to  one  M.,  out  of  which  the 
defendants  had  taken  a  strip  for  their  ro'td  ; 
that  the  proprietor  of  said  lands  desired 
them  to  fence  off  the  land  so  taken  from 
his  land,  yet  defendants  neglected  to  do  so, 
by  means  whereof  the  pluintitT's  hoises, 
then  being  upon  said  land,  escaped  there- 
from onto  the  railway  and  were  killed  by 
the  train,  was  held  bad  on  demurrer,  as  it 
was  not  averred  that  the  horses  were  on  the 
land  with  the  consent  of  its  owner,  and  de- 
fendants therefore  were  not  liable.  Auger 
V.  Ontario,  S.  6-  //.  A'.  Co.,  16  U.  C.  Q.  B.  92. 
—Distinguished  in  McFie  v.  Canadian 
Pac.  R.  Co.,  2  Man.  6.  Quotk.o  in  Mcin- 
tosh V.  Grand  Trunk  R.  Co.,  30  U.  C.  Q.  B. 
601. 

341.  Need  not  allege  that  injury 
occurred  on  dcfendant'H  track.— 
In  an  action  on  the  case  against  a  railroad 
corporation  for  killing  cattle  by  carelessly 
and  unskilfully  running  its  locomotives 
against  them,  the  declaration  need  not  aver 
that  this  was  done  on  the  defendant's  rail- 
road track.  Baylor  v.  Baltimore  &•  O.  R. 
Co.,  9  W^.  Va.  270.  Housatonic  R.  Co.  v. 
Waterbury,  23  Conn.  loi. 

342.  Alleging  negligence  on  part 
of  company,  generally.  —  (i)  State- 
ment of  the  rule. — A  complaint  for  killing 
stock  to  be  good  at  common  law  must  allege 
negligence  on  the  part  of  the  railroad  com- 
pany. Toledo,  IV.  &•  IV.  R.  Co.  v.  Weaver, 
34  Ind.  298. 

Negligence  on  the  part  of  a  railroad  com- 
pany is  the  basis  of  the  right  of  the  owner  of 
live  stock  to  recover  in  an  action  at  com- 
mon law,  and  negligence  of  the  company  or 
of  its  servants  must  be  averred  in  the  dec- 
laration and  be  proved.  Savannah,  F.  &* 
W.  R.  Co.  V.  Geiger,  29  Am.  &*  Eng.  R. 
Cas.  274,  21  Fla.  669,  58  Am.  Rep.  697.  Ste- 
venson v.  Ne^v  Orleans  Pac.  R.  Co.,  35  La. 
Ann.  498.  Orange,  A.  «S-»  M.  R.  Co.  v.  Miles, 
76  Va.  773.  Jacksonville,  T.  iS-  A'.  W.  R.  Co. 
V.  Garrison,  30  Fla.  557,  11  So.  Rep.  929. 
Terre  Haute,  A.  &*  St.  L.  R.  Co.  v.  Augustus, 
21  ///.  186.  Indianapolis,  P.  &•  C.  R.  Co.  v. 
JVilliams,  1 5  Ind.  486.  Indianapolis,  P.  6^ 
C.  R.  Co.  V.  Sparr,  15  Ind.  440.  Terre 
Haute  &-  R.  R.  Co.  v.  Smith,  19  Ind.  42. 


il 

ij 

jj 


Hi! 


954 


ANIMALS,  INJURIES  TO,  .142. 


11 

ili'i 

4  mi 


Toledo,  W.  6-  W.  A'.  Co.  v.  Weaver,  34  InJ. 
298.— DiSTINOUlSHKU  IN  Wabash  R.  Co.  v. 
Forshec,  77  liul.  158.  Followed  in  To- 
ledo, W.  &  W.  R.  Co.  V.  Cory.  39  Ind.  218. 
— Baltimore,  P.  &•  C.  A.  Co.  v.  ^luderson,  58 
Ind.  413.-  For.i  OWKU  in  Cincinnati,  W.  A 
M.  R.  Co.  V.  Stanley,  4  Ind.  App.  364. — 
West  V.  Hannibal  &^  St.  J.  A'.  Co.,  34  Afo. 

And  a  complaint  in  such  an  action  is  de- 
murrable unless  it  avers  that  the  injury  was 
negligent,  or  the  result  of  negligence  on  the 
part  of  the  defendant,  its  agents,  or  servants. 
Sout/t  (Sx  iV.  A/a.  A'.  Co.  v.  Htigood,  53  Ala. 
647.— guoTiNO  Mobile  &  O.  R.  Co.  v.  Will- 
iams, 53  Ala.  595. 

Under  ^  4345  of  the  Texas  St.,  imposing 
absolute  liability  for  killing  stock,  a  petition 
in  an  action  for  killing  stock  need  not  allege 
negligence  on  the  part  of  the  company  in 
operating  its  trains,  nor  in  failing  to  fence  its 
road.  Houston  &•  T.  C.  A'.  Co.  v.  Lough- 
briiige,  i  Tex.  App,  (Civ.  Cas.)  754. 

(2)  Illustrations. — Under  the  Arkansas 
statute  a  complaint  alleging  that  stock  be- 
longing to  plaintiiT  were  injured  on  a  railroad 
track  by  defendant's  cars,  states  a  prima 
facie  case.  .SV.  Louis,  I.  M.  &*  S.  A'.  Co.  v. 
lirown,  49  Ark.  253,4  S.  W.  Hep.  781. 

In  an  action  against  a  railroad  company 
for  causing  the  death  of  a  horse,  plaintiff 
filed  a  complaint  averring  that  while  the 
horse  was  being  lawfully  driven  along  a  pub- 
lic road  for  the  purpose  of  crossing  defend- 
ant's track,  defendant's  servants  negligently 
posted  an  engine  at  said  crossing  and  negli- 
gently allowed  steam  to  escape  from  unusual 
parts  of  said  engine,  whereat  said  horse  be- 
came alarmed,  reared  up,  and  fell,  breaking 
its  neck.  Held,  that  the  complaint  was 
good,  the  injury  being  the  natural  and  prox- 
imate result  of  the  defendant's  negligence. 
Louisville  &*  N.  R.  Co.  v,  Schmidt,  8  Am.  &' 
Eng.  K.  Cas.  248,  81  Ind.  264. 

A  complaint  against  a  company  to  recover 
damages  for  injury  to  a  horse  alleged  to 
have  been  caused  by  the  negligence  of  the 
defendant  in  not  having  its  switch  premises 
in  a  safe  and  suitable  condition  for  use  by 
persons  loading  cars  for  shipment  of  freight 
on  the  defendant's  mad,  averred  that  the 
plaintiff  was  engaged  with  his  team  of 
horses  in  loading  timber  at  the  usual  place 
for  loading  timber  on  cars,  which  were  on 
the  defendant's  switch  ;  that  by  the  removal 
of  a  stake  a  hole  had  been  left  in  the  de- 
fendant's right  of  way,  at  or  near  said  load- 


ing place,  which  the  defendant  had  negli- 
gently omitted  to  fill ;  that  while  the  plain- 
tiff was  engaged  with  his  team  of  horses  in 
loading  timber  at  said  place  one  of  his 
horses  stepped  into  said  hole  and  was  in- 
jured ;  t^iat  a  covering  of  snow  prevented 
plaintifi  from  seeing  said  hole;  that  said 
injury  10  the  horse  was  without  negligence 
on  the  part  of  the  plaintiff.  Held,  that  the 
compl'iint  stated  a  good  cause  of  action. 
Chicago  &*  I.  C.  K.  Co.  v.  Deliaum,  2  Ind. 
App.  281,  28  A'.  E.  Rep.  447. 

A  declaration  to  recover  for  killing  a 
horse  alleged  that  defendant  was  the  owner 
of  the  railroad  and  operating  it  by  running 
locomotives  and  trains  thereon  ;  that  plain- 
tiff's horse  strayed  and  got  upon  defendant's 
railroad,  and  that  defendant  so  carelessly, 
negligently,  and  improperly  ran,  conducted, 
and  directed  the  locomotive  and  train  of 
defendant,  as  that  said  locomotive  struck 
plaintiff's  horse  with  great  force  and  viol- 
ence and  killed  it.  Held,  that  the  declaration 
showed  a  good  cause  of  action  at  common 
law.  Rockford,  R.  I.  <S-  St.  L.  R.  Co.  v. 
Phillips,  66  ///.  548. 

A  complaint  that  defendant,  a  railroad 
company,  "so  carelessly  and  negligently 
managed  its  locomotive,  without  ringing  its 
bell  or  using  its  steam-cock,  that  it  ran 
against  and  over  plaintiff's  cow,"  states  a 
cause  of  action  at  common  law.  A/apes  v. 
Chicago,  R.  I.  <&*  P.  R.  Co.,  76  A/o.  367.— 
Distinguishing  Collins  v.  Atlantic  &  P. 
R.  Co.,  65  Mo.  230.— Followed  in  Edwards 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  76  Mo.  399. 

In  a  common-law  action  against  a  com- 
pany for  killing  stock,  it  is  not  liable  for  a 
failure  to  ring  a  bell  when  approaching  a 
crossing,  unless  the  intention  to  hold  it 
liable  therefor  should  in  some  manner  bv 
expressed  in  the  petition,  either  by  a  state- 
ment of  the  fact  which  under  the  statute 
created  its  liability,  or  by  some  appropriate 
reference  to  the  statute.  Meyer  v.  Atlantic 
&•  P.  R.  Co.,  64  Afo.  542,  17  Am.  Ry.  Rep. 
249.— Quoted  in  Woodward  v.  Oregon  R. 
&  N.  Co.,  i8  0reg.  289. 

The  following  allegations  of  company's 
negligence  have  been  held  to  be  sufficient  • 

An  allegation  that  a  certain  number  of 
the  plaintiff's  cattle,  particularly  describing 
them,  "  were  killed,  and  the  other  was  in- 
jured or  damaged  to  the  value  of  ten 
dollars,  by  the  negligence  of  the  defendant 
in  running  a  train  of  cars  and  locomotivcr. 
on  said  railroad,  and  thus  became  wlioliv 


ANIMALS,  INJURIES   TO,  .'I4U-:I47. 


905 


lost  to  the  plaintiff."  East  Ttnn,,  V,  **  G. 
R.  Co.  V.  Carloss,  77  Ala.  443. 

An  allegation  that  the  engine  and  cars  of 
the  defendant  company  were  su  negligently 
and  carelessly  managed  by  the  agents  and 
servants  of  the  company  that  the  engine 
struck  an  animal  described  in  the  declara- 
tion, by  means  whereof  it  died.  Jackson- 
vi/U,  T.  &*  K,   W.  K.  Co,  V.  Garrison,  yo 

Fla.  557.  II  .SV».  AV^  926,— DiSTINGUISHINd 

Chicago,  B.  &  Q,  R.  Co.  v.  Harwood,  90  III. 
425 ;  Savannah,  F.  &  W.  R.  Co.  v.  Geiger, 
31  Fla.  669.  Reviewing  Schneider  v, 
Missouri  Pac.  R.  Co..  75  Mo.  295. 

An  allegation  that  the  defendant's  ser- 
vants, wrongfully  "acting  in  the  line  of 
their  duty  and  within  the  scope  of  their 
employment,  and  under  the  directions  and 
instructions  of  the  defendant,"  killed  a  mule 
of  the  plaintiff  which  had  been  injured  by 
the  defendant's  train  of  cars,  etc.  Banister 
V.  Pennsylvania  Co,,  19  Am,  &^  Eng.  K,  Cas. 
570,  98  /«</.  220. 

An  allegation  that  the  act  was  done  care- 
lessly and  negligently.  McPheeters  v.  Han- 
nibal &*  St,  J.  R,  Co..4S  Mo,  22. 

An  allegation  substantially  to  the  effect 
that  plaintiff's  animal,  being  upon  the  track 
of  defendant's  railroad,  was  there  negli- 
gently and  carelessly  run  over  and  killed  by 
their  train.  Smith  v.  Eastern  R.  Co.,  35  N. 
H.  356. 

343.  Alleging  gross  negligence— 
In  an  action  on  the  case  for  killing  animals 
gross  negligence  need  not  be  alleged  in  the 
declaration.  When  the  right  of  the  owner 
of  the  killed  animals  depends  on  the  degree 
of  negligence  of  the  company,  it  is  a  matter 
to  be  proved,  not  pleaded.  Chicago,  B.  <S~» 
Q,  R,  Co.  V.  Carter,  20  ///.  390.  See  also 
Central  Branch  R.  Co,  v.  Phillipi,  20  Kan.  9, 
19  Am.  Ry.  Rep,  99. 

344.  Alleging  negligence  to  linve 
been  proximate  cniise.— The  complaint 
must  charge  negligence,  unskilfulness,  or 
wilful  misconduct  on  the  part  of  the  com- 
pany or  its  agents,  and  that  such  negli- 
gence, etc..  was  the  proximate  cause  of  the 
injury.  Jeffersonville  R,  Co.  v.  Afartin,  10 
Ind.  416.— Followed  in  Gabbert  v.  Jeffer- 
sonville R.  Co.,  II  Ind.  365.  Compare 
Louisville  &*  N.  R.  Co.  v.  Schmidt,  8  Am. 
&*  Eng.  R.  Cas.  248,  81  Ind.  264. 

345.  Alleging  high  or  unlawful 
rate  of  Hpeed. — A  complaint,  in  an  action 
for  killing  stock,  which  charges  that  the 
servants  of  the  railroad  company  recklessly 


did  certain  things,  and  wilfully  omitted 
others,  for  the  purpose  and  intention  of 
running  a  train  of  cars  over  and  upon  plain- 
tiff's cow,  avers  facts  showing  that  the 
animal  was  purposely  and  intentionally  run 
upon  and  killed,  and  states  facts  constitut- 
ing a  good  cause  of  action.  Indiana,  B.  &> 
W.  R.  Co,  V.  Overton,  117  Ind.  253,  20  A'.  E, 
Rep,  147- 

A  complaint  against  a  company  charged 
that  through  the  fault,  misconduct,  and 
negligence  of  the  servants  and  employes  of 
the  defendant  in  running  the  locomotive 
and  train  out  of  their  regular  time  and  at 
a  high  rate  of  speed,  to  wit,  forty  miles  an 
hour,  and  without  giving  any  of  the  proper 
signals  of  their  approach,  the  locomotive 
struck  and  killed  two  mules  of  the  plaintiff, 
then  and  there  upon  the  railroad  track,  at  a 
point  where  a  highway  crossed  the  railroad. 
Held,  a  sufficient  statement  of  negligence. 
Indianapolis,  C,  &*  L,  R,  Co,  v.  Hamilton, 
44  Ind.  76. 

340.  Allegation  as  to  defectlvel}'- 
coiiHtructetl  croHHing.— In  an  action  for 
an  injury  to  plaintiff's  horse  at  a  railway 
crossing,  alleged  to  have  been  carelessly 
constructed,  and  permitted  to  remain  in  an 
unsafe  condition,  a  complaint  is  sufficient 
which  alleges  that  the  plaintiff  had  no 
knowledge  of  the  unsafe  condition  of  the 
crossing,  and  that  while  the  plaintiff's  em- 
ploy6  was  riding  the  horse  over  the  crossing 
in  a  careful  manner,  one  of  its  feet  was 
caught  in  a  space  improperly  between  the 
iron  on  one  side  of  the  railroad  track  and 
the  boards  of  the  crossing,  and  the  horse  in 
trying  to  extricate  itself  received  such  in- 
juries that  it  was  rendered  worthless.  To- 
ledo,  St.  L.  6-  A'.  C.  R.  Co.  v.  Milligan,  2  Ind, 
App.  578,  28  A'.  E.  Rep.  1019. 

347.   defect Ively-constructod 

gate, — A  petition  alleging  that,  by  reason 
of  the  negligent  construction  of  a  gate  of 
unsound  and  unsafe  material  in  the  defend- 
ant's right  of  way,  the  plaintiff's  colts  es- 
caped from  a  pasture  through  said  gate 
upon  the  defendant's  track  and  were  killed ; 
that  the  notice  and  affidavit  required  by  law 
had  been  served  upon  the  defendant ;  that 
said  colts  were  of  a  value  named ;  and  ask- 
ing judgment  in  double  said  sum,  is  suffi- 
cient to  show  a  cause  of  action  under  §  1289 
of  the  Code,  though  such  statute  is  not  spe- 
cifically pleaded.  Morrison  v.  Burlington. 
C.  R.  &*  N.  R.  Co.,  84  Iowa  663,  51  N,  W. 
R>p.  75. 


Ij 

i! 


ibCj 


ANIMALS,  INJURIES   TO,  «48,  .'149. 


J 


I\ 


348.  Insufficiency   of  cattle- 

(;iiard.— A  declaration  for  an  injury  caused 
by  the  insutliciency  of  a  cattle-guard  is 
demurrable  in  failing  to  state  the  particu- 
lars in  which  it  v/hs  insufficient.  Smead 
V.  Lake  Shore  <3-  M.  S.  Ji  Co.,  23  Am.  &- 
Eng.  K.  Cas.  241,  58  Afic/i.  200,  24  N.  IF. 
Hep.  761. 

340.  Alleging  comiriany's  failure 
to  fence. — (i)  General/^',  -in  actions  under 
the  stock-killing  laws,  making  companies 
liable  for  not  fencing  their  tracks,  the  plain- 
tiff's pleading  must  iillege  that  the  defend- 
ant's road  was  not  fenced.  Kansas  Pac.  R. 
Co.v.  Taylor,  17  Kan.  566.— Followed  in 
St.  Louis  &  S.  F.  R.  Co.  v.  Ellis,  25  Kan. 
108.-  Toledo,  W.  &>  ly.  K.  Co.  v.  Weaver, 
34  Ina.  ;o8. 

In  an  actiu.n  under  the  Kansas  statute  of 
1874,  the  petition  must  show  that  the  rail- 
road was  not  inclosed  with  a  good  and  lawful 
fence.  Hadley  v.  Central  Branch  U.  P.  R. 
Co.,  22  Kan.  359.— Followed  in  St.  Louis 
&  S.  F.  R.  Co.  V.  Ellis,  25  Kan.  108. 

Where  plaintiff  relies  upon  the  failure  of 
the  railroad  company  to  fence  its  track  ac- 
cording to  a  contract,  that  fact  must  be  al- 
leged in  the  complaint.  Gulf,  C.  &*  S.  F. 
R,  Co.  V.  Washington,  49  Fed.  Rep.  347,  4 
U.  S.App.  \2\,\  CCA.  286. 

In  an  action  to  recover  damages  resulting 
to  domestic  animals  from  the  failure  of  a 
railroad  company  to  '■onstruct  and  maintain 
good  and  sufficient  fences  along  the  line  of 
its  road,  as  required  by  the  act  of  .'\pril  26, 
1871  (68  Ohio  L.  78),  the  facts  upon  which 
the  company's  liability  depends  must  be 
stated  in  the  petition,  and,  if  not  admitted, 
must  be  established  by  the  proof.  An  al- 
legation that  the  defendant  was,  by  law, 
bound  to  fence  and  inclose  said  railroad, 
tenders  an  immaterial  issue,  and  is  not  to 
be  take.,  as  true  because  not  denied.  Balti- 
more &*  O.  Ji.  Co.  V.  Wilson,  31    Ohio  St. 

555- 

In  a  complaint  to  recover  for  stock  killed 
by  a  locomotive  upon  a  railroad  track,  an 
allegation  that  the  track  was  not  fenced 
where  the  -  nimal  was  killed  is  not  neces- 
sary.   Wtioash  R.  Co.  v.  Forshee,  77  Ind.  1 58. 

(2)  Illustrations. — An  allegation  that  dam- 
age done  was  caused  by  the  failure  to  main- 
tain a  proper  fence,  includes  all  defects  in 
the  fence,  and  does  not  necessitate  par- 
ticular reference  thereto.  McCoy  v.  South- 
ern Pac.  R.  Co.  (Cal.).  26  Pac.  Rrfi.  629. 

,\  complaint  in  an  action  for  killing;  stock. 


which  alleges  that  the  fence  along  the  road 
took  fire,  and  the  company's  servants  in  ex- 
tinguishing the  fire  threw  down  a  gate  in 
the  fence  which  was  negligently  left  open, 
whereby  plaintiff's  cattle  escaped  from  his 
field  near  by  and  were  killed  on  the  track,  is 
equivalent  to  an  averment  that  the  fence 
was  not  properly  maintained,  and  is  there- 
fore sufficient.  Indianapolis,  P.  &*  C.  R.  Co. 
v.  Truitt,  24  Ind.  162.— Distinguished  in 
Cleveland,  C.  ,C.  &  !.  R.  Co.  v.  Brown,  45 
Ind.  90. 

Where  a  petition  alleges  that  the  line  of  a 
railway  runs  through  a  county  where  a  cow 
was  killed,  and  that  the  line  of  the  railway 
through  the  county  and  at  the  place  where 
the  cow  was  killed  was  not  fenced,  and  fur- 
ther alleges  that  the  cow  was  killed  at  a  place 
where  the  railroad  could  be  fenced,  the  alle- 
gations are  sufficient  concerning  the  failure 
to  inclose  the  road  with  a  fence  to  render  the 
railroad  company  liable  under  the  stock  law 
of  1874.  St.  Louis  &*  S.  F.  R.  Co.  v.  Dudgeon, 
28  Kan.  283,— Distinguished  in  St.  Louis 
&  S.  F.  R.  Co.  V.  Mossman,  30  Kan.  336. 

The  plaintiff  alleged  in  his  original  bill  of 
particulars  that  "  said  colt  was  injured  and 
killed  by  said  defendant  at  a  place  where 
said  roadbed  and  railway  were  not  fenced, 
but  ought  to  have  been  fenced,  as  required 
bj  law,  to  keep  stock  from  crossing  on,  over, 
along,  and  nca>"  the  railroad  and  bed  of  the 
defendant ;  and  that  said  animal  was  not  in- 
jured and  killed  at  or  near  any  public  road 
orcrossing."  IMd,  under  the  circumstances 
of  this  case,  that  said  allegation  is  sufficient 
with  regard  to  alleging  the  want  of  a  suffi- 
cient fence.  Missouri  Par.  R.  Co.  v.  Piper^ 
26  Kan.  58. 

General  allegations  of  the  continuous 
operation  of  the  road,  and  the  continuous 
neglect  to  fence  it,  and  that  damages  result- 
ed therefrom,  are  sufficient  to  authorize  a 
recovery  foi  such  natural  mischiefs  as  in- 
variably follow  the  destruction  of  fences  and 
exposure  of  lands,  and  which  cannot  easily 
be  itemized.  Grand  Rapids  &>  I,  R.  Co.  v. 
Southwick,  30  Mich.  444. 

A  complaint  in  an  i\cLion  for  killing  stock, 
alleging  that  they  w<»nt,  without  any  fault 
on  the  part  of  the  plamtiff,  upon  defendant's 
track  and  were  struck  and  killed  at  a  point 
where  the  road  passed  along  t^lrough  an  ad- 
joining inclosed  and  cultivated  field,  where 
defendant  had  failed  to  bulid  and  maintain 
lawful  fences.  SuiTiclcnliy  avers  a  failure  to 
fence.     T.  rry  v.  Missouri  Pac.  R.  Co.,  77 


'■ 


ANIMALS,  INJURIES  TO,  350,351. 


967 


Afo.  254.— Followed  in  Campbell  v.  Mis- 
souri Pac.  R.  Co.,  78  Mo.  639. 

Where  it  appears  from  the  complaint  that 
defendant's  railroad  tnick  crossing  plaintiff's 
farm  was  unfenced,  and  that  plaintiff's  bull 
went  upon  the  track  from  said  farm,  without 
plaintiff's  fault,  and  was  killed,  a  cause  of 
action  is  stated.  Oregon  K.  &*  N.  Co.  v. 
Dacres,  1   Was/i.  195,  21  Par.  /Cefi.  41$. 

350.  Allc{;iiiK  coiiipany'H  failure  to 
'♦  securely  "  fence.— A  complaint  for 
killing  un  animal,  which,  with  the  other 
necessary  averments,  alleges  that  the  rail- 
road "was  not  securely  fenced,"  is  good, 
and  if  the  railroad  could  not  properly  be 
fenced  at  the  place,  the  fart  is  matter  of 
defence  concerning  which  the  complaint 
need  not  make  any  averment.  Trrre  Haute 
iLV.  /.  /»'.  Co.  V.  Penn.  1 5  Am.  <&-  Eng.  R.  Cas. 
561,  90  //ti/.  284. 

To  render  a  company  liable  under  the 
statute  for  killing  stock,  it  must  be  alleged 
and  proved  that  the  road  was  not  securely 
fenced.  It  is  not  sufficient  to  aver  that  the 
road  "  was  not  fenced  according  to  law." 
Indianapolis.  C.  Sr*  L.  R.  Co.  v.  Robinson,  35 
hut.  380,  4  Am.  Ry.  Rep.  544.— FOLLOWING 
Indianapolis,  P.  &  C.  R.  Co.  v.  Bishop,  29 
Ind.  202.  Nor  following  Indianapolis  & 
C.  R.  Co.  V.  Adkins,  23  Ind.  340.  Over- 
ruling Toledo  &  W.  R.  Co.  v.  Fowler,  22 
Ind.  316.— Distinguished  in  Indianapolis, 
H.  &  W.  R.  Co.  V.  Lyon,  48  Ind.  1 19. 

A  complaint,  in  an  action  for  killing  stock, 
which  avers  that  the  road  was  not  fenced  at 
the  place  where  the  animals  were  killed,  is 
equivalent  to  averring  that  the  road  is  not 
"  securely  fenced  in,"  within  the  meaning  of 
Indiana  act  1863,  p.  26,  §  7.  Indianapolis 
&*  C.  R.  Co.  V.  McKinney,  24  /nd.  283. 

A  complaint  against  a  company  for  stock 
killed  on  the  road  where  it  was  not  fenced 
will  sufficiently  aver  the  want  of  fence,  if  it 
alleges  "  that  said  railroad  was  not,  at  the 
time  and  place  aforesaid,  fenced  in  by  said 
defendant  in  manner  and  form  as  in  the 
statute  provided  ; "  and  under  such  averment 
proof  may  be  made  that  the  road  had  not 
been  duly  fenced  in  at  all,  or,  if  it  had,  that 
the  fence  had  not  been  properly  maintained. 
Toledo  &*  IV.  R.  Co.  v.  Fowler,  22  Ind.  316. 
—Distinguished  in  Bartlett  v.  Dubuque 
&  S.  C.  R.  Co.,  20  Iowa  188.  Overruled 
IN  Indianapolis,  P.  &  C.  R.  Co.  v.  Bishop, 
29  Ind.  202  ;  Indianapolis,  C.  &  L.  R.  Co.  v, 
Robinson,  35  Ind.  380. 
I  D.  R.  D.— 17. 


351.  AlleKiiig  that  road  was  not 
fenced  at  place  of  entry.*— (1)  Gener. 
ally. — The  declaration  must  show  where  the 
stock  got  on  the  track,  but  it  is  immaterial 
where  the  killing  was  done.  Great  Western 
R.  Co.  V.  Hanks,  36  ///.  281.— Approved  in 
Cecil  V.  Pacific  R.  Co..  47  Mo.  246.  Quoted 
IN  Alsop  V.  Ohio  &  M.  R.  Co.,  19  III.  App. 
292. 

A  complaint  in  an  action  for  killing  stock, 
which  contains  no  allegations  from  which  it 
might  not  be  as  reasonably  inferred  that 
the  point  where  the  animal  entered  on  the 
road  may  have  been  where  the  railroad 
company  was  under  no  duty  to  fence  as 
where  the  law  requires  't  to  fence,  is  insuffi- 
cient. Moreland\.  Missouri  Pac.  R,  Co.,  17 
Mo.  App.  77.— Following  Perrinuez  v. 
Missouri  Pac.  R.  Co.,  78  Mo.  91. 

In  an  action  against  a  railroad  under 
Missouri  Rev.  St.  1889,  j!  2124,  for  killing 
stock,  it  is  not  necessary  for  the  plaintiff  to 
allege  that  the  defendant  was  required  to 
fence  its  road  where  the  animal  entered 
upon  it.  Radcliffe  v.  St.  Louis,  I.  M.  &*  S. 
R.  Co.,  90  Mo.  127,  2  S.   IV.  Rep.  277. 

In  an  action  under  §  809,  Missouri  Rev. 
St.,  for  the  killing  of  stock,  it  is  neces- 
sary for  the  statement  or  petition  to  allege, 
by  direct  averment  or  necessary  implication, 
that  the  stock  got  ur.ni  r'efendant's  railroad 
track  at  a  point  whf., «'  <y  the  law  defendant 
was  required  to  erect  and  maintain  a  fence. 
But  the  allegations  may  be  made  in  the 
words  of  the  statute.  Summers  v.  Hannibal 
&*  St./.  R.  Co.,  2g  Mo.  App.  41.— Distin- 
guishing Jackson  71.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  80  Mo.  147.  Quoting  Morrow  v. 
Missouri  Pac.  R.  Co.,  82  Mo.  169;  Marrett 
V.  Hannibal  &  St.  J.  R.  Co.,  84  Mo.  413. — 
Wilson  V.  Wabash,  St.  L.  <&-  P.  R.  Co.,\Z 
Mo.  App.  258.— Following  Nance  v.  St. 
Louis.  I.  M.  &  S.  R.  Co..  79  Mo.  196. 

In  an  action  under  Missouri  Rev.  St., 
§  809,  for  double  damages  for  injury  to 
stock,  it  must  affirmatively  appear  from  the 
plaintiff's  petition  that  the  animal  got  upon 
the  railroad  track  at  a  point  where  the 
company  had  failed  to  fence  as  required  by 
law,  and  that  the  injury  resulted  therefrom; 
or  facts  must  be  averred  from  which  such 
inference  may  legitimately  be  drawn.  A 
petition  merely  averring  that  the  stock 
"  strayed  upon  the  track  of  defendant's  road 

•  See  ante.Wl ;  pott,  474. 


1: 


2o8 


ANIMALS,  INJURIES   TO,  iir*2. 


at  the  times  and  places  above  stated,  etc., 
where  tlie  road  was  not  fenced,  ♦  *  ♦  and 
not  at  any  public  or  private  crossing,  is  in- 
sufficient. Morrow  v.  Missouri  J'ac.  Ji. 
Co.,  82  Mo.  169  —Distinguishing  Sloan  v. 
Missouri  Pac.  R.  Co.,  74  Mo.  47;  Nance  «>. 
St.  Louis,  I.  M.  &  S.  K.  Co.,  79  Mo.  196; 
Dryden  v.  Smith,  79  Mo.  525;  Jackson  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  80  Mo.  147.— 
ytjOTKD  IN  Summers  v.  Hannibal  &  St.  J. 
R.  Co,,  29  Mo.  A  pp.  41. 

But  under  the  Oregon  statute  for  killing  or 
injuring  live  stock  on  an  unfenced  track,  it 
is  not  necessary  to  allege  the  point  at  vhich 
the  animals  entered  upon  the  track  of  the 
railroad.  Eaton  v.  Orei^on  K.  &'  ^V.  Co.,  45 
Am.  (So  Ktig.  A'.  Cas.  481,  19  f/Y^'.  371,  24 
/'rtt-,  AV/.  413. 

(2)  Suffiiiint  a/!fi,uitioiis.—\t.  is  sufficient 
to  allege,  on  that  point,  that  the  place  where 
the  stock  entered  upon  the  track  "  was  not 
fenced."  Louisville,  iV.  A.  &•  C.  K.  Co.  v. 
S/ianklin,  19  Am.  &^  Eng.  R.  Cas.  552,  94 
Ind.  297.— Followed  in  Louisville,  N.  A. 
&  C.  R.  Co.  V.  Pixley,  94  Ind.  603. 

Although  in  an  action  for  the  killing  of 
stock  by  a  railroad  it  is  essential  to  allege 
that  the  animal  was  killed  at  a  point  on  the 
track  where  it  was  the  duty  of  the  company 
to  erect  and  maintain  fences,  and  it  is  also 
essential  to  aver  that  the  animal  got  upon 
the  track  where  it  was  the  company's  duty 
to  erect  and  mai.itain  fences,  these  aver- 
ments may  be  inferentially  made,  and  it  is 
sufficient  if  the  essential  facts  are  neces- 
sarily inferred.  Briscoe  v.  Missouri  Pac.  R. 
Co.,  25  Mo.  App.  468. 

A  complaint  under  the  43d  section  of  the 
railroad  law  omitted  to  aver  that  the  cattle 
injured  came  upon  the  track  at  a  point  where 
it  was  not  fenced,  but  did  state  that  the  in- 
jury was  occasioned  "solely  on  account  of 
the  defendant's  failure  to  maintain  fences." 
Held,  that  this  averment  excluded  every 
other  implication  than  the  one  that  the 
cattle  came  upon  the  track  where  it  was  not 
fenced,  and  sufficiently  supplied  the  omis- 
sion. Fields  V.  Wabash,  St.  L.  6-  P.  R.  Co., 
80  Mo.  203. 

A  complaint  which  charges  that  plaintiff's 
horse  went  upon  defendant's  track  through 
defendant's  f^'ult  and  was  kdled  by  reason 
of  its  failure  to  fence  its  track,  and  charges 
that  the  same  was  not  done  upon  a  high- 
way crossing  or  depot  grounds,  is  suffi- 
cient, though  it  does  not  directly  charge 
that  the  horse  went  upon  the  tmck  where 


the  company  was  bound  to  fence.  Blomberg 
V.  Stewart,  67  Wis.  455,  30  A'.  W.  Rep.  617, 

(3)  Insufficient  alligations.  —  To  recover 
for  stock  killed  upon  the  company's  road,  it 
is  not  enougii  to  aver  in  the  declaration  that 
the  road  was  not  fenced  at  the  place  where 
the  injury  occurred,  it  not  appearing  from 
the  pleading  bi-t  that  the  stock  may  have 
gone  on  the  track  at  another  place,  and 
where  the  road  was  fenced;  and  in  averring 
that  the  road  had  been  opened  for  six 
months,  it  is  not  sufficient  if  such  averment 
relates  only  to  the  place  where  the  injury 
occurred,  it  not  being  shown  but  that  the 
stock  strayed  upon  the  track  at  another 
place,  nor  where  the  road  had  not  been 
opened  for  six  months  before  the  accident 
occurred.  Toledo,  P.  ^^  W.  R.  Co.  v.  Darst, 
51  ///.  365.— DisTlNGUisHi.VG  St.  Louis,  A. 
&  T.  H.  R.  Co.  V.  Linder,  39  111.  433. 

A  statement  of  a  cause  of  action,  under 
Missouri  Rev.  St.  1879,  p  809,  for  double 
damages  for  the  killing  of  stock  by  a  rail- 
road company,  is  fatally  defective  if  it  fails 
to  show  that  the  stock  came  upon  or  was 
killed  on  the  railroad  track  at  a  place  where 
the  railroad  company  was  required  by  statute 
to  fence.  Wood  v.  Kansas  City,  Ft.  S.  tS^ 
M.  R.  Co.,  39  Mo.  App.  63.— Distinguish- 
ing Jackson  i>.  St.  Louis.  I.  M.  &  S.  R.  Co., 
80  Mo.  147.  Following  Ward  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  91  Mo.  168. 

A  petition  which  oni)  alleges  that  the  de- 
fendant's cars  ran  over  plaintiff's  horses 
where  its  road  was  not  inclosed  by  a  lawful 
fence,  and  not  in  the  crossing  of  a  public 
highway,  is  not  sufficient,  for  it  must  allege 
that  the  animal  entered  at  a  place  which 
should  have  been  but  was  not  fenced. 
Smith  V,  Missouri  Pac.  R.  Co.,  29  Afo.  App. 
65. 

In  an  action  for  killing  plaintiff's  hogs, 
founded  on  the  43d  section  Railroad  Law, 
the  petition  failed  to  state  that  the  hogs 
came  upon  defendant's  track  at  a  point 
where  defendant  was  required  by  law  to 
fence.  Held,  that  it  was  for  this  reason 
fatally  defective.  Asher  v.  St.  Louis,  I.  M. 
&-  S.  R.  Co.,  19  Am.  iS^  f:ng.  R.  Cas.  593,  79 
Mo.  432. — FoLLOWK.D  in  Stanley  ?'.  Mis- 
souri Pac.  R.  Co.,  84  Mo.  625.  Rkviewed 
IN  Jackson  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
80  Mo,  147. 

352.  Alleging  failure  to  "se- 
curely "  fence  nt  place  of  entry.— 
Where  an  action  again.st  a  railroad  » '>p.pany 
to  recover  for  stock  killed  is  commenced  in 


l-\ 


ANIMALS,  INJURIES   TO,  363. 


259 


the  circuit  court,  it  must  Lc  averred  in  tho 
complaint  and  proved  u^>on  the  trial  that  at 
the  point  where  the  animals  entered  upon 
the  track  the  railroad  was  not  securely 
fenced.  Louis^nlle,  E.  &*  St.  L.  R.  Co.  v. 
Thomas,  io6  hid.  lo,  5  A'^.  E.  Rep.  198. 

It  is  II  '  siiiricienl  to  allege  that  a  horse 
\v(iB  ki'lcu  on  the  track  at  a  point  where  it 
w.i  not  sufficiently  fenced,  without  showing 
whether  the  horse  came  on  the  track  at  a 
point  where  it  was  securely  fenced  or  not. 
Louisville,  N.  A.  &^  C.  R.  Co.  v.  Quade,  19 
Ai)i.  (S-  Eng.        >     V.  595,  91  Itid.  295. 

In  a  complaint  under  the  Indiana  statute 
against  a  railroad  company  for  the  value  of 
iiogs  killed  by  a  passing  train,  it  is  not  sulf'i- 
cient  to  .'•Up'?;'*.  in  regard  lo  the  fence,  "  that 
said  rai':'.ar:  v., is  not,  at  the  time  and  place 
where  sw  d  i.imals  were  killed,  fenced  in 
by  said  defendant  in  manner  and  form  as  in 
the  statute  provided."  Pittsburgh,  C.  &»  .SV. 
/,.  A'.  Co.  V.  Keller,  49  Ind.  211. — Follow- 
ing Indianapolis,  P.  &  C.  R.  Co.  v.  Bishop, 
29  Ind.  202.— Followed  in  Pittsburgh,  C. 
&  St.  L.  R.  Co.  v.  Keller,  49  Ind.  217. 

In  a  complaint  to  recover  the  value  of 
animals  killed  by  its  cars,  it  is  not  sufficient 
to  aver,  generally,  that  the  road  was  not  se- 
curely fenced  in,  etc.,  without  connecting 
the  want  of  such  fence  with  the  injury  by  an 
averment  that  the  road  was  not  so  fenced  at 
tiic  place  where  the  anim<ils  entered  upon 
it.  liellefontaine  R.  Co.  v.  Suman,  29  Ind. 
40.— Approvinc.  Indianapolis  &  C.  R.  Co. 
7'.  Adkins,  23  Ind.  340.— Distinouished 
IN  Louisville,  N.  A.  &  C.  R.  Co.  v.  Dct- 
rick,  91  Ind.  519;  Louisville,  N.  A.  cSr  C. 
K.  Co.  V.  Porter,  20  Ai.i.  &  Eng.  R.  Cas. 
446,  97  Ind.  267.  Overruled  in  Hunt 
V.  Lake  Shore  &  M.  S.  R.  Co.,  35  Am. 
&  Eng.  R.  Cas.  176,  112  Ind.  69,  11  West. 
Rep.  107,  13  N.  E.  Rep.  263. 

But  a  complaint  which  avers  that  the  ani- 
mals entered  upon  the  railroad  at  a  point 
where  the  railway  was  not  securely  fenced 
is  sufficient.  Louisville,  N.  A.  &>  C.  R.  Co. 
V.  Overman.  88  /nd.  t  i  5.  Toledo,  IV.  <S-  IV. 
'  .  Co.  v.  Harris,  49  Ind.  119.  Pittsburgh, 
'-'.  &*  St.  L.  R.  Co.  V.  BroTvn,  44  /nd.  409. 

Averments  in  the  complaint  that  at  a  cer- 
tain point  in  a  town  said  railroad  was  not 
securely  fenced,  but  ought  to  have  been, 
and  that  the  plaintifT's  horse  entered  upon 
the  railroad  at  said  point  and  was  run  down 
and  killed  by  a  train  of  cars  owned  and 
operated  by  the  defendant,  show  sufficiently 
that  the  absence  of  the  fence  was  the  re- 


sponsible cause  of  the  injury.  OAio,  I.  &» 
IV.  R.  Co.  V.  Neady,  5  /»d.  App.  328,  32  A^. 
E.  Rep.  213 

A  complaint  stating  tli;.  at  the  time  and 
place  when  and  where  thf-  stock  were  killed 
the  railroad  was  not  securely  fenced  as  re- 
quired by  ;aw,  is  a  sufficient  statement  of 
the  fact  that  the  road  was  not  securely 
fenced  where  the  animals  entered  ujion  it. 
Jeffersomi'lh,  M.  &>  I.  R.  Co.  v.  Chenoweth, 
30  Ind.  366.--10LLOW1NG  Indianapolis  & 
C.  R.  Co.  V.  Adkins,  23  Ind.  340. 

A  complaint  which  avers  "that  at  the 
place  and  time  s;.  d  animal  was  killed  by 
defend,  nt's  locomotive  and  cars  the  same 
was  not  securely  fenced  as  required  by  law," 
isasuTicient  averment  that  the  road  was 
not  securely  fenced  at  the  point  where  the 
animal  entered  upon  it.  Indianapolis  <"•• 
C.  R.  Co.  v.  Adkins,  2t^  Ind.  340. — Approvei. 
IN  Bellefontainc  R.  Co.  v.  Suman,  29  Ind. 
40.  DiSTlNGULSHED  IN  Indianapolis,  P.  & 
C.  R.  Co.  V.  Bishop,  29  Ind.  202.  Fol- 
lowed IN  Jeffersonville,  M.  &  I.  R.  Co.  v. 
Chenoweth,  30  Ind.  366.  Nor  Followed 
IN  Indianapolis,  C.  &.  L.  R.  Co.  7'.  Robinson, 

35  Ind.  380.  Overruled  in  Baltimore,  O. 
&  C.  R.  Co.  V.  Kreiger,  13  Am.  &  Eng.  R. 
Cas.  602,  90  Ind.  380. 

:i53.  Nofjativiiii;  Htntiitory  excep- 
tiouH  OH  to  IciK'iiig.— (I)  Illinois.— Pi. 
declaration,  under  the  Illinois  statute,  in  an 
action  lor  killing  stock  must  negative  the 
killing  :  t  all  the  places  where  the  company 
is  not  required  by  statute  to  fence,  anr  must 
show  that  the  road  was  open  for  six  months 
before  the  killing.  Ohio  &*  M.  R.  Co.  v. 
lirown,  23  ///.  94. — Explained  in  Great 
Western  R.  Co.  v.  Hanks,  36  III.  281.— (;</- 
Una  &*  C.  U.  R.  Co.  v.  Sumner,  24  ///.  631. 

In  an  action,  under  the  statute,  for  killing 
stock,  the  declaration  must  nej^ativt  all  the 
exceptions  in  the  statute;  but  the  burden 
of  proof  is  not  upon  plaintiff  to  prove  the 
averment,  that  there  was  no  contract  be- 
tween the  company  and  the  owner  of  the 
ground,  that  the  latter  should  build  the 
fence  where  the  accident  occurred.  Great 
Wiitern  R  Co,  v.  Paeon,  30  ///.  347.  — Ex- 
plained IN  Great  Western  R.  Co.  v.  Hanks, 

36  111.  281. 

Where  it  appears  that  the  plaintiff  reiied 
for  a  recovery  upon  statutory  negligence — 
the  failure  to  erect  and  maintain  a  fence,  as 
provided  by  the  law.  upon  its  line  of  rail- 
ro.  i  — and  the  evidence  utterly  fails  to  show 
iliat  the  lioqri  killed  got  upon  the  track  at 


I 


260 


ANIMALS,  INJURIES   TO,  3S3. 


a  place  where  the  company  was  required 
by  the  statute  to  fence  against  them,  the 
plaintiil  must  n>>trative  the  exceptions  con- 
tained in  the  statute.  iV.  Louis,  A.  &•  T. 
H,  R.  Co.  V.  Over  turf,  ly  ///.  App.  656,  mem. 

In  an  action  for  stock  killed,  under  tiie 
act  requiring  the  roads  to  fence  (Scute's 
Comp.  953),  except  at  certain  places,  it  is 
only  necessary  to  negative  in  the  complaint 
the  killing  in  the  excepted  places  as  set  out 
in  the  enacting  clause,  and  nut  those  also 
at  the  end  of  the  first  section  of  the  statute. 
Great  Western  R.  Co.  v.  Hanks,  36  ///.  281. 
—  Explaining  Chicago,  B.  &  Q.  \K.Qo.v. 
Carter,  20  III.  390;  Ohio  &  M.  R.  Co.  v. 
Brown,  23  III.  94;  Great  Western  R.  Co. 
V.  Bacon,  30  III.  347. 

Where  a  statute  provides  that  a  railroad 
company  need  not  fence  its  track  through 
"  uninclosed  "  lands,  a  declaration  in  an  ac- 
tion for  killing  stock  that  uses  the  word 
"unimproved"  is  a  sufficient  compliance 
with  the  statute.  Illinois  C.  Ji.  Co.  v. 
Wade,  \f>  III.  115. 

W'ere  the  declaration  in  such  a  case  neg- 
atives 'n  substance  all  the  exceptions  in  the 
stature  although  not  in  the  most  formal 
mannet  it  is  not  demurrable  on  that  ground 
alone.  :7.  Louis,  J.  &*  C.  R.  Co.  v.  Thomas, 
47  ill  '.!('). 

Whc.ij  plaintiff  sues  to  recover  for  ani- 
mal.>  killed  by  reason  of  the  company  failing 
to  f  ;;ice  its  track,  the  complaint  should  con- 
tain necessaTV  averments  that  the  killing 
was  not  within  a  village  or  at  any  other 
point  where  the  company  is  not  required  to 
fence  under  the  statute.  Chicago,  B.  &*  Q. 
R.  Co.  v.  Carter,  20  ///.  390. — Explained 
IN  Great  Western  R.  Co.  v.  Hanks,  36  III. 
281. 

A  complaint  in  an  action  to  recover  for 
killing  cattle  need  not  negative  the  killing 
at  a  farm  crossing.  If  the  track  is  properly 
fenced  at  such  place  it  is  a  matter  of  defense, 
and  if  not  the  company  is  liable.  Great 
Western  R.  Co.  v.  Helm,  27  ///.  198.— Di.s 
TiNUUisHED  IN  Bartlett  v.  Dubuque  &  S. 
C.  R.  Co.,  20  Iowa  188;  Gill  v.  Atlantic  & 
G.  W.  R.  Co.,  27  Ohio  St.  240. 

(2)  Indiana. — In  a  complaint,  against  a 
railroad  company,  to  recover  under  the 
statute  the  value  of  an  anim  ;1  killed  by  the 
cars  of  such  company,  it  is  sufficient  to 
allege  that  the  railroad  was  not  fenced  at 
the  place,  etc.  If  the  killing  was  at  a  point 
where  the  company  was  not  required  to 
fence  its  track,  that  is  a  matter  of  defense, 


and  need  not  be  negatived  in  the  complaint. 
Ohio  &*  M.  R  (^'o.w.  McClure,^j  Ind.  317. 
Louisville,  X.  ^l.  &*  C.  R.  Co.  v.  Kious,  82 
Ind.  357.  Je£\rsonville,  M.  &*  I.  R.  Co.  v. 
Lyon,  7;?  /'•(/.  107.  — DiSTINGUISHKU  IN 
Indianapolis  &  V.  R.  Co.  v.  Sims,  92  Ind. 
496. — Louisville,  E.  (S-  St.  L.  R.  Co.  v.  Hart, 
2  Ind.  App.  130,  28  N.  E.  Rep.  218. 

In  an  action  to  recover  the  value  of 
two  horses  belonging  to  the  plaintiff, 
alleged  to  have  been  killed  by  the  de- 
fendant's locomotive  and  train  of  cars, 
where  the  "iiiplaint  charged,  inter  alia, 
"tiiat  the  railroad  of  the  defendant  was 
not  fenced  at  the  place  where  said  horses 
got  on  the  truck  and  where  said  horses 
were  killed,"  the  allegation  as  to  want  of 
fence  is  suffiv,iently  definite  and  certain  on 
a  demurrer  to  the  complaint  for  the  want 
of  facts.  Louisville,  N.  A.  &•  C.  R.  Co.  v. 
Harrigan,  19  Am.  :'s*  Eng.  R.  Cas.  598,  94 
Ind.  245. 

A  complaint  is  sufficient  which  alleges 
that  stock,  being  the  property  of  the  plain- 
tiff, had  entered  upon  the  defendant's  rij  ht 
of  way  and  track  at  a  point  where  the  sa.iic 
bid  been  carelessly  and  negligently  left  un- 
fenced,  and,  whilst  there,  was,  by  tiie  de- 
fendant's train  of  cars,  driven  into  a  cut 
through  which  such  track  ran  and  there 
killed.  Jeffersonville,  M.  Sf  I.  R.  Co.  v.  Lyon, 
55  Ind.  477. 

Where  the  complaint  alleged,  among 
other  things,  that  the  cattle  entered  the 
defendant's  "track  and  right  of  way  at  a 
place  where  the  same  was  not  fenced,"  the 
complaint  stated  facts  sufficient  to  consti- 
tute a  cause  of  action.  The  facts  that  the 
place  where  the  cattle  entered  upon  the 
track  was  a  public  highway ;  that  the  track 
could  not  be  fenced  at  said  place ;  that  the 
company  was  not  bound  to  fence  it  at  such 
place,  or  any  other  matters  of  «1efcnse,  were 
to  be  taken  advantage  of  by  -he  defendant. 
Terre  Haute  &»  I.  R.  Co.  v.  Schaefer,  5  Ind. 
App.  86,  31  A^.  E.  Rep.  557. 

A  complaint  under  the  sta'nte  for  the 
killing  of  animals  is  sufficient  ..  it  allege 
that  the  right  of  way  was  not  securely  fenced 
at  the  point  where  the  animal  entered  upon 
the  track  and  was  killed  ;  and  if  it  was  not 
the  duty  of  the  com  pan;-  to  fence  the  roatl 
at  the  place  in  question,  such  fact  >h  a 
matter  of  defense  concerning  which  the 
complaint  need  not  make  any  averment. 
Chicago  &*  E.  R.  Co.  v.  Brannegan,  5  Ind. 
App.  540.  32  X.  E.  Rep.  790. 


ANIMALS,  INJURIES   TO,  iiSa. 


261 


(3)  Kentucky  —  Missouri.  —  The  plaintiff 
must,  by  his  petition,  negative  an  exception 
which  forms  a  part  of  the  clause  imposing 
the  liability.  Louisville  &*  N.  R.  Co.  v. 
Belcher,  40  Am.  &-  Eng  R.  Ciis.  228.  89  A>'. 
193,  12  S.  IV.  Kep.  195. 

In  an  action  under  the  statute  for  double 
dania^jes  for  killinj^  stock,  the  complaint 
need  not  specifically  alleyc  that  the  injury 
was  occasi()nt'<l  by  the  failure  to  fence  or  to 
maintain  cattle-(;uards,  or  that  the  injury 
was  not  within  tiie  limits  of  an  incorporated 
city  or  town.  It  is  sulBcient  if  these  facts 
may  be  inferred  fnjm  the  allegations  of  the 
complaint.  Cmnphcll  v.  Missouri  J'ac.  R. 
Co.,  78  .1/0.639.  — Dlstinguishing  Rowland 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  73  Mo.  619; 
Schulte  7'.  St.  Louis,  I.  M.  &  S.  R.  Co.,  76 
Mo.  324.  Follow  iNd  Edwards  7/.  Kan.sas 
City,  St.  J.  &  C.  B.  i'.  Co.,  74  Mo.  117;  Wil- 
liams V.  Missouri  Fac.  R.  Co.,  74  Mo.  453; 
Scott  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  75 
Mo.  136;  Belcher  f.  Missouri  Pac.  R.  Co., 
75  Mo.  514;  Terry  v.  Missouri  Pac.  R.  Co., 
77  Mo.  254;  Kronski  v.  Missouri  Pac.  R. 
Co.,  77  Mo.  362. 

To  constitute  a  sufficient  cause  of  action, 
under  Missouri  Rev.  St.  1889,  §  261 1,  for  kill- 
ing stock,  it  millet  be  stated,  directly  or  in- 
fi  lontially,  that  the  animal  killed  came  upon 
ilie  railroad  at  a  point  where  the  road  ex- 
tended through,  along,  or  adjoining  inclosed 
or  cultivated  fields  or  un inclosed  lands ;  Ijut 
this  appears  inferentially  where  there  are 
allegations  that  the  animal  wau  killed  at  a 
place  not  within  the  limits  of  any  town,  nor 
within  the  limits  of  any  switch  or  calile- 
yards,  nor  at  any  public  or  private  crossing. 
McGuire  v.  St.  Louis,  I.  M,  &*  S.  R.  Co.,  43 
Mo.  A  pp.  354. 

A  petition  in  an  action,  under  §  809  of  the 
Missouri  Rev.  St.,  which  does  not  aver  that 
the  killing  did  not  occur  within  an  '.icorpo- 
•"Ued  town,  is  not  sufficient.  Holland  v. 
H^est  luttl  X.  G.  R.  Co.,  16  Mo.  App.  172.— 
FoLi.owiNC.  Schulte  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  76  Mo.  324.  (Quoting  Rowland  v. 
St.  Louis,  1.  M.  &  S.  R.  Co..  73  Mo.  619. 

In  an  action  under  Missouri  Rev.  St. 
1879,  ^  809,  to  recover  double  damages  for 
stock  killed,  the  complaint  must  negative 
the  fact  of  killing  within  the  limits  of  an 
incorporated  town;  but  this  will  be  inferred 
from  an  averment  that  the  killing  was  where 
liefcnduni's  track  passed  along  and  adjoin- 
iiij^  plaintiff's  inrlf)sed  and  cultivated  field, 
and  at  a  point  where  there  was  no  public  or 


privjitc  road  crossing.  Lainiger  v.  Kaiisiis 
City,  St.  J.  &'  C.  D.  R.  Co.,  41  Mo.  App.  165. 
Ros::clle  v.  Hannibal^  St.  J.  R.  Co.,  19  Am. 
&*  Eng.  R.  Cas.  591,  79  Mo.  349.— Follow- 
ing Rutledgez/.  Hannibal  &  St.  J.  R.  Co.,  78 
Mo.  286. — I'erriques  v.  Missouri  Pac.  R.  Co., 
i*)  Am.  &•  Etig.  R.  Cas.  578,  78  Mo,  91. — 
Distinguishing  Rowland  v.  St.  Louis,  I. 
M.&  S.  R.  Co.,  73  Mo.  619;  Sloan  v.  Missouri 
Pac.  R.  Co.,  74  Mo.  47  ;  Bates?'.  St.  Louis,  I. 
M.  &  S.  R.  Co..  74  Mo.  60.  Quoting  Ed- 
wards V.  Kan.sas  City,  St.  J.  &  C.  B.  R.  Co., 
74  Mo.  117.— Followed  in  Moreland  7/. 
Missouri  Pac.  R.  Co.,  17  Mo.  App.  77  ;  Mai- 
retl  V.  Hannibal  &  St.  J.  R.  Co.,  84  Mo.  413; 
Stanley  ?'.  Missouri  Pac.  R.  Co.,  84  Mo.  625. 
— Kiitmy  v.  Hannibal  &^  St.  J.  R.  Co.,  27  Mo. 
App.  610.  Dor  man  v.  Missouri  Pac.  R.  Co., 
17  Mo.  App.  337.  ll'illianis  v.  Hannibal 
Gr-  St.  J.  R.  Co.,  80  Mo.  597.— Rkviewing 
Rowland  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  73 
Mo.  6iq;  Schulte 7/.  St.  Louis,  1.  M.&  S.  R. 
Co.,  76  Mo.  324. — Meyers  w.  Union  Trust  Co., 
82  iMo.  237. 

A  petition  for  double  damages  for  killing 
stock,  which  alleges  that  the  imimals  came 
upon  the  track  of  the  road  where  it  passes 
through  uninclosed  lands,  and  where  there 
was  no  crossing  of  the  railroad  by  any  pub- 
lic road,  and  that  the  company  failed  and 
neglected  to  keep  and  maintain  a  lawful 
fence  at  the  point  where  the  stork  got  upon 
the  track  and  were  killed,  and  that  the  kill- 
ing of  the  stock  was  occasioned,  Mien  and 
there,  by  the  failure  of  defendant  to  erect 
and  maintain  such  lawful  fences  on  the 
sides  of  its  roads,  is  sutricient,  and  satisfies 
the  rule  that  the  petition  must  charge  that 
the  animals  got  on  the  track  at  a  point 
where  the  defendant  was  required  by  law  to 
erect  and  maintain  fences,  and  that  the  kill 
ing  did  not  occur  within  the  limits  of  an  in- 
corporated town.  Tiikt'll  v.  St.  Louis,  L  M 
&*  S.  R.  Co.,  90  M...  296,  2  S.  W.  Rep. 
407. 

A  complaint  for  a  calf  killed  is  sufficient 
which  alleges  in  effect  that  the  calf  strayed 
upon  the  track  and  was  killed  by  defendant's 
train,  at  a  point  where  the  same  was  not 
properly  fenced  or  kept  in  good  condition, 
such  place  being  neither  in  an  incorporated 
town  or  city,  norat  a  public  crossing.— JAf/- 
rett  V.  Hannibal  Sf*  St.  J.  R.  Co.,  84  Mo.  413. 
— Following  Perriquez?'.  Missouri  Par.  R. 
Co.,  78  Mo.  91 ;  Edwards  7/.  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.,  74  Mo.  117;  Campbell  7-. 
Missouri  Pac.  R.  Co.,  78  Mo.  639.— Quotku 


f 


.T?5 


2ti2 


ANIMALS,  INJURIliS   TO,  354. 


Co.,  ig 


I 


IN  Summers?/.  Hannibal  &  St.  J.  R. 
Mo.  App.  41. 

The  cumplaint  may  by  implication,  though 
not  expressly,  negative  the  possibility  that 
the  animal  was  killed  at  a  public  crossing 
or  within  the  covporatc  limits  of  a  luwn  01 
city.  The  averment  is,  that  it  was  killed  at 
"a certain  point  of  uninclosed  timber-land." 
The  complaint  also  contained  an  averment 
that  the  animal  came  upon  the  track  and 
was  killed  at  a  place  which  the  law  required 
the  company  to  f»rotect  with  a  fence  or  cat- 
tle-guard. NM,  that  on  this  ground  also 
it  was  sufficient.  IVu<h'  v.  Missouri  Pac.  R. 
Co.,  19  Am.  &*  Eng.  R.  Cas,  586,  78  Afo.  362. 
—Following  Roland  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.,  73  Mo.  619;  Bates  v.  St.  L)uis,  I. 
M.  &  S.  R.  Co..  74  Mo.  60. 

A  petition  alleging  that  stock  was-  injured 
in  consequence  of  the  fact  that  at  the  point 
where  it  strayed  upon  the  road  and  was 
killed  there  were  no  fences,  and  that  at  the 
said  point  it  was  uninclosed  prairie-land 
v/hich  the  company  was  bound  to  fence,  and 
where  there  was  no  street,  county,  or  state 
road,  or  public  crossing,  and  praying  double 
damages,  conclusively  fixes  the  character  of 
the  action  as  founded  on  the  43d  section 
of  the  Mo.  R.  R.  Law  (Wagn.  Mo.  St.  310, 
§  43).  Cary  v.  St.  Louis,  K.  C.  &*  N.  R. 
Co.,  60  Mo.  209. 

The  petition  alleged  that  the  defendant's 
cars  "  wrongfully  and  illegally,  and  against 
the  will  of  plaintiff,"  ran  over  his  cattle,  and 
that  the  same  were  killed  owing  to  defend- 
ant's failure  to  erect  and  maintain  good  and 
substantial  fences  on  the  side  of  the  road 
"  where  the  same  passes  through,  along,  or 
adjoining  inclosed  or  cultivated  fields  of 
plaintiff."  Petition  held  substantially  good. 
Mum  power  v.  Hannibal  A*  St.  J.  R.  Co.,  59 
Afo.  245.— Comparing  Aubuchon  t.  St. 
Louis  &  I.  M.  R.  Co.,  52  Mo.  522. 

The  petition  alleged  that  the  defendant 
negligently  and  carelessly  ran  over  and 
killed  some  of  the  cattle  of  the  plaintiff,  and 
that  the  same  was  done  at  a  part  of  the 
road  that  was  not  inclosed  by  a  lawful 
fence,  and  that  was  not  a  public  road  cross- 
ing, //t/i/,  that  the  petition  set  out  a  good 
cause  of  action.  Aubuchon  v.  .^V  ouis  &*  I. 
M.  R.  Co.,  52  Mo.  52a.- -Compared  in 
Mumpower 7/.  Hannibal  &  St.  J.  R.  Co.,  59 
Mo.  245.  F<JLLowED  IN  Fickle  v.  St.  Louis, 
K.  C.  &  N  R.  Co.,  54  Mo.  219. 

a.%4.  AlIeffinK  killing  at  place 
if\'l«i(>h   might  have   been   fenced.— 


(I)  Indiana.  —  Where  the  complaint  in 
an  action  for  killing  stock  alleged  that 
the  railroad  was  not  fenced  at  the  place 
where  the  animal  entered  upon  the  track, 
it  was  not  necessary  to  allege  or  show 
that  it  could  have  been  properly  fenced 
at  such  place.  Lake  Erie  &*  IV.  R.  Co. 
v.  Fishback,  5  Ind.  App.  403,  32  N.  E.  Rep. 
346.  Louis^'ille,  N.  A.  &•  C.  R.  Co.  v. 
//a//.  19  Am.  &■*  Eng.  R.  Cas.  597.  93  /nd. 
245.  Jeffersonville,  M.  &*  I.  R.  Co.  v.  Van- 
cant,  40  Ind.  233. 

For  if  it  could  not  properly  be  fenced,  this 
is  a  matter  of  defense.  Louisville,  N.  A.  &* 
C.  R.  Co.  V.  Hughes,  2  Ind.  App.  68.  28  N. 
E.  Rep.  1 58. 

(2)  Missouri. — Under  Missouri  Rev.  St. 
§  2124,  providing  that  railroad  companies 
shall  fence  their  tracks  at  all  points  where 
they  may  be  inclosed  by  a  lawful  fence,  it  is 
not  sufficient  to  aver  that  the  accident  oc- 
curred where  the  road  was  not  inclosed  by 
a  lawful  fence.  Russell  v.  Hannibal  &•  St. 
J.  R.  Co.,  83  Mo.  507. 

The  petition  in  an  action  brought  under 
the  43d  section  of  the  railroad  law  for  the 
killing  of  s'  uck  must  show  that  the  killing 
occurred  at  a  place  where  the  company  was 
required  by  law  to  fence  its  track,  and  was 
occasioned  by  failure  of  the  company  to 
comply  with  the  law.  A  mere  statement 
that  "  the  railroad  was  not  fenced, and  there 
was  no  crossing"  at  the  place,  is  iiisiflficieni. 
Bates  V.  St.  Louis.  I.  M.  &*  S.  R.  Co.,  74  Mo. 
60.— Approved  in  Hudg«'ns  v.  Hannibal  & 
St.  J.  R.  Co.,  79  Mo.  41S  Distinguished 
in  Perriquez  z/.  Missouri  Pac.  R.Co.,  78M0. 
91 ;  Blakely  v.  Hann  bal  &  St.  J.  R.  Co.,  79 
Mo.  388.  Followed  in  Wade  v.  Missouri 
Pac.  R.  Co.,  78  Mo.  362  ;  Dryden  v.  Smith, 
79  Mo.  525.  Review«:d  in  Jackson  v.  St. 
Louis,  I.  M.  &  S.  R.  Co..  80  Mo.  147. 

A  complaint  in  such  a  case,  wliicli  states 
the  obligation  of  defendant  to  fence  its 
track  where  the  accident  occurred,  and  that 
the  animals  came  upon  the  tra(  k  where  it 
was  not  fenced,  and  where  defcndiint  was 
under  obllKHtion  to  fence,  and  that  they 
were  killed  in  consequence  ;  and  further 
states  that  it  happened  in  the  adjoining 
township  to  the  one  where  the  action  is 
brought,  is  good,  \oung  v.  Kansas,  City. 
Ft.  S.  Sf  M.  R.  Co.,  39  Mo.  App.  52.— Fol- 
LOWED  IN  Wood  7/.  Kansas  City,  Ft.  S.  & 
M.  R.  C.  .  39  Mo.  App.  63. 

A  petition  in  an  action  under  the  43(1 
section  of  the  Railroad  Law  (Rev.  St.  1879, 


ANIMALS,  INJURIES   TO,  ;353,  aSO. 


263 


§  809)  alleged  ^hat  the  sow  "  strayed  upc^n 
said  railroad  track  and  was  killed  in  conse- 
quence of  the  failure  of  defendant  to  erect 
and  maintain  a  good  and  lawful  fence  on 
the  sides  of  its  said  railroad  at  the  point 
where  said  sow  was  killed,  as  in  law  it  was 
bound  to  do."  Held,  that  the  petition 
stated  a  good  cause  of  action.  lUakely  v. 
Hannibal  &>  St,  J.  R.  Co.,  79  Mo.,  388.— Dl.s- 
TINGUISHINO  Bates  V.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  74  Mo.  60.  Following  Edwards  v. 
K  insas  City,  St.  J.  &  C.  B.  R.  Co.,  74  Mo. 
117;  Belcher  v.  Missouri  Pac.  R.  Co.,  75 
Mo.  515. 

355.  NeccHHity  of  alleging  place  of 
killing.*— In  an  action  under  Missouri  Rev. 
St.  1855,  p.  649,  §  5,  for  killing  stock,  a  com- 
plaint which  neither  charges  negligence  nor 
misfeasance,  nor  facts  from  which  such  may 
be  inferred,  is  insufficient.  The  complaint 
should  state  the  place  where  the  accident 
occurred,  and  all  facts  necessary  to  consti- 
tute the  ground  of  action.  Quick  v.  Han- 
nibal Sr-  St.  J.  R.  Co.,  31  Mo.  399.— Fol- 
lowed IN  Dyer  v.  Pacific  R.  Co.,  34  Mo. 
127. 

In  an  action  under  the  statute  (Rev.  Code 
1855,  p.  649,  §  j)  the  petition  should  state  ex- 
plicitly on  what  ground  the  liability  of  the 
company  is  placed.  It  is  not  sufficient  to 
charge  negligence  and  wilfulness,  and  also 
to  allege  that  the  road  was  not  fenced  and 
that  there  were  no  cattle-guards  at  the 
crossings,  without  stating  where  the  acci- 
dent occurred.  Negligence  and  unskilful- 
ness  are  not  essential  to  a  recovery  if 
the  accident  happened  where  there  was 
no  fence  and  where  there  was  no  crossing, 
or  where  the  crossing  was  not  protected  by 
a  cattle-guard.  Miles  v.  Hannibal  &*  St.  J. 
R.  Co.,  3 1  Mo.  407. 

A  complaint  in  a  suit  against  a  company 
for  killing  slock  need  not  negative  the  de- 
fense that  the  company  was  not  bound  to 
fence  at  the  place  where  the  killing  or  in- 
jury occurred,  such  matters  being  proper 
for  the  answer.  Jeffersonville,  M.  &•  I.  R. 
Co.  V.  Brevoort,  30  Ind.  324. 

A  complaint  is  defective  for  not  alleging 
the  place  where  the  animal  "'as  killed,  as 
such  allegation  is  a  jurisdictional  fact ;  but 
the  defect  cannot  be  taken  advantage  of 
ui.-^er  a  demurrer  averring  that  the  com- 
plaint did  not  state  facts  sufficient  "  to  con- 
stitute a  cause  of  action  "    The  demurrer 


>  See  anu,  320 ;  post,  475. 


must  specifically  challenge  the  jurisdiction 
of  the  court.  Lake  Erie  &•  IV.  R.  Co.  v. 
Fiihback,  5  Ind.  App.  403,  32  A'.  E.  Rep.  346. 

350.  Alleging  failure  to  fence  as 
proximate  cause.*— It  is  not  enough  to 
charge  that  stock  were  killed  at  a  point 
where  the  company  had  failed  to  fence, 
without  showing  that  they  came  on  the 
track  by  reason  of  such  failure.  A  com- 
plaint against  a  railroad  company  for  kill- 
ing stock,  alleging  that  the  stock  were  killed 
where  defendant  failed  to  construct  lawful 
fences— ^^///,  defective  in  not  alleging  that 
the  stock  got  on  the  track  because  of  the 
failure  to  fence.  Dryden  v.  Smith,  79  Mo. 
525.— FoLLOWiWG  Luckie  v.  Chicago  &  A. 
R.  Co.,  67  Mo.  245  ;  Bates  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  74  Mo.  60;  Sloan  v.  Missouri 
Pac.  R.  Co.,  74  Mo.  47.— DisiiNOUisHEU 
IN  Morrow  v.  Missouri  Pac.  R.  Co.,  82  Mo. 
\tf).—Hudgens  v.  Hannibal &*  St. J.  R.  Co.,  79 
Mo.  418.— Approving  Luckie  v.  Chicago  tSt 
A.  R.  Co.,  67  Mo.  245 ;  Cunningham  v.  Hanni- 
bal &  St.  J.  R.  Co.,  70  Mo.  202 ;  Sloan  v. 
Missouri  Pac.  R.  Co.,  74  Mo.  48;  Bates  v. 
St.  Louis,  I.  M.  &  S.  R.  Co.,  74  Mo.  60; 
Schulte  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  76 
Mo.  324. — Followed  in  Clark  v.  Hanni- 
bal &  St.  J.  R.  Co.,  79  Mo.  419.  «. 

To  authorize  a  judgment  against  a  rail- 
road company  for  double  the  value  of  an 
animal  killed  on  its  track,  the  petition  must 
aver,  either  directly  or  inferentially,  that 
the  killing  was  occasioned  by  the  failure  of 
the  company  to  erect  and  maintain  fences, 
as  required  by  §  809,  Missouri  Rev.  St.  1879. 
Sloan  V.  Missouri  Pac,  R.  Co.,  74  Mo.  47.— 
Approved  in  Hudgens  v.  Hannibal  &  St.  J. 
R.  Co.,  79  Mo.  418.  Distinguished  in  Ed- 
wards V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co., 

74  Mo.  117  ;  Belcher  I/.  Missouri  Pac.  R.  Co., 

75  Mo.  514;  Perriquez  v.  Missouri  Pac.  R. 
Co.,  78  Mo. 91  ;  Morrow  7>.  Missouri  Pac.  R. 
Co..  82  Mo.  169.  Foi  lowed  in  Dryden  v. 
Smith.  79  Mo.  525.  Reviewed  in  Jackson 
V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  80  Mo.  147. — 
Luckie  v.  Chicago  &*  A.  R.  Co.,  67  Mo.  245. 
—Approved  in  Hudgens?'.  Hannibal  &  St. 
J.  R.  Co.,  79  Mo.  418.  Distinguished  in 
Williams  v.  Missouri  Pac.  R.  Co.,  74  Mo. 
453 ;  Lincoln  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
75  Mo.  27.  Followed  in  Cunningham  7/. 
Hannibal  &  St.  J.  R.  Co.,  70  Mo.  202  ;  Dry- 
den V.  Smith,  79  Mo.  525. 

A  complaint  under  Missouri  Rev.  St.  §  809, 

•  See  ante,  34,  136. 


-I 
'I 

I 


Hi    '« 


264 


ANIMALS,  INJURIES   TO,  ;I57. 


tli«t  a  cow  was  killed  "at  a  point  on  said 
railway  where  said  road  was  not  inclosed  by 
a  fence,  as  required  by  law  " — held,  insuffi- 
cient, because  not  alleging  that  the  cow  got 
on  the  track  and  was  killed  because  of  the 
failure  of  the  defendant  to  fence,  and  that 
no  negligence  being  alleged,  it  showed  no 
action  at  common  law,  and  that  it  showed 
no  action  under  the  5th  section  of  the  dam- 
age act,  Rev.  St.  §  2124,  as  fences  are  not  by 
that  section  required  to  be  constructed. 
Johnson  v.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  76 
Mo.  553.  See  also  Dyer  \.  Pacific  R.  Co.,  34 
Mo.  127. 

It  Is  not  necessary,  in  an  action  under  the 
Missouri  statute  to  recover  double  damages, 
that  the  complaint  charge  directly  that  the 
injury  was  caused  by  a  failure  of  the  com- 
pany to  maintain  proper  fences.  It  is  suffi- 
cient to  state  facts  from  which  such  may  be 
inferred .  Bowen  v.  Hannibal  &*  Si.  J.  R.  Co., 
75  Mo.  426.— yuoTiNG  Edwards  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co..  74  Mo.  117.— 
Reviewed  in  Jackson  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  80  Mo.  147. 

In  an  action  for  injuring  stock,  it  is  not 
necessary  that  the  petition  allege  that  the 
failure  to  erect  and  maintain  a  sufficient 
fence  along  the  side  of  the  road  "occa- 
sioned "  the  injury,  as  used  in  the  statute,  if 
words  equivalent  thereto  are  used;  neither 
is  it  necessary  to  instruct  the  jury  that  they 
must  believe  the  failure  to  fence  "occa- 
sioned "  the  injury.  Williams  v.  Missouri 
Pac.  R.  Co.,  74  Mo.  453.— Distinguishing 
Luckie  v.  Chicago  &  A.  R.  Co.,  67  Mo.  245 ; 
Cunningham  v.  Hannibal  &  St.  J.  R.  Co.,  70 
Mo.  202.  Following  Moore  v.  Missouri 
Pac.  R.  Co.,  73  Mo.  438.— Followed  in 
Terry   v.   Missouri   Pac.    R.    Co.,  77  Mo. 

254- 

The  complaint  alleged  that  the  killing  oc- 
curred where  the  railroad  "  was  not  fenced, 
and  where  there  was  no  crossing  on  said 
railroad,  *  ♦  *  that  defendant  had  failed 
and  neglected  to  maintain  good  and  suffi- 
cient fences  on  the  side  of  its  road  where 
said  mare  got  on  the  track  and  was  killed  ; 
and  that  by  reason  of  the  killing  of  said 
mare,  and  by  virtue  of  the  809th  section  of 
the  Missouri  Rev.  St.,"  judgment  for  double 
damages  was  prayed.  Held,  that  it  suffi- 
ciently implied  that  it  was  defendant's  duty 
to  erect  and  maintain  fences  at  that  place, 
and  that  the  mare  got  on  the  track  in  con- 
sequence of  defendant's  failure  to  do  this, 
and  that  the  complaint  was  goou  after  ver- 


dict. Jackson  v.  St.  Louis,  I.  M.  &*  S.  R. 
Co.,  80  Mo.  147.— Applying  Edwards  7'. 
Kansas  City,  St.  J.&C.  B.  R.Co.,  74  Mo.  117. 
Reviewing  Sloan  v.  Missouri  Pac.  R.  Co., 
74  Mo.  47;  Bowen  v.  Hannibal  &  St.  J. 
R.  Co.,  75  Mo.  427 ;  Belcher  v.  Missouri  Pac. 
R.Co.,  75  Mo.  515;  Asher  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  79  Mo.  432 ;  Bates  v.  St.  Louis, 
I.  M.  &  S.  R.Co.,  74  M0.60.  -Distinguished 
IN  Morrow  v,  Missouri  Pac.  R.  Co.,  82  Mo. 
169;  Summers  v.  Hannibal  &  St.  J.  R.  Co., 
29  Mo.  App.  41 ;  Wood  v.  Kansas  City,  Ft.  S. 
&  M.  R.  Co.,  39  Mo.  App.  63.  Followed 
IN  Cowan  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  80 
Mo.  423 ;  Carpenter  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  80  Mo.  446 ;  Greer  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  80  Mo.  555 ;  Watson  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  80  Mo.  662 ;  Busby  v.  St. 
Louis,  K.  C.  &  N.  R.  Co.,  81  Mo.  43. 
Quoted  and  followed  in  Johnson  v. 
Missouri  Pac.  R.  Co.,  23  Am.  &  Eng.  R.  Cas. 
180,  80  Mo.  620. 

Under  Missouri  Rev.  St.  §  809,  an  aver- 
ment that  plaintiff's  cow  went  upon  de- 
fendant's track,  where  it  runs  adjoining 
inclosed  fields  and  through  uniiicloscd 
prairie-lands,  where  the  track  was  entirely 
uninclosed,  and  was  killed,  is  sufficient,  it 
being  unnecessary  to  allege  that  the  cow 
went  upon  the  track  because  it  was  not 
fenced.  Briggs  v.  Missouri  Pac.  R.  Co.,  82 
Mo.  37. — Quoting  Edwards  v.  Kansas  City, 
St.  J.  &  C.  B.  R.  Co.,  74  Mo.  122. 

Wherea  compliiiiit,  in  an  action  for  double 
damages  for  injury  to  stock,  avers  that  "  one 
of  plaintitT's  horses  went  upon  the  track  of 
said  railroad  at  the  point  on  said  road  de- 
scribed above,  where  the  road  is  not  fenced 
soastoprevent  stock  from  their  track,  ♦  ♦  * 
and  that  the  west-bound  train  struck  said 
horse,"  etc.,  the  implication  is  irresistible 
that  the  failure  to  fence  caused  the  injury, 
and  the  statement  must  be  held  sufficient. 
Thomas  v.  Hannibal  Sf  St.  J.  R.  Co.,  23  Am. 
&*  Eng.  R.  Cas.  183,  82  Mo.  538.— Quoted 
in  Vail  V.  Kansas  City,  C.  &  S.  R.  Co.,  28  Mo. 
App.  372. 

357.  Need  not  allege  particular 
defects  in  fence. — In  an  action  for  killing 
stock,  under  Missouri  Rev.  St.  1879,  §  809, 
the  complaint  need  not  allege  that  the  de- 
fects in  the  company's  fence,  which  caused 
the  injury  complained  of,  were  permitted  to 
remain  longer  than  was  necessary,  by  the 
exercise  of  reasonable  diligence,  to  repair 
them.  Chubbuck  v.  Hannibal  6-  St.  J.  R. 
Co.,  77  Mo.  591. 


ANIMALS,  INJURIES   T(J,  aaH-JOl. 


865 


(I 


iMH.  Alletjriiiyr'tiiiic  rond  liaH  lioeii 
ill  operation.*— A  charj^i;  in  a  complaint, 
in  an  action  to  recover  for  injuries  to 
stocl<,  under  the  Illinois  statute,  to  the 
elTcct  that  the  road  had  been  in  use 
more  than  six  months  and  was  still  un- 
fcnced,  is  a  material  averment,  and  must 
1)0  proven  to  entitle  plaintitT  to  recover. 
C/i/iai;o  i3-  ^1.  A'.  Co.  v.  Taylor,  40  ///.  280. 
See  also  Ohio  &»  M.  A'.  Co.  v.  />ro7i>ti.  23  ///. 
94.  Galena  &»  C.  U.  R.  Co.  v.  Sumner,  24 
III.  by. 

Where  a  railroad  is  sued  under  tlie  statute 
requiring  companies  to  fence  within  six 
months  after  the  road,  or  any  pun  of  it,  is 
o|)cn,  an  averment  in  the  declaration  that 
"  more  than  six  months  after  saiil  railroad 
was  in  use,  to  wit,  ♦  ♦  *  saiti  defendant 
ne^iectefi  to  erect  "  fences,  is  good  on  gen- 
eral demurrer.  Great  Western  R.  Co.  v. 
Hanks,  7,6  III.  281. 

In  an  action  to  recover  damages  arising 
from  tiie  neglect  of  a  railroad  company  to 
fence  its  road,  where  the  injuries  complained 
of  extended  over  a  period  within  which 
there  had  been  changes  in  the  statute  im- 
posing the  duty  of  fencing,  as  to  the  extent 
of  liability  for  the  neglect,  but  not  such 
changes  as  atlccted  the  duty  of  maintaining 
fences,  a  declaration  which  made  no  specific 
reference  to  the  statutes — field,  good,  in  the 
absence  of  demurrer;  there  would  be  no 
])racticiil  difficulty  in  determining  the  ad- 
inissibility  of  proofs  by  the  laws  in  force  at 
the  time  to  which  they  refer.  Continental 
Imp.  Co.  v.  Ives,  30  Mie/i.  448. 

:t51>.  Need  not  ulleKC  other  iiegli- 
{;eiii>e  than  failure  to  fcnce.t— Com- 
plaints in  actions  for  stock  killed  or 
injured  by  a  railroad  company,  under  stat- 
utes imposing  liability  for  failure  to  perform 
cev.ain  duties,  such  as  securely  fencing  the 
track,  need  only  allege  a  failure  to  perform 
such  statutory  duties,  other  allegation  of 
negligence  on  part  of  the  company  being 
unnecessary.  Terre  Haute,  A.  &*  St.  L.  R. 
Co.  v.  Augustus,  21  ///.  186.  West  v.  Han- 
■lilial  6-  .SV,  /.  K.  Co.,  34  Afo.  177.  liij^ehnu 
v.  North  Mo.  R.  Co.,  48  Afo.  510.  Indianapo- 
lis, P.  &*  C.  R.  Co.  V.  Williams.  15  Iiul.  486. 
Indianapolis,  /'.  &*  C.  R.  Co.  v.  Sparr,  15 
/"</.  440.  Toledo,  W.  &•  W.  R.  Co.  v.  Wea- 
ver, 34  hid.  298.  Baltimore,  P.  *-  C.  R.  Co, 
v.  Anderson,   58  Ind.  413.— FOLLOWED   IN 

•Sec  ante.  «1,  123-125. 
tSeeaM/r,  20-3.'l,  120. 


Cincinnati,  \V.  &  M.  R,  Co.  v.  Stanley,  4  Ind. 
App.  364- 

But  in  a  suit  in  the  common  pleas  or  cir- 
cuit court  for  killing  stock,  an  averment  that 
the  road  was  not  fenced,  without  a  further 
averment  of  negligence,  is  insufficient. 
Terre  Haute  &*  R.  R.  Co.  v.  Smith,  19  Ind. 
42. 

A  petition  stating  that  there  was  no  suffi- 
cient fence  on  the  sides  of  the  railroad 
where  the  injury  was  caused,  and  alleging 
no  other  negligence,  does  not  state  a  good 
cause  of  action,  where  it  does  not  appear 
that  the  injury  did  not  happen  at  a  public 
highway  crossing.  T>yer  v.  Pacific  R.  Co.,  34 
A/o.  127.— Following  Quick  v.  Hannibal  4 
St.  J.  R.  Co.,  31  Mo.  399;  Brown  v.  Hanni- 
bal &  St.  J.  R.  Co.,  33  Mo.  309. 

To  entitle  the  owner  of  stock  injured  or 
killed  on  the  track  to  recover  of  the  com- 
pany one  half  the  loss  sustained,  under  sec- 
tion 2  of  chapter  57,  Gen.  St.  of  Kentucky, 
the  plaintiff  need  not  allege  or  prove  negli- 
gence. LouisTille  &*  A'.  A'.  Co.  v.  lielcher, 
40  //;//.  &»  Hni;.  R.  Cas.  228,  89  Ky.  193,  12 
5.  W.  Rep.  195. 

8<SO.  Need  not  allege  that  plain- 
tiil'  did  nut  agree  to  fence. — In  an  ac- 
tion to  recover  for  stock  killed  for  not  fenc- 
ing under  the  Illinois  act  making  railroads 
liable  for  stock  killed,  it  is  not  necessary  to 
allege  in  the  declaration  that  plaintiff  did 
not  agree  to  fence,  nor  receive  pay  for  so 
doing.  'Toledo,  P.  &•  W.  R.  Co.  v.  Lavery, 
71  ///.  522. 

3U1.  llule  where  allogationH  Htate 
a  good  eaiise  of  aetioii  at  coninioii 
law,  though  bad  aH  stating  Ntatutory 
cause  of  action. — A  complaint  for  killing 
stock  under  Alabama  Code,  §  171 1,  must 
allege  with  reasonable  certainty  the  time 
when  and  the  place  where  the  killing  or  in- 
jury occurred,  if  it  charges  that  it  was  done 
by  the  cars  or  locomotive  of  defendant  com- 
pany; but  where  it  does  not  show  that  the 
injury  was  so  caused,  the  statute  does  not 
apply,  and  as  a  complaint  at  common  law  it 
is  sufficient.  South  &*  N.  Ala.  R.  Co, 
v.  Schafncr,  78  Ala.  567.— Di.STiN(iUlSHlNO 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Carloss,  77 
Ala.  443. 

A  party,  in  an  action  against  a  company 
to  recover  for  stock  killed  by  its  engines  and 
cars,  may  allege  in  his  petition  that  the  in- 
jury was  caused  by  the  negligence  of  the 
employes  in  the  management  of  the  engine 
and  cars,  and  also  facts  showing  a  cause  of 


HH 

1                '•''*'  , 

m 


ANIMALS,  INJUKIliS    TO,  302-304. 


action  under  tlie  laws  of  KuiiMas,  1874,  ch. 
94,  and  may  prove  citliei  or  both,  and  re- 
cover accordingly.  Stewart  v.  Manhattan, 
A.  6-  li.  A'.  Co..  37  A'an.  631. 

The  fact  that  the  petition  in  an  action  for 
killing  stock  closes  witli  u  prayer  for  double 
damat^es  will  not  prevent  recovery  of  single 
damages  if  the  petition  states  a  cause  of  ac- 
tion cither  at  common  law  or  under  the  sth 
section  of  the  Missouri  damage  act,  and  there 
is  nothing  besides  tlic  prayer  to  show  that 
plaintitf  intends  to  claim  under  the  43d  sec- 
tion of  the  railroad  law.  Scott  v.  St,  Lout's, 
I.  M.  is^  S.  K.  Co.,  75  Afo.  136.  — Fohi.owKU 
IN  Campbell  v.  Missouri  Fac.  R.  Co.,  78  Mo. 

639- 

As  a  railroad  is  liable  for  gross  negligence 
resulting  in  the  destruction  of  plaintiff's 
property,  irrespective  of  the  question  of  the 
erection  of  fences,  where  the  declaration 
charges  negligence,  as  at  common  law,  all 
allegations  respecting  the  want  of  sulhcient 
fences  may  be  rejected  as  surplusage,  and 
recovery  had  upon  the  common-law  liability. 
lioikford,  R.  I.  <S-  St.  L.  R.  Co.  v.  Phillips, 
66  ///.  548. 

A  complaint  in  an  action  for  killing  stock, 
which  cliarges  with  proper  formality  that, 
while  running  its  locomotive,  the  defendant 
company  negligently  struck  the  cattle  of 
plaiiititT  at  a  place  named  with  its  locomo- 
tive and  killed  them,  of  a  certain  value, 
states  a  good  cause  of  action  at  common 
law ;  and  being  sufficient  at  common  law, 
other  irrelevant  allegations  may  be  stricken 
out  as  surplusage.  Garner  v.  Hannibal  6>» 
St.  J.  R.  Co.,  34  Mo.  235. 

PlaintifT  stated  specially  a  cause  of  action 
to  have  accrued  before  the  passing  of  the 
Stat.  20  Vic.  ch.  12,  for  the  better  prevention 
of  railway  accidents,  and  alleged  a  duty  in 
defendant  to  erect  and  maintain  sufficient 
fences  on  the  line  of  its  railway,  and 
cliarged  a  breach  of  that  duty,  by  means 
whereof  certain  fillies  or  colts  of  plaintitT, 
one  of  which  was  lawfully  in  a  certain  close 
near  the  railway,  and  the  other  was  lawfully 
on  the  highway  near  the  railway,  by  and 
through  defendant's  breach  of  duty,  got 
upon  the  railway,  and  by  means  thereof  and 
by  and  through  the  negligence  of  defend- 
ant in  running  ;ind  propelling  its  loco- 
motive engines,  and  while  said  fillies  or  colts 
were  fo  upon  the  railway,  a  locomotive  of 
defendant  ran  against  them,  etc.  Held, 
that  all  the  allegations  respecting  the  duty 
ui  defendant  to  fence  and  its  breach  of 


that  duty,  by  which  pluintill's  fillies  got  on 
the  railway,  being  struck  out,  the  declara- 
tion, in  alleging  negligence  on  defendant's 
part  in  running  and  propelling  its  loco- 
motives, still  disclosed  a  good  cause  of  ac- 
tion. Chisholm  v.  Great  Western  R.  Co.,  10 
U.  C.  C.  P.  324.— Approving  Gillis  v.  Great 
Western  R.  Co.,  12  U.  C.  g.  B.  427. 

302.  I'letuliiitf  onliiiuiiucH.  —  The 
cause  of  action  not  being  founded  on  the 
ordinance,  it  is  not  necessary  to  plead  it,  but 
if  the  defendant  was  running  its  train  in  vio- 
lation of  It,  such  fact  is  competent  to  sup- 
port the  charge  of  negligence.  Robertson  v. 
Wabash,  St.  I..  &*  P.  R.  Co.,  84  Mo.  119.— 
Applied  in  Windsor  v.  Hannibal  &  St.  J. 
R.  Co.,  4S  Mo.  App.  123;  Fiisili  v.  Missouri 
I^ac.  R.  Co.,  45  Mo.  App.  535.  Followkd 
IN  Judd  V.  Wabash,  St.  L.  &  P.  R.  Co.,  23 
Mo.  App.  56.  Reviewed  in  Welch  1'. 
Hannibal  &  St.  J.  R.  Co.,  26  Mo.  App.  358. 

In  an  action  for  the  killing  of  slock 
within  the  corporate  limits  of  the  city  of 
Macon,  and  alleging  the  violation  of  an 
ordinance  of  that  city  regulating  the  run- 
ning of  trains,  it  was  neither  averred  in  the 
petition  that  the  city  of  Macon  was  incor- 
porated under  a  public  law,  nor  was  the 
title  of  the  act  of  incorporation  referred  to, 
as  by  the  statute  provided,  nor  was  the 
charter  of  said  city  offered  or  read  in  evi- 
dence, //eld,  there  was  no  evidence  of  the 
power  of  the  city  to  enact  the  ordinance  in 
question.  O'Brien  v.  Wabash,  St.  L.  <S>»  P. 
R.  Co.,  21  Mo.  App.  12.— yuoTiNO  Apitz  v. 
Missouri  Pac.  R.  Co.,  17  Mo.  App.  426.  Re- 
viewing Wisdom  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  19  Mo.  App.  324. 

303.  NvceHMury  alloKutioiiH  to  re- 
cover attoriiey'M  fee"— To  recover  an 
attorney's  fee,  under  the  Kansas  railroad 
stock  law,  it  is  not  essential  that  the  plain- 
tilT  should  state  in  his  pleading  that  the 
employment  of  an  attorney  in  the  case  was 
necessary.  A  full  statement  of  the  facts 
concerning  the  injury,  and  a  prayer  for 
an  attorney's  fee,  will  sustain  such  a  re- 
covery. Kansas  City,  Ft.  S.  &*  G.  R.  Co.  v. 
Durge,  40  Am.  <S-  Eng.  R.  Cas.  181,  40  A'an. 
736,  21  Pac.  Rep.  589. 

304.  N(>(;ntiving  plaintiffs  t'oii- 
tribiitory  iiegligence.t— A  complaint 
against  a  railroad  company  for  the  negligent 
killing  of  live  stock,  which  does  not  allege 

•  See  <iM/e,  J)  ;  frs/,  584. 
f  See<lf//^2l3•288. 


ANIMALS,  INJUKIliS   TO,  :Mir»-:t<IH. 


867 


that  the  killing  wuh  done  v\itliuul  faiiil  ur 
negliKCocc  on  lliu  pari  nf  plaintilT,  is  not 
good  at  common  law.  JeJfersonvilU,  At.  &• 
I.  K.  Co.  V.  Lyon,  72  Jmi.  107.— DisriN- 
CIJISHED  IN  Louisville,  N.  A.  &  C.  K.  C(j.  v. 
Porter,  20  Am.  &  Eng.  R.  Cas.  446,  97  Ind. 
2fiT .—Indianapolis,  C,  lj-»  L.  A*.  Co,  v.  Robin' 
son,  35  Ind.  380. — FoLLowKli  IN  Jctlcrson- 
ville,  M.  &  I.  R.  Co.  V.  Lyon,  55  Ind.  477 — 
Indianapolis,  /'.  «&*  C  K.  Co.  v.  Caudle,  60 
/«</.  1 1 2.  Jtffersonville,  M.  6*  /.  A'.  C<».  v. 
Lyon,  55  /m/.  477.— Following  IndianaiK>- 
lis  C.  &  L.  R.  Co.  V.  Robinson,  35  Ind.  380. 
Toledo,  W.  Sf  W.  R.  Co.  v.  Harris,  49  Ind. 
1 19.  Jeffersonville,At.  &•/.  R.  Co.  v.  Under - 
hill,  \nlnd.  229. 

A  complaint  for  killing  cattle  upon  a 
highway  crossing  by  reason  of  the  company's 
negligent  failure  to  sound  a  whistle  and 
ring  a  bell,  as  the  statute  requires,  without 
any  negligence  of  plaintifi,  states  a  good 
cause  of  action.  Cincinnati,  IV.  «S-  Af.  R. 
Co.  V.  Htltshauer,  99  Ind.  486.— DisilN- 
GUISHED  IN  Welly  V.  Indianapolis  &  V.  R. 
Co.,  24  Am.  &  Eng.  R.  Cas.  371,  105  Ind.  55. 

But  where  the  killing  of  stock  by  a  rail- 
road company  is  alleged  to  have  been  ivil- 
fully  done,  it  is  not  necessary  10  aver  atlirma- 
tively  that  the  plaintifT's  carelessness  did 
not  contribute  to  it.  Indianapolis,  P.  &-•  O 
R.  Co.  V.  Pe/iy,  30  Ind.  261.— Quoied  in 
Evansville  &  T.  H.  R.  Co.  v.  Willis.  80  Ind. 
225. 

.'{Off.  "What  allctratloDH  may  be 
Htricken  out  as  surpluHaKe.  — Where 
a  declaration  or  petition  in  an  action  for 
killing  stock  states  a  good  cause  of  action 
for  negligence  at  common  law,  all  other 
allegations  respecting  fencing  and  such 
statutory  duties  arc  surplusage,  and  may  be 
stricken  out.  Rockford,  R.  I.  6-  St.  L.  R. 
Co.  V.  Phillips,  66  ///.  548.  Garner  v.  Nan- 
nibal  6-  Si.  J.  R.  Co.,  34  Ato,  235.  Chisholm 
V.  Great  Western  R.  Co,,  10  U.  C.  C.  P.  324. 
Jeffersowville,  At.  &*  I.  R.  Co.  v.  Lyon,  55  Ind. 

477. 

JIGO.  Ainciidnieiits.  —  (i)  Allmvable. 
—A  complaint  founded  on  the  statute, 
averring  neither  negligence  nor  intentional 
injury  resulting  from  direct  force,  is  neither 
in  case  nor  in  trespass,  and  shows  no  cause 
of  .lotion  ;  and  an  amended  complaint,  aver- 
ring that  the  injury  was  caused  by  the  negli- 
gence of  the  company's  servants,  is  allow- 
able. Simpson  v.  Aleinphis  &•  C.  R.  Co.,  66 
Ala.  85. 

In  a  complaint  for  the  killing  of  a  horse, 


(he  sulKstituiion  by  amendment  of  the  word 
iiune  for  the  word  horse  does  not  make  a 
new  case.  .So/////  »^  A'.  Ala.  R.  Co.  v.  Bits, 
82  Ala.  340,  2  .SV*.  Rep,  752. 

In  an  aciion  for  double  damages  for  kill- 
ing (attic,  a  complaint  which  fails  to  show 
that  the  injury  occurred  at  a  point  un  the 
road  where  there  should  have  been  fences, 
but  were  none,  or  that  ii  was  occasioned  by 
the  failure  to  fence,  is  defective,  but  under 
the  present  statute  (Mo.  Rev.  St.  1879,  ii  3060) 
may  be  amended  after  appeal  to  the  circuit 
court.  Drydcn  v.  Smith,  j^Alo.  525.  — Fol- 
lowing King  V.  Chicago,  R.  1.  &  V,  R.  Co., 
79  Mo.  328. 

Where  a  complaint  is  filed  against  a  com- 
pany for  killing  stock,  charging  that  the 
stock  strayed  upon  the  track  without  the 
fault  of  the  owner  and  was  injured  through 
the  negligence  of  the  company  in  the 
operation  of  a  train,  it  is  proper  to  allow 
an  amendment  to  the  cfTect  that  the  animal 
strayed  upon  the  track  through  the  negli- 
gence of  the  company  in  failing  to  build 
and  maintain  a  proper  fence,  as  required  by 
statute.  Bilker  v.  Ne^v  York,  L,  E.  &^.  IV. 
R,  Co.,  31  A'.  V.  S.  R.  750,  57  ////;/  585,  10 
A'.  Y.  Supp.  413.  — Ai'i'ROViNc;  Smith  7>. 
Eastern  R.  Co.,  35  N.  H.  356.  Rkvikwinc; 
Corwin  v.  New  York  &  E.  R.  Co.,  13  N.  Y. 
42 ;  Hungerford  v.  Syracuse,  B.  &  N.  Y.  R. 
Co.,  46  Hun  339.  12  N.  Y.  S.  R.  204. 

(2)  Not  alUnvahle, — A  plaiiKiff  cannot  be 
allowed,  after  issue  joined,  to  amend  his 
original  petition  so  as  to  alter  the  substance 
of  his  demand.  In  an  action  against  a 
railroad  company  for  killing  cattle  plaintiff 
cannot  amend  his  petition  for  the  purpose 
of  alleging  that  the  company  had  no  right 
of  way  over  his  lands,  as  the  responsibility 
of  a  company  running  trains  under  legal 
rights  is  different  from  that  of  a  trespasser. 
Day  v.  New  Orleans  Pac.  R.  Co.,  35  La.  Ann. 
694. 

:i(l7.  Defective  alletftitiou  cured 
by  subNeqiient  allocation.— A  declara- 
tion in  an  action  against  a  railroad  con- 
tained but  one  count,  and  that  was  for  kill- 
ing and  crippling  a  mare  and  a  mule,  but  it 
was  not  averred  which  animal  was  killed 
and  which  crippled.  This  defect  was  cured 
by  a  subsequent  averment  that  by  the  act 
of  defendant  in  running  its  train  upon  them 
they  were  lost  to  the  owner,  Toledo,  W,  6^ 
W.  R.  Co.  V.  Cole.  50  ///.  184. 

308.  Defective  allegations  cured 
by  subsequent  proceedings.— The  dec- 


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Photogra^Aiic 

Sciences 

Corporalioii 


23  WIST  MAIN  STRir 

WnSTIR,N.Y.  14SM 

(716)«72-4S03 


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ANIMALS,  INJURIES   TO,  .1«8. 


i*»C 


laration  averrerf  that  the  company  had 
failed  to  fence  the  road  at  the  place  where 
the  animal  was  killed,  or  where  it  got  upon 
the  track,  and  that  it  was  not  killed,  nor 
did  it  get  upon  the  track,  at  any  of  the  ex- 
cepted places.  Upon  the  objectio.i  that  it 
was  not  directly  averred  that  tlie  injury  wiis 
the  result  of  the  company's  failure  to  fence 
— /leM,  that  the  facts  averred  would  raise  a 
prima  facie  presumpt'on  that  the  injury 
resulted  from  that  caii'^e.  and,  at  least  after 
verdict,  on  motion  ii  s'-eit,  the  declaration 
would  be  sulTicient.  'joledo,  P.  &•  IV.  Ji. 
Co.  V.  Darst,  52  /.'/.  89. 

In  an  action  under  ~  'e  tatute,  com- 
menced 'n  the  circuit  co  .^.<;  complaint 
alleged  that,  "at  a  pl^.i  .r  the  track  of 
said  railroad  where  the  san"e  was  not  se- 
curely fenced,"  the  defendant,  "  by  its  ser- 
vants, locomotives,  and  cars,  ran  upon, 
against,  and  over  "  the  stock  and  killed  it. 
Held,  on  motion  in  arrest,  that  as  the  de- 
fect in  the  allegation  as  to  fencing  could  be 
and  was  supplied  by  the  evidence  and  cured 
by  the  verdict,  the  complaint  was  sufficient. 
Louisville,  N.  A.  &'  C  H.  Co.  v.  Spain,  61 
.  liid.  460. 

In  a  suit  to  recover  for  animals  killed,  the 
complaint  averred  "  that  the  railroad  afore- 
said was  not  securely  fenced  in,  and  the 
fence  properly  maintained."  Held,  that 
this  language  may  mean  that  the  railroad 
was  not  securely  fenced  anywhere,  and 
therefore  imply  that  it  was  not  so  fenced 
where  the  animals  entered  upon  the  road  ; 
and,  after  verdict  for  the  plaintiff,  it  Is  fair 
to  assume,  no  objection  appearing  to  have 
been  made  to  the  evidence,  and  the  evidence 
not  being  in  the  record,  that  proof  of  the 
fact  thus  implied  was  made  without  objec- 
tion. Indianapolis,  P.  &'  C.  A\  Co.  \.  Petty, 
ya  Ind.  261. 

In  an  action  under  Iowa  Code,  §  1289,  for 
double  damages  for  stock  killed  on  a  rail- 
road track  on  account  of  a  failure  to  fence, 
the  petition  did  not  in  terms  aver  that  the 
animals  were  running  at  large.  Held,  that, 
as  defendant  had  notice  that  the  action  was 
brought  under  the  statute,  and  admitted  all 
the  averments  of  the  petition  except  the 
valve  of  the  animals,  and  went  to  trial  with- 
out moving  for  a  more  specific  statement, 
the  petition  ought  to  be  held  sufHcient  after 
verdict.  Shuck  v.  Chicago,  R.  I.  &•  P.  R. 
Co.,  73  Iowa  333,  35  A^.  W.  Rep.  429. 

In  an  action  for  double  damages  for  stock 
killed,  the  petition  alleged  "  that  defendant 


had  been  duly  notified  of  the  killing  of 
said  cow,  and  payment  thereof  duly  de- 
manded," which  defendant  had  refused. 
Held,  sufficient  to  warrant  a  judgment  for 
double  damages,  where  no  objection  was 
made  until  after  judgment.  Clary  v.  Iowa 
Midland  R.  Co.,  37  Iowa  344. 

In  an  action  for  double  damages  for  kill- 
ing a  sow,  an  averment  that  she  strayed 
upon  the  track  at  a  point  where  it  was  not 
fenced  "  as  the  law  directs"  is,  after  ver- 
dict, to  be  regarded  as  equivalent  to  an 
averment  that  the  road  at  the  given  point 
ran  through  the  character  of  land  required 
by  the  statute  to  be  fenced,  and  that  the 
sow  was  killed  in  consequesice  of  the  want 
of  such  fence.  Nicholson  v.  Hannibal  &* 
St,  J,  R.  Co.,  82  Mo.  73.— Distinguishing 
Hudgens  v.  Hannibal  &  St.  J.  R.Co.,79  Mo. 
418. 

In  an  action,  under  Missouri  Rev.  St. 
1879,  §  809,  for  double  damages  for  killing 
plaintiff's  hog,  the  petition  alleged  that  the 
hog  was  killed  at  a  point  on  defendant's 
railroad  track  where  the  same  was  not  in- 
closed by  a  lawful  fence  sufficient  to  prevent 
the  hog  from  getting  on  the  track,  and  that 
plaintiff's  damage  was  caused  by  the  failure 
of  defendant  to  erect  and  maintain  lawful 
fences  sufficient  to  prevent  the  hog  from 
straying  on  the  track.  Held,  that  this  suffi- 
ciently showed  that  the  animal  came  upon 
the  track  by  reason  of  the  company's  fail- 
ure to  fence,  and  the  petition  was  good  after 
verdict.  Morris  v.  Hannibal  &*  St.  J.  R. 
Co.,  19  Am.  &*  Eng.  R.  Cas.  666,  79  Mo.  367. 
—Following  Edwards  v.  Kansas  City,  St. 
J.  &C.  B.  R.  Co..  74  Mo.  117. 

Where  plaintiff's  petition  alleged  that  the 
cattle  injured  entered  upon  the  track  where 
it  ran  through  his  inclosed  field,  and  also 
stated  facts  showing  that  the  action  was 
brought  under  §  43,  Missouri  Corporation 
Act,  which  could  not  have  been  done  had 
the  killing  occurred  within  a  town  or  city, 
it  was  held  to  contain  averments  sufficient, 
after  verdict,  to  show  that  the  stock  entered 
upon  the  track  at  a  point  not  within  the 
limits  of  an  incorporated  town  or  city. 
Far r ell  V.  Union  Trust  Co.,  13  Am.  &*  Eng. 
R.  Cas.  552,  77  Mo,  475. 

The  following  allegations  have  been  held 
to  be  sufficient  after  verdict: 

A  complaint  alleging  that  the  railroad 
was  not  fenced  at  the  point  where  the  ani- 
mals entered,  but  where,  instead  of  such 
averment,  it  is  alleged  that  the  road  was 


m 


ANIMALS,  INJURIES  TO,  3«9-371. 


269 


not  fenced  at  the  point  where  the  animals 
were  killed.  Louisville,  N.  A.  &>  C.  R.  Co. 
V.  Goodbar,  102  Ind.  596,  2  N.  E,  Rep.  337, 
3  N.  E.  Rep.  162. 

A  complaint  under  the  statute,  otherwise 
sufficient,  but  containing  no  formal  aver- 
ment that  the  plaintiff  was  damaged  by  the 
killing  of  his  cattle.  Louisville,  N.  A.  &* 
C.  R.  Co.  V.  PecJt,  99  /tid.  68. 

An  allegation  that  a  company,  "  by  its  lo- 
comotive and  cars,  etc.,  on  its  railroad,"  ran 
over  and  killed  animals,  etc.,  is  a  good  alle- 
gation as  to  the  ownership  of  the  road. 
Pittsburgh,C.Qr'  St.  L.  R.  Co.  v.  Hun/,  71 
Ind.  229. 

An  allegation  that  the  company  ran 
against  and  over  the  animal  and  killed  it, 
but  not  alleging  that  the  injury  was  done 
by  the  locomotive  or  cars.  Louisville,  N. 
A.  <&>•  C.  /?.  Co.  V.  Harrington,  19  Am.  &> 
Eng.  R.  Cas.  606,  92  Ind.  457.—  Distin- 
guishing Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 
Troxell,  57  Ind.  246;  Pittsburgh.  C.  &  St. 
L.  R.  Co.  V.  Hannon,  60  Ind.  417;  Ricketts 
V.  Sandifer,  69  Ind.  318. 

In  an  action  under  Missouri  Rev.  St.  § 
809,  for  damages  for  cattle  killed  by  a  rail- 
road train,  an  allegation  that  "the  cow  did, 
without  fault  of  plaintiff,  stray  upon  the 
track  of  said  railroad  at  a  point  where  it 
runs  through  and  along  cultivated  fields, 
and  where  said  road  was  not  sufficiently  or 
lawfully  fenced  or  guarded  by  cattle-guards, 
and  where  there  was  no  public  crossing  on 
said  road."  Edwards  v.  Kansas  City,  St.  J. 
&*  C.  B.  R.  Co.,  74  Mo.  117.— Distin- 
guishing Cunningham  v.  Hannibal  &  St. 
J.  R.  Co.,  70  Mo.  202 ;  Sloan  7>.  Missouri 
Pac.  R.  Co.,  74  Mo.  47.— Applied  in 
Jackson  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  80 
Mo.  147.  Followed  in  Morrisz/.  Hannibal 
&  St.  J.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  666, 
79  Mo.  367;  Belcher  v.  Missouri  Pac.  R. 
Co.,  75  Mo.  514;  Campbell  v.  Missouri  Pac. 
R.  Co.,  78  Mo.  639;  Blakely  v.  Hannibal  & 
St.  J.  R.  Co.,  79  Mo.  388;  Marrett  v.  Han- 
nibal &  St.  J.  R.  Co.,  84  Mo.  413 ;  Stanley  v. 
Missouri  Pac.  R.  Co.,  84  Mo.  625.  Quoted 
in  Bowen  v.  Hannibal  &  St.  J.  R.  Co.,  75 
Mo.  426;  Perriquez  v.  Missouri  Pac.  R.  Co., 
78  Mo.  91  ;  Bt'sby  v.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  81  Mo.  43 ;  Briggs  v,  Missouri  Pac. 
R.  Co.,  82  Mo.  37. 

A  declaration  alleging  negligence  in  the 
management  of  the  train,  although  it  may 
iiave  appeared  in  evidence  that  the  neg- 
ligence of  the  defendant  existed  in  relation 


to  fences,  and  not  in  the  management  of  tlie 
train.     Smith  v.  Eastern  R.  Ct;. ,  35  A^.  H.  356. 

A  declaration  merely  allegiiig  that  the  de- 
fendant neglected  to  keep  a  suitable  fence 
along  its  track,  and  that  "  for  want  of  such 
fence  the  plaintiff's  horse  escaped  from  his 
pasture  and  went  at  large,  and  by  means  of 
going  at  large  the  horse  was  greatly  in- 
jured." Holden \. Rutland Qr'B.  R.  Co.,  30  1 7. 
297. 

360.  Defective  nIle{[rAtioii8  not 
cured  even  after  verdict.  —  A  com- 
plaint against  a  company  for  stock  killed  by 
the  machinery  of  the  company  will  be  bad, 
even  after  verdict,  if  it  fails  to  aver  negli- 
gence or  that  the  road  was  not  fenced.  In- 
dianapolis, P.  &^  C.  R.  Co.  v.  Brucey,  21  ind. 
215. 

Action  for  four  head  of  cattle.  First  and 
second  counts  allege  that  animals  were 
killed  by  negligence  or  improper  conduct  of 
defendant's  agents.  Third  and  fourth  counts 
contain  no  such  allegation.  As  to  killing 
of  three  of  the  animals,  there  is  no  evidence 
of  negligence.  But  as  to  the  fourth,  there 
is  ample.  On  demurrer  to  plaintiff's  evi- 
dence— held:  (\)  Third  and  fourth  counts  are 
fatally  defective,  and  not  cured  by  verdict 
under  statute  of  jeofails ;  (2)  That  statute 
is  intended  to  cure  defective  statements  of 
cause  of  action,  but  not  a  statement  which 
makes  no  case;  (3)  Thcie  being  no  evidence 
of  defendant's  negligence  in  killing  the  jack, 
the  bull,  and  the  cow,  there  can  be  no  recov- 
ery therefor ;  but  as  to  the  horse,  it  is  other- 
wise. Orange,  A.  &*  M.  R.  Co.  v.  Miles,  76 
Va.  773. 

b.  Other  Matters  of  Pleading. 

370.  Sufficiency  of  general  denlaL 

— In  a  statutory  action  to  recover  for  cattle 
killed,  the  defendant  need  not  allege  that 
the  point  where  the  stock  entered  upon  its 
trac!'  was  one  which  could  not  properly  be 
fenc  \,  but  may  show  it  by  proof,  under  the 
gCwral  denial.  Jeffersonville,  M.&--I.  R. 
Co.  v.  Lyon,  55  Ind.  477. 

371.  Necessity  of  specific  denial.* 
— Where  a  company  is  sued  under  Missouri 
Gen.  St.  1865,  ch.  63,  for  killing  stock,  and 
files  an  answer  containing  no  specific  denial 
of  the  allegations  of  the  complaint,  but  sets 
up  gross  negligence  on  the  part  of  the  plain- 
tiff in  turning  his  animal  out  on  uninclosed 
lands,  whereby  it  went  upon  the  track  and 

*■  Sec  fost,  380. 


270 


ANIMALS,  INJURIES   TO,  ;J73,  373. 


was  killed,  and  by  reason  of  which  the  com- 
pany's cars  were  thrown  off  the  track  and 
injured  to  the  amount  of  $5000,  such  answer 
is  properly  stricken  out  as  constituting 
neither  a  denial  of  the  cause  of  action,  nor 
a  counterclaim  in  the  nature  of  a  set-ofT. 
Tarwater  v.  Hannibal  Gf  St.  J.  R.  Co.,  42 
Mo.  193.— Followed  in  Vickers  v.  Hanni- 
bal &  St.  J.  R.  Co.,  42  Mo.  198. 

To  an  action  to  recover  the  value  of  a 
mare  killed  on  the  defendants'  line,  the  de- 
fendants pleaded  specially  that  the  fences 
on  each  side  of  their  railway  were  good  and 
sufficient;  that  there  was  no  negligence; 
and  that  they  had  n3ver  been  put  en  demeu. 
with  regard  to  their  fences  being  out  of  o\ 
der.  This  was  followed  by  a  defense  en  fait. 
In  the  course  of  the  enquete  there  was  evi- 
dence which  indicated  that  the  locality 
where  the  accident  occurred  was  not  on  the 
defendants'  railway  line,  but  on  that  of  the 
Grand  Trunk  Company,  which  controlled 
the  defendants'  line.  On  defendants'  offer- 
ing evidence  on  this  point,  the  court  below 
maintained  the  objection  to  the  testimony 
on  the  ground  that  there  was  no  contesta- 
tion raised  as  to  the  road  on  which  the  ac- 
cident occurred.  Held,  that  the  defendants 
having  pleaded  specially,  without  raising 
any  question  as  to  their  ownership  of  the 
road,  the  plaintiff  was  not  obliged  to  prove 
the  truth  of  an  allegation  which  had  not 
been  specially  denied,  and  which  must  be 
taken  as  admitted.  La  Compagnie  Du 
Chemin  De  Fer  De  Junction  De  Montreal  et 
Champlain  v.  Severe  Ste.-Marie,  4  Montr.  L. 
R.  {Q.  B.)  283. 

372.  Pleading  new  matter,  gen- 
erally.— A  complaint  charged  in  one  para- 
graph the  killing  and  injury  of  plaintiff's 
cattle  by  the  servants  and  agents  of  the  de- 
fendant company,  and  charged  in  another 
paragraph  the  failure  of  the  company  to 
fence  its  track  at  a  point  where  it  ought  to 
have  been  fenced,  resulting  in  the  killing 
and  injury.  Held,  that  a  paragraph  of  an- 
swer which  assumed  to  answer  the  entire 
complaint,  but  which  contained  nothing 
which  could  amount  to  a  defense  of  the 
charge  of  wilful  injury,  was  bad ;  and  that 
it  was  also  bad  in  assuming  that  the  railroad 
company  was  not  bound  to  fence  its  track 
through  uninclosed  land.  Louisville,  E.  &* 
St.  L.  R.  Co.  V.  Hart,  2  Ind.  App.  130.  28  A'. 
E.  Rep.  218. 

In  an  action  for  the  killing  of  plaintiff's 
cow,  which  had  entered  upon  the  defendant's 


track  where  the  track  ought  to  have  been 
securely  fenced  but  was  not,  an  answer  set- 
ting up  matters  of  evidence  from  which  it 
might  be  inferred  that  it  could  not  have 
been  fenced  without  interfering  with  the 
rights  of  the  public,  or  the  free  use  of  tlie 
track  by  the  company,  or  jeopardizing  the 
safety  of  its  servants,  but  without  alleging 
any  issuable  facts  to  that  effect,  is  demur- 
rable. Pennsylvania  R.  Co.  v.  Zivick,  \  Ind. 
App.  280,  27  A^.  E.  Rep.  508. 

The  excuse  that  a  reasonable  time  has  not 
elapsed  in  which  to  repair  known  defects  in 
a  fence  must  be  alleged  in  the  answer.  Jef- 
fersonville,  M.  &*  /.  R.  Co.  v.  Sullivan,  38 
/nd.  262. 

373.  Alleging  plaiiitiftN  contribu- 
tory negligence.*— To  a  complaint  un- 
der the  statute  for  killing  the  plaintiff's 
mare,  the  road  not  being  fenced,  etc.,  it 
was  answered:  i.  That  the  plaintiff  was  the 
defendant's  servant ;  that  as  such  it  was  his 
duty  to  keep  the  railroad  track,  near  a  cer- 
tain station,  free  from  trespassing  animals; 
that,  in  violation  of  such  duty,  he  turned 
his  mare  out  at  such  a  place,  near  which 
the  track  was  not  fenced,  whereby,  etc. 
2.  That  a  certain  station  was  a  public  place, 
with  side-tracks  and  switches  where  large 
shipments  of  goods  were  made  and  re- 
ceived, and  that  plaintiff  turned  his  mare 
loose  in  that  immediate  vicinity,  and  she 
went  upon  the  track  at  a  place  where  it  was 
not  securely  fenced,  etc.  Held,  that  both 
paragraphs  were  bad  on  demurrer ;  the 
first  for  not  averring  that,  at  the  place  where 
the  animal  entered  upon  the  track  and  was 
killed,  the  employe  was  required  by  con- 
tract to  keep  off  trespassing  animals  ;  and 
the  second,  for  failure  to  show  that  the  ani- 
mal was  killed  at  the  station,  where  no 
fence  was  required.  Louisville,  New  A.  &* 
C.  R.  Co.  v.  Skelton,  19  Am.  &*  Etig.  R. 
Cas.  542, 94  Ind.  222. 

An  answer  that  the  plaintiff  had  negli- 
gently, or  in  violation  of  a  city  ordinance, 
allowed  the  stock  killed  to  run  at  large 
within  the  limits  of  an  incorporated  city, 
and  in  the  vicinity  of  the  defendant's  rail- 
road, amounts  only  to  an  answer  of  con- 
tributory negligence,  and  is  sufficient  on 
demurrer.  Louisville,  N.  A.  &•  C.  R.  Co. 
v.  Cahill,  63  Ind.  340.— DISTINGUISHING 
Knight  v.  Toledo,  &  W.  R,  Co.,  24  Ind.  402. 

Where  an  action    is  brought  against  a 


SeeuM/^  371. 


ANIMALS,  INJURIES  TO,  374-379. 


271 


railroad  to  recover  for  a  bull  killed  upon  the 
track  at  a  place  where  it  was  unfenced,  an 
answer  to  the  eflect  that  plaintiff  knowingly 
allowed  the  bull  to  range  at  large  and  upon 
the  track,  in  violation  of  the  laws  of  Oregon, 
§  3393,  when  struck  and  killed,  which  was 
the  result  of  the  wrongful  and  unlawful  act 
of  plaintiff  in  allowing  it  to  so  range  at 
large,  states  a  good  defense  on  demurrer, 
whether  tlie  bull  was  at  large  in  violation 
of  said  section  or  not,  as  it  showed  con- 
tributory negligence.  Hindman  v.  Oregon 
R.  &•  N.  Co.,  38  Am.  and  Eng.  R.  Cas.  310, 
17  Oreg.  614.  22  Pac.  Rep.  116.* 

374.  Alleging  plaiutiff'8  gross 
contributory  negligence. — Where  the 
answer  charges  that  the  injury  was  the  re- 
sult of  the  "  gross  negligence  of  the  plain- 
tiff," it  should  aver  in  what  particular  act 
or  omission  his  negligence  consisted,  /e/- 
fersonville,  M.  <S««  /.  R.  Co.  v.  Dunlap,  29 
Ind.  426. — Distinguishing  Buffalo  v.  Hol- 
loway,  7  N.  Y.  493 ;  Seymour  v.  Maddox,  16 
Q.  B.  326.— DlSTiNonsHED  IN  Wabash  R. 
Co.  V.  Savage,  28  A  .1.  &  Eng.  R.  Cas.  288, 
no  Ind.  156. 

375.  Alleging  that  animal  was 
trespassing  upon  the  traclc.— To  an 
action  against  a  railroad  corporation,  for 
negligently  killing  plaintiff's  cattle,  the  de- 
fendant filed  a  plea  of  not  guilty,  and  also 
a  special  plea  in  writing  in  these  words, 
viz. :  "  And  the  said  defendant  says  that 
said  plaintiff  ought  not  to  have  or  maintain 
his  action  aforesaid  against  it,  becau'.e,  it 
says,  that  at  the  time  the  cattle  oi  the 
plaintiff  received  the  injury  complained  of 
in  the  declaration  they  were  unlawfully 
trespassing  upon  the  railroad  track  of  de- 
fendant, etc."  Held,  that  such  a  special 
plea  is  not  good.  Baylor  v.  Baltimore  &*  O. 
R.  Co.,  9  W.  Va.  270. 

376.  Alleging  that  animal  was  un- 
lawfully upon  the  adjoining  lands. 
— In  a  declaration  in  case  for  injury  done  to 
plaintiff's  steers,  defendants  pleaded  that 
just  before  said  time,  etc.,  said  steers  were 
unlawfully  depasturing  in  and  upon  certain 
lands  adjoining  the  lands  of  defendants 
and  said  railway,  which  lands  were  not  the 
lands  of  plaintiff,  but  of  one  Richard  Roe, 
who  had  not  given  license  for  said  steers 
to  be  ;iiere;  and  that  said  steers  strayed 
from  said  land  where  they  were  so  un- 
lawfully depasturing  and  being  as  afore- 

*See/>w/,  390. 


said  upon  defendants'  lands,  adjoining,  and 
thence  at  said  time  when,  etc.,  onto  said 
railway,  and  then  being  so  upon  said  rail- 
way, were  accidentally  injured  witLout  any 
design  or  default  of  defendants.  Held, 
bad  on  demurrer.  McDowell  v.  Great 
Western  R.  Co.,  5  U.  C.  C.  P.  130.— Ap- 
proving Fawcett  v.  York  &  N.  M.  R.  Co., 
16  Q.  B.  610;  Parneil  v.  Great  Western  R. 
Co.,  4  U.  C.  C.  P.  517. 

In  an  action  for  running  over  and  kill- 
ing plaintiff's  mare,  the  first  count  alleged 
that  the  mare  was  in  the  close  of  one  W. 
by  his  leave,  and  that  defendants  neglected 
to  fence  along  their  line,  whereby  the  mare 
strayed  upon  the  railway.  Defendants 
pleaded  (among  other  pleas)  that  W.  was 
not  possessed  of  the  close,  and  that  the 
mare  was  not  there  by  his  leave.  Held, 
that  issues  taken  upon  these  pleas  were 
material,  and  necessary  to  be  proven.  Con- 
nors V.  Great  Western  R.  Co.  13  U.  C.  Q.  B. 
401. 

377.  What  may  be  pleaded  in 
abatement.— Tl  ^lilure  of  the  owner  of 
live  stock  killed  .  have  their  value  ap- 
praised before  bringing  suit,  as  provided  by 
Colorado  Gen.  Laws  1877,  P-  850,  may  be 
taken  advantage  of  by  a  plea  in  abate- 
ment, but  if  not  so  taken  advantage  of  it 
will  be  regarded  as  waived.  Atchison,  T. 
6-  S.  F.  R.  Co.  V.  Lujan,  6  Colo.  338.— 
Reconciled  in  Denver  &  R.  G.  R.  Co.  v. 
Henderson,  31  Am.  &  Eng.  R.  Cas.  559,  10 
Colo.  I.     See  also  10  Colo.  4. 

378.  Demurrer— Necessity  of  sep- 
arate demurrers.— Where  suit  is  under 
the  Iowa  act  giving  double  damages  for 
stock  killed,  an  objection  that  the  petition 
does  not  set  out  the  notice  provided  by 
statute  to  be  served  on  the  company  must 
be  raised  by  demurrer,  and  when  not  so 
raised  will  be  regarded  as  waived.  McKin- 
ley  v.  Chicago,  R.  I.  6-  P.  R.  Co.,  47  Iowa  76. 

When  a  complaint  for  negligently  killing 
a  horse  contains  two  paragraphs  or  counts, 
one  under  the  statute  charging  a  failure  to 
fence,  and  the  other  at  common  law,  and  the 
first  is  bad  and  the  second  good,  a  single 
demurrer  to  both  paragraphs  is  rightly  over- 
ruled, but  a  separate  demurrer  to  the  first 
paragraph  should  be  sustained.  Indian- 
apolis, P.  &>  C.  R.  Co.  V.  Taffe,  1 1  Ind.  458. 

379.  Replication,  sufficiency  of.— 
A  company  set  up  the  defense  to  an  action 
against  it  for  killing  stock  that  the  plaintiff 
had  contracted  to  fence  the  road,  and  that 


272 


ANIMALS,  INJURIES   TO,  asO,  ;J81. 


I 


;^ 


by  reason  of  his  failure  to  do  so  the  stock 
went  upon  tlic  road  and  were  killed.  Plain- 
tiff filed  a  replication  denying  that  he  was 
bound  by  any  contract  to  build  such  fence, 
and  denied  that  his  stock  "came  on  said 
road  by  reason  of  plaintill  not  building  ;i 
fence  that  he  was  bound  to  build  by  reason 
of  any  contract  that  he  had  made."  Held, 
that  the  replication  was  sufficient,  under 
the  Missouri  practice,  to  require  the  com- 
pany to  produce  the  contract  at  the  trial. 
Ells  V.  I'acific  R.  Co.,  55  Mo.  278, 

Action  against  railroad  corporation  for 
injuries  to  stock;  plea,  that  defendant  had 
ceased  to  own  or  control  the  road,  and  was 
not  interested  in  the  control  or  ownership 
of  it  at  the  time  of  the  alleged  injury  ;  rep- 
lication, liiat  the  parties  owning  and  con- 
trolling the  road  "  run  said  property  as  a 
corporation,  under  the  name  of"  the  de- 
fendant corporation.  NM,  that  the  repli- 
cation was  demurrable  because  it  was  a 
departure  and  sought  to  introduce  new 
parties.  Western  R,  Co.  v.  Davis,  66  Ala. 
578. 

380.  Wliat  may  be  set  up  by  way 
of  counterclaim.— In  an  action  for  kill- 
ing stock  at  a  public  crossing,  when  the 
negligence  is  alleged  to  have  been  a  failure 
to  blow  the  whistle  and  to  ring  the  bell,  the 
defendant  cannot  set  up  by  counterclaim 
that  the  plaintifl  negligently  permitted  his 
stock  to  stray  upon  such  crossing  and  that 
the  collision  damaged  his  locomotive.  Lake 
Shore  (S-  AT.  S.  R.  Co.  v.  Van  Aitken,  i  Ind. 
App.^<)2,27  N.  E.  Rep.  119.— Following 
Terre  Haute  &  I.  R.  Co.  v.  Pierce,  95  Ind. 
496. 

In  an  action  to  recover  for  the  value  of  a 
horse  killed  by  the  defendant's  cars,  wherein 
one  paragraph  of  the  complaint  was  based 
upon  the  defendant's  failure  to  fence  its 
track,  and  another  alleged  a  negligent  kill- 
ing, the  defendant  could  not  set  up,  by  way 
of  counterclaim,  that  the  plaintiff  had  neg- 
ligently suffered  his  horse  to  stray  upon  the 
track,  where  the  cars  ran  upon  it,  and  were 
thrown  from  the  track,  causing  the  defend- 
ant great  damage,  for  which  judgment  was 
demanded.  Terre  Haute  &•  I.  R.  Co.  v. 
Pierce,  19  Am.  &*  Eng.  R.  Cas.  581,  95  Ind. 
496.— Distinguishing  Judah  v.  Vincennes 
University,  16  Ind.  56;  Grimes  7/.  Duzan,  32 
Ind.  361. — Followed  in  Lake  Shore  &  M. 
S.  R.  Co.  V.  Van  Auken,  i  Ind.  App.  492. 

Where  a  company  set  up  as  a  defense,  to 
an  action  for  killing  stock,  a  counterclaim 


that  plaintiff  knowingly  and  intentionally 
permitted  his  stock  to  run  at  large  and  on 
defendant's  premises,  in  violation  of  the 
herd  law  of  the  state,  whereby  defendant's 
train  was  wrecked  and  great  damage  done 
it,  it  is  not  necessiiry  to  further  aver  that 
the  defendaiii.  itself  was  free  from  fault  and 
negligence.  Defendant's  fault  or  negligence 
is  matter  to  be  shown  by  plaintiff.  Central 
Branch  U.  P.  R.  Co.  v.  Walters,  24  Kan.  504. 

In  an  action  against  appellant  to  recover 
the  value  of  mules  killed  by  one  of  its  trains, 
the  appellant  pleaded  as  a  counterclaim 
the  damages  sustained  by  reason  of  plain- 
tiff's negligence  in  allowing  his  stock  to 
stray  on  the  track,  the  plaintifi's  alleged 
negligence  consistinf  n  his  not  having  a 
good  and  lawful  fei.,  j,  such  as  would  keep 
the  mules  within  his  own  inclosure.  The 
damages  claimed  resulted  from  the  wreck- 
ing of  the  train  by  reason  of  the  collision 
with  the  stock.  'I'he  company's  road  was 
not  inclosed.  Held,  that  a  demurrer  to  the 
counterclaim  was  properly  sustained.  But 
even  if  it  presented  a  good  defense,  it  could 
not  have  availed  in  this  case,  for  the  reason 
that  the  jury,  by  a  verdict  for  the  plaintiff, 
have  found  that  the  damages  sustained  by 
the  defendant  were  the  result  of  its  own 
negligence.  Louisville  &>  A^.  R.  Co.  v.  Sim- 
mons, 85  A>.  151,  3  i'.  W.  Rep.  10. 

Horses  on  a  railroad  track  were  killed  by 
a  passing  train,  which  was  thereby  thrown 
from  the  track  and  its  engine  injured. 
Held,  that  the  injury  to  the  engine  was  no 
proper  counterclaim  in  an  action  for  dam- 
ages brought  by  the  owner  of  the  horses 
against  the  company.  Simkins  v.  Columbia 
<S-  G.  R.  Co.,  19  Am.  <&«•  Eng.  R.  Cas.  467,  20 
So.  Car.  258. 

381.  Evidence  admissible  under 
the  pleadings.*— The  animal  killed  be- 
ing described  in  the  complaint  as  a  cow, 
and  shown  by  the  evidence  to  be  partly  of 
Jersey  stock,  though  not  full-blooded  or 
thoroughbred,  the  testimony  of  a  witness 
cannot  be  excluded  from  the  jury  because 
he  speaks  of  her  as  a  Jersey  cow.  Western 
R.  Co.  V.  Lazarus,  88  Ala.  453,  6  So.  Rep, 

877. 

Upon  a  complaint  averring  that  the  in- 
jury was  done  "  on  or  about  20th  of  Septem- 
ber," the  plaintiff  may  prove  that  it  was 
"  on  or  about  the  i8th  September,"  or  "  be- 
tween the  i6th  and  20th  September;"  and, 

*  See  post,  391-683. 


ANIMALS,  INJURIES  TO,  382. 


373 


under  an  averment,  that  it  was  at  a  place 
on  the  railroad  "about  seventy-five  or  one 
hundred  yards  distance  from  Cowles  sta- 
tion," may  prove  that  it  was  at  a  place  on 
the  railroad  within  one  hundred  and  fifty 
yards  of  said  station.  Western  R.  Co.  v. 
Sislriink,  85  Ala.  352,  5  So.  Rep.  79.— Dis- 
tinguished IN  North  Birmingham  St.  R. 
Co.  V.  Calderwood,  89  Ala.  247. 

In  an  action  to  recover  damages  for  the 
wrongful  killing  of  plaintiffs  colt,  caused  by 
the  removal  of  cattle-guards,  which  defend- 
ant's grantor  had  agreed  in  writing  to  main- 
tain, such  agreement  is  not  the  foundation 
of  the  action,  and  neither  the  original  nor  a 
copy  thereof  »ieed  be  filed  with  the  plead- 
ing. Toledo,  St.  L.  &^  K.  C.  R.  Co.  v.  Fenstj- 
maker,  3  Ind.  App.  151,  2g  N.  E.  Rep.  440. 

Where  a  company  is  sued  for  killing  stock 
as  owner  of  a  road,  when  in  fact  it  is  but  a 
lessee,  the  record  of  the  lease  is  admissible 
in  evidence,  under  the  general  denial,  on  the 
question  of  ownership.  Pittsburgh,  C.  ^ 
St.  L.  R.  Co.  V.  Hunt,  71  Ind.  229. 

The  courts  take  judicial  notice  of  a  public 
act  incorporating  a  city  ,  and  where  a  rail- 
road company  is  sued  for  negligently  killing 
stock  within  the  corporate  limits  of  the 
city,  an  ordinance  may  be  introduced  show- 
ing that  the  train  was  running  at  a  pro- 
hibited rate  of  speed,  without  being  spe- 
cially pleaded.  Nutter  v.  Chicago,  R.  I.&*P. 
R.  Co.,  22  Mo.  App.  328.— -Applied  in  Fu- 
sili  V.  Missouri   Pac.  R.  Co.,  45  Mo.  App. 

535-  _ 

Evidence  as  to  the  speed  of  the  train  and 
the  sounding  of  the  whistle  is  admissible 
under  the  allegation  "  that  defendant  so 
carelessly  and  negligently  managed  its  loco- 
motive, without  ringing  its  bell  01  using  its 
steam-cock,  that  it  ran  over  plaintiff's  cow." 
Mapes  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  76  Mo. 
367.— Followed  in  Edwards  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  76  Mo.  399. 

In  a  common-law  action  against  a  com- 
pany for  negligently  killing  stock  at  a  high- 
way crossing  it  is  competent  to  prove  that 
a  bell  was  not  rung  nor  a  whistle  sounded, 
though  not  specially  pleaded,  as  at  common 
law  any  miE'management  on  the  part  of 
common  carriers  might  be  shown  to  estab- 
lish negligence.  Goodwin  v.  Chicago,  R.  I. 
&*  P.  R.  Co.,  1 1  Am.  &*  Eng.  R.  Cas.  460,  75 
Mo.  73.— Distinguishing  Stoneman  v.  At- 
lantic &  P.  R.  Co.,  58  Mo.  503 ;  Holman  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  62  Mo.  562.— 
Followed  in  Schneider  v.  Missouri  Pac. 
I  D.  R.  D.— 18. 


R.  Co.,  75  Mo.  295 ;  Alexander  v.  Hannibal 
&  St.  J.  R.  Co.,  76  Mo.  494.  Quoted  in 
Barr  v.  Hannibal  &  St.  J.  R.  Co.,  30  Mo. 
App.  248. 

Under  an  allegation  that  the  company,  by 
"  carelessness  and  negligence  in  the  man- 
agement of  its  engine  and  cars,"  ran  over 
and  killed  stock  belonging  to  plaintiff,  it  is 
competent  for  plaintiff  to  show  failure  to 
ring  the  bell  or  sound  the  whistle,  provided 
such  omission  contributed  to  the  injury 
complained  of.  Ravenscraft  v.  Missouri 
Pac.  R.  Co.,  27  Mo.  App.  617. 

A  charge  in  a  complaint  for  killing  stock 
that  the  killing  was  negligently  done,  is 
sufficiently  broad  to  admit  proof  of  any  act 
of  the  company  wiiich  caused  or  contributed 
to  the  injury.  Mack  v.  St.  Louis,  K.  C.  &* 
N.  R.  Co.,  77  Mo.  232. 

In  an  action  for  injuries  to  stock,  under 
the  allegation  of  contributory  negligence  on 
the  part  of  the  owner,  evidence  may  be 
properly  introduced  respecting  the  condi- 
tion of  the  defendant's  gates  at  the  place  of 
the  accident.  McMaster  v.  Montana  Union 
R.  Co.,  49  Am.  &*  Eng.  R.  Cas.  564,  12  Mont. 
163 

Under  a  complaint  which  alleges  that  the 
plaintiff  was  put  to  expense  in  caring  for  and 
trying  to  cure  the  injured. cattle,  and  de- 
mands damages  therefor,  evidence  is  admis- 
sible and  instructions  may  properly  be  given 
as  to  the  cost  of  such  care.  Plunkett  v. 
Minneapolis,  S.  St.  M,  &*  A.  R.  Co.,  79  Wis. 
222,  ^ZN.  W.Rep.  519. 

On  a  plea  of  the  general  issue,  a  railroad 
sued  for  killing  stock  may  show  by  evidence 
that  the  stock  were  killed  on  the  road  of 
another  company,  and  by  the  servants  of 
such  other  company,  and  not  by  its  own 
servants.  Richmond  &^  D.  R.  Co.  v.  Buice, 
88  Ga.  180,  14  S.  E.  Rep.  205. 

382.  Evidence  inadmissible  under 
the  pleadings  *  —  Where  complainant 
alleges  the  killing  or  injury  of  the  plaintiff's 
animals  on  the  defendant's  railroad  track, 
through  the  alleged  careless,  negligent,  and 
wilful  acts  of  the  defendant's  employes,  the 
suit  is  one  at  common  law,  and  the  fact  that 
defendant's  track  was  not  fsnced  cannot  be 
shown.  Pittsburgh,  C.  &•>  S,'.  L.  R.  Co.  v, 
Stuart,  71  Ind.  500. — Quoted  in  Chicago, 
St.  L.  &  P.  R.  Co.  V.  Nash,  .  Ind.  App.  298. 

Animals  killed  or  injured  at  different 
times  constitute  separate  and  distinct  causes 


See/w/,  301-523. 


•*i 


'1 


2J 


ill 


m 


1: 


274 


ANIMALS,  INJURIES   TO,  383. 


is 


'm 


of  action,  each  of  which  should  be  stated  in 
a  sjparate  paragraph  of  the  complaint ;  and 
where  the  complaint  indicates  but  one  cause 
of  action,  the  plaintiflF  should  be  confined  in 
his  evidence  to  a  single  transaction.  Jeffer- 
sonville,  M.  &*  I.  R.  Co.  v.  Brevoort,  ytlnd. 

324- 

Where  it  is  charged  that  the  negligence 
of  an  engineer  caused  the  killing  of  cattle, 
it  is  not  competent  to  prove  habitual  negli- 
gence of  other  employes  of  the  company. 
Mississippi  C.  R.  Co.  v.  Miller,  40  Miss.  45. 
—Followed  in  Southern  R.  Co.  v.  Ken- 
drick,  40  Miss.  374;  New  Orleans,  J.  &  G. 
N.  R.  Co.  V.  Enochs,  42  Miss.  603 ;  Mem- 
phis &  C.  R.  Co.  V.  Orr,  43  Miss.  279. 

Where  a  complaint  charges  that  stock 
were  killed  through  the  careless  or  negli- 
gent running  of  a  train,  it  is  not  competent 
at  the  trial  to  prove  negligence  in  permit- 
ting grass  or  water  at  or  near  its  track, 
whereby  the  stock  were  attracted.  Milburn 
V.  Hannibal  &»  St.  J.  R.  Co.,  21  Mo.  App. 
426. 

It  is  not  competent  to  prove  that  horses 
were  killed  by  going  on  the  track  through 
an  open  gate  in  a  fence  along  the  railroad 
track,  where  there  is  no  allegation  in  the 
complaint  charging  any  negligence  on  the 
part  of  the  company  in  allowing  the  gate  to 
be  open  which  would  operate  as  the  proxi- 
mate cause  of  the  injury.  Jahant  v.  Central 
Pac.  R.  Co.,  74  Cal.  9,  15  Pac.  Rep.  362. 

In  an  action  to  recover  for  the  killing  of 
animals,  based  on  a  neglect  of  the  company 
to  keep  a  gate  in  a  fence  built  by  it  in  re- 
pair, through  which  stock  escaped  and  got 
upon  the  track,  where  they  were  killed,  the 
defendant  offered  to  prove  that  the  erection 
of  cattle-guards  or  a  fence  along  its  side- 
tracks would  greatly  endanger  the  lives  of 
its  employes,  and  inconvenience  the  public 
at  large  in  loading  and  unloading  cars  from 
the  side-tracks,  and  the  cattle-guards  would 
weaken  the  roadbed  and  thereby  endanger 
the  lives  of  passengers.  Held,  that  the  evi- 
dence was  properly  excluded,  as  the  neglect 
to  make  cattle-guards  was  not  complained 
of  as  a  ground  of  recovery.  Chicago  &*  E. 
I.  R.  Co.  V.  Guertin,  24  Am.  &*  Eng.  R.  Cas. 
385,  115  ///.  466,  4  N.  E.  Rep.  S07. 

In  an  action  to  recover,  under  the  statute, 
the  value  of  stock  alleged  to  have  been 
killed  by  the  defendant's  cars  on  its  railroad, 
where  the  same  was  not  but  ought  to  have 
been  securely  fenced,  it  is  error  to  admit 
evidence  that  such  killing  had  been  done  by 


the  defendant's  cars  on  the  railroad  of 
another  company.  Cincinnati,  H.  &>  D.  R. 
Co.  V.  Bunnell,  61  Ind.  183. 

It  is  also  error  in  such  a  case  to  permit 
the  plaintiflf,  over  the  objection  of  the  de- 
fendant, to  so  amend  his  complaint  as  to 
conform  to  such  erroneous  evidence,  where 
such  action  is  commenced  in  the  circuit 
court.  Cincinnati,  H.  <S^  D.  R.  Co.  v.  Bun- 
nell, 61  Ind.  183. 

In  an  action  for  injury  to  a  horse  which 
had  got  upon  the  track,  it  was  error,  while 
admitting  evidence  of  his  reduced  value,  to 
allow  testimony  of  what  his  use  would  have 
been  worth  during  a  certain  period  after  the 
injury,  if  he  were  sound,,  especially  if  the 
declaration  made  no  claim  for  the  value  of 
his  services,  and  the  plaintifl  sought  to  show 
that  he  was  absolutely  worthless.  Davidson 
V.  Michigan  C.  R.  Co.,  49  Mich.  428,  \'^  N. 
IV.  Rep.  804. 

In  an  action  for  killing  stock  the  petition 
alleged  that  the  defendant  carelessly  and 
negligently  ran  its  train  over  the  stock,  and 
that  the  point  on  the  road  where  this  oc- 
curred was  not  at  the  crossing  of  any  public 
road  or  highway,  and  was  at  a  point  where 
the  railroad  ran  through  uninclosed  prairie- 
lands  and  was  not  fenced.  Held,  ist,  that 
the  action  was  based  exclusively  on  the  43d 
section  of  the  railroad  law ;  2d,  that  evi- 
dence of  negligence  in  running  the  train,  or 
evidence  to  prove  that  the  killing  occurred 
within  eighty  rods  of  a  public  crossing,  and 
that  the  whistle  was  not  blown  or  the  bell 
rung,  as  required  by  the  38th  section,  was 
irrelevant.  Collins  v.  Atlantic  (S-  P.  R.  Co., 
65  Mo.  230.— Distinguished  in  Mapes  v. 
Chicago.  R.  I.  &  P.  R.  Co.,  76  Mo.  367. 

383.  Variance,  what  is  material.— 
In  an  action  for  injuries  to  cattle,  the  only 
negligence  alleged  being  the  failure  of  the 
engineer  "to  reverse  the  engine,  blow  the 
whistle,  or  use  the  proper  diligence  and 
means  at  his  command  to  avoid  the  acci- 
dent," a  recovery  cannot  be  had  on  proof  of 
his  negligence  in  failing  to  keep  a  proper 
look-out,  whereby  he  might  sooner  have  dis- 
covered the  animal  on  or  near  the  track. 
Mobile  &*  B.  R.  Co.  v.  Ladd,  92  Ala.  2S7,  9 
So.  Rep.  169. 

A  declaration  in  an  action  to  recover  for 
stock  killed,  which  charges  negligence  in 
failing  to  keep  a  fence  in  repair,  is  not  sus- 
tained by  proof  showing  carelessness  in 
leaving  a  gate  open  at  a  farm  crossing.  Illi- 
nois   C.   R.   Co.   V.  McKee,  43   ///.    119.— 


ANIMALS,  INJURIES  TO,  ;J84. 


976 


Distinguished  in  Chicago  &  A.  R.  Co.  v. 
O'Brien,  34  111.  App.  I5S- 

Where  a  complaint  for  a  cow  killed  at  a 
railway  crossing  alleges  that  the  injury  was 
intentionally  and  wilfully  committed,  there 
ran  be  no  recovery  on  the  ground  of  de- 
fendant's negligence.  Indiana,  B.  &^  W. 
R.  Co.  V.  Overton,  117   Ind.  253,  20  N.  E. 

Kcp.  147- 

Where  the  petition  alleges  that  the  injury 
was  caused  by  the  want  of  a  fence,  plaintiff 
cannot  have  the  question  of  general  negli- 
gence adjudicated.  Asbach  v.  Chicago,  B. 
&>  Q.  R.  Co.,  74  Iowa  248.  37  N.  IV.  P.ep. 
182.— Reviewed  in  Brockert  v.  Central 
Iowa  R.  Co.,  82  Iowa  369. 

Where  petition  does  not  allege  negligence 
to  that  effect  particularly,  there  can  be  no 
recover  under  evidence  to  the  effect  that 
plaintiff  was  compelled  to  open  the  fence 
along  defendant's  railroad  at  a  point  where 
the  wires  composing  it  ended,  because  of  a 
ditch  which  prevented  the  driving  of  his 
cattle  to  the  desired  place  by  any  other 
route.  Davidson  v.  Central  Iowa  R.  Co.,  35 
Am.  &^  Eng.  R.  Cas.  158,  75  Iowa  22,  39  N. 
W.  Rep.  163. 

When  there  is  an  averment  made  in  a 
pleading  that  a  railroad  crossing  had  been 
"negligently  and  defectively  constructed," 
and  there  is  no  evidence  in  the  cause  sus- 
taining it,  there  cannot  be  recovery  upon 
other  and  different  grounds  not  alleged.  It 
is  a  familiar  rule  in  this  state  that  if  one 
alleges  the  negligence  to  be  the  doing  or 
omitting  to  do  certain  acts,  he  must  stand 
by  the  statement  with  his  proofs.  Ellis  v. 
Wabash,  St.  L.  &•  P.  R.  Co.,  17  Mo.  App. 
126. — Following  Price  t/.  St.  Louis,  K.  C. 
&  N.  R.  Co.,  72  Mo.  414  ;  Waldhier  v.  Han- 
nibal &  St.  J.  R.  Co.,  71  Mo.  514.  Quot- 
ing Judson  v.  New  York  &  N.  H.  R.  Co.,  29 
Conn.  434. 

Where  the  petition  (under  Wagn.  Mo.  St. 
310,  §  43)  alleges  that  the  killing  of  stock 
was  caused  by  the  company's  failure  to 
fence  its  road  at  a  point  where  it  was  re- 
quired to  fence,  and  where  the  accident  oc- 
curred, there  can  be  no  recovery  on  mere 
proof  of  negligence  other  than  a  failure  to 
fence.  Cary  v.  St.  Louis,  A".  C.  &•  N.  R. 
Co.,  60  Mo.  209. — Distinguished  in  Lin- 
coln V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  75  Mo. 
27.  Followed  in  Edwards  v.  Hannibal  & 
3t.  J.  R.  Co.,  66  Mo.  567. 

A  complaint  alleged  that  the  defendant 
negligently  and  wrongfully  permitted  to  be 


and  remain  open  a  certain  gate  in  a  railroad 
fence,  whereby  a  certain  cow  of  plaintiff's 
entered  upon  defendant's  railroad  and  was 
killed.  The  proof  showed  that  the  gate, 
some  sixty  yards  from  the  right  of  way,  had 
been  put  in  for  its  own  use  by  a  coal  com- 
pany, whose  land  abutted  upon  the  right  of 
way,  and  that  there  was  no  fence  between 
the  coal  land  and  the  right  of  way.  Held, 
that  plaintiff  can  predicate  no  rigiit  to  re- 
covery against  defendant  upon  its  failure  to 
keep  the  gate  of  the  coal  company  closed. 
Davis  V.  Wabash  R.  Co.,  46  Mo.  App.  477- 

Where  it  appeared  that  cows  were  past- 
ured in  a  lot  adj(jining  a  railroad,  between 
which  and  the  railroad  there  was  no  fence, 
and  there  was  no  allegation  in  the  pleadings 
to  authorize  evidence  that  they  escaped 
upon  the  road  through  a  defect  of  fences 
which  the  defendants  were  bound  to  repair, 
and  no  averment  that  the  defendants  were 
bound  to  fence  at  that  point,  or  showing 
from  what  place,  in  what  manner,  or  how 
the  cattle  came  upon  the  road— held,  that 
no  action  could  be  maintained  against  the 
railroad  company  for  running  over  and  kill- 
ing the  cows  by  means  of  their  engine  and 
cars.  Clari  v.  Syracuse  6>»  (/.  R.  Co.,  il 
Barb.  {N.  K)  112.— Reviewed  in  Terry  7/. 
New  York  C.  R.  Co.,  22  Barb.  (N.  Y.)  574- 

The  declaration  avers  that  the  injury  to 
the  cattle  was  caused  "  solely  by  the  negli- 
gence and  carelessness  of  the  defendant 
in  this,  that  the  defendant,  seeing  the 
plaintiff's  cattle  on  the  track,  carelessly  and 
wrongfully  drove  its  locomotive  on  them." 
The  plaintiff  cannot  under  such  a  declara- 
tion recover  if  the  evidence  shows  that  the 
defendant's  servants  were  guilty  of  no  wrong 
or  carelessness  after  the  cattle  were  seen  on 
the  railroad,  though  they  may  have  been 
guilty  of  such  carelessness  before  they  were 
seen.  Hawker  v.  Baltimore  &•  0.  R.  Co., 
15  W.  Va.  628.— Distinguished  in  Spicer 
V.  Chesapeake  &  O.  R.  Co.,  34  W.  Va.  514. 

384.  Variance,  what  is  not  mate- 
rial.—Under  a  general  allegation  of  negli- 
gence on  the  part  of  a  company,  in  an 
action  against  it  for  single  damages  for 
the  killing  of  stock,  the  plaintiff  may  suc- 
ceed either  by  proving  negligence  at  com- 
mon law,  or  by  proving  the  constructive 
statutory  negligence  in  failing  to  erect  and 
maintain  fences  at  a  requisite  place.  Hill 
v.  Missouri Pac.  R.  Co.,  49  Mo.  App.  520.— 
Explaining  Boone  v.  Wabash,  St.  L.  & 
P.  R,  Co.,  20  Mo.  App.  232. 


276 


ANIMALS,  INJURIES   TO,  385,380. 


I  ill 


III 
Id 


.4 


^ii 


I 


It  is  no  variance  for  the  statement  of  a 
statutory  cause  uf  action  for  double  damages 
for  the  killing  of  stock,  to  allege  a  failure  of 
the  railway  company  to  maintain  a  fence  on 
the  sides  of  its  road,  and  for  evidence  to 
show  a  failure  of  the  company  to  maintain 
a  cross-fence  connecting  the  main  fence 
with  a  cattle-guard.  Foster  v.  St.  Louis,  I. 
M.  &»  S.  A\  Co.,  44  Afo.  App.  1 1. 

There  is  no  variance  between  an  allega- 
tion that  a  calf  was  killed  at  a  certain  sta- 
tion, and  proof  that  it  was  killed  nine  hun- 
dred feel  distant  from  the  station.  Brown 
V.  Missouri  Pac.  R.  Co.,  14  Mo.  App.  580. 

In  an  action  to  recover  damages  for  the 
alleged  killing  of  animals,  the  complaint 
charged  negligent  and  careless  conduct  on 
the  part  of  the  railroad  employes,  and  the 
answer  admitted  the  killing,  but  denied 
negligence  and  charged  contributory  negli- 
gence. The  complaint  contained  no  refer- 
ence to  the  railroad  fences.  On  the  trial 
evidence  was  introduced  in  reference  to 
the  fences  along  tlie  track,  without  objec- 
tion by  either  party.  There  was  no  law 
requiring  the  defendant  to  fence  its  right  of 
way,  and  the  plaintiff  did  not  contend  that 
it  was  the  duty  of  the  defendant  to  keep  its 
right  of  way  inclosed  so  as  to  prevent  stock 
from  going  on  the  track  ;  but  the  defendant 
had  alleged  in  its  answer  that  "  such  killing 
and  destroying  was  the  result  of  plaintiff's 
own  carelessness  contributing  thereto,  for 
which  this  defendant  was  in  no  wise  respon- 
sible," this  allegation  being  denied  in  the 
plaintiff's  reply.  Neither  party  made  any 
explanation  of  the  bearings  of  this  evidence 
on  the  pleadings.  The  defendant  relied  to 
some  extent  upon  the  fact  of  having  con- 
structed the  fence  inclosing  its  right  of  way 
as  evidence  of  due  care  in  the  attempt  to 
keep  stock  from  going  on  its  track.  As 
against  this  evidence,  the  plaintiff  intro- 
duced testimony  to  show  the  condition  of 
certain  gateways  in  the  said  fence,  through 
which  the  animals  had  strayed  upon  the 
track.  Held,  that  it  could  not  reasonably 
be  contended  that  there  was  no  foundation 
laid  in  the  pleadings  for  the  introduction  of 
such  evidence,  since  it  might  hcve  be... 
justified  under  the  allegation  and  denial  of 
contributory  negligence.  McMaster  v.  Mon- 
tana Union  R.  Co.,  56  Am.  &*  Eng.  R.  Cas. 
195,  12  Mont.  163,  10  Pac.  Rep.  268. 

It  is  not  a  fatal  variance  in  an  action  to 
recover  for  the  value  of  a  jennet,  killed  by 
cars  of  defendant,  to  allege  that  the  jennet 


was  killed  on  April  26,  1886,  when  testimony 
on  trial  proved  the  killing  to  be  on  April  26, 
1889.  St.  Louis,  A.  &•  T.  R.  Co.  v.  Evans, 
78  Tex.  369,  14  S.  IV.  Rep.  798. 

5.  Matters  of  Defense.* 

385.  What  may  coiiHtitiite  a  valid 

defense.— Under  the  statute  (§  806  Mis- 
souri Rev.  St.  1879,  as  amended  in  1881) 
the  company  may  show  by  way  of  defense 
that  the  failure  to  ring  a  bell  or  sound  a 
whistle  was  not  the  cause  of  the  injury. 
Smith  V.  Wabash,  St.  L.  &*  P.  R.  Co.,  19 
Mo.  App.  120. 

Where  a  company  is  sued  for  killing 
stock  which  has  gone  upon  the  track 
through  a  defect  in  the  fence,  the  fact  that 
the  company  has  not  had  time  in  which  to 
repair  the  fence  is  a  matter  of  defense. 
Busby  V.  St.  Louis,  K.  C.  &^  N.  R.  Co.,  iZ  Am. 
&*  Eng.  R.  Cas.  589,  81  Mo.  43. 

After  plaintiff  has  made  out  &  prima  facie 
case  in  an  action  for  killing  stock,  by  prov- 
ing the  killing,  the  question  as  to  how  far 
a  regulation  of  the  company  as  to  rate  of 
speed  will  constitute  a  defense  depends 
upon  whether  the  regulation  was  reasonable 
or  not,  and  whether  it  was  carried  out  by 
prudent  and  reasonable  persons.  Molair  v. 
Port  Royal  <S-  A.  R.  Co.,  31  So.  Car.  510,  10 
S.  E.  Rep.  243. 

Where  one  whose  cattle  has  been  killed 
through  the  failure  of  a  railroad  to  fence  its 
track  accepts  a  due  bill  from  the  company 
for  the  amount  of  the  damages,  and  signs  a 
receipt  in  full,  he  cannot  disregard  the  set- 
tlement, and,  failing  to  present  the  due-bill 
for  collection,  recover  double  damages 
under  §  1289  Code  Iowa,  allowing  such 
damages  where  the  company  fails  to  pay 
the  value  of  stock  injured  within  thirty 
days  after  receivin'^  written  notice  of  the 
injury.  Shaw  v.  Chicago,  R.  1. 6>»  P.  R.  Co., 
82  Iowa  199,  47  N.  IV.  Rep.  1004. 

386.  What  <loe8  not  constitute  a 
valid  defens»e. — In  an  action  for  double 
damages  for  injuries  to  stock  caused  by  the 
defendant,  the  latter  admitted  the  killing  of 
the  stock,  the  amount  of  actual  damages 
sustained  to  be  as  alleged  in  the  petition, 
and  that  notice  thereof  had  been  duly  served 
as  provided  by  statute,  but  in  excuse  for  its 
failure  to  make  payment  thereof  pleaded 
that,  before  the  expiration  of   the  thirty 

•See  <inif,  43-60,  114-121,  126, 
l.->2-15»,  103,  Km,  107,  181,  182, 
213-288,  370-377. 


ANIMALS,  INJUKIKS   TO,  :JH7.  :I8». 


«77 


days  allowefl  by  statute  after  receipt  of  said 
notice,  the  defendant  was  at  the  residence 
of  the  plaintiff,  ready  to  pay  him  the  full 
value  of  the  stock  injured,  but  the  plaintiff 
was  absent  from  home,  and  that  the  defend- 
ant wjis  still  ready  to  pay  the  amount  of  the 
actual  damages  sustained.  Held,  that  a  de- 
murrer to  the  defendant's  plea  was  properly 
sustained.  Hammans  v.  Chit  ago,  R.  I.&*  P 
K.  Co.,  83  /07ifa  :!87.  48  A'.  IV.  Rep.  978.— 
Reviewing  Manwell  v.  Burlington,  C.  K.  & 
N.R.  Co..  80  Iowa  662. 

Under  Mississippi  Code  1880,  §  1204,  Pro- 
viding that  a  mortgagor,  before  foreclosure, 
shall  be  deemed  the  owner  of  the  property 
mortgaged,  it  is  no  defense  to  an  action 
against  a  railroad  company  for  killing  stock 
that  the  property  was  mortgaged  and  the 
mortgage  past  due.  Illinois  C.  R.  Co.  v. 
Hawkins,  i\  Am.  <S«»  Eng.  R.  Cas.  561,  65 
Miss.  200,  3  So.  Rep.  410. 

The  statute  expressly  requires  a  railroad 
company  to  fence  along  uninclosed  lands, 
and  it  is  no  defense  to  an  action  for  killing 
plaintiff's  horse  that  it  strayed  away  from 
him  onto  such  lands  and  thence  through 
defendant's  gate  onto  its  track,  or  that  the 
gate  was  at  a  private  crossing.  Duncan  v. 
S/.  Louis,  I.  M.  &*  S.  R.  Co.,  91  Afo.  67,  3 
.S-.  IV.  Rep.  835. 

Under  Texas  Rev.  St.  art.  4245,  making 
railroads  liable  for  stock  killed  or  injured, 
but  providing  that  if  the  track  is  fenced  the 
company  shall  only  be  liable  where  there  is 
a  want  of  ordinary  care,  a  company  that  has 
failed  to  fence  cannot  in  defense  raise  the 
question  whether  the  accident  would  have 
happened  had  the  track  been  fenced.  Gu//, 
C.  &*  S.  F.  R.  Co.  V.  Hudson,  77  Te.x.  494,  14 
S.  W.  Rep.  158.— Following  Texas  C.  R. 
Co.  V.  Childress,  64  Tex.  346. 

That  the  animal  was  trespassing  when 
it  came  upon  the  track  where  the  com- 
pany had  failed  to  perform  its  statutory 
duty  as  to  fencing,  constitutes  no  defense 
in  an  action  for  killing  or  injuring  it. 
Holland  v.  West  End  N.  G.  R.  Co.,  16 
Mo.  App.  172.  McCallv.  Chamberlain,  13 
Wis.  637.  Taft  V.  New  York,  P.  6-  B.  R. 
Co.,  157  Mass.  297,  32  N.  E.  Rep.  168.  Bur- 
lington &»  M.  R.  R.  Co.  V.  Webb,  22  Am.  &> 
Eng.  R.  Cas.  617,  18  Neb.  215.  Curry  v. 
Chicago  A'  N.  W.  Ji.  Co.,  43  Wis.  665. 
Chicago  &•  N.  W.  R.  Co.  v.  Harris,  54  ///. 
528.  New  Albany  &*  S.  R.  Co.  v.  Aston,  13 
/nd.  545.  Gillam  v.  Sioux  City  &•  St.  P.  R. 
Co.,  26  Minn.  268,  3  A^.  W.  Rep.  353.  K'n-hs 


V.  U/iiitritpdl/s  iy-  .SV.  J..  A'.  Co.,  20  Am.  &* 
Eng.  R.  Cits.  478,  64  /(W.i  670,  21  A^.  H'. 
Rep.  131.  Missouri  Puc.  R.  Co.  v.  Roads,  23 
Am.  &>  Eng.  R.  Cas.  165,  33  Kan.  640,  7 
Pac.  Rep.  213.  Dujy  v.  AWr-  Vorl:  &•  H. 
R.  Co.,  2  Hill.  (A',  )'.)  496.  Corwin  v.  Neio 
York  ^  E.  R.  Co.,  13  A'.  }'.  42.* 

JI87.  IleleJise.— A  party  whose  cattle 
had  been  killed  through  the  failure  of  a  com- 
pany to  build  proper  fences  agreed  to  release 
the  company  from  all  liability,  provided  they 
would  furnish  him  with  a  cattle  pass,  con- 
struct certain  fences,  etc.  Held,  that  until 
the  company  furnished  such  pass,  fences, 
etc.,  the  release  was  inoperative,  and  that 
the  evidence  was  insufficient  to  show  that 
the  company  had  furnished  them.  Terre 
Haute  &•  I.  R.  Co.  v.  Flanigan,  20  Am.  &* 
Eng.  R.  Cas.  452,  94  /nd.  336. 

The  release  of  a  right  of  way  through  his 
lands  by  a  plaintiff  suing  for  stock  killed, 
the  building  of  fences  along  the  line  of  the 
railroad  through  the  lands  by  the  railroad 
company,  and  the  use  of  the  fields  adjoining 
for  pasturage  by  the  plaintiff,  relying  on  the 
fences  for  protection  to  his  cattle,  will  not 
make  the  fences  partition  fences,  which  the 
plaintiff  would  be  bound  to  keep  up;  and  a 
release  by  the  plaintiff  to  the  company  of 
the  right  of  way  through  his  land,  and  "  of 
all  damages  and  rights  of  damages,  actions 
and  causes  of  action,  which  I  might  sustain 
or  be  entitled  to  by  reason  of  anything  con- 
nected with  or  consequent  upon  the  location 
or  construction  of  said  work,  or  the  repairing 
thereof  when  finally  established  or  com- 
pleted," does  not  extend  to  actions  for 
damages  for  stock  killed.  Cleveland,  C,  C. 
6-  /.  A'.  Co.  V.  Crossley,  36  /nd.  370. 

A  release  in  a  right-of-way  deed  to  a  rail- 
road company,  which  "  hereby  releases  all 
damages  and  claims  thereto  to  all  his  [the 
grantor's]  other  lands  by  reason  of,  or  occa- 
sioned by,  the  location,  construction,  and 
operation  of  a  railway  over  and  upon  the 
premises  hereby  conveyed,"  does  not  con- 
stitute a  defense  to  an  action  by  the  grantor 
for  damages  for  killing  stock  occasioned  by 
the  failure  to  build  the  fence  required  by  the 
statute.  Stoutimore  v.  Chicago,  M.  &*  St.  P. 
R.  Co.  39  Mo.  App.  257, 

388.  Animals  unlawfully  within 
Indian  Territory. f— A  railroad  company 
in  the  Indian  Territory  cannot  excuse  a  lack 

•  But  for  the  rule  in  some  of  the  States  and 
in  Canada,  see  ante,  1{S3. 
f  See  <>»/<-,  10,318. 


5  m 


278 


ANIMALS,  INJURIES   TO,  :I8»-.1«2. 


:1 

is 


of  care  wliich  leads  to  an  injury  to  cuttle,  by 
showing  that  the  cattle  arc  unlawfully  with- 
in the  Territory.  Gu//,  C.  &-  S.  /\  A'.  Co.  v. 
Was/iingtoH,  49  Fe<i,  Rep.  347  ;  4  U,  S.  App. 
121 ;  I  f.  C'.  //.  286. 

380.  AiiiiiialH  coiiiini;  fruiii  landH 
not  beloiitriiiK  to  owner.'*'— That  tlic 
cattle  were  killed  while  roaming  on  lands 
which  did  not  belong  to  their  owner  is  no 
defense  to  the  action,  as  the  doctrine  of  the 
common  law  in  relation  to  damage  feasant 
has  never  be^n  adopted  in  this  state.  Nash- 
ville &•  C.  N.  Co.  V.  Peacock,  25  A'a.  229.-  - 
Distinguished  in  Nashville  &  D.  R.  v,  Co- 
mans,  45  Ala.  437. 

»»0.  Wlivre  the  tininial  1h  ti  bull— 
Wngn.  Mo.  St.  I.'i4,  §  5.— Under  the 
statute  concerning  animals  at  large,  Wagn. 
Stat.  134,  §  5,  it  is  not  unlawful  for  bulls  to 
run  at  large  until  after  notice  has  been  given 
to  the  owner,  and  even  then  the  only  remedy 
would  be  the  one  prescribed  by  the  statute  i 
and  under  this  view  the  fact  that  a  bull  was 
so  permitted  to  run  at  large  would  be  no 
defense  to  an  action  by  his  owner  for  his 
killing  by  a  railroad  train.  Owens  v.  Han- 
nibal &*  St.  J.  H.  Co.,  58  Mo.  386.— Follow- 
ING  Schwarz  v.  Hannibal  &  St.  J.  R.  Co., 
58  Mo.  207. 

In  a  suit  for  the  killing  of  stock,  it  is  no 
defense  that  the  animal  was  a  bull  and  sub- 
ject to  the  provisions  of  §  5  of  the  act  passed 
for  the  restraint  of  certain  animals  therein 
named.  Schwarz  v.  Hannibal  &-  St.  J.  R- 
Co.,  58  Mo,  207.— Followed  in  Owens  v. 
Hannibal  &  St.  J.  R.  Co.,  58  Mo.  386.  Re- 
viewed IN  Windsor  v.  Hannibal  &  St.  J.  R. 
Co.,  45  Mo.  App.  123. — Mumpower  V.  Han- 
nibalSf  St.  J.  R.  Co.,  59  Mo.  245. 

6.  Evidence.^ 

a.  In  General. 

301.  TVliat  evidence  is  admissible, 
generally.— A  witness  testified  that  while 
going  to  look  for  his  own  cattle  he  saw 
plaintiff's  near  the  railroad,  and  about  an  hour 
and  a  half  afterward,  on  returning,  he  saw  a 
train  just  starting  that  had  stopped  at  the 
place  where  the  cattle  were  killed.  Held, 
that  after  having  testified  as  above,  it  was 
proper  to  allow  him  to  further  state  that  he 
was  in  a  position  to  hear  trains  pass  and  that 
no  others  did  pass  in  the  meantime.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  Carloss,  77  Ala.  443. 

*  See  ante.  94,  154,  155,  166,  181, 
376;  post,  508. 
t  See  ante,  381-384. 


Where  a  company  is  sued  for  killing  a 
mule,  and  introduces  its  engineer  as  a  wit- 
ness, who  testifies  that  the  animal  was  not 
discovered  until  the  engine  was  too  close  to 
be  stopped,  it  is  competent  for  plaintiff,  in 
rebuttal,  to  show  that  the  mule  ran  alon^r 
the  track  some  distance  before  it  was  struck. 
Ross  V.  Natchez,  J.  &*  C.  R.  Co.,  61  Miss.  12. 

302.  What  is  relevant,  Kt-'iK-'CHlly. 
— Where  plaintid  sued  for  damages  on  ac- 
count of  injuries  to  his  horse,  which  was  run 
over  and  killed  by  a  railroad  train,  and  the 
railroad  employes  testify  that  they  did  not 
see  the  animal  until  it  was  very  near  to  the 
track,  it  is  competent  for  the  plaintiff  to 
prove,  as  bearing  on  the  question  of  negli- 
gence, that  the  land  near  that  point,  cover- 
ing the  right  of  way  on  each  side,  was  cut 
off,  or  cleared  of  obstructions.  East  Tenn., 
V.  6-  G.  R.  Co.  V.  Watson,  90  Ala.  \\,l  So. 
Rep.  813. 

In  an  action  for  injuries  to  stock  by  a 
railroad  train  at  night,  the  defendant's 
engineer  and  fireman  having  testified  that 
they  did  not  discover  the  animal  on  the 
track  in  time  to  avert  the  injury,  and  that 
the  headlight  did  not  enable  them  to  see 
an  animal  on  the  track  more  than  sixty  feet 
in  advance  of  the  engine,  it  is  competent  for 
the  plaintiff,  in  rebuttal,  to  prove  facts 
showing  that  on  other  occasions,  in  the  same 
neighborhood,  and  under  circumstances  no 
more  favorable,  objects  on  or  near  the 
track  were  visible  at  a  distance  of  two  or 
three  hundred  yards  by  the  aid  of  the  head- 
light. Alabama  G.  S.  R.  Co.  v.  Moody,  92 
Ala.  279,  9  So,  Rep.  238. 

Where  cattle  lawfully  upon  a  highway  are 
killed  by  an  engine  at  the  crossing  of  a  rail- 
way and  the  highway,  evidence  that  the  em- 
ployes of  the  railway  omitted  to  ring  a  bell 
or  blow  a  whistle  before  reaching  the  cross- 
ing, as  required  by  statute,  is  competent. 
Palmer  v.  St.  Paul  6-  D.  R,  Co.,  35  Am  6- 
Eng.  R,  Cas.  447,  38  Minn.  415,  38  N,  W. 
Rep.  100. — Distinguished  in  Sanborn  v. 
Detroit,  B.  C.  &  A.  R.  Co.,  91  Mich.  538. 

Where  the  action  for  killing  stock  is  based 
upon  the  company's  common-law  liability, 
proof  of  any  negligence  which  tends  to  pro- 
duce the  killing  is  competent,  whether  it  be 
a  failure  to  ring  a  bell  or  sound  a  whistle  or 
otherwise.  Braxton  v.  Hannibal  &*  St.  J, 
R.  Co.,  13  Am.  6-  Eng.  R.  Cas.  494,  77  Mo. 

455. 

Evidence  as  to  the  manner  in  which  the 
engine  was  operated  was  material  and  rele- 


ANIMALS,  INJUKIKS   TO,  JIU;i-400. 


5i79 


ng  a 
wit- 
not 
se  to 
ff,  in 
lonf>; 
ruck. 

12. 

iilly. 

n  iir- 

s  ruti 

tlic 

not 

o  the 

flf  to 

egli- 

ovcr- 

s  cut 

Venn., 

7  So. 


vant  on  a  trial  under  ^  2612  Missouri  Kcv. 
St.  1889,  (or  injury  to  live  stock.  I^y'ggs 
V.  St.  Louis  &•  S.  !•'.  A',  Co.,  1 1 1  Mo.  168,  20 
S.  IF.  /iep.  32. 

iW'3.  Uvlcvuiit  to  Hhow  i)laintiil''H 
duty  to  fence.— Where  a  company  is 
sued  for  killing  stock  by  reason  of  a  defec- 
tive fence,  it  is  competent  for  it  to  show  that 
in  the  assessment  of  plaintiff's  damages  for 
ri^lit  of  way  the  increased  cost  of  fencing 
was  considered,  and  that  he  was  allowed 
compensation  therefor;  such  evidence  tend- 
ing to  show  that  it  was  the  duty  of  the 
plaintiff  to  fence.  Georgia  A".  <&>•  B.  Co.  v. 
yhi(Ur^'>tr.    -}  Ga.  no. 

:)1>4.  Kclcvuut  to  show  that  fence 
was  defective.— It  was  claimed  that  the 
cattle  sued  for  went  upon  the  railroad  track 
by  reason  of  the  defective  wing-fence  on  one 
side  of  a  cattle-guard,  and  at  the  trial  plain- 
tiff was  permitted  to  j)rove  by  a  witness, 
who  lived  in  the  neighborhood,  that  he  had 
repeatedly  seen  live  stock  pass  over  the 
fence,  and  had  seen  a  boy  ride  a  horse  across 
the  fence.  //<•///,  that  the  evidence  was 
properly  admitted.  Chicago &*  N.  IV.  A'.  Co. 
v.  Hart,  22  ///.  App.  207. 

To  recover  damages  for  the  killing  of 
stock  caused  by  defective  fences,  plaintiff  is 
not  entitled  to  the  admission  of  testimony 
to  show  that  others  of  the  plaintiff's  stock 
had,  on  several  occasions,  months  before, 
been  seen  on  defendant's  rigb*  of  way. 
/M  V.  Chicago  <S-  G.  T.  R.  Co.,  ji  Am  &• 
Eng.  K.  Cas.  532,  67  Mich.  160,  10  West. 
Rep.  90s,  34  N.  W.  Rep.  538. 

In  an  action  for  killing  stock  because  of 
a  defective  fence,  evidence  that  the  fence 
was  defective  for  several  yards  up  and  down 
the  track  from  the  place  of  killing  is  admis- 
sible. Maberry  v.  Missouri  Pac.  R,  Co.,  83 
il/</.  664.— Followed  in  Foster  z/.  St.  Louis, 
I.  M  &  S.  R.  Co.,  44  Mo.  App.  II. 

305.  Relevant  to  show  place  of 
entry.* — Where  it  is  claimed  that  an  animal 
killed  on  the  track  escaped  from  an  adjoin- 
ing close  by  reason  of  a  defective  fence 
which  the  company  was  bound  to  maintain, 
it  is  competent  to  prove  the  condition  of 
the  fence  where  tracks  were  found,  tend- 
ing to  show  that  the  anima'  went  on  the 
track  at  that  place,  and  in  the  immediate 
vicinity.  McGuire  v.  Ogdensburg  <S-  L.  C. 
R.  Co.,  44  A^.  Y.  S.  R.  348, 63  Hun  632, 18  N. 

*SteafiU,  117,  127,  128,351,  352; 
/»/,  463,  474,519. 


)'.  Supp.  313.— DiSTiNdUlSHiNo  Reed  v. 
New  York  C.  R.  Co.,  45  N.  Y.  574;  Calligan 
V.  New  YorkC.  &  H.  R.  K.Co.,  59  N.  Y.  651. 

390.  Relevant  to  nIiow  contribu- 
tory negllifeuce.'*— Ordinance  forbidding 
the  running  at  large  of  cattle  within  the 
city  limits  is  admissible,  as  tending  to  show 
contributory  negligence  of  the  owner  of  a 
cow  killed  while  running  at  large  within  the 
city  limits.  •  irago,  li.  &*  Q.  R,  Co.  v.  Rich- 
art/son,  28  A'e<'.  1 18,  42  //;//.  (S-  Eng.  R.  Cas. 
592,  44  .V.  IV.  Rep.  103. 

397.  Relevant  to  dlHprovo  con- 
trlbii'  uy  negligenrr. — Where  a  com- 
pany defends  an  art'  ...1  for  killing  stock  on 
the  ground  of  \,e  contributory  negligence 
of  the  owner,  11  is  competent  for  tt,c  plain- 
tiff to  show  the  condition  of  agate  through 
which  the  animal  killed  went  upon  tlie 
track.  Ohio  &*  M.  R.  Co.  v.  Stribling,  38 
///.  /;//.  17. 

3(>8.  Relevant  to  show  defective 
gate  faHteu!n{;H.f — Where  it  is  claimed 
that  cows  passed  through  a  gate  onto  the 
railroad  track  by  means  of  the  imperfect 
fastenings  of  the  gate,  it  is  proper  to  allow 
testimony  tending  to  show  that  other  like 
fastenings  had  proved  insufficient,  where  the 
court  charges  the  jury  that  before  such  evi- 
dence could  be  considered  it  must  appear 
that  the  fastenings  were  not  only  alike,  but 
that  the  manner  in  which  they  were  put  on, 
and  in  which  the  gates  were  hung,  was  in  all 
respects  the  same.  Payne  v.  Kansas  City, 
St.  J.  &•  C.  B.  R.  Co.,  35  Ant.  &-  Eng.  R.  Cas. 
113,  72  Iowa  214,  33  A^  IV.  Rep.  633. 

399.  Relevant  to  nIiow  how  gate 
was  opened. — Where  it  appears  that  cows 
escaped  onto  a  company's  track  through  a 
gate,  it  is  competent  to  prove  that  their 
calves  were  on  the  other  side  of  the  track, 
as  tending  to  show  that  the  gate  was  opened 
by  the  cows  themselves,  and  tending  there- 
fore to  disprove  negligence.  Payne  v.  Kan- 
sas City,  St.  J.  &*  C.  B.  R.  Co.,  35  Am.  &* 
Eng.  R.  Cas.  1 1 3, 72  Iowa  214, 33  A'^,  W.  Rep. 

633. 

400.  Relevant  to  show  unlawf^il 
rate  of  speed.t— Where  a  company  is 
sued  for  negligently  killing  stock  within  the 
limits  of  a  village,  it  is  competent  to  put  in 
evidence  the  village  ordinances  regulating 

•See  ante,  126,  148,  213-288,364, 
373 

+  's*ee  ante,  178  ;  post,  462,  504,  54.3. 

tSee  ante,  69-72,  198,  210,  211, 
345 ;  post,  457, 481,  502,  545. 


280 


ANIMALS,  INJURIES   TO,  401-404. 


31 


;» 


the  speed  of  trains.  Cleveland,  C,  C.  &*  Si. 
L.  R.  Co.  V.  Ahrens,  42  ///.  App.  434. 

In  a  common-law  action  against  u  railroad 
for  negligently  running  over  and  killing  a 
cow,  it  is  competent  for  the  plaintiff  :o 
prove  that  the  train  was  running  in  excess 
of  the  spcjd  permitted  by  an  ordinance  of 
the  town  in  which  the  killing  occurred. 
Robertson  v.  Wabash,  St.  L.  &*  P.  R.  Co., 84 
Mo.  119. 

In  an  action  for  the  value  of  a  cow  killed 
within  the  corporate  limits  of  the  city  of  L. 
the  killing  of  the  cow  and  her  value  were 
admitted.  The  question  was  whether  the 
employes  of  the  company  were  negligent  in 
killing  said  cow.  As  bearing  upon  this 
question,  the  ordinances  of  the  city  limiting 
the  rate  of  speed  at  which  trains  of  cars 
might  be  run  were  proper  evidence,  but  not 
conclusive  proof  of  the  fact  of  negligen*  e, 
even  if  violated.  Chicago,  B.  6^  Q.  R.  Co. 
V.  Richardson,  42  Am.  Sf  Eng.  R.  Cas.  592, 
28  Neb.  1 18,  44  N.  W.  Rep.  103. 

401.  Relevant  to  show  that  car  was 
calculated  to  frigrhten  horses.— Evi- 
dence that  another  horse  had  become 
frightened  at  the  same  car,  on  a  previous 
occasion,  was  competent  to  show  that  it  was 
calculated  to  frighten  horses,  and  negligence 
in  permitting  it  to  remain  at  that  place. 
Harrell  v.  Albemarle  6f  R.  R.  Co.,  1 10  A^. 
Car.  215,  14  5.  iE".  Rep.  687. 

402.  What  is  irrelevant.— The  evi- 
dence showed  that  it  was  not  killed  near 
any  depot,  road  crossing,  town,  or  other 
place  at  which  the  statute  requires  the  bell 
to  be  rung,  the  whistle  blown,  and  speed  re- 
duced. At  the  trial  the  engineer  who  was 
in  charge  of  the  train  appeared  as  a  witness 
and  was  asked  on  cross-examination  if  he 
could  remember,  after  making-  a  trip,  at 
which  points  he  rang  the  bell  and  blew  the 
whistle,  including  depots  and  other  points. 
Held,  that  the  inquiry  was  irrelevant. 
Memphis  (S-  C.  R.  Co.  v.  Lyon,  62  Ala.  71. 

Evidence  that  the  company  had  at  differ- 
ent times  paid  other  persons  for  cattle 
killed  by  its  trains  at  the  same  place  was 
irrelevant  and  inadmissible.  Georgia  R.  <S- 
B.  Co.  V.  Walker,  87  Ga.  204,  13  S.  E.  Rep. 
511. 

An  instruction  that  the  jury  had  no  right 
to  consider  whether  or  not  the  fence  of  the 
defendant  was  good  or  poor,  sufficient  or 
insufficient,  on  the  sides  of  its  right  of  way 
adjoining  the  land  and  premises  of  the 
platntii!,  other  than  the  panel  of  a  fence 


where  the  animals  got  through  011  the  night 
they  were  killed  or  injured,  cures  the  error 
made  in  admitting  irrelevant  testimony  as 
to  the  condition  of  the  fence  for  years  prior 
to  the  accident,  and  its  condition  at  places 
other  than  that  where  the  accident  occurred. 
Chicago,  M.  &^  St.  P.  R.  Co.  v.  Kendall,  49 
///.  App.  398. 

Where  it  clearly  appears  that  an  animal 
was  killed  through  the  negligence  of  the 
company's  employes  operating  the  train, 
proof  of  an  agreement  between  the  plaintiff 
and  the  company  for  the  construction  of  a 
fence  maybe  rejected  as  irrelevant.  Illinois 
C.  R.  Co.  V.  Person,  65  Miss.   3 1 9,  3  So.  Rep. 

375- 

403.  What  is  immaterial.— Where 

suit  is  brought  against  a  company  to  re- 
cover for  the  killing  of  a  horse,  and  the 
negligence  relied  upon  is  a  failure  on  the 
part  of  the  company  to  fence  and  erect 
cattle  -  guards  at  a  crossing,  the  alleged 
negligence  is  immaterial,  and  the  company 
is  entitled  to  a  verdict  where  it  appears 
that  the  horse  went  on  the  track  at  a  public 
highway  crossing  and  was  there  killed.  Mo- 
bile &*  O.  R.  Co.  V.  Moore,  34  ///.  App.  519. 

Where  a  company  is  sued  for  killing  stock 
alleged  to  have  gone  on  the  track  through 
an  open  gate  which  had  been  erected  by 
the  company,  evidence  that  some  ten  or 
twelve  years  before  bars  had  been  used  at 
the  place  instead  r  f  the  gate  is  immaterial. 
Taft  V.  New  York,  P.  &•  B.  R.  Co.,  1 57  Mass. 
297,  32  A^.  E.  Rep.  168. 

Where  it  is  proper  to  build  a  fence  with 
gates,  the  sufficiency  of  the  fence  elsewhere 
does  not  arise  where  cattle  pass  through  an 
open  gate.  Detroit,  G.  H.  &*  M.  R.  Co.  v. 
Hayt,  19  Am.  &^  Eng.  R.  Cas,  627,  55  Mich. 
347,  21  A'^,  W.  Rep.  367,  911. 

Where  a  company  is  required  to  fence  its 
track,  it  is  immaterial  v/here  an  animal  is 
killed,  if  it  appears  that  it  went  on  the  track 
at  a  point  where  the  company  was  required 
to  fence.  Witthouse  v.  Atlantic  &>  P.  R. 
Co.,  64  Mo.  523. 

Under  the  Tennessee  Code,  railroads  were 
prima  facie  liable  for  every  injury  to  live 
stock  by  their  moving  trains,  but  were  per- 
mitted to  exonerate  themselves  by  affirma- 
tive proof  of  observance  of  all  the  prescribed 
statutory  precautions.  The  condition  of 
track  as  to  fencing  was  not  material.  Cin- 
cinnati, N.  O.  <S-  T.  P.  R.  Co.  V.  Russell,  92 
Tenn.  108,  20  S.  W.  Rep.  784. 

404.  What  is  too  remote.— Where 


ANIMALS,  INJURIES  TO,  405,407. 


281 


the  particular  place  where  tlie  slock  went 
through  the  fence  is  identified  and  is  not 
in  dispute,  it  is  error  to  allow  the  plaintiff  to 
introduce  evidence  of  the  condition  of  the 
fence  for  a  considerable  distance  from  the 
place  in  question  along  the  lands  of  the 
plaintiff,  and  for  years  prior  to  the  accident. 
Chicago,  M.  &*  St.  P.  R.  Co,  v.  Kendall,  49 
///.  App.  398. 

The  condition  of  a  fence  some  time  after 
animals  have  been  killed  by  a  train  is  not 
admissible  unless  it  be  followed  up  and 
shown  that  its  condition  had  not  changed. 
Brentner  v.  Chicago,  M,  &*  St.  P.  R.  Co.,  7 
Am.  &»  Eng.  R.  Cas.  574,  58  Iowa  625,  12  N. 
IV.  Rep.  611. 

Evidence  of  the  condition  of  a  gate, 
through  whicli  stock  strayed  upon  the  track 
and  were  injured,  three  days  after  the  injury 
— /<<?/</ competent,  it  not  being  shown  that  its 
condition  had  been  changed  during  the  in- 
terval. Mackie  v.  Central  R.  Co.,  54  Iowa 
540,  6  N.  IV.  Rep.  723. 

405.  Admissibility  of  circum- 
stantial evidence.* — Where  it  is  claimed 
that  cattle  are  killed  through  the  negligence 
of  those  in  charge  of  a  train,  it  is  compe- 
tent, as  circumstances  touching  such  negli- 
gence, to  show  that  it  was  foggy  and  the 
light  was  imperfect  at  the  time.  St.  Louis, 
I.  M.  &*  S.  R.  Co.  V.  Vincent,  36  Ark.  451. 

In  an  action  for  the  killing  of  cattle  which, 
it  was  alleged  entered  upon  the  railroad  and 
were  killed  at  a  point  where  it  was  not  se- 
curely fenced,  where  the  defendant  sought 
to  show  that  the  animals  were  killed  at  a 
highway  crossing,  plaintiff  had  the  right  to 
prove  that  there  were  cattle  tracks  along 
the  railroad  near  the  point  where  he  claimed 
his  cattle  were  killed,  without  proof  that  the 
tracks  were  made  by  the  cattle  actually 
killed.  Ohio  &>  M.  R.  Co.  v.  Wrape,  4  Ind. 
App.  108,  30  N.  E.  Rep.  427. 

Where  there  is  no  direct  evidence  of  a 
collision,  nor  of  traces  of  one,  along  the 
track,  evidence  to  show  that  such  traces  are 
always  found  when  stock  is  struck  by  a 
train  is  not  admissible.  Clark  v.  Kansas 
City,  St.  L.  &'  N.  IV.  R.  Co.,  55  'owa  455, 8 
N.  W.  Rep.  328.— Reviewing  Stu'sman  v. 
Burlington  &  S.  W.  R.  Co.,  53  Iowa  760. 

As  the  company  must  e."ercise  the  utmost 
care,  in  the  enjoyment  of  their  own  privi- 
leges, to  avoid  doing  injuries  to  others,  it 
was  held  that,  where  recovery  was  sought  for 

*See/>M^45a,  480. 


injury  tu  cattle,  the  fact  that  the  road  was 
not  fenced  must  be  taken  into  consideration 
by  the  jury  in  determining  the  degree  of  care 
and  diligence  to  be  used  by  the  company. 
Gorman  v.  Pacific  R.  Co.,  26  Mo.  441. 

Where  there  is  no  direct  evidence  that  a 
cow  was  killed  by  a  passing  train,  it  is  com- 
petent to  prove  tliat  her  body  was  found 
near  the  track,  torn  and  mutilated,  and  that 
there  was  blood  and  cow-hair  on  and  near 
the  track.  Blewett  v.  Wyandotte,  K.  C.  &» 
N.  W.  A'.  Co.,  72  Mo.  583.— Reviewed  in 
Hesse  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  36 
Mo.  App.  163. 

Where  there  is  no  direct  evidence  that  an 
animal  was  killed  by  a  passing  engine,  it  is 
competent  to  prove  that  on  the  day  when 
the  animal  was  killed  a  passing  engine  at  a 
station  seventeen  miles  beyond  had  fresh 
blood  and  hair  on  it.  International  &*  G. 
N.  R.  Co.  V.  Hughes,  81  Tex.  184,  16  S.  W. 
Rep.  875. 

406.  Negative  evidence.— Where  the 
witness  testified  that  the  whistle  of  the  en- 
gine was  not  sounded  for  a  highway  crossing 
near  the  place  of  the  injury,  he  may  also  be 
permitted  to  state  that  his  attention  was 
particularly  called  to  the  omission  by  an  in- 
quiry by  liis  son  as  to  '  "  y  the  engine  did 
not  whistle.  Louisville,  E.  &*  St.  L.  R.  Co. 
V.  Hart,  2  Ind.  App.  130,  28  N.  E.  Rep.  218. 

407.  Judicial  notice. — Where  cattle 
are  shown  to  be  on  a  highway  approaching 
a  railroad  track,  a  court  will  take  judicial 
knowledge  of  the  fact  that  the  sight  and 
sound  of  an  approaching  train  will  often 
frighten  them  back,  while  at  other  times  the 
ringing  of  a  bell  or  the  sounding  of  a  whis- 
tle will  not  do  so.  St.  Louis,  V.  &»  T.  H. 
R.  Co.  V.  Hurst,  25  III.  App.  181. 

The  supreme  court  takes  judicial  notice 
of  county  boundaries,  and  that  a  certain  dis- 
tance from  a  place  named  in  a  county  is 
within  that  county.  So  held,  in  an  action 
for  killing  cattle.  Terre  Haute  &*  I.  R.  Co. 
W.Pierce,  19  Am.  &•  Eng.  R.  Cas.  581,95 
/«</.  4.96.— Overruling  Louisville,  N.  A.& 
C.  R.  Co.  V.  Breckinridge,  64  Ind.  113. 

The  evidence  showed  that  the  animals 
were  killed  between  two  named  geograph- 
ical points,  and  upon  some  railroad  by  the 
rolling  stock  thereof ;  but  did  not  show,  in 
terms,  that  they  were  killed  in  Shelby 
county,  nor  by  the  railroad  company  de- 
fendant. Held,  that  as  the  court  below 
knew  judicially  the  boundaries  of  the 
county,  it  will  be  presumed  that  the  first 


282 


ANIMALS,  INJURIES   TO,  408-411. 


■« 


ii 


point  was  correctly  determincfi.  Held,  also, 
that  as  the  evidence  tends  to  support  the 
finding  in  relation  to  the  killing  by  the  cars 
of  defendant,  the  judgment  will  not  be  re- 
versed. Indianapolis  &»  C.  A'.  Co.  v.  Moore, 
16  Ind.  43. 

Where  a  statute  provides  that  the  board 
of  commissioners  shall  specify,  by  an  entry 
upon  their  records,  wliat  kind  of  animals 
shall  be  allowed  to  run  at  large  on  the  pub- 
lic commons  in  tlieir  respective  counties, 
the  implication  of  such  statute  is,  that  with- 
out such  order  no  kind  of  animal  has  a 
right  to  run  at  large;  and  as  this  court  can- 
not judicially  know  what  orders  are  made 
by  county  boards,  in  the  absence  of  proof 
of  such  orders  it  will  determine  cases  upon 
the  general  rules  of  law.  Indianapolis  &* 
C.  R.  Co.  v.  Caldwell,  9  Ind.  397. 

But  where  it  is  shown  that  such  an  order 
had  been  made,  and  that  the  animal  killed 
or  doing  damage  was  one  licensed  to  run  at 
large,  then  the  court  will  consider,  in  con- 
nection with  such  statute  (i  Ind.  Rev.  St. 
102),  the  act  relative  to  fencing  against  such 
animals  (i  Ind.  Rev.  St.  292),  and  also  the 
power  of  the  legislature  to  authorize  the 
depasturage  of  the  cattle  of  one  man  upon 
the  uninclosed  land  of  another.  Indian- 
apolis o,-  C.    R.   Co.    V.   Caldwell,  9  Ind. 

397- 
408.  Bestaiid  secondary  evidence. 

— In  an  action  for  the  killing  of  stock,  if  a 
claim  made  by  the  plaintiff  be  in  possession 
of  a  person  residing  in  another  state  or 
jurisdiction,  and  not  in  any  way  under  the 
control  of  the  party  wishing  to  introduce 
it,  secondary  evidence  inay  be  admitted  to 
prove  the  contents  thereof,  without  giving 
preliminary  notice  to  produce  it.  Memphis 
6-  C.  R.  Co.  V.  Hembree,  35  Am.  &>  Eng.  Ii. 
Cas.  128,  84  Ala.  182,  4  So.  Rep.  392. 

Parol  testimony  that  a  street  has  been 
abandoned  is  not  admissible  to  prove  that 
it  has  been  vacated,  for  that  is  properly  a 
matter  of  record  (Code  Iowa,  §  464) ;  nor 
is  it  admissible  for  the  purpose  of  showing 
that  the  public  has  lost  its  rights  by  non- 
user,  for  as  to  that  it  would  be  the  legal 
conclusion  of  the  witness.  So  held,  in  an 
action  for  injury  to  stock  at  an  unfenced 
street  crossing.  Lathrop  v.  Central  Iowa 
R.  Co.,  6^Io7va  105,  28  N.  W.  Rep.  465. 

400.  Hearsay  evidence.— In  an  ac- 
tion »or  double  damages  for  cattle  killed  by 
a  train  on  defendant's  railroad,  at  a  place 
where  defendant  had  a  right  to  build  fences 


but  failed  to  do  so,  the  testimony  of  a  wit- 
ness of  what  he  had  seen  and  knew  from 
acquaintance  with  the  locality  is  not  hear- 
say or  evidence  based  upon  tht  opinion  of 
the  witness.  Dunn  v.  Chicago  &*  N.  W.  R. 
Co.,  7  Am.  &•  Eng.  R.  Cas.  573,  58  Iowa 
674,  1 2  A^.  W.  Rep.  734. 

Where  the  exact  point  where  the  acci- 
dent happened  is  disputed,  the  plaintiff  may 
testify  to  the  place  pointed  out  to  him  by  a 
section  foreman  as  the  point  where  the 
colt  was  killed,  but  he  may  not  state  what 
the  foreman  said.  Karr  v.  Chicago,  R.  I.  &* 
P.  R.  Co.  (Iowa),  54  N.  IV.  Rep.  144. 

Statements  made  as  to  the  pedigree  of  a 
heifer  killed  by  a  railroad  company,  as  that 
she  was  a  thoroughbred,  are  not  competent 
evidence  where  it  does  not  appear  that  the 
party  making  the  statements  was  either 
dead  or  beyond  the  process  of  the  court ; 
and  on  the  same  principle  a  paper  purport- 
ing to  give  such  pedigree  is  not  admissible, 
and  its  admission  by  the  trial  court  is 
ground  for  reversal.  Hamilton  v.  Wabash, 
St.  L.  &»  P.  R.  Co.,  25  Am.  &•  Eng.  R.  Cas. 
294,  21  Mo.  App.  152. 

410.  Sliowiugr  similar  accidents 
at  same  place. — Where  a  horse  has  been 
killed  at  a  crossing  through  an  alleged  de- 
fect in  a  railroad  track,  it  is  not  competent 
to  prove  other  accidents  at  the  same  place. 
North  Chicago  St.  R.  Co.  v.  Hudson,  44  ///. 
App.  60. 

Evidence  tending  to  show  the  defective 
condition  of  the  crossing  some  months  pre- 
vious to  the  injury,  and  that  one  of  the 
horses  driven  by  the  witness  was  caught  in 
the  same  way  and  at  the  same  place,  is  ad- 
missible on  the  question  of  notice.  Toledo, 
St.  L.  &*  K.  C.  R.  Co.  V.  Milligan.  2  Ind. 
App.  578,  28  A^.  E.  Rep.  1019. 

There  was  no  error  in  rejecting  evidence 
offered  by  plaintiff  that  other  cattle  were 
in  the  habit  of  running  at  large  in  the 
vicinity  of  the  place  of  accident,  and  that 
some  of  them  had  been  killed  on  the  track, 
as  those  facts  would  not  aid  his  case.  Mc- 
Candless  v.  Chicago  &*  N.  W.  R.  Co.,  4$  Wis. 

365.  ( 

411.  Showing  custom  to  allow 
animals  to  run  at  large. — In  California, 
where  a  railroad  company  is  sued  for  killing 
stock  on  a  track,  pnd  sets  up  as  a  defense 
the  negligence  of  the  owner  in  permitting 
it  to  run  at  large,  it  is  competent  for  the 
plaintiff  to  show  that  it  was  the  custom  of 
the  country  to  permit  such  animals  to  go 


tn 
r- 


ANIMALS,  INJURIES   TO,  41ti-41<>. 


'^^•i 


at  large  upon  uiiiiiclosed  lands.  IFah-rs  v. 
Moss,  1 2  Ca/.  535. 

412.  Showing  that  repairs  were 
made  after  the   aocideut.— Where   a 

company  is  sued  foi  an  injury  tu  a  liorse  at 
a  planked  crossing,  it  is  error  to  allow  plain- 
tiff to  prove  that  soon  after  the  accident 
the  company  took  up  the  planks  at  the 
crossing  and  put  down  new  ones.  Payne  v. 
Troy  <S-  B.  R.  Co.,  9  Hun  {N.  Y.)  526.—  Re- 
VIEWING  Salters  v.  Delaware  &  H.  C.  Co., 
3  Hun  (N.  Y.)  338.— Reviewed  in  Nalley^/. 
Hartford  Carpet  Co.,  51  Conn.  524,  50  Am. 
Rep.  47. 

Evidence  of  repairs  made  to  a  gate  by  a 
company  after  cattle  were  killed,  owing,  as 
alleged,  to  the  bad  condition  of  such  gate, 
is  admissible  in  an  action  to  recover  dam- 
ages therefor.  Page  v.  Great  Eastern  R. 
Co.,  24  L.  T.  N.  S.  585. 

That  a  place  on  a  railroad  where  an  animal 
is  killed  is  within  a  city  is  not  sufficient  to 
excuse  the  company  from  fencing  the  road  ; 
and  the  plaintiff,  in  a  suit  against  the  com- 
pany, may  show  that  after  the  killing  the 
company  repaired  and  built  a  fence  at  the 
point  where  the  injury  occurred,  for  the  pur- 
pose of  showing  that  the  company  regarded 
the  place  as  one  that  might  legally  be 
fenced.  ToUf/o,  IV.  &•  IV.  R.  Co.  v.  Owen, 
43  /nd.  405. 

413.  Opinions  as  evidence,  gener- 
ally.— Where  a  company  is  sued  for  killing 
stock,  a  witness  may  testify  as  to  where  the 
stock  came  on  the  track,  and  which  way 
they  were  going,  and  their  speed,  where  his 
opinion  as  to  these  things  is  made  up  from 
an  examination  of  the  animals'  tracks  left 
on  the  ground.  Chicago  ^S^•  A.  R.  Co.  v. 
Legg,  32  ///.  App.  218. 

It  is  not  error  to  permit  the  plaintiff  to 
prove  by  a  witness  his  opinion  as  to  which 
direction  the  animals  were  thrown  in  by 
force  of  the  collision,  as  bearing  upon  the 
direction  of  the  train  which  collided  with 
them,  although  the  witness  did  not  see 
the  animals  upon  the  track,  but  testified  to 
indications  and  appearances  along  the  track 
shortly  after  the  injury,  an  opportunity  be- 
ing afforded  to  cross-examine  the  witness 
and  obtain  the  basis  of  his  knowledge  upon 
the  question.  The  appearances,  in  the  judg- 
ment of  the  trial  court,  could  not  be  de- 
scribed to  the  jury  with  sufficient  vividness 
to  enable  them  to  form  as  accurate  conclu- 
sions thereon  as  ti:.  witnesses  could,  and, 
under  such  circumstances,  opinions  are  ad- 


missible.    Ohio  &>  M.  K.  Co.  v.  Wrapc,  4 
Ind.  App.  108,  30  N.  E.  Rep.  427. 

A  question  to  a  witness,  "  Where  was  the 
steer  when  the  train  struck  him,  as  indicated 
by  the  marks  on  the  ground  and  track  ?  "  is 
not  objectionable  as  calling  for  an  opinion 
merely.  Panning  v.  ^ong  Island  R.  Co.,  2 
T.  6-  C.  (,X.  Y.)  585. 

414.  Opinions  as  to  cause  of  injury 
or  deatli. — Where  a  witness  stated  the 
condition  in  which  an  aninuil  was  found  on 
the  side  of  a  track,  it  was  //6'A/ error  tc  allow 
him  to  be  asked  what,  in  liis  opinion,  caused 
the  injury.  Muff  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  22  Mo.  App.  584.— Quoting  Koons  v. 
St.  Louis  &  I.  M.  R.  Co.,  65  Mo.  597. 

Where  a  company  is  sued  for  killing  stock, 
and  the  question  is  whether  the  injury  in- 
flicted by  the  company  caused  death,  it  is 
error  to  permit  a  witness  to  give  his  opin- 
ion or  conclusion  that  the  injury  caused 
the  death  of  the  animals,  where  he  merely 
testifies  that  he  has  handled  stock  for  twenty 
years,  and  is  well  acquainted  with  their  pro- 
pensities and  dispositions,  but  it  does  not 
appear  that  he  was  better  acquainted  with 
such  stock  and  with  causes  producinir  death 
than  men  of  ordinary  experience.  Texas  &^ 
P.  R.  Co.  V.  Weakly,  2  Tex.  App.  (Civ.  Cas.) 
728. 

415.  Opinions  as  to  whether  it 
was  possible  to  have  stopped  train. 
— The  vital  question  being  whether  the  de- 
fendant's servants  could  have  stopped  the 
train  in  time  to  avoid  the  injury,  after  the 
cows  were  first  seen  on  the  track,  it  was 
error  to  take  the  opinions  of  witnesses  who 
had  no  practical  familiarity  with  the  running 
of  trains,  nad  never  been  employed  on  a 
locomotive,  and  whose  only  knowledge 
about  the  running  and  stopping  of  trains 
was  derived  from  seeing  them  arrive  and 
depart  at  the  station  in  their  vicinity. 
Gourley  v.  St.  Louis  &>  S.  F.  R.  Co.,  35  Mo. 
App.  87. — Quoting  Eckert  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  13  Mo.  App.  352;  Maher  v. 
Atlantic  &  P.  R.  Co.,  64  Mo.  276 ;  Robertson 
V.  Wabash,  St.  L.  &  P.  R.  Co.,  84  Mo.  119; 
Boston  &  W.  R.  Co.  v.  Old  Colony  &  F.  R. 
R.  Co.,  3  Allen  (Mass.)  142. — Followed  in 
Igo  V.  Chicago  &  A.  R.  Co.,  38  Mo.  App.  377. 

416.  Opinions  as  to  the  number 
of  animals  that  were  killed. — In  an 
action  to  recover  for  the  death  of  stock 
through  a  flood  occasioned  by  defendant's 
negligence,  a  witness  who  has  stated  fully 
his  means  of  information  as  to  the  loss  of 


Wii 


T 

I 


284 


ANIMALS,  INJURIES   TO,  -H7-4-^;J. 


:^ 


w^ 


■'i  "f 


the  stock,  and  shown  that  he  was  in  a  posi- 
tion to  enable  him  to  form  an  estimate,  may 
give  his  opinion  as  to  the  number  of  dead 
animals  when  no  better  evidence  can  be  ob- 
tained. Sabine  iS-  K.  T.  R.  Co.  \.Brousard, 
34  Am.  (s^  ling.  K.  Cas.  199,  69  Te.v.  617,  7 
S.  IV.  Rep.  374. 

417.  OpiiiioiiM  UM  to  how  far  an 
animal  may  be  seen. — Where  stock  is 
killed  in  the  moming  before  it  is  fully  light, 
as  touching  the  question  of  whether  due 
care  was  used  by  those  in  charge  of  the  train 
in  not  seeing  the  stock  and  avoiding  the 
accident,  it  is  competent  to  prove  by  wit- 
nesses their  experience  as  to  how  far  such 
an  animal  could  be  seen  at  that  time  in  the 
morning.  Chicago  &*  A.  R.  Co.  v.  Bock,  17 
Ill.App.  17. 

418.  Expert  testimony,  generally. 
— An  experienced  grazier  is  competent  to 
testify  as  an  expert,  in  regard  to  the  condi- 
tion of  cattle  and  to  causes  affecting  their 
health  and  weight,  on  a  supposed  state  of 
facts,  and  is  competent  to  give  his  opinion 
of  the  effect  of  disturbance  on  cattle,  but  not 
to  say,  as  matter  of  opinion,  that  the  con- 
struction of  a  railroad  through  the  pasture 
on  which  they  were  feeding  would  disturb 
them  and  set  them  to  running.  Baltimore 
Sf^  O.  R.  Co.  v.  Thompson,  xoMd.  76. 

419.  Expert  testimony  as  to  the 
management  of  train. — Where  .the  en- 
gineer, having  several  years'  experience  in 
that  capacity,  testified  that  he  sounded  the 
stock-alarm,  put  on  the  air-brakes,  and  re- 
versed the  engine  when  he  saw  the  cattle, 
he  may  further  testify  that,  in  his  opin- 
ion, he  did  all  that  he  could  to  prevent 
killing  the  cattle.  Little  Rock  &*  M.R.  Co.  v. 
Shoecraft,  56  Ark.  465,  20  5.  W.  Rep. 
272. 

The  engineer  in  charge  of  the  loconiotive 
at  the  time  of  such  killing,  who  saw  the 
horses  when  they  came  upon  the  track,  who 
is  shown  to  be  acquainted  with  the  business 
of  running  railroad  locomotives  and  trains, 
and  had  been  engaged  in  s'lch  business  for 
five  years,  is  competent  to  testify,  as  an  ex- 
pert, upon  questions  in  respect  to  the  man- 
agement of  locomotives  and  trains,  and  to 
give  an  opinion  whether,  in  view  of  the  dis- 
tance between  the  engine  and  the  horses 
when  latter  came  upon  the  track,  it  was  pos- 
sible to  avoid  the  injury  complained  of. 
Belief  or  taine  <&*  /.  R.  Co.  v.  Bailey,  1 1  Ohio  St, 
333.— Distinguished  IN  Burns  7'.  Chicago, 
M.  &  St.  P.  R.  Co.,  69  Iowa  450, 


420.  Expert  testimony  as  to  fiie 
necessity  aiul  snflieieney  of  eattle- 
gnards.*" — It  is  not  error  to  exclude  the 
opinion  of  an  expert  witness  that  the  plac- 
ing of  a  cattle-guard  within  a  given  di>tance 
from  the  end  of  a  switch  would  endanger 
the  safety  of  the  trainmen.  Pennsylvania 
R.  Co.  V.  Lindley,  2  Ind,  App.  1 1 1,  28  A'.  E. 
Rep.  106. 

Where  it  is  claimed  that  a  hoise  was 
killed  by  reason  of  the  defective  construc- 
tion of  a  railroad,  it  is  incompetent  to  prove 
by  an  expert  that  cattle-guards  were,  in  his 
opinion,  necessary.  Amstein  \.  Gardner,  16 
Am.  &*  Eng,  R.  Cas.  585,  134  Mass.  4. 

421.  Expert  te.stiniony  as  to  the 
sufficiency  of  a  fence.f  —  Where  it  is 
claimed  that  a  fence  is  generally  defective 
and  insecure,  it  is  proper  for  the  plaintiff  to 
inquire  of  competent  witnesses  whether  such 
fence  was  such  as  good  husbandmen  usually 
kept.  Louisville,  N.  A.  &*  C.  R.  Co.  v. 
Spain,  61  Ind.  460. 

422.  Admissibility  of  experiments 
made  by  witnesses.  —  Where  it  is  at- 
tempted to  show  that  those  in  charge  of  a 
train  were  negligent  in  killing  stock,  it  is 
proper  to  prove  experiments  by  witnesses, 
made  for  the  purpose  of  determini.ng  wheth- 
er stock  could  have  been  seen  under  such 
circumstances  as  those  existing  at  the  time 
of  the  killing.  Chicago  A^A.  R.  Co.  v.  Legg, 
32  ///.  App.  218. 

And  this  is  true  though  the  conditions  at 
the  time  of  the  accident  were  somewhat  dif- 
ferent from  th(  se  at  the  time  of  the  experi- 
ments. Illinois  C.  R.  Co.  v.  Burns,  32 
///.  App.  196. 

423.  Showing  value  of  animal 
killed,  generally.!— In  an  action  for  kill- 
ing a  cow,  it  is  competent  to  admit  all  evi- 
dence tending  to  show  the  good  qualities  of 
the  cow  which  affect  her  market  value.  St. 
Louis  &>»  S.  F.  R.  Co.  v.  Dudgeon,  28  Kan, 
283. 

Upon  the  question  of  damages,  it  is  proper 
to  allow  witnesses  to  testify  as  to  the  value 
of  animals  before  and  after  the  injury.  Louis- 
ville, N.  A.  &•  C.  R.  Co.  v.  Peck,  99  Ind.  68. 

Where  suit  is  brought  for  the  killing  of  u 
horse,  and  the  plaintiff  states  that  he  had 
bought  it  some  four  or  five  years  before,  and 


*SeeaM/e,  162,  348;  fosf,  461. 
I  See  ante,   100-113,   349-353; 
460,  488,  506. 
X  See  fast,  579-594. 


f«st. 


ANIMALS,  INJURIES   TO,  424-4»l. 


285 


that  it  was  worth  so  much  at  the  time  of  the 
killing,  it  is  not  competent  on  cross-examin- 
ation to  ask  him  what  he  paid  for  it.  John- 
son V.  Baltimore  (s*  O.  Ji.  Co.,  2S  IV.  Va.  570. 

So  where  a  plaintiff  testifies  as  to  its  value, 
and  states  that  he  paid  for  the  horse  by  ex- 
changing other  animals,  it  is  not  competent 
on  cross-examination  to  further  inquire 
where  he  got  such  other  animals,  what  he 
paid  for  them,  etc.  Hohtine  v.  Oregon  &*  C. 
A\  Co.,  8  Or  eg.  164. 

Where  the  owner  of  stock  killed  procures 
an  appraisement  of  it  under  the  Alabama 
statute,  the  value  fixed  by  the  appraisers  is 
evidence  of  an  admission  on  the  owner's  part 
that  the  appraisement  is  the  full  value  of  the 
animal ;  but  this  is  only  a  presumption,  and 
may  be  rebutted,  as  that  he  told  the  ap- 
praisers to  fix  the  lowest  cash  value  of  the 
animal,  under  some  agreement  with  an  agent 
of  the  road  that  it  should  be  paid  without 
delay.  East  Tenn  ,  V.  6-  G.  R.  Co.  v.  Bay- 
liss,  19  Am.  Sr'  Eng.  R.  Cas.  480,  74  A/a.  1 50. 

The  plaintiff  introduced  a  witness  who 
stated  that  he  was  acquainted  with  the  value 
of  horses,  but  had  never  seen  the  horse  in 
controversy.  The  witness  was  then  asked, 
"  What,  on  the  loth  day  of  May  (the  day  of 
the  killing),  was  the  average  price  of  a  horse 
fifteen  or  sixteen  hands  high,  three  or  three 
and  one-half  years  old,  and  sound,  except  the 
ringbone  on  the  hind  foot,  which  had  been 
killed .'  "  NeM,  that  the  court  erred  in  per- 
mitting the  witness  to  answer  the  question. 
To/edo,  6-  IV.  R.  Co.  v.  SmttA,  25  /nd.  288. 

424.  Showing  market  value  of  the 
animal. — In  an  action  for  killing  a  mare,  it 
is  not  error  to  permit  the  following  question 
to  be  answered:  "Suppose  'Little  Miss' 
(the  mare)  was  in  as  good  condition,  sound 
in  wind  and  limb,  at  the  time  she  was  killed 
in  October,  1884,  if  she  was  killed  then,  as 
she  was  when  you  knew  her  last,  then  I  will 
ask  you  to  state  what  was  her  fair  market 
value ; "  especially  so  where  counsel  apprise 
the  court  that  if  they  do  not  maintain  the 
hypothesis  upon  which  the  question  is  put, 
the  evidence  will  be  struck  out.  Cincin- 
nati, H.  <§<•  /.  R.  Co.  v.  Jones,  31  Am.  &'  Eng. 
R.  Cas.  491,  III  /«</.  259,  9  IVest.  Rep.  602, 
12  N.  E.  Rep.  113. 

425.  Sliowing  market  value  of 
tliorouglibred(».— Where  animals  killed 
by  a  train  are  only  ordinary  stock,  it  is  in- 
competent to  prove  the  market  value  of 
thoroughbreds.  Western  R.  Co.  v,  Lazarus, 
88  A!a.  453,  6  So.  Rep.  877. 


420.  Showing  what  horse  wa» 
worth  at  private  sale.— Where  suit  is 
brought  for  the  killing  of  a  horse  six  years 
old,  the  trial  judge  in  his  discretion  may 
exclude  evidence  as  to  what  the  horse  was 
worth  at  private  sale  two  years  before  the 
killing.  Miner  v.  Connecticut  River  R.  Co., 
1 53  Mass.  398,  26  N.  E.  Rep.  994. 

427.  Showing  value  long  before 
killing.— Evidence  of  the  value  of  the  ani- 
mal a  month  before  the  killing  is  admissible, 
though  the  witness  can  identify  the  animal 
only  as  one  belonging  to  the  plaintiff,  said 
to  have  been  killed.  Louisville,  N.  A.  (S- 
C.  R.  Co.  v.  De  trick,  91  I  ml.  519. 

428.  Showing  that  animal  was 
sired  by  famous  horse.— Where  a  mare 
is  killed  on  the  track  it  is  competent  for  the 
plaintiff  to  prove,  as  affecting  the  amount  of 
the  recovery,  that  the  mare  was  both  sired 
and  with  foal  by  famous  horses.  Oiiio  &*  M. 
R.  Co.  v.  Striblitur,  38  ///.  App.  17. 

429.  Showing  reputation  of  horse. 
— Evidence  of  the  general  reputation  among 
horsemen  and  turfmen  of  the  mare  killed, 
with  reference  to  her  being  rattle-headed  or 
disposed  to  t)reak  when  racing,  is  not  ad- 
missible. Cincinnati,  H.  <&>•  /.  R.  Co.  v. 
Jones,  31  Am  &>  Eng.  R.  Cas.  491,  iii  Ind. 
259,  9  West.  Rep.  602,  12  N.  E.  Rep.  113. 

430.  Who  may  testify  as  to  ani- 
mal's value. — Every  one  is  presumed  to 
have  some  idea  of  the  value  of  property 
which  is  in  almost  universal  use;  and  it  is 
not  necessary  to  show  that  a  witness  is  a 
drover  or  butcher  before  he  is  allowed  to 
give  an  opinion  as  to  the  value  of  a  cow 
killed.  Ohio  &>  M.  R.  Co.  v.  Irvin,  27  ///. 
.78. 

Witnesses  who  are  familiar  with  the  kind 
of  animals  sued  for  are  competent  to  testify 
as  to  their  value  without  having  ever  seen 
them.  Smith  v.  Indianapolis  &>  St.  L.  R. 
Co.,  7  Am.  &^  Eng.  R.  Cas.  582,  80  /nd.  233. 
— Quoting  Bowen  v.  Bowen,  74  Ind.  470; 
Johnson  v.  Thompson,  72  Ind.  167 ;  Com'rs 
of  Marion  County  w.  Chambers,  75  Ind.  409; 
Holten  V.  Com'rs  of  Lake  County,  55  Ind. 
194. 

Where  the  plaintiff  testifies  that  he  has 
bought  and  sold  cattle  for  twenty  years,  he 
may  properly  be  permitted  to  testify  as  to 
the  value  of  the  cattle  injured.  Plunkett  v. 
Minneapolis,  S.  St.  M.  <S-  A,  R.  Co.,  79  Wis. 
222,  48  A^.  W.  Rep.  519. 

431.  Admissions  of  company's 
agent,  generally. — Under  Mont.  Comp. 


"*t: 


1*1' 


\ 


286 


ANIMALS,   INJURIES  TO,  432-436. 


St.  8  7'7.  providing  that  the  body  of  ani- 
mals injured  by  the  operation  of  trains  shall 
belong  to  the  company,  unless  the  owner 
elects  to  retain  them  in  payment  or  part  pay- 
ment of  damages,  admissions  of  the  com- 
pany's iigent  that  he  had  ordered  the  injured 
animal  to  be  killed  and  sold  for  the  bene- 
fit of  the  company  establishes  -a  prima  facie 
case  of  admission  of  negligence,  where  it 
appears  that  such  agent  acted  knowingly 
and  within  the  scope  of  liis  authority.  Mc- 
Catiley  v.  Montana  C.  A*.  Co.,  49  j4>n.  6>»  £n^. 
Ji.  Cas.  557,  II  Mon/.  4S3,  28  Pac.  Rep.  729. 

432.  Declarations  of  ent;iiieer.— 
Two  mules  having  been  run  over  and  killed 
or  injured  by  an  engine  in  charge  of  an 
engineer  or  fireman,  while  running  by  night, 
the  declaration  or  exclamation  of  the  fire- 
man to  the  engineer  "  immediately  after  " 
running  over  the  first  mule,  "  You  have 
knocked  off  one  on  this  side,"  is  not  ad- 
missible as  evidence  against  the  railroad 
company,  unless  facts  are  shown  that  bring 
it  within  the  principle  of  resgesta.  Western 
Ji.  Co.  V.  Sis  trunk,  85  Ala.  352,  5  So.  Rep.  79. 

Where  a  company  is  sued  to  recover  for 
the  value  of  stock  killed  through  the  al- 
leged negligence  of  an  engineer  in  charge 
of  a  train,  it  is  error  to  allow  plaintiff  to 
prove  delarations  of  the  engineer,  touching 
the  accident,  made  long  after  its  occurrence. 
Price  V.  New  Jersey  R.  &•  T.  Co.,  31  N.J.  L. 
229.— Following  Sharrod  v.  London  &  N. 
W.  R.  Co.,  4  Exch.  580. 

433.  Declarations  of  section  boss. 
— There  was  evidence  tending  to  prove  that 
a  colt  was  killed  by  an  engine ;  that  a  servant 
of  the  company  carelessly  put  down  the 
fence  through  which  the  colt  escaped  from 
the  field  onto  the  track ;  that  a  cherry-tree 
had  been  cut  at  the  place  where  the  colt 
went  through  the  fence;  that  it  could  not 
have  been  cut  without  laying  down  the 
fence ;  and  that  the  agent  of  the  company 
cut  the  tree,  and  necessarily  put  down  the 
fence,  following  the  declaration  of  the  agent, 
made  at  another  time  and  at  a  different 
place,  and  on  the  farm  of  another,  to  wit : 
"The  section  'boss'  told  him  [the  witness] 
that  he  had  been  ordered  by  the  railroad 
company  to  cut  all  the  trees  along  the  line, 
and  that  they  had  cut  all  the  trees  from 
Summit  Point  down."  Held,  that  the  evi- 
dence was  inadmissible.  Coyle  v.  Balti- 
more &-  O.  R.  Co.,  1 1   W.  Va.  94. 

434.  Declarations  of  station  agent. 
—Under  the  Kansas  act  of   1874,  Conip. 


Laws  1879,  p.  784,  a  demand  must  be  made 
of  a  railroad  company  for  the  value  of  stock 
killed  or  the  injuries  thereto ;  but  this  de- 
mand may  be  made  of  any  ticket  or  station 
agent,  and,  under  §  3  of  the  act,  may  be  oral. 
Hence  it  follows  that  what  the  agent  says 
when  such  a  demand  is  made  concerning 
the  matter  may  be  given  in  evidence  against 
the  company  as  part  of  the  resgesta.  Cen- 
tral Branch  U.  P.  R.  Co.  v.  Butman,  22 
Kan.  639. 

435.  Docninentary  evidence,  gen- 
erally.— In  an  action  by  an  administrator 
against  a  company  for  the  negligent  killing 
of  stock  belonging  to  the  estate,  the  appraise- 
ment of  such  property  returned  by  him  as 
administrator  is  not  competent  as  evidence 
of  the  value  of  said  property,  ex  ept  to 
rebut  the  testimony  of  the  persons,  making 
such  appraisement,  if  called  as  witnesses 
upon  that  question.  Morrison  v.  Burlington, 
C.  R.  &•  N.  R.  Co.,  84  Iowa  663,  51  N.  W. 
Rep.  75. 

A  paper  purporting  to  be  the  pedigree  of 
an  animal,  to  recover  damage?  for  the  kill- 
ing of  which  the  action  is  brought,  is  inad- 
missible in  evidence  to  show  that  said 
animal  was  a  thoroughbred,  and  therefore  of 
greiit  value.  Hamilton  v.  Wabash,  St.  L.  &^ 
P.  R.  Co.,  25  Am.  <&-  Ettg.  R.  Cas.  294,  21 
Mo.  App.  152. 

affidavit. — Where  the  point  in  issue 

is  :  "  Did  the  horse  stray  on  the  bridge  and 
fall  off,  or  was  he  driven  on  the  bridge  by 
an  approaching  train  ?'  an  affidavit  of  the 
plaintiff  filed  in  support  of  a  motion  .'■•  •  ; 
continuance,  and  showing  that  the  a^jp  . 
of  a  train  drove  the  horse  on  the  0  .<ij    ; 
is  competent  to  be  admitted  as  evidsn 
Asbach  v.  Chicago,  B.  &•  Q.  R.  Co.,  {Iv    • 
S3  N.  W.  Rep.  90. 

436. deed.— After  a  plaintiff,  under 

a  count  in  a  declaration  in  trespass  on  the 
case  against  a  railroad  company  for  killing 
his  horse,  had  given  to  the  jury  evidence 
tending  to  prove  that  the  defendant's  agents 
and  servants  had,  by  negligence  in  running 
the  defendant's  locomotive  and  cars,  killed 
the  plaintiff's  horse,  at  the  time  and  in  the 
manner  alleged  in  said  count,  and  also  the 
value  of  said  horse,  the  defendant  offered  in 
evidence  a  deed  from  one  Waters  to  the 
defendant,  for  the  purpose  of  proving  that 
the  said  horse  which  was  killed  was,  when 
first  seen,  on  land  owned  by  defendant,  and 
that  defendant  had  acquired  title  thereto 
from  said  Waters,  and  to  show  that  dc- 


ANIMALS,  INJURIES  TO,  437-440. 


287 


fendant  had  made  a  cotitract  with  said 
Waters  to  fence  the  track  of  defendant's 
railroad  through  his  farm  ;  and  the  plaintiff 
admitted  that  the  defendant  had  acquired 
and  owned  title  to  the  land  occupied  by  its 
track  from  the  said  Waters,  but  objected  to 
the  admission  of  the  deed  to  prove  a  con- 
tract between  the  defendant  and  Waters  in 
regard  to  the  fencing  of  said  track;  and  the 
court  refused  to  allow  the  deed  to  be  read 
for  said  purpose,  stating  that  the  defendant's 
title  to  said  land  was  admitted,  and  ex- 
cluded the  deed.  Held,  that  under  the  cir- 
cumstances the  court  did  not  err  to  the 
prejudice  of  the  defendant.  Blaine  v.  Chesa- 
peake 6-  O.  R.  Co.,  9  IV.  Va.  252.— Fol- 
lowed IN  Searle  v.  Kanawha  &  O.  R.  Co., 
37  Am.  &  Eng.  R.  Cas.  179,  32  W.  Va.  370, 
9  S.  E.  Rep.  248. 

437.  plat. — Where  an    animal    is 

killed  witiiin  the  limits  of  a  village,  but  off 
the  company's  depot  grounds,  as  touching 
the  question  of  its  duty  to  fence,  it  is  com- 
petent to  introduce  a  plat,  showing  that  the 
owners  intended  to  dedicate  the  grounds  to 
the  public  use,  though  the  plat  was  not  re- 
corded until  after  the  killing.  Chicago,  B. 
<S-  Q.  R.  Co.  V.  Banker,  44  ///.  26. 

438.  record  of  judgment.— A 

motion  for  a  writ  provided  for  by  3  Ind.  St. 
415,416,  §§5,6,  to  be  directed  to  an  em- 
ploye of  a  company  against  which  a  judg- 
ment had  been  rendered  for  the  value  of  an 
animal  killed,  concluded  with  a  request  that 
the  court  would  "  order  said  agent  to  pay 
into  the  clerk's  office  of  said  court  one-half 
of  said  moneys,  or  so  much  thereof  as  will 
pay  the  judgment  and  costs  herein."  No 
objection  was  made  to  the  motion.  Held, 
that,  on  the  proceedings  under  the  writ,  the 
introduction  of  the  record  of  the  judgment 
in  evidence  could  not  be  objected  to  on  the 
ground  that  the  motion  did  not  show  that 
there  was  such  a  judgment  rendered,  or  that 
a  transcript  of  it  had  been  filed  and  recorded 
in  the  clerk's  office.  Logansport,  C.  &*  S.  W. 
R.  Co.  V.  Byrd,  51  Ind.  525. 

430. reports  of  company'^  em- 
ployes.— The  report  of  an  employe  of  the 
company  as  to  the  killingof  an  animal,  if  ad- 
missible as  evidence  on  behalf  of  the  com- 
pany, is  not  so  unless  it  be  shown  that  it  was 
the  duty  and  business  of  the  employe  to 
make  such  report,  and  that  it  was  made  con- 
temporaneously with  the  occurrence  ;  nor 
should  the  oral  testimony  of  the  employe  be 
stricken  out  on  the  ground  tiiat  his  report  is 


better  evidence.  Jacksonville,  T.  &*  K.  W. 
R.  Co.  V.  Wellman,  26  Fla.  344, 7  So.  Rep.  845. 
Where  a  company  is  sued  for  negligently 
killing  stock,  the  report  of  a  section  foreman 
giving  his  opinion  as  to  the  cause  of  the  in- 
jury is  not  admissible  in  evidence.  Ohio&* 
M.  R.  Co.  v.  Aticbcrry,  43  ///.  App.  80.— 
Quoting  Illinois  C.  R.  Co.  v.  Wlialen,  42 
111.  396;  Chicago  &  N.  W.  R.  Co.  v.  Dem- 
ent, 44  111.  75.  Following  Railway  Co.  v. 
Ritter,  (Tex.  App.)  16  S.  W.  Rep.  909. 

b.  Sufficiency. 

440.  Generally.*— In  a  suit  for  damages 
for  injuring  cattle,  the  witnesses  estimated 
the  value  of  the  property,  variously,  from 
$30  to  $40.  Held,  that  the  court  might 
find  the  value  to  be  $37.  Madison  &*  I.  R. 
Co.  V.  Herod,  10  Ind.  2. 

Where  the  testimony  as  to  the  value  of 
an  animal  killed  by  a  railroad  does  not  in- 
dicate whether  the  estimate  of  the  value 
given  was  based  upon  the  market  price,  if 
there  is  such  a  price  to  govern,  or  upon 
actual  value,  and  there  is  nothing  to  show 
that  an  effort  was  made  to  ascertain  from 
the  witnesses  on  what  basis  the  valuation 
was  made,  this  court  will  not  set  aside  the 
verdict  on  the  mere  supposition  that  this 
basis  was  not  the  market  value.  Jackson- 
ville, T.  6-  A'.  W.  R.  Co.  V.  Wellman,  26 
Fla.  344,  7  So.  Rep.  845. 

In  an  action  for  the  killing  of  a  mule  it 
was  shown  that  the  mule  had  been  injured, 
but  no  proof  was  made  of  its  death.  A  ver- 
dict for  the  full  value  of  the  mule  will  not 
be  disturbed,  as  it  could  not  be  presumed 
that  a  crippled  mule  was  of  any  value.  St. 
Louis,  A.  <S-  T.  R.  Co.  v.  Evans,  78  Tex, 
369,  14  S.   W.  Rep.  798. 

The  owner  of  cattle  sued  a  railroad  com- 
pany before  a  justice  for  the  killing  of  four 
cows  valued  at  $30  each,  and  recovered  a 
judgment  for  $120.  The  company  ap- 
pealed to  court,  and  plaintiff  amended,  fix- 
ing the  value  of  the  cows  at  $50  each.  The 
witness,  who  made  the  affidavit  of  claim, 
testified  that  he  had  made  the  first  affidavit, 
fixing  the  value  at  $30,  in  a  spirit  of  com- 
promise, but  as  a  matter  of  fact  their  mar- 
ket value  was  $50;  that  they  did  not  have  a 
market  value  at  the  time  and  place  of  kill- 
ing, but  shortly  afterward  similar  cows  were 
worth  $50  each— is  sufficient  to   support  a 

*  Sufficiency  of  evidence  to  fix  liability  on 
company  for  killing  or  injuring  stock,  see  note, 
1 1  L.  R.  A.  428. 


t^M 


■I'lr  i''l 


,1 


288 


ANIMALS,  INJURIES   TO,  441-444. 


judgment  fixing  the  value  at  $50  each. 
Gu//,  C.  6-  5.  F.  R.  Co.  v.  Gibson  {Tex.  Civ. 
App.),  21  S.  W.  Rep.  936. 

In  an  action  to  recover  the  value  of  a 
horse — held,  error  to  instruct  the  jury  that 
they  might  find  its  value  upon  a  description 
thereof  given  by  the  witnesses,  and  from 
their  own  general  knowledge  of  the  value 
of  horses,  without  additional  evidence. 
Harrow  v.  St.  Paul  &-  D.  R.  Co.,  43  Minpt. 
71,44  A^.  IV.  Rep.  881. 

441.  Must  prove  material  allega- 
tions.—  Evidence  must  show  that  defend- 
ant owned  the  railroad  on  which  the  animal 
was  killed.  F/.  IVayn;  M.  &>  C.  R.  Co. 
V.  McClurg,  47  I  mi.  1 38. 

On  trial  of  an  action  for  killing  plaintiff's 
animal  on  the  railroad  with  a  locomotive,  a 
failure  to  prove  that  tlie  defendant  was 
operating  the  road,  and  that  it  ran  one  of 
its  locomotives  thereon  against  the  animal 
and  killed  it,  as  alleged,  was  a  failure  to 
prove  two  of  the  material  allegations  of  the 
complaint.  Wabash  R.  Co.  v.  Fo'shee,77 
Ind.  158.— Distinguishing  Evansville  &  C. 
R.  Co.  V.  Smith,  65  Ind.  92 ;  Evansville  &  C. 
R.  Co.  V.  Snapp,  61  Ind.  303 ;  Toledo,  W.  & 
W.  R.  Co.  V.  Weaver,  34  Ind.  298. 

In  a  suit  against  a  railroad  for  killing 
stock,  the  evidence  must  show  that  the 
stock  were  killed  by  the  defendant  road. 
Loganspori,  P.  &>  B.  R.  Co.  v.  Caldwell,  38 
///.  280.— Distinguished  in  Toledo,  P.  & 
W.  R.  Co.  V.  Eastburn,  54  111.  381. 

In  a  suit  against  a  company  to  recover 
for  stock  killed,  the  allegation  tliat  the  road 
was  not  fenced  is  a  material  one,  and  must 
be  proved.  Indianapolis  &•  C.  R.  Co.  v. 
Wharton,  13  Ind.  509. 

In  an  action  to  recover  for  the  killing  or 
injuring  of  live  stock  by  railroad  cars,  at  a 
point  on  its  track  where  the  track  might 
have  been  fenced,  but  was  not,  the  allega- 
tion that  the  track  was  not  fenced  must  be 
proved  on  the  trial.  Pittsburgh,  C.  &^  St. 
L.  R.  Co.  V.  Hackney,  53  Ind.  488. 

442.  Must  show  that  killing  or  in- 
jury was  caused  by  company's  negli- 
gence.— To  sustain  a  common-law  action 
against  a  company,  by  the  owner  of  an  ani- 
mal, for  injury  negligently  inflicted  on  the 
animal  by  the  defendant's  train  of  cars, 
there  must  be  evidence  that  such  injury  re- 
sulted from  the  negligence  of  the  defend- 
ant's employes  operating  such  train.  Cin- 
cinnati, H.  &•  I  R.  Co.  V.  Bartlett,  58  lud. 
572,  igA/n.  Ry.  Rep.  17. 


A  demurrer  to  plaintiff's  evidence  is 
properly  sustained  where  there  is  no  proof 
except  of  the  killing,  but  nothing  to  show 
that  it  was  negligent.  Flannery  v.  Kansas 
City,  St.  J.  6-  C.  B.  R.  Co.,  23  Mo.  App. 
120;  affirmed  ^7  Mo.  192. 

To  recover  for  negligently  killing  stock, 
there  must  be  shown  a  connection  between 
the  killing  and  omission  of  duty  required 
by  law  of  the  defendant;  and  an  agreed 
statement  of  facts  set  out  in  the  opinion 
does  not  in  any  way  justify  the  legal  con- 
clusion that  the  defendant  negligently 
killed  the  plaintiff's  cow.  Smith  v.  Hanni- 
bal &•  St./.  R.  Co.  47  Mo.  App.  546. 

44i<.  Must  show  killing  in  county 
where  action  brought.*  —  In  an  ac- 
tion, under  the  Indiana  statute,  for  killing 
stock,  the  evidence  must  affirmatively  show, 
either  directly  or  by  inference,  that  the 
stock  were  killed  within  the  county  where 
the  action  was  brought.  Louisville,  N.  A, 
&*  C.  R.  Co.  V.  Breckenridge,  64  Ind.  113. — 
Overruled  in  Terre  Haute  &  I.  R.  Co.  v. 
Pierce,  19  Am.  &  Eng.  R.  Cas.  581,  95  Ind. 
496. — Croy  V.  Louisville,  N.  A.  6-  C.  R.  Co., 
19  Am.  &*  Eng.  R.  Cas.  608,  97  Ind.   126. 

Where,  in  an  action  under  the  stock  law 
of  1874,  lo  recover  damages  for  the  killing 
of  a  horse  by  the  train  of  defendant,  the  case 
coming  to  this  court  upon  simply  the  find- 
ings of  fact  and  without  any  testimony,  the 
findings  read  "  that  said  plaintiff  then  re- 
sided about  three-quarters  of  a  mile  from 
the  railroad  of  the  defendant,  in  the  county 
of  D.  and  state  of  Kansas,  and  about  two 
and  one-half  miles  north  of  Baldwin  city, 
and  in  said  county  and  state,"  and  then 
state  the  circumstances  of  the  injury,  which 
took  place  as  he  was  riding  towards  a  spring 
on  the  opposite  side  of  the  railroad,  and 
about  seventy-five  yards  therefrom — held, 
that  a  general  conclusion  and  judgment  in 
favjr  of  the  plaintiff  will  not  be  reversed  on 
the  ground  that  it  does  not  appear  that  the 
animal  was  killed  in  the  county  of  D.  Kan- 
sas City,  L.  -^S.  R.  Co.  v.  Phillibert,  25  Kan. 
582. — Followed  in  Missouri  Pac.  R.  Co.  v. 
McCally,  41  Kan.  639,  655,  21  Pac,  Rep.  574. 

444.  Need  not  show  that  defend- 
ant is  a  corporation. — Where  an  action 
is  brought  in  a  justice's  court,  under  §  30,  ch. 
84,  Comp.  Laws  1885,  against  a  railway  com- 
pany for  the  killing  of  stock,  and  no  answer 
is  filed  or  appearance  made  by  the  defend- 

»  See  ante,  290,  329  ;  post,  499. 


'T 


ANIMALS,  INJURIES   TO,  445-447. 


289 


ant  before  the  justice  of  the  peace,  and  the 
defendant  appeals  to  the  district  court,  on 
the  trial  in  the  district  court  it  is  not  nec- 
essary for  the  plaintiff  to  prove  that  the 
railway  company  is  a  corporation  to  entitle 
him  to  recover.  The  proof  that  the  de- 
fendant was  a  railway  company  operating 
said  railway  at  the  time  of  tlie  injury,  under 
^  3",  is  sufficient.  Kansas  City,  L.  6>»  S.  K. 
R.  Co.  V.  Bolson,  35  Ain.&^Etig.  A'.  Cas.  144, 
36  Kan.  534,  14  Pac.  Rep.  5. 

Evidence  that  an  animal  was  injured  upon 
tiie  track  of  a  railway  known  as  the  Cincin- 
nati, Hamilton  &  Indianapolis  Railroad,  a 
i)ranch  of  the  Cincinnati,  Hamilton  & 
Dayton  Railroad,  sufficiently  indicates  that 
the  former  is  a  corporation  by  thai  name, 
and  presumptively  liable  for  the  injury. 
Cincinnati,  H.  &*  I.  R.  Co.  v.  AIcDougall, 
108  Ind.  179,  8  A^.  E.  Rep.  571. 

445.  Sufficiency  of  evidence  to 
sliow  ownersliip  of  animal.'" — A  judg- 
ment for  plaintifT  awarding  damages  for  cat- 
tle killed  cannot  be  supported  without  proof 
that  he  owned  the  cattle.  Turner  v.  St. 
Louis  (S-  .S'.  F.  R.  Co.,  76  Mo.  261. 

A  judgment  in  favor  of  plaintiff,  in  an 
action  to  recover  for  stock  killed,  cannot  be 
supported  without  evidence  showing  that 
he  was  either  the  owner  or  in  possession  of 
property.  Alexander  v.  Hannibal  &*  St.  J. 
R.  Co.,  76  Mo.  494. 

Where  a  company  admits  the  killing  of 
stock  and  tenders  a  certain  amount  in  pay- 
ment therefor,  which  is  not  accepted,  and 
suit  is  brought,  the  only  real  question  at 
issue  is  the  value  of  the  stock,  as  the  tender 
is  indirectly  an  admission  that  plaintiff  is 
the  owner,  and  he  may  dispense  with  proof 
thereof.  Scott  v.  Chicago,  M.  &*  St.  P.  R. 
Co.,  78  /owa  199,  42  A';  IV.  Rep.  645. 

Plaintiffs  suing  as  joint  owners  in  an 
action  for  killing  live  stock  are  required 
to  make  reasonably  strict  proof  of  their 
title  and  ownership.  Illinois  C,  R.  Co. 
v.  Finnigan,  21  ///.  646. 

446.  To  show  that  defendant 
owned  railroad. t— In  a  suit  for  killing 
stock  where  the  road  was  not  fenced,  it  ap- 
peared that  the  road  was  part  of  a  line 
which,  when  constructed,  was  supposed  to 
belong  to  another  company  than  the  de- 
fendant (the  C.  &  I.  A.  L.  R.  Co.),  and  that 
before  the  killing  the  defendant  had  mort- 

*See/w/,  471. 

t  See  ante.  339  ;  post,  470-477. 

I  D.  R.  D.— 19. 


gaged  that  line  of  road  to  secure  certain 
bonds,  reciting  therein  that  the  defendant 
had  entered  into  an  agreement  of  consolida- 
tion with  the  C.  &  I.  A.  L.  R.  Co.,  and 
agreed  to  issue  the  bonds  a.-f*  mortgage. 
It  also  appeared  that  the  defendant  did  not 
run  regular  trains  over  that  road  until  after 
the  killing.  Held,  that  the  evidence  justi- 
fied the  inference  that  the  defendant  owned 
and  controlled  the  road  at  the  time  of  the 
killing.  Louisville,  N.  A.  &^  C.  R.  Co.  v. 
Meadows,  87  /nd.  441. 

It  cannot  be  said  that  there  was  no  evi- 
dence tending  to  prove  that  at  the  time 
when  the  plaintiff's  steer  was  killed  trains 
were  running  on  the  defendant's  railway,  or 
that  the  defendant  was  owner  of  the  railway, 
when  the  record  shows  that  the  cause  was 
tried  on  an  affirmative  theory  as  to  thoE" 
points,  that  the  testimony  of  all  the  wit- 
nesses manifestly  assumed  such  running  of 
the  trains,  that  the  defendant's  answer  was 
under  the  name  of  the  railway  company 
charged,  and  the  defendant  made  no  objec- 
tion to  the  plaintiff's  testimony  that  the 
animal  was  killed  on  the  railway  ider.tified 
with  that  name.  Keltenbaugh  v.  St.  Louis, 
A.  <S-  T.  R.  Co.,  34  Mo.  App.  147.— DIS- 
TINGUISHING Gilbert  v.  Missouri  Pac.  R. 
Co.,  23  Mo.  App.  65. 

447.  Sufficiency  of  evidence  to 
show  company's  negligence,  gener- 
ally.— (i)  What  is  sufficient, — In  an  action 
for  killing  a  horse  a  verdict  for  the  plaintiff 
will  not  be  set  aside  where  it  appears  that 
the  horse  was  seen  on  the  track  a  short  dis- 
tance in  front  of  the  engine,  and  that  the 
engineer  had  sufficient  time  to  stop  the  train 
and  failed  to  do  so.  Woodland  v.  Union 
Pac.  R.  Co.,  {Utah)  26  Pac.  Rep.  298. 

Where  the  evidence  shows  that  a  horse 
killed  by  a  train  had  jumped  upon  the  track 
forty  yards  ahead,  and  was  running  very 
fast ;  that  the  train  was  approaching  a  sta- 
tion, and  had  already,  before  the  horse  got 
iipon  the  track,  shut  off  steam  and  signalled 
for  brakes,  and  the  track  did  not  appear  to 
be  down-grade,  the  court  will  not  say  the 
jury  were  wrong  in  finding  for  the  plaintiff 
upon  the  ground  of  negligence  of  agents  of 
the  road.  Atlantic  &•  G.  R.  Co.  v.  Burt,  49 
Ga.  606. 

Where  it  appeared  that  the  engineer,  after 
discovering  the  mule,  reversed  his  engine, 
and  did  all  in  his  power  to  avoid  a  collision, 
but  seeing  that  it  was  inevitable,  and  believ- 
ing that  his  own  life  was  in  danger,  jumped 


\ 


200 


ANIMALS,  INJURIHS   TO,  448. 


."I 

•-If 
lilfl, 


1  ; 


from  the  train.  VfM,  that  such  jumping, 
under  the  circumstimces,  was  not  such  neg- 
ligence as  would  make  the  company  liable. 
Vasoo  &^  M.  V.  A'.  Co.  v.  Brumfield,  64 
Miss.  637,  I  So.  Rep.  905, 

When  it  is  alleged  and  proved  that  the 
company  failed  to  fence,  and  that  the  plain- 
tid's  stock  were  killed  or  injured  upon  or 
near  such  unfenced  track  by  a  moving  train, 
the  negligence  is  established,  and  can  only 
be  defeated  by  proof  of  contributory  negli- 
gence or  misconduct.  Eaton  v.  Oregon  R. 
(S-  N.  Co.,  45  Am.  &>  Eng.  R.  Cas.  481,  19 
Oreg.  371.— Following  Hindman  v.  Ore- 
gon R.  &  N,  Co.,  17  Oreg.  619. 

(2)  What  is  insufficient. — In  an  action  for 
neyligenily  killing  stock,  where  there  is  an 
utter  failure  of  proof  of  negligence,  as  in 
this  case,  there  can  be  no  recovery ;  mere 
conjecture  will  not  do.  Perse  v.  Atchison, 
T.  <S-  S.  F.  R.  Co.,  51  Mo.  App.  171. 

Where  the  only  proofs  to  establish  negli- 
gence of  the  defendant  in  killing  stock  are 
the  fact  that  the  place  wiiere  stock  was  run 
over  and  killed  by  a  moving  freight  train 
was  at  a  point  on  the  track  where  the  per- 
sons in  charge  and  operating  said  train 
could  have  seen  the  cow  in  time  to  have 
utopped  the  train,  and  the  fact  that  the  train 
was  moving  faster  than  the  regular  schedule- 
time  for  such  trains,  in  the  absence  of  all 
showing  when  the  cow  went  upon  the  track, 
the  evidence  is  not  sufficient  to  establish 
negligence  on  the  part  of  the  defendant  to 
entitle  the  plaintiff  to  recover.  Kansas  City, 
L.  &*  S.  K.  R.  Co.  V.  Bo/son,  35  Am.  6-  Eng. 
R.  Cas.  144,  36  /Can.  534,  i^Pac.  Rep.  5. 

There  can  be  no  recovery  against  a  com- 
pany for  killing  stock  where  there  is  no  evi- 
dence on  the  question  of  negligence  except 
that  of  the  trainmen,  who  testify  that  the 
train  was  properly  managed,  and  their  evi- 
dence is  not  discredited  or  contradicted. 
St.  Louis  &-  C.  R.  Co.  V.  Vanover,  14  ///. 
App.  522. 

In  an  action  for  negligently  killing  plain- 
tiff's stock,  where  the  plaintiff  only  shows 
the  injury  and  the  passing  of  the  train  at  the 
rate  of  twenty-five  miles  an  hour  at  the  place 
of  the  accident,  and  it  also  appears  that  the 
whistle  was  sounded  at  the  usual  place, 
about  three  hundred  yards  from  where  the 
animals  were  killed,  and  there  was  no  proof 
that  the  engineer  had  any  knowledge  that 
such  animals  frequented  the  locality,  a  case 
is  not  made  out,  and  a  demurrer  to  the  evi- 
dence should  be  sustained.    Sloop  v.  St. 


Louis,  I.  M.  i5-  5.  R.  Co.,  22  Mo.  App.  593.— 
Following  Lord  v.  Chicago,  R.  I.  &  P.  R, 
Co.,  82  Mo,  139;  Milburn^A  Hannibal  &  St. 
J.  R.  Co.,  21  Mo.  App.  426. 

In  an  action  on  tiie  case  against  a  railroad 
company,  to  recover  for  cattle  killed,  a  neg- 
ligent killing  must  be  shown.  If  the  proof 
shows  that  the  killing  was  wilful  on  the  part 
of  the  engineer,  or  that  it  was  entirely  acci- 
dental, an  action  will  not  lie.*  Banner  v. 
South  Carolina  R.  Co.,t^  Rich. {So.  Car.)  329. 
—Reviewing  Piggot  v.  Eastern  Counties 
R.  Co.,  3  Q.  B.  229,  54  E.  C.  L  228 ;  Aldridge 
V.  Great  Western  R.  Co.,  3  M.  &  G.  515,  42 
E.  C.  L.  273 ;  Ellis  v.  Portsmouth  &  R.  R. 
Co.,  2  Ired.  (N.  Car.)  140. 

Proof  that  a  horse  was  frightened  by  a 
train  running  twenty-five  miles  an  hour  and 
was  injured  by  falling  through  a  railroad 
bridge  is  not  sufficient  to  support  a  verdict 
finding  the  company  negligent,  though  it 
appears  that  the  schedule-time  of  the  train 
was  eighteen  miles  an  hour,  where  it  fur- 
ther appears  that  the  train  was  behind  time 
and  was  allowed  to  run,  when  behind 
time,  twenty-five  miles  an  hour,  and  that  the 
persons  in  charge  of  the  train  used  all  the 
means  in  their  power  after  the  horse  was 
discovered  to  prevent  injury.  St.  Louis,  A. 
&*  T.  R.  Co.  V.  Felton,  4  Tex.  App.  {Civ.  Cas.) 
60,  14  5.  W.  Rep.  1072. 

448.  Merely  showing  the  fact  of 
killing.t— The  killing  of  a  cow  or  other 
animal  on  a  railroad,  by  the  trains  running 
over  it,  is  not,  of  itself,  proof  of  negligence. 
Scott  V.  Wilmington  &*  R.  R.  Co.,  4  /ones 
{JV.  Car.)  432.— Distinguishing  Ellis  v. 
Portsmouth  &  R.  R.  Co.,  2  Ired.  (N.  Car.) 
138 ;  Piggot  V.  Eastern  Counties  R.  Co.,  3  Q. 
B.  229,  54E.C  L.  229.  Following  Her- 
ring V.  Wilmington  &  R.  R.  Co.,  10  Ired. 
(N.  Car.)  402.— Approved  in  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Walton,  3  N.  Mex. 
319.  Explained  in  Aycock  v.  Raleigh  & 
A.  A.  L.  R.  Co.,  89  N.  Car. 321.  Reviewed 
in  Doggett  V.  Richmond  &  D.  R.  Co.,  81 
N.  Car.  459. —  Walsh  v.  Virginia  &*  T.  R. 
Co.,SJVev.  no.— Approved  in  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Walton,  3  N.  Mex.  319. 
Quoted  in  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Betts,  31  Am.  &  Eng.  R.  Cas.  563,  10  Colo. 

*  See  ante,  37. 

t  See  ante,  6,  29-33,  126  ;  post.  480. 

As  to  how  far  proof  of  killing  of  live  stock 
makes  company  liable  without  proof  of  negli- 
gence or  misconduct,  and  how  far  liability  is  af- 
fected by  fence  laws,  see  note,  58  Am.  Rep.  703. 


ANIMALS,  INJURIES   TO,  441*,  450. 


201 


431,  15  Pac.  Rep.  Z2\.— Burlington  &•  A/. 
A'.  A*.  Co.  V.  lVi-/t(f/,  1 2  Neb.  76. 

The  mere  killing  of  an  animal  by  a  rail- 
road train  is  not  evidence  of  negligence 
anci  the  mere  fact  that  an  animal  was  found 
killed  on  a  railroad  track  will  not  warrant  a 
recovery  against  the  company.  Atchison,  T. 
d-'  .V.  F.  R.  Co.  V.  Betts,  31  Am.  &*  Eng.  R. 
Cas.  563,  10  Co/o.  431,  15  P<u:  Rep.  821.— 
(JUDTING  Walsh  V.  Virginia  &  T.  R.  Co.,  8 
Ncv.  1 10. 

Neither  the  fact  that  the  cow  was  killed 
by  the  train,  nor  that  the  track  was  such  as 
to  afford  a  clear  view  for  a  considerable  dis- 
tance, nor  that  the  train  passed  the  spot  at 
its  usual  speed,  has  any  tendency  to  prove 
want  of  care  on  the  part  of  the  company. 
Locke  V.  St.  Paul  &*  P.  R.  Co.,  1 5  Minn.  350, 
(Gill.  283.) 

440.  SliowiiiK  failure  to  give  sig- 
iinl».*— Where  suit  is  brought  to  recover  for 
killing  a  cow  at  a  highway  crossing,  evi- 
dence tending  to  show  that  the  statutory 
signals  were  not  given,  and  that  the  acci- 
dent might  have  been  prevented  by  the 
exercise  of  ordinary  care,  is  sufficient  to 
support  a  verdict  for  plaintiff.  St.  Louis,  V. 
&•  T.  If.  R.  Co.  v.  Moudy,  38  ///.  App.  322. 
Chicago  Qt*  R.  I.  R.  Co.  v.  Reid,  24  ///.  144. 

Where  suit  is  brought  for  killing  stock  at 
a  highway  crossing  by  reason  of  the  signals 
not  being  given,  as  required  by  statute,  it  is 
necessary  to  prove  all  the  facts  and  circum- 
stances to  enable  the  jury  to  determine 
whether  the  killing  was  by  reason  of  such 
failure.  Holman  v.  Chicago,  R.  /.  &*  P.  R. 
Co.,62Mo.  562.— Quoting  Stoneman v.  At- 
lantic &  P.  R.  Co.,  58  Mo.  503— Followed 
IN  Harlan  v.  Wabash,  St.  L.  &  P.  R.  Co.. 
18  Mo.  App.  483.  Reviewed  and  distin- 
nuiSHED  IN  Alexander  v.  Hannibal  &  St.  J. 
R.  Co.,  76  Mo.  494. 

Under  14  &  15  Vic.  ch.  51,  §  21,  the 
omission  to  ring  the  bell  and  sound  the 
whistle  of  a  locomotive  engine  by  the  en- 
gineer on  approaching  a  highway  crossing 
was  held  evidence  of  a  breach  of  duty  and 
negligence  on  the  part  of  the  company  suf- 
ficient to  support  a  verdict  of  damages  for 
the  value  of  cows  killed  by  the  engine  at 
such  crossing.  Shields  v.  Grand  Trunk  R, 
Co.,  7  U.  C.  C.  P.  111. 

Where  there  is  a  conflict  of  evidence  as 
to  whether    a  bell  was  rung  or  a  whistle 

*  See  aule,  05,  192,  209 ;  post,  480, 
562. 


sounded  within  the  limits  of  a  city  just  be- 
fore an  animal  was  killed  by  a  train,  the 
question  of  negligence  having  been  settled 
by  the  jury,  a  verdict  for  the  plaintiff  will 
not  be  disturbed.  Frits  v.  First  Div.  St. 
i    &>  P.  R.  Co.,  22  A/inn.  404. 

In  an  action  for  damages  for  killing  cattle 
at  a  point  not  on  or  in  the  immediate  vi- 
cinity of  a  public  road  crossing,  the  evidence 
of  a  failure  to  ring  a  bell  or  blow  a  whistle 
on  approaching  the  crossing,  at  a  consider- 
able distance  from  the  place  of  the  accident, 
is  not  such  proof  of  negligence  as  will  war- 
rant a  verdict  for  plaintiff.  Long  v.  St. 
Louis,  A'.  &^  N.  IV.  R.  Co.,  2},  Mo.  App.  178. 

450.  Sliowiiig  fhiliire  to  keep  look- 
out,  olicck  trniii.  or  reverMe  engine.* 
— (1)  Proof  Sufficient. — Proof  that  a  cow 
that  was  killed  on  a  track  could  have  been 
seen  when  a  mile  away,  that  no  effort  was 
made  to  stop  the  train,  and  that  no  signals 
were  given  to  frighten  her  off  until  within 
150  yards  of  her,  is  sufficient  proof  of  negli- 
gence to  warrant  a  recovery  against  the 
company.  Ohio,  /.  6-«  U\  R.  Co.  v.  Klein- 
smith,  38  ///.  App.  45. 

Proof  that  several  cattle  were  crowded  on 
a  track  in  plain  view  of  the  engineer  for  100 
rods,  but  that  he  ran  on  without  making  any 
effort  to  stop  the  train,  is  sufficient  to  show 
such  negligence  as  will  make  the  company 
liable  for  an  injury  thereto.  Laiusonv.  Chi- 
cago, R.  I.  (S-  P.  R.  Co.,  57  lozva  672,  11  N. 
W.  Rep.  633. 

A  company  will  be  adjudged  guilty  of 
negligence  under  evidence  showing  that  a 
cow  was  injured  by  a  train  at  a  point  where 
she  might  have  been  seen  eight  hundred 
feet  away,  and  that  the  train  might  have  been 
stopped  within  six  hundred  feet,  but  that 
it  ran  without  slackening  its  speed  or 
sounding  a  whistle,  and  that  when  near  the 
cow  she  ran  on  the  track  some  thirty  feet 
before  the  engine  before  she  was  struck. 
Kansas  City,  Ft.  S.  &•  G.  R.  Co.  v.  Nines,  19 
Am.  <S-  Eng.  R.  Cas.  495,  32  Kan.  619, 5  Pac. 
Rep.  172. — Former  Appeal,  Kansas  City, 
Ft.  S.  &  C.  R.  Co.  V.  Hines,  29  Kan.  695. 

A  verdict  against  a  company  for  the  value 
of  a  mare  and  filly  killed  by  a  train  will  not 
be  disturbed  where  the  evidence  shows  that 
where  the  filly  was  struck  it  was  straight 
and  level,  and  that  an  animal  on  or  near  the 
track  could  be  seen  for  more  than  half  a 

*See  ante,  61-72,  115,  120,  164, 
173,  105-108. 


'iOi 


ANIMALS,  INJURIES   TO,  4i%l,4a2. 


;^ 


■K 


i!f  I 


ill 
i 


li 

1 


mile  either  way,  and  footprints  showed  that 
tlie  tilly  had  run  on  the  track  ahead  of  the 
train  more  than  two  hundred  yards  before 
beiiiK  struck,  Gu//,  C.  &*  S.  F.  A'.  Co.  v. 
AV/Zi,  54  J'ca  A./>.  481,  I o  i/.  .S;  ////.  640, 
4  C.  C.  A.  454.— Foi.i.fiWKi)  IN  Gulf,  C.  A 
S.  F.  R.  Co.  V.  Seifred,  54  T'-'l.  Rep.  485,  10 
U.  S.  App.  650,  4  C.  C.  A.  459;  Gulf,  C.  &  S. 
F.  R.  Co.  V.  Wallace,  54  F-d.  Rep,  485,  10 
U.  S.  App.  647.  4  C.  C.  A.  458- 

(2)  Proof  Insufficient.— Prool  that  the  en- 
gineer did  not  keep  a  look-out  for  stock 
straying  upon  the  track  does  not  show  neg- 
ligence upon  the  part  of  the  company,  for 
he  is  only  required  to  use  ordinary  and  rea- 
sonable care  after  discovering  such  stock. 
Memphis  &*  L,  A'.  A\  Co.  v.  /Cerr,  40  /Im. 
<&«•  ASng:  A".  Gis.  171,  52  Ari:  162,  12  S.  W. 
Htp.  329,  5  A.  A'.  A.  429. 

Tlie  court  instructed  that  the  defendant 
would  be  liable  if  tlic  engineer,  "  in  the  ex- 
ercise of  ordinary  care,  could  and  should 
have  prevented  said  accident  after  he  actu- 
ally saw  the  cattle  on  the  track,"  The  jury 
specially  found  that  the  engineer  "  might 
have  seen  the  cattle  sooner."  Held,  that, 
with  no  other  evidence  of  negligence  on  de- 
fendant's part,  a  verdict  for  plaintiff  was 
contrai-y  to  said  instruction,  and  could  not 
be  sustained.  Davidson  v.  Central  Iowa  R. 
Co.,  35  Am.  &»  Eng,  R.  Cas.  158,  75  Iowa 
22,  39  A^.  IV.  Rep.  163. 

451.  Showing  that  train  waH  be- 
hind time.— Evidence  merely  showing 
that  a  train  was  behind  time  will  not,  in  the 
absence  of  proof  of  other  negligence,  render 
a  company  liable  for  an  accident  occurring 
at  a  private  crossing.  Annapolis  &*  B.  S.  L, 
R.  Co.  V.  Pumphrey,  42  Am.  &*  Eng.  R.  Cas. 
599,  72  Md.  82,  19  Atl.  Rep.  8. 

452.  Showing  negligence  by  cir- 
cumstantial evidence.*— Negligence  on 
the  part  of  a  company  in  killing  stock  may 
be  established  either  by  proof  of  the  facts 
and  circumstances  attending  the  transac- 
tion, or  by  showing  that  the  injury  was  done 
on  a  part  of  the  road  not  inclosed  by  a 
lawful  fence,  and  not  at  the  crossing  of  a 
public  highway — facts  from  which  the  law 
raises  an  inference  of  negligence.  Calvert 
V.  Hannibal  &*  St.  J.  R.  Co.,  38  Mo.  ifirj.— 
Following  Brown  v.  Hannibal  &  St.  J.  R. 

*  See  ante,  405  ;  post,  486. 

For  circumstantial  evidence  as  to  condition  of 
animal  when  found  that  will  support  a  verds  c 
for  plaintiff,  see  38  Am.  &  En(J.  R.  Cas.  fo^, 
abstr. 


Co.,  33  Mo.  309;  Calvert  v.  Hannibal  h  St. 
J.  R.  Co.,  34  Mo.  242. 

In  order  to  establish  the  liability  of  a 
company  for  killing  stock  that  go  upon 
the  track  through  a  break  in  the  fence,  it  is 
not  necessary  to  show  the  facis  by  direct 
evidence,  but  they  may  be  inferred  from 
circumstances.  Mi  Bride  v.  Kansas  City,  S/. 
7.  i&-  C.  li.  R.  Co.,  20  Mo.  App.  216.— Fo I,. 
LOWING  Gee  v.  St.  Louis,  I.  M.  &  S.  R.  Co., 
80  Mo.  283.— Applied  in  Harned  v.  Mis- 
souri Fac.  R.  Co.,  51  Mo.  App.  482. 

In  an  action  brought  under  §  1289  of  the 
Code  of  Iowa,  to  recover  damages  for  inju- 
ries to  a  marc  running  at  large,  it  appeared 
that  the  defendant's  track  ran  east  and 
west,  and  that  the  plaintiff's  mare  was  found 
fast  in  the  north  end  of  the  cattle-guard, 
outside  of  the  r\oK\.\\  rail,  on  an  embankment 
of  earth  some  feet  from  the  track,  with  her 
back  under  the  ends  of  the  ties,  her  head  to 
the  west  and  her  feet  projecting  upwards 
and  outwards;  that  when  found  the  mare 
had  bruises  and  injuries  on  the  left  side  of 
her  body,  neck,  and  head,  and  some  on  her 
right  side ;  that  the  evidence  tended  to  show 
that  two  trains  passed  west  on  the  defend- 
ant's line  early  in  the  morning  on  the  day  the 
mare  was  thus  found ;  that  the  signal  for 
stock  on  the  track  was  heard  ;  that  the  track- 
men came  to  take  the  mare  out,  and  that  a 
horse's  tracks  were  found  in  the  snow, 
showing  tliat  some  horse  had  come  onto  the 
grade  east  of  the  cattle-guard  and  traveller! 
west  to  within  twelve  or  fifteen  feet  of  the 
guard,  where  the  tracks  ended,  and  that  no 
tracks  were  seen  about  the  guard.  Held, 
that  a  verdict  awarding  the  plaintiff  dam- 
ages as  provided  in  the  above  section  was 
supported  by  the  evidence.  Brockert  v. 
Central  Iowa  R.  Co.,  82  Iowa  369,  47  N.  W. 
Rep.  1026.— Reviewing  Moore  v.  Burling- 
ton &  W.  R.,  72  Iowa  75 ;  Asbach?/.  Chicago, 
B.  &  Q.  R.,  74  Iowa  248 ;  Meade  v.  Kansas 
City,  St.  J.  &  C.  B.  R.,  45  Iowa  699. 

Where  there  is  a  decided  preponderance 
of  evidence  that  the  animals  injured  were 
not  left  in  the  right  of  way,  but  in  an  ad- 
joining pasture,  and  that  the  gate  for  the 
private  way  over  the  railway  was  closed,  and 
that  there  was  no  way  by  which  tlie  coVs 
could  escape  from  the  pasture  upon  the 
right  of  way  except  by  going  through  or 
ovr  the  railroad  fence,  evidence  that  the 
fence  was  insufficient  and  out  of  repair,  and 
that  the  colts  went  over  or  through  it,  is 
sufficient   to  authorize  a   verdict    for   the 


m\ 


ANIMALS,  INJURIES   TO,  4551-455. 


%W 


plaiDtifl.    Cochran  v.  Iowa  C.  /f.  Co.,  (Iowa) 
53  A'.  W.  Ref).  225. 

Proof  that  the  pluintifT's  cow  was  seen 
near  tlie  defendant  company's  railway  track 
with  one  of  its  Irjjs  br()i<en,  about  the  time 
that  two  trains  iiad  passed  over  tiie  road,  is 
some  evidence  in  support  of  the  plaintiff's 
claim  for  damages.  Jioing  v.  Raleigh  &*  G. 
R.  Co.,  ^7  N.  Car,  360. 

Where  a  company  is  sued  for  negligently 
killing  stock,  proof  that  tracks  of  animals 
were  found  along  the  track  after  the  ac- 
cident, apparently  made  while  running,  is 
not  sufficient  to  establish  such  negligence. 
Peoria,  D.  Sf  IC.  R.  Co.  v.  Aten,  43  ///.  Af>p. 
68.— DlSTiNdUiSHiNO  Chicago  &  N.  W.  R. 
Co.  V.  Barrie,  55  III.  227.  QuoriNO  Rock- 
ford,  R.  I.  &  St.  L.  R.  Co.  V.  Connell,  67 
III.  216. 

453.  Siiillclciicy  of  evidence  to 
mIiow  groHM  iivKligcnce.* — Independent 
of  the  legal  presumption,  where  cars  were 
left  on  an  inclined  plane,  where  they  could 
be  easily  set  in  motion,  and  were  very  inse- 
curely fastened,  and  one  of  the  animals  for 
the  killing  of  which  the  suit  was  brought 
was  killed  a  month  previous  to  the  other  by 
a  car  which  had  escaped  and  run  down  the 
same  grade,  and  the  agents  of  the  defendant, 
being  thus  apprised  of  the  danger  of  such 
action,  did  not  use  proper  precautions  to 
prevent  future  injury — held,  to  be  gross 
negligence  for  which  the  company  was  re- 
sponsible. Battle  71.  Wilmington  &•  W.  R. 
Co.,  66  A^.  Car.  343. 

The  facts  that  the  track  was  unfenced  and 
that  the  train  was  running  somewhat  faster 
than  usual  at  that  place,  and  was  not  slacked 
nor  any  alarm  given,  would  not  have  sus- 
tained a  verdict  that  defendant  was  guilty 
of  any  wilful  or  malicious  act,  and  a  com- 
pulsory nonsuit  was  properly  directed.  Mc- 
Candlessv.  Chicago  &>  N.  IV.  R.  Co., 4$  f^"- 
365,  19  Am.  Ry.  Rep.  374. 

In  an  action  for  the  wilful  or  grossly  neg- 
ligent killing  of  a  mare  which  got  upon  the 
track  in  the  night-time  without  the  fault  of 
the  defendant,  it  appeared  that  the  train 
which  killed  the  mare  was  running  from 
thirty  to  thirty-five  miles  an  hour;  that  the 
engineer  first  saw  some  horses  on  or  near 
the  track  and  blew  the  whistle,  whereupon 
they  went  in  every  direction  ;  that  he  con- 
tinued to  sound  the  whistle  until  he  got  by 

*See  ante,   50,  60.    187,   200,   206, 


284,  343 ;  post, 


406 


the  horses  and  supposed  the  track  was 
clear ;  that  after  going  some  distance  further 
he  suddenly  saw  the  marc  running  and 
stumbling  on  ihc  track  about  i$o  feet  ahead 
of  the  engine  ;  that  it  was  then  too  late,  and 
he  did  not  try  to  do  anything,  but  struck 
the  mare  while  going  at  full  speed,  and  that, 
though  it  was  a  bright  moonlight  night,  the 
engineer  could  not,  from  behind  the  head- 
light, see  the  track  more  than  150  feet 
ahead.  Fhere  was  also  evidence  that  the 
engineer  kept  on  sounding  the  whistle  until 
he  had  passed  some  distance  beyond  where 
he  first  saw  the  hors»»i,  and  that  the  mare 
had  been  running  rapidly  for  some  distance 
on  the  track  before  she  was  struck.  Held, 
that  the  evidence  was  insufficinnt  to  suppor*. 
a  verdict  for  the  plaintiff.  Jones  v.  Chicago, 
M.  &*  St.  P.  R.  Co.,  77  His.  585.  46  A'.  IV. 
Rep.  884. 

454.  To  nIiow  that  coinpniiy*N  neg- 
ligence wiiH  tile  proximate  cauHC.*— 
Proof  that  a  train  was  backed,  in  the 
night-time,  into  an  unlighted  freight  depot, 
without  light  or  signal,  and  so  noiselessly 
as  to  come  suddenly  upon  one  who  was 
rightfully  there  with  horses,  giving  no 
time  for  their  removal,  and  killing  the 
horses,  is  sufficient  to  support  a  finding  that 
the  company's  carelessness  was  the  sole 
cause  of  the  loss.  Hollender  v.  New  York 
C.  &*  H.  R.  R.  Co.,  14  Daly  {N.  Y.)  219,  6 
A'.   Y.  S.  R.  352,  19  Abb.  N.  Cas.  18. 

Proof  that  live  stock  was  found  50  to  60 
yards  from  a  railro<ad  track,  with  one  leg 
skinned  and  bruised,  will  not  support  a 
verdict  against  a  railroad  for  killing  the 
stock,  where  it  is  not  shown  how  long  it 
lived  thereafter,  or  whether  its  death  was 
the  result  of  such  injuries.  Missouri  Pac. 
R.  Co.  v.  Earle,  4  Tex.  App.  {Civ.  Cas.)  19, 
14  5.  PV.  Rep.  1068. 

465.  To  connect  the  company  witli 
the  kllling.f  —  (1)  Proof  sufficient.— 1c 
support  a  verdict  against  a  railroad  for 
injury  to  cattle,  the  evidence  should  con- 
nect defendant  with  the  injury :  still  it  is 
not  necessary  that  the  fact  be  proven  beyond 
a  reasonable  doubt.  A  preponderance  of 
evidence  will  suffice.  Toledo,  P.  <S-  W.  R. 
Co.  v.  Eastburn,  54  ///•  381 —DISTINGUISH- 
ING Ohio  &   M.  R.  Co.   V.  Taylor,  27  III. 

♦See  ante.  34-36,  66,  136, 188,  104, 
344,  356,  442;  pat,  647. 

\  When  finding  stock  on  track  dead  will  not 
support  a  finding  that  it  was  killed  by  a  train, 
see  35  Am.  &  Eno.  R.  Cas.  140,  abstr. 


lj.i 


i 


J 


294 


ANIMALS,  INJURIES   TO,  -kQii. 


It  li 


1-1 


207;  Lugansport,  P.  &  H.  R.  Co.  v.  Cald- 
well, 38  III.  280. 

In  an  action  to  recover  the  value  of  a  cow 
killed  on  defendant's  road,  it  was  proven  by 
plaintiff  that  he  found  the  animal  the  day 
after  she  was  injured,  in  a  field,  about 
twenty  or  thirty  feet  from  the  track,  and  that 
there  were  marks  on  the  track  indicating 
such  an  accident.  Another  w'iness  saw  the 
cow  in  the  same  situation  soon  after  a  train 
had  passed,  and  an  employe  of  the  com- 
pany saw  a  cow  thrown  from  the  track  at 
about  the  same  place,  duriuji^  the  month  the 
cow  was  found  dead.  Held,  that  the  evidence 
was  sufficient  to  connect  the  company  with 
the  injury.  Toledo,  P.  &•  IV.  Ji.  Co.  v. 
Pineo,  56  ///.  308,  4  Am.  Ry.  Rep.  534. 

And  upon  objection  that  the  evidei  ce 
failed  to  connect  defendant  with  the  in- 
jury, the  testimony  of  the  engineer,  "  that 
he  was  on  the  train  when  the  cow  was 
killed ;  that  he  had  been  an  engineer  about 
ten  years,  and  had  been  on  defendant's  road 
six  or  seven  months,"  was  regarded  as  suffi- 
cient to  support  the  flnding  of  the  jury,  on 
that  question,  against  defendant.  Rockford, 
R.  I.  &*  St.  L.  R.  Co.  V.  Lewis,  58  ///.  49, 
10  Am.  Ry.  Rep.  396. 

(2)  Proof  insufficient. — Where  there  is  no 
direct  testimony  as  to  the  train  that  killed 
a  mule,  but  witnesses  assume  that  it  was  a 
passenger  train  that  passed  in  the  morning, 
basing  their  statements  on  the  fact  that  the 
body  was  warm  when  found,  a  verdict  for 
the  plaintiff  will  not  be  affirmed  where  there 
is  evidence  that  the  mule  could  have  been 
killed  by  a  freight  train  which  passed  a  few 
hours  in  advance  of  the  passenger  train. 
Louisville,  N.  O.  &»  T.  R.  Co.  v.  Van  Eaton, 
(Miss.)  II  So.  Rep.  in. 

If  it  does  not  appear,  even  inferentially, 
from  the  evidence  that  the  animal  was 
killed  by  the  defendant's  agents,  engines,  or 
cars,  or  that  the  defendant  was  operating 
the  road,  or  that  any  train  of  cars  or  loco- 
motive engine  had  passed  over  it  at  any 
time,  there  can  be  no  recovery  for  the  plain- 
tiff under  the  provisions  of  Missouri  Rev. 
St.,  §  809.  Lindsay  v.  /Kansas  City,  Ft.  S.  &* 
M.  R.  Co.,  36  Mo.  App.  51. 

Where  a  mare  goes  through  bars  that  are 
left  down  by  some  one  not  connected  with 
the  company,  and  strays  upon  a  railroad  in 
the  night-time,  and  is  killed  within  one 
hundred  yards  of  the  point  where  first  seen 
by  those  in  charge  of  the  train,  the  railroad 
company  will  not    be  liable.    Campbell  v. 


Atlantic,  M.  &^  O.  R.  Co.,  4  Hughes  (  U.  S.) 
170. 

Where  cattle  are  found  wounded  along 
the  track  of  a  railroad  company,  the  fact 
that  employes  o(  the  company  assisted  in 
killing  and  dressing  the  animals  is  not  suffi- 
cient to  establish  the  liability  of  the  com- 
pany for  the  injury.  McMillan  v.  Manitoba 
6-  N.  W.  R.  Co.,  4  Man.  220. 

456.  To  show  iujury  or  killiug  by 
collision.*— (i)  Generally. — Direct  proof 
of  a  collision  between  defendant's  locomo- 
tive and  plaintiff's  stock  which  were  killed 
is  not  necessary  to  entitle  plaintiff  to  re- 
cover, if  such  collision  might  be  inferred 
from  the  facts  and  circumstances  established 
by  the  evidence.  Vaughan  v.  Kansas  City, 
S.  &>  M.  R.  Co.,  34  Mo.  App.  141.— Distin- 
guishing Gilbert  V.  Missouri  Pac.  R.  Co., 
23  Mo.  App.  65. — Keltenbaugh  v.  St.  Louis, 
A.Sf*  T.R.  Co.,  34  Mo.  App.  147. 

Direct  evidence  is  not  required  to  show 
that  an  animal  killed  got  upon  the  track 
through  a  gap  in  the  fence  which  it  was  the 
company's  duty  to  maintain,  nor  is  it  neces- 
sary to  show  the  collision  of  the  cars  with 
the  animal  by  an  eye-witness.  Both  these 
facts  may  be  shown  by  circumstances. 
May  field  v.  St.  Louis  &>  S.  F.  R.  Co.,  91 
Mo.  296,  3  5.  W.  Rep.  201. 

(2)  Illustrations. — Testimony  showing  that 
plaintiff's  cow  was  killed,  and  was  found,  w  th 
her  back  broken,  on  the  side  of  a  railnad 
track  at  a  point  where  there  was  a  ditch 
filled  with  water  on  either  side;  that  a  meas- 
urement of  the  cow's  tracks  indicated  that 
she  had  lun  ahead  of  the  train;  and  that 
there  were  indications  where  she  had  been 
struck  by  the  train— //^/^/,  sufficient  to  sus- 
tain the  finding  of  a  referee  that  the  train 
killed  the  cow.  Jacksonville,  T.  <3-  fC.  IV.  R. 
Co.  V.  Garrison,  30  Fla.  557.  1 1  So.  Rep.  929. 

Proof  that  stock  was  found  by  the  side  of 
a  railroad  track  "  badly  smashed  up,"  justifies 
a  verdict  that  the  injury  was  done  by  cars  or 
locomotive  of  the  company.  Illinois  C.  R.  Co. 
V.  Whalen,  42  ///.  396.— Quoted  in  Ohio 
&  M.  R.  Co.  V.  Atteberry,  43  111.  App.  80. 

Evidence  showing  that  a  horse  was  well 
one  day,  and  in  a  pasture  near  a  railroad 
track,  and  the  next  morning  was  found  dead 
by  the  side  of  the  road,  with  a  large  scar  on 
one  side  and  otherwise  bruised ;  and  that  his 
tracks  were  found  on  the  railroad,  indicating 
that  he  had  been  running  along  the  side  of 

»  See  ante,  73-81,  135,  338; /^x/,  497. 


ANIMALS,  INJURIES   TO,  456. 


395 


(U.  S.) 


the  track  and  in  attempting  to  cross  had 
be«.  .  Jtruck  and  knocked  off,  justifies  the 
inference  that  he  had  been  struck  and  killed 
by  the  locomotive  of  a  passing  train.  Louis- 
ville, N.  A.  &*  C.  R.  Co.  V.  Hixon,  loi  Ind.  337. 

Testimony  of  a  witness,  that  he  heard  a 
train  whistle,  saw  cattle  running  away,  went 
to  the  caitle-guard  and  saw  an  injured  steer 
in  it,  is  sufficient  evidence  that  the  animal 
was  injured  by  the  company's  train.  Baxter 
V.  Chicago,  R.  I.  &*  P.  R.  Co.,  (Iowa)  54  A^. 
W.  Rep.  350. 

Plaintiff's  mare  was  found  dead  in  her 
pasture  near  the  defendant's  right  of  way,  at 
a  place  where  defendant,  though  having  the 
right  to  fence,  had  neglected  so  to  do.  Her 
right  hind  leg  was  broken  above  the  hock 
and  just  below  the  stifle.  No  bruises  were 
noticed,  but  sor.h:  hair  was  off  the  leg  and 
riglit  flank.  There  were  hoof-prints  neai, 
upon  the  track.  Tliere  was  also  a  ditch 
between  the  track  and  where  the  mare  was 
found.  Between  the  track  and  the  ditch 
was  some  hair,  and  also  nearer  the  ditch 
than  the  track  was  a  hoof-mark.  In  the 
ditch  also  there  was  a  hoof-mark,  and  two  or 
three  feet  beyond  it  were  indications  that 
an  animal  had  fallen  there.  From  that  point 
to  where  the  mare  was  found  was  a  broad 
trail,  which  appeared  as  though  made  by 
dragging  her  from  that  f^'cetothe  place 
where  siie  was  found,  but  tliece  were  no  in- 
dications that  she  had  struggled  along  that 
trail.  One  of  defendant's  trains  had  shortly 
before  passed  over  the  track.  The  jury 
found  that  the  mare  was  killed,  or  caused  to 
be  killed,  by  defendant  while  running  a  train 
on  its  roaa.  Held,  that,  considering  ail  the 
evidence  and  the  circumstances  attending 
the  case,  the  court  could  not  say  that  the 
evidence  did  not  warrant  the  finding  of  the 
jury.  Van  Slyke  v.  Chicai!;o,  St.  P.  &»  K.  C, 
R.  Co.,  80  /07va  620,  45  N.  W.  Rep.  396.— 
Distinguishing  Asbach  v.  Chicago,  B.  & 
Q.  R.  Co.,  74  Iowa  248 ;  Rhines  t.  Chicago 
&  N.  W.  R.  Co.,  75  Iowa  597;  Brockert  v. 
Central  Iowa  R.  Co.,  75  Iowa  529. 

In  an  action  to  recover  the  value  of  ii  colt 
killed,  the  proof  showed  that  on  the  morning 
before  the  colt  was  killed  it  was  seen  near 
the  track,  which  was  unfenced,  a  few  hours 
before  a  train  passed  ;  that  on  the  following 
day  it  was  found  dead  and  buried  some 
fifteen  feet  from  the  track ;  that  hair  was 
found  along  the  ends  of  the  ties  the  same 
color  as  that  of  the  colt,  and  that  there 
were  marks  along  the  track,  indicating  that 


an  animal  had  been  dragged  some  distance 
which  evidence  was  uncontradicted.  Held, 
that  a  verdict  in  favor  of  the  plaintiff  would 
not  be  reversed  and  a  new  trial  granted  on 
the  ground  that  there  was  not  sufificient 
proof  that  the  colt  was  killed  in  the  opera- 
tion of  the  railroad.  Central  Branch  U.  P. 
R.  Co.  V.  Pate,  21  Kan.  539. 

Where  plaintiff's  stock  were  seen  upon 
the  railroad  track  in  the  forenoon,  and  in 
the  afternoon  of  the  same  day  blood  was 
seen  upon  the  track,  with  the  trace  of  it 
leading  to  the  gap  in  the  fence,  and  the 
animal  was  found  dead  not  more  than  a 
quarter  of  a  mile  off,  with  a  leg  broken,  it 
cannot  be  said  that  there  is  no  evidence 
from  which  to  find  the  fact  that  it  was  in- 
jured by  the  cars  and  died  from  the  effects 
of  that  injury.  May  field  v.  St,  Louis  &•  S, 
F.  R.  Co.,  91  Mo.  296,  3  5.  W.  Rep.  201.— 
Applied  in  Harnedz*.  Missouri  Pac.  R.Co., 
51  Mo.  A  pp.  482. 

Where  the  action  for  killing  stock  is  under 
Missouri  Rev.  St.  §  809,  the  proof  must 
show  an  actual  collision  of  the  cars  or 
engine  with  the  animals ;  it  is  not  enough  to 
show  that  animals  were  four.d  dead  near  the 
track,  bruised  and  so  marked  as  to  indi- 
cate that  they  had  been  struck  with  great 
force  while  on  the  track,  but  there  is  no 
proof  that  the  company  at  the  time  was 
operating  the  railroad,  or  that  any  train  of 
cars  had  passed  over  the  road  at  that  point 
at  any  time.  Gilbert  v.  Missouri  Pac.  R. 
Co.,  23  Mo.  App.  65.— Distinguished  m 
Vaughan  v.  Kansas  City,  S.  &  M.  R.  Co.,  34 
Mo.  App.  141 ;  Keltenbaugh  v.  St.  Louis,  A. 
&  T.  R.  Co.  34  Mo.  App.  147. 

Where  plaintiff's  cattle  were  shown  to  be 
in  his  inclosiire  one  evening,  and  were  found 
during  the  forenoon  of  the  next  day  lying 
along  a  railroad  track,  one  with  a  foot 
crushed  and  others  gashed  and  cut,  it  may 
be  fairly  inferred  that  the  injury  was  caused 
by  the  company's  cars.  McMillan  v.  Mani- 
toba &»  N.   IV.  R.  Co.,  4  Man.  220. 

Where  there  is  no  direct  evidence  that  a 
horse  was  struck  or  killed  by  a  railway  train, 
a  verdict  based  on  the  fact  that  the  horse's 
tracks  were  found  on  the  railroad  track 
jifter  the  horse  had  been  found  injured  in 
the  ditch  where  he  had  fallen  from  the 
bridge  over  a  creek  forty  or  fifty  yards  from 
the  railroad  track,  will  be  set  aside  as  not 
supported  by  the  evidence.  New  Orleans 
<S-  A^.  E.  R.  Co.  V.  Jones,  (Miss.)  3  So.  Rep. 
653- 


s 


296 


ANIMALS,  INJURIES   TO,  457-400. 


1^ 


A  company  will  not  be  liable  f(jr  killing  iin 
animal  under  proof  showing  that  it  was  found 
dead  thirty  feet  from  the  track,  with  bruises 
on  it  not  there  two  days  before,  and  where 
no  one  saw  it  injured,  and  there  was  noth- 
ing to  indicate  that  it  had  been  on  the 
track,  nor  that  the  injuries  received  might 
not  have  been  received  otherwise  than  by  a 
collision  with  a  train.  San  Antonio  &=  A.  P. 
Ji.  Co.  V.  Leal,  4  Tex.  App.  {Civ.  Cas.)  213, 
16  S.  W.  Rep.  909. 

457.  To  show  iniinoderate  rate  of 
speed.* — Negligence  on  the  part  of  the 
company  is  sufficiently  shown  by  evidence 
to  the  eflect  that  the  train  was  running  at  a 
rate  of  speed  greater  than  that  fixed  by  a 
city  ordinance.  Fritz  v.  First  Div.  St.  P. 
&*  P.  R.  Co.,  22  Minn,  404,  19  Am.  Ry.  Rep. 
404. 

In  an  action  for  killing  stock  the  evidence 
showed  that  they  were  killed  on  a  Sunday 
night,  when  the  track  was  not  patrolled,  and 
after  a  severe  storm,  but  of  which  the  train- 
men had  full  knowledge ;  and  that  eight  of 
the  cattle  were  scattered  along  the  track  for 
some  distance.  Held,  sufficient  evidence  to 
warrant  a  finding  that  the  train  was  running 
at  an  immoderate  rate  of  speed.  Baker  v. 
Chicago,  B.  &^  Q.  R.  Co.,  73  loTva  389,  35  A^. 
JV.  Rep.  460. 

458.  To  show  company's  duty  to 
fence.t — Evidence  showing  that  a  track 
could  be  fenced  along  both  sides  up  to  a 
highway,  and  cattle-guards  put  in  and  main- 
tained, without  interfering  with  the  busi- 
ness of  the  company  or  of  the  public,  is 
sufficient  to  warrant  a  judgment  against  the 
company  for  stock  killed  on  the  unfenced 
portion.  Lafferty  v.  Chicago  &•  W.  M.  R. 
Co.,  71  Mich.  35,  15  IVest.  Rep.  198,  38  A^. 
IV.  Rep.  660. 

Under  the  Utah  statute,  making  it  the 
duty  of  railroads  to  fence  their  tracks 
through  lands  "  owned  and  settled  or  occu- 
pied by  private  owners,"  in  an  action  to 
recover  for  stock  killed,  it  is  sufficient  to 
show  that  the  lands  were  cultivated,  without 
showing  who  was  the  owner  or  occupier. 
Stimpson  v.  Union  Pac.  R.  Co.,q  Utah  123,33 
Pac.  Rep.  369. 

450.  To  show  that  the  road  was 
unfenced.t — Where  a  company  is  sued  for 


•See  ante,  36,  69-72, 198,201,210, 
345,  400;j)<'.r/,  481. 
f  See  aw/*,  85-113. 
%  See  ante,  340-360;  fost,  476,  506. 


killing  stock,  an  allegation  that  the  track  was 
"  unfenced  "  is  supported  by  evidence  show- 
ing that  a  fence  had  been  once  built,  but 
destroyed.  Frits  v.  Kansas  City,  C.  B.  £~ 
St.  J.  R.  Co.,  13  Am.  <Sv  Eng.  R.  Cas.  558,  61 
Iowa  323,  16  A'.   IV.  Rep.  144. 

Proof  that  "the  railroad  of  the  defendant 
was  not  fenced  where  they  [the  animals  of 
the  plaintiff]  were  killed,"  no  other  evi- 
dence being  introduced  or  offered  with  re- 
gard to  the  railroad  being  fenced  or  not 
fenced,  was  sufficient  to  authorize  the  court 
below  to  make  a  finding  that  the  road  was 
not  fenced  where  the  animals  entered  upon 
the  road.  Kansas  City,  L.  &•  S.  R.  Co.  v. 
Neville,  25  Kan.  632. 

460.  To  show  that  fence  was  de- 
fective.* —  That  plaintiff's  injured  stock 
entered  upon  defendant's  track  through  its 
defective  fence  may  be  inferred  from  all  the 
surrounding  circumstances  which  the  evi- 
dence tends  to  establish.  Woods  v.  Mis- 
souri, K.  &■'  T.  R.  Co.,  51  Mo.  App.  500. 

In  a  suit  for  killing  a  horse  the  company 
contended  that  its  fence,  over  which  the 
horse  escaped,  had  not  been  out  of  repair  a 
sufficient  length  of  time  to  charge  it  with 
negligence,  and  proved  that  an  employ^  had 
passed  along  the  day  before  and  pronounced 
the  fence  in  a  fair  condition  ;  but  there  was 
nothing  to  show  what  examination  he  actu- 
ally made,  or  what  he  called  a  fair  condition. 
On  the  other  hand,  plaintiff  proved  that 
the  wires  were  loose  from  the  posts  and 
that  the  posts  were  not  sufficient  to  hold 
staples,  and  that  one  of  the  wires  where  the 
horse  went  over  was  found  broken,  but 
whether  by  his  going  over  it  was  not  dis- 
closed. Held,  sufficient  evidence  of  failure 
to  maintain  a  proper  fence  to  justify  a  find- 
ing for  plaintiff.  Indiana,  I.  <&*  /.  R.  Co.  v. 
Dooling,  42  ///.  App.  63.  Compare  Louis- 
rille,  N.  A.  6-  C.  R.  Co.  v.  Zink,  95  Ind. 

345- 

In  an  action  to  recover  damages  for  the  loss 
of  a  cow  killed  by  its  engine,  the  defense 
was  that  the  cow  was  killed  on  the  public 
road,  and  without  negligence  on  the  part  of 
the  company.  The  engineer  testified  that 
the  engine  struck  the  cow  on  the  crossing 
of  a  public  road  over  the  railway,  and  car- 
ried or  threw  her  30  or  40  feet,  but  there 
were  no  marks  on  the  ground  indicating 
that  the  cow  had  been  struck  at  that  point. 

•See  ante,  100-11.3,  140-151,  349- 
352,  357,  394;  post,  506. 


'i'-S 


ANIMALS,  INJURIliS   TO,  401,  402. 


297 


The  distance  from  the  road  crossing  to  the 
cattle-guard  was  43  feet,  and  from  that 
point  to  a  place  where  there  were  marks  on 
the  railway  track  tending  to  show  that  the 
cow  had  been  struck  was  54  feet,  the  cow 
being  thrown  from  8  to  12  feet  east  and 
south  of  that  point.  Held,  that  the  evi- 
dence failed  to  show  that  the  cow  was 
killed  on  the  road  crossing,  but  that  a  clear 
preponderance  of  evidence  showed  the  rail- 
way fence  to  be  in  a  defective  and  imper- 
fect condition,  and  that  the  cow  was  killed 
within  the  right  of  way.  Union  Pac.  R. 
Co.  v.  Blum,  35  Am.  &*  Eng.  R.  Cas.  119, 
23  Neb.  404. 

In  an  action  for  horses  killed,  the  testi- 
mony showed  that  the  railway  was  fenced 
with  barbed  wire ;  that  at  a  point  adjoining 
a  certain  bridge  the  wire  was  so  close  to  the 
ground  that  the  horses  had  stepped  over  the 
fence,  leaving  at  least  three  bunches  of  hair 
from  their  legs  on  the  barbs  of  the  wire ;  and 
that  their  tracks  were  plainly  seen  where 
they  had  crossed  the  fence.  Held,  that  the 
evidence  sustained  the  charge  of  negligence 
on  the  part  of  the  company  in  not  protecting 
its  railway  by  a  sufficient  fence,  and  that  a 
verdict  for  the  fair  value  of  the  horses  would 
not  be  set  aside.  Missouri  Pac.  R.  Co.  v. 
Metzger,  35  Am.  Sf  Eng.  R.  Cas.  148,  24  Neb. 
90,  38  N.  W.  Rep.  27. 

The  proofs  showed  that  plaintiff's  horses 
strayed  from  his  lands,  forced  their  way 
through  a  swing  gate,  and  went  on  the  track 
and  were  killed.  It  appeared  that  the  horses 
were  able  to  pass  the  gate  owing  to  defective 
posts.  Held,  sufficient  to  show  a  breach  of 
the  company's  statutory  duty  to  fence,  and 
to  make  it  liable.  Char  man  v.  South  Eastern 
R.  Co.,  yi  Am.  Sf  Eng.  R.  Cas.  495,  21 
Q.  B.  D.  524. — Reviewing  Manchester,  S.  & 
L.  R.  Co.  t/.  Wallis,  14  C.  B.  213. 

Where  a  company  is  sued  for  negligently 
killing  stock  by  reason  of  not  maintaining 
a  proper  fence,  evidence  showing  no  negli- 
gence except  that  there  was  a  break  in  a 
gate  which  the  company  maintained,  large 
enough  to  enable  a  horse  to  put  his  head 
through,  is  not  sufficient  to  support  a  verdict 
for  plaintiff,  and  the  court  may  properly 
direct  a  verdict  for  defendant.  Bothwellv. 
Chicago,  M.  &•  St.  P.  R.  Co.,  7  Am.  (S-  Eng. 
R.  Cas,  570,  $g/owa  192, 13  N.  IV.  Rep.  78. — 
Distinguishing  McKinley  7/.  Chicago,  R. 
I.  &  P.  R,  Co.,47  Iowa  76.— Followed  in 
Youll  V.  Sioux  City  &  P.  R.  Co.,  21  Am.  & 
Eng.  R.  Cas.  589, 66  Iowa  346.    Quoted  in 


Fitterling  v.  Missouri  Pac.  R,  Co.,  20  Am. 
&  Eng.  R.  Cas.  454,  79  Mo.  504. 

461.  To  show  that  cattle-^uard 
was  defective.*— In  an  action  for  killing 
stock,  where  the  evidence  shows  that  the 
cattle-guard  was  insufficient  to  restrain  or- 
dinary domestic  animals,  a  verdict  for  the 
plaintiff  will  not  be  disturbed  for  want  of 
evidence.  Wabash  R.  Co.  v.  Ferris,  [Ind. 
App.)  32  N.E.Rep.  112. 

In  an  action  to  recover  for  injury  to  a 
horse  which  got  upon  ±e  track  over  an  al- 
leged insufficient  cattle-guard,  the  jury  may 
not  infer  its  insufficiency  from  the  fact  that 
the  horse  passed  over  it  by  stepping  upon 
the  cross-ties,  and  the  further  fact  that  cattle- 
guards  sometimes  differently  constructed 
were  in  use,  but  they  may  properly  consider 
such  facts  in  connection  with  others  in  de- 
termining the  question  of  the  sufficiency  of 
the  cattle-guard.  Timins  v.  Chicago,  R.  I, 
(S-  P.  R.  Co.,  31  Atn.  &'  Eng.  R.  Cas.  541,  72 

/07t/a  94,  33  N.  IV.  Rep.  379.— DISTINGUISH- 
ING Case  V.  Chicago,  R.  I.  &  P.  R.  Co.,  64 
Iowa  762. 

462.  To  show  that  gate  was  de- 
fective.!—(i)  Proof  sufficient.— \r\  an  ac- 
tion to  recover  for  horses  killed,  evidence 
that  they  went  upon  the  track  Lhrough  a 
gate,  which  the  facts  tended  to  show  was 
defective,  and  from  every  reasonable  proba- 
bility because  of  such  defect,  and  that  the 
horses  themselves  pushed  it  open  and  thus 
got  on  the  track  and  were  killed,  is  sufficient 
to  support  a  verdict  for  plaintiff.  Chicago 
&*  E.  I.  R.  Co.  V.  Gernand,  21  ///.  App. 
242. 

In  an  action  to  recover  for  a  cow  which 
escaped  from  a  pasture,  through  a  gate  in 
iififendant's  fence,  and  got  on  the  track,  and 
was  killed — held,  that  the  fact  that  the  fast- 
ening of  the  gate  was  on  the  side  toward 
the  pasture  was  proper  to  be  considered  by 
the  jury,  with  other  evidence,  in  determin- 
ing whether  the  gate  was  negligently  con- 
structed; but  that  the  mere  fact  that  the 
fastening  was  on  that  side  would  not  war- 
rant a  verdict  for  plaintiff,  unless  there  was 
evidence  tending  to  show  that  the  gate  be- 
came open  by  reason  of  that  fact.  Butler 
V.  Chicago  &»  N.  W.  R.  Co.,  71  Iowa  206,  32 
N.  IV.  Rep.  262. 

Where  a  company  is  sued  for  killing  a 


*See  ante,  162,  348,  420. 
tSee  an/e,    176-178,  348.  308;  fojt, 
543,  566. 


I! 


« 
J 


298 


ANIMALS,  INJURIES   TO,  403. 


^3  :i 
■4  J-    * 


horse  which  went  upon  llie  track  through 
a  gate,  evidence  showing  that  the  gate 
had  stood  open  nearly  all  the  time  for  two 
years,  and  that  the  company's  section  master 
knew  of  it,  having  frequently  passed  through 
it,  and  that  it  was  so  out  of  repair  that  it 
could  not  be  opened  or  closed  by  reasonable 
effort,  is  sufficient  to  support  a  verdict  find- 
ing that  the  company  had  not  discharged 
the  duty  imposed  upon  it  by  Mass.  Pub. 
St,  ch.  112,  §  115,  requiring  railroad  com- 
panies to  keep  gates  in  proper  repair.  Ta/t 
V.  New  York,  P.  &•  B.  R.  Co.,  1 57  Mass.  297, 
32  N.  E.  Rep.  168. 

If  a  company  allows  a  gate  separating  its 
track  from  land  where  cattle  are  kept  to  be- 
come thin  and  decayed,  and  at  a  certain 
time  such  gate  is  found  broken  down  and 
cattle  dead  upon  the  track,  there  is  evidence 
of  negligence  on  the  part  of  the  company, 
and  it  is  liable.  Page  v.  Great  Eastern  R. 
Co.,2\L.  T.  N.  S.  585. 

(2)  Proof  insufficient.  —  The  evidence 
tended  to  show  that  plaintiff's  colt  escaped 
into  the  field  of  an  adjoining  proprietor,  in 
which  was  a  gate  leading  to  a  farm-crossing 
over  defendant's  road ;  and  that  it  escaped 
through  the  gate  onto  the  railroad  track 
and  was  killed.  The  gate,  which  opened 
inwards  towards  the  field,  was  found  wide 
open  on  the  morning  after  the  accident. 
One  of  defendant's  section  men  testified  that 
he  had  closed  the  gate  on  the  previous  even- 
ing. Held,  that,  as  there  was  no  evidence 
to  show  negligence  on  the  part  of  the  de- 
fendant, either  in  regard  to  the  fastening  of 
the  gate  or  that  it  was  pushed  open  by  an 
animal,  the  plaintiff  could  not  recover. 
Saiker  v.  Chicago.  M.  &*  St.  P.  R.  Co.,  38 
Am.  &*  Eng.  R.  Cas.  283,  40  Minn.  91,  41 
N.  W.  Rep.  458. 

Where  it  appears  from  the  evidence  that 
the  gate  through  which  it  was  alleged  plain- 
tiff's mare  passed  onto  the  railroad  track, 
where  she  was  killed,  was  made  for  plaintiff's 
convenience,  and  that  it  was  not  discovered 
to  be  out  of  repair  until  a  week  after  the 
accident,  and  was  not  noticed  to  be  defec- 
tive on  the  morning  thereafter  by  plaintiff's 
son,  who  passed  through  it,  and  that,  fur- 
ther, there  was  a  failure  of  proof  tending  to 
show  that  the  gate  was  open  by  reason  of 
defective  fastenings  when  the  mare  passed 
through  it,  plaintiff  cannot  recover,  and  a 
demurrer  to  the  evidence  should  be  sus- 
tained. Laneyv.  Kansas  City,  St./.  &*  C.  B. 
R.  Co.,  83  Mo.  466. 


463.   To   8how   place  of  entry.*-- • 

It  is  not  necessary  fur  the  plaintiff,  in  an 
action  for  killing  cattle,  to  prove  by  posi- 
tive evidence  the  place  where  the  cattle  en- 
tered, but  it  is  sufficient  if  facts  are  proved 
from  which  the  place  of  entry  can  be  in- 
ferred. Evansville  &•  T.  H.  R.  Co.  v.  M osier, 
22  Am.  6-  Eng.  R.  Cas.  569,  loi  Ind.  597. 
Briscoe  v.  Missouri  Pac.  R.  Co.,  25  Mo. 
App.  468. 

Where  a  company  is  bound  to  maintain  a 
fence  it  is  not  necessary  to  prove  by  direct 
evidence  that  cattle  killed  on  the  track  es- 
caped from  an  adjoining  field  by  reason  of 
a  defective  fence.  Where  it  is  shown  that 
the  fence  was  so  defective  as  to  allow  cattle 
to  pass  through  or  under  it  in  divers  places, 
the  jury  may  infer  therefrom  that  they  did 
pass  through  the  fence  where  it  was  defect- 
ive. Holtz  v.  Minneapolis  &»  St.  L.  R.  Co., 
z^Minn.  384,  13  A'.  W^.  Rep.  147. 

The  point  in  issue  being  whether  a  cow 
was  killed  at  a  highway  crossing  or  wan- 
dered on  the  right  of  way  at  a  point  some 
distance  above  the  crossing,  evidence  clearly 
showing  that  the  cow  could  have  got  on  the 
right  of  way  through  a  gate  in  a  fence 
which  the  railway  company  was  obliged  to 
maintain,  and  that  there  were,  in  fact,  tracks 
leading  from  the  gate  toward  the  point 
where  she  was  struck,  is  sufficient  to  uphold 
a  verdict  for  the  plaintiff.  King  v.  Chicago, 
R.  I.  6-  P.  R.  Co..  {Icnud)  54  A^.  W.  Rep. 
204.  Compare  also  Vincent  v.  Current 
River  R.  Co.,  53  Mo.  App.  616. 

In  an  action  for  double  damages  for  killing 
plaintiff's  hogs,  where  the  evidence  shows 
they  were  killed  by  defendant's  trains  in 
the  township  in  which  suit  was  brought  and 
at  a  place  where  the  track  was  not  fenced, 
but  was  required  by  law  to  be  fenced,  the 
trial  court  is  justified  in  concluding  that 
they  entered  upon  the  track  where  it  was 
not  fenced,  and  especially  so  in  the  total 
absence  of  proof  that  the  road  had  any 
fences  along  its  sides  in  that  vicinity.  Asher 
V.  St.  Louis,  I.  M.  &*  S.  R.  Co.,  89  Mo.  116, 
I  S.  W.  Rep.  123. 

In  an  action  for  double  the  value  of  horses 
killed  on  defendant's  track,  where  they  were 
alleged  to  have  gone  by  reason  of  a  defi- 
cient fence,  there  was  no  evidence  to  show 
that  they  entered  through  the  opening  in 

•  Sfcante,  127,  128,  361,  352,  396  ; 
/o^/,474,  619,648. 

Evidence  as  to  where  animals  came  on  track, 
see  note,  19  Am.  &  Eng.  R.  Cas.  577. 


ANIMALS,  INJURIES   TO,  4«4-4««. 


299 


i 


the  fence  ratlier  than  at  a  duficiciil  caitle- 
guard,  except  tlie  fact  that  the  last  point  to 
which  they  were  traced  was  nearer  to  the 
opening  than  to  the  cattle-guard.  Held, 
insufficient  to  sustain  a  verdict  for  plaintiff 
on  the  cause  of  action  pleaded,  where  the 
court  instructed  that  he  could  not  recover 
unless  he  proved  that  they  entered  through 
the  opening.  Rhines  v.  Chicago  6-  N.  IV. 
/i.  Co.,  35  Am.  <3<»  Eng.  /?.  Cas.  123,  75  /owa 
597.  39  N.  W.  Rep.  912.—  Distinguished 
IN  Van  Slyke  v.  Chicago,  St.  P.  &  K.  C.  R. 
Co.,  80  Iowa  620. 

Proof  of  entry  is  not  material  except 
where  stock  are  killed  at  a  place  where  the 
company  is  not  bound  to  fence,  such  as  a 
public  highway,  where  sucii  stock  have  en- 
tered where  the  track  was  unfenced,  and 
the  duty  to  fence  existed,  and  such  killing 
is  the  direct  consequence  of  the  neglect  to 
fence.  Eaton  v.  Oregon  A'.  &»  N.  Co.,  45  Am. 
&*  Eng.  R.  Cas.  481,  19  Or  eg.  371,  2i^  Pac. 
Rep.  413. 

464.  To  show  place  of  accident.* 
— Evidence  that  a  cow  was  found  killed 
within  a  mile  and  a  quarter  of  the  plaintiff's 
house  is  sufficient  proof  that  she  was  killed 
within  five  miles  of  a  settlement,  to  sustain 
a  verdict  for  plaintiff.  So  evidence  that  a  colt 
which  was  killed  was  kept  tied  up,  and  only 
ran  out  to  water,  is  sufficient,  from  which  a 
jury  might  infer  that  it  was  killed  within 
five  miles  of  a  settlement.  St.  Louis  &*  S. 
E.  R.  Co.  V.  Casner,  72  ///.  384. 

Where  the  evidence  >  a  suit  against  a 
railroad  company  for  killing  stock  showed 
that  the  stock  was  not  killed  within  a 
corporation,  nor  near  a  crossing,  the  jury 
might  infer  that  it  was  not  killed  within  the 
limits  of  a  town,  city,  or  village.  St.  Lout's 
&•  S.  E.  R.  Co.  V.  Casner,  72  ///.  384. 

A  verdict  for  plaintiff  will  not  be  upheld 
where  he  fails  to  show,  by  direct  or  circum- 
stantial proof,  that  the  colt  was  killed  on 
defendant's  right  of  way,  the  engineer  hav- 
ing testified  that  the  colt  was  struck  in  the 
night-time,  at  a  highway  crossing,  and  was 
carried  on  the  pilot  of  the  engine  to  the  point 
where  it  was  found.  ICtng  v.  Chicago,  R.  I. 
&^  P.  R.  Co.,  {Iowa)  54  A'.  W.  Rep.  204. 

Where  it  appeared  from  the  evidence  that 
the  cattle  were  killed  on  plaintiff's  farm,  at 
a  place  where  there  was  no  highway  or  pub- 
lic crossing,  this  was  sufficient  to  warrant 

*Seea«/<f,  117,  127,  207,  356;  past, 
475, 520, 549. 


the  jury  in  finding  that  the  accident  oc- 
curred at  a  place  where  defeiuiant  had  the 
right  to  fence.  Schlengener  v.  Chicago,  M. 
&*  St.  P.  R.  Co.,  19  Am.  &'  Eng.  R.  Cas.  62^, 
61  Iowa  235,  16  A^.  W.  Rep.  103. 

Proof  simply  that  the  killing  occurred 
within  the  corporate  limits  of  a  town  is  not 
sufficient  to  warrant  the  jury  in  finding  that 
it  occurred  in  the  township  charged  in  the 
statement.  Backenstoe  v.  Wabash,  St.  L.  &>• 
P.  R.  Co.,  86  Mo.  492 ;  affirmittg  23  Mo.  App. 
148. — Followed  in  Manuel  v.  Missouri 
Pac.  R.  Co.,  19  Mo.  App.  631. 

405.  To  show  knowledge  of  salt 
upon  the  track.* — Where  it  was  shown 
that  a  solution  of  salt  had  been  permitted 
to  run  down  an  embankment  to  a  railroad 
track  for  more  than  a  year,  and  that  several 
cattle  had  been  killed  in  the  meantime,  such 
evidence  is  sufficient  to  justify  a  finding  that 
the  company  must  have  had  knowledge  of 
the  fact,  and  that  it  was  negligent  in  per- 
mitting it  to  remain.  Morrow  v.  Hannibal 
6-  St.  J.  R.  Co.,  29  Mo.  App.  432.— Followed 
IN  Burger  v.  St.  Louis,  K.  &  N.  W.  R.  Co.,  52 
Mo.  App.  119. 

466.  To  show  unavoidabl  acci- 
dent.f — To  excuse  a  company  from  killing 
cattle  on  the  ground  that  the  killing  was 
accidental,  it  is  not  enough  to  show  that  it 
was  not  intentional ;  it  must  be  shown  to 
have  occurred  unavoidably  and  without  the 
least  fault  on  the  part  of  the  engineer. 
Banner  v.  South  Carolina  R.  Co.,  4  Rich.  {So. 
Car.)  329. 

The  uncontradicted  testimony  of  the  ser- 
vants of  the  railroad  company  showing  that 
they  did  everything  they  could  to  pre- 
vent the  killing  of  plaintiff's  cow,  but  that 
It  was  impossible  to  stop  the  train  in  time, 
a  recovery  by  the  plaintiff  was  not  war- 
ranted. Western  &>  A.  R.  Co.  v.  Trim- 
mier,  84  Ga.  112,  10  S.  E.  Rep.  503. 

Where  the  evidence  fails  to  show  that  the 
engineer  in  charge  of  the  train  ever  saw  the 
cow  sued  for  before  the  train  struck  her,  or 
that  after  seeing  her,  if  such  was  the  fact,  the 
train  could  have  been  stopped  with  safety 
before  striking  her,  but,  on  the  contrary, 
shows  that  the  collision  was  almost  simul- 
taneous with  her  getting  on  the  track  in  an 
attempt  to  cross  before  the  engine,  there  can 
be  no  recovery.  Davis  v.  Wabash  R.  Co.,  46 
Mo.  App.  477. 


*  See  ante.  40. 

f  See  ante,  61,  52  ;/cj/, 493, 615,660. 


^ 


->     A 


\7     '    ' 


mm 


300 


ANIMALS,  INJURIES   TO,  466. 


ill ! 


Ml 

■"A 
m 

«lti 

•  iCi 

SI  till 

WW  t:iiil 


i  Ml 


Where  a  beast  on  the  railroarl  woukl  not 
be  driven  off  from  the  track  by  a  person 
trying  to  do  so,  and  could  not  be  scared  off 
by  the  steam-whistle,  the  engineer  striving 
with  all  his  might  to  arrest  the  progress  of 
the  train  before  it  reached  it,  but  it  was  run 
over  and  killed — Ae/tf,  that  there  was  no 
negligence  on  the  part  of  the  company. 
Montgomery  v.  Wilmington  &^  IV.  K.  Co.,  6 
Jones  {N.  Car.)  464.— FOLLOWED  IN  Win- 
ston V.  Raleigh  &  G.  R.  Co.,  19  Am.  &  Eng. 
R.  Cas.  516,  90  N.  Car.  66. 

A  company  is  not  liable  for  killing  stock 
on  a  foggy  night  when  within  thirty  yards 
of  the  engine  when  first  seen,  where  the 
evidence  shows  that  the  train  was  carrying 
a  headlight,  that  the  whistle  was  blown  after 
the  stock  were  seen,  and  that  the  speed  of 
the  train  was  reduced  from  fifteen  miles  an 
hour  to  seven  and  a  half.  Raiford  v.  Mis- 
sissippi C.  R.  Co.,  43  Miss.  233. 

In  an  action  for  killing  cattle,  where  the 
evidence  shows  that  the  animal  ran  150 
yards  down  the  track  before  reaching  the 
trestle,  and  the  engineer  testified  that  he 
only  saw  the  animal  when  within  forty  or 
fifty  yards,  and  that  he  could  not  have  seen 
it  earlier  under  the  conditions  then  existing, 
and  there  is  no  evidence  introduced  to  dis- 
credit the  engineer's  statement,  a  verdict  for 
the  plaintiff  is  not  supported  by  the  evi- 
dence. Kansas  City,  M.  <S-  B.  R.  Co.  v. 
Deaton,  (Miss)  9  So.  Rep.  828. 

There  is  not  such  evidence  of  negligence 
as  to  make  a  railroad  company  liable  for  an 
ox  killed  on  the  track  where  it  appears 
that  it  was  grazing  on  the  prairie  close  to 
the  track  and  that  the  engineer  reversed  his 
engine  and  whistled,  but  that  the  animal  ran 
-  ■  ,  'le  track  and  was  killed  before  the  train 
'  *^f  stopped.  McFie  v.  Canadian  Pac. 
A  ■:.  /</««.  6.— Distinguishing  Renaud 
•:-'  ".  I  .at  Western  R.  Co.,  12  U.  C.  Q.  B.  409; 
•    J-         Ontario,  S.  &  H.  R.  Co.,  16  U.  C. 

In  an  action  for  killing  mules,  a  verdict 
against  the  railroad  company  is  not  war- 
ranted by  evidence  showing  that  the  mules 
were  in  a  pasture,  in  a  depression  near  the 
track;  that  they  ran  along  the  track  for 
some  distance  as  the  train  approached,  but 
finally  got  on  the  track ;  and  that  the  en- 
gineer sounded  the  whistle,  blew  for  brakes, 
and  did  all  in  his  power  to  avoid  a  collision, 
but  without  success.  Yazoo  <&*  M.  V,  R. 
Co.  V.  Brumfield,  (Miss.)  4  So.  Rep.  341. 

Where  in  an  action  against  a  company 


brought  within  six  months,  to  recover  dam- 
ages for  an  injury  to  plaintiff's  cow,  it  was 
proved  that  the  cow  jumped  on  the  track 
at  the  opening  of  a  cut  some  two  hundred 
yards  in  front  of  the  defendant's  engine, 
which  was  running  at  the  rate  of  twenty- 
three  miles  an  hour;  and  it  was  further 
proved  that  as  soon  as  the  cow  was  discov- 
ered the  engineer  blew  the  alarm-whistle 
and  reversed  the  engine,  and  the  brakes 
were  applied,  and  that  an  engine  running 
at  that  rate  of  speed  could  not  be  stopped 
under  four  hundred  yards — Ae/d,  that  the 
defendant's  agents  were  not  guilty  of  any 
neglect,  and  that  the  company  was  not  re- 
sponsible for  the  injury  resulting  from  the 
engineer's  running  against  the  cow.  Proc- 
tor V.  IVilmington  &*  IV.  R,  Co, ,  72  JV.  Car. 
579.— Followed  in  Winston  v.  Raleigh  & 
G.  R.  Co.,  19  Am.  &  Eng.  R.  Cas.  516,  90  N. 
Car.  66.  Quoted  in  Durham  v.  Wilmington 
&  W.  R.  Co.,  82  N.  Car.  352.  Reviewed  in 
Doggett  V.  Richmond  &  D.  R.  Co.,  81  N. 
Car.  459. 

Where  an  engineer  stopped  his  train  in 
order  to  prevent  a  collision  with  a  runaway 
horse,  and  when  the  horse  was  apparently 
out  of  danger  started  his  train,  when  the 
horse  suddenly  turned  into  another  road 
crossing  the  track  and  was  killed  —  AeM, 
that  the  jury  erred  in  finding  negligence. 
Watt  son  V.  Philadelphia  &»  T.  R.  Co.,  7 
Phila.(Pa.)  249. 

The  plaintiff's  mare  having  run  along  the 
railway  track  ahead  of  the  train  of  her  own 
accord  until,  reaching  a  trestle  or  open  cul- 
vert, she  fell  into  it  and  was  injured,  and  the 
evidence  showing  that  the  train  was  almost 
stopped  to  give  her  time  to  escape,  and  that 
the  whistle  was  continuously  blown  to 
frighten  her  from  the  track,  and  that  the 
disaster  was  caused  by  her  own  obstinacy 
in  following  the  track  when  she  might 
have  left  it,  the  owner  of  the  mare  had  no 
cause  of  action,  and  the  presiding  judge 
did  not  err  in  granting  a  nonsuit.  Gay  v. 
Wadley,  86  Ga.  103,  12  S.  E.  Rep.  298. 

Where  a  mare,  frightened  by  the  noise, 
rapidly  crossed  the  track  fifty  yards  ahead 
of  an  approaching  train,  and  the  proof  showed 
that  she  was  on  the  side  of  the  track  about 
ten  feet  distant  from  the  same  during  a  very 
short  time,  where  she  might  have  been  seen 
before  the  collision,  and  she,  through  fright, 
ran  upon  the  engine,  striking  it  about  the 
drive-wheel,  and  it  did  not  appear  that  the 
engineer  could  have  seen  her  in  lime  to  pre- 


ANIMALS,  INJURIES   TO,  467-472. 


301 


.?*  iff', 


vent  the  injury — kelJ,  that  the  proof  failed 
to  charge  the  company  with  negligence. 
Rockford,  R.  I.  &•  Si.  L.  R.  Co.  v.  Linn,  67 
III.  109.— Distinguishing  Chicago,  B.  &  Q. 
R.  Co.  V.  Cauffman,  38  111.  424. 

467.  To  show  that  road  had  been 
ill  operation  six  months.'*' — In  a  suit  for 
killing  stock,  the  first  count  of  the  declara- 
tion proceeded  upon  the  statutory  liability 
for  neglect  to  fence  the  road  within  six 
months,  and  the  others  alleged  negligence 
as  at  common  law.  The  proof  showed  that 
plaintiff's  steers  were  killed  in  the  fall  of 
1870,  and  his  horses  and  hogs  in  the  sum- 
mer of  1871.  Held,  that  the  proof  showed 
inferentially  that  the  road  had  been  open 
for  six  months  before  the  horses  and  hogs 
were  killed,  and  therefore  sustained  the  first 
count  of  the  declaration.  Rockford,  R.  I.  &* 
SI.  L.  R.  Co.  V.  Spillers,  67  ///.  167. 

468.  To  show  that  an  ordinance 
was  in  t'orce.f — Where  the  liability  of  a 
company  for  injuring  stock  in  a  village  de- 
pends upon  whether  an  ordinance  was  vio- 
lated, a  stipulation  that  the  ordinance  "  was 
duly  certified  under  the  seal  of  the  corpora- 
tion as  required  by  law,"  and  that  "  it  was 
duly  passed  and  published  as  required  by 
law,"  is  sufficient  to  show  that  the  ordinance 
was  in  force.  Illinois  C.  R.  Co.  v.  Fishell, 
32  ///.  App.  41. 

c.  Prima  Facie  Evidence— Presumptions.^ 

469.  Presumptions,   generally.  — 

Where  the  question  is  raised,  in  an  action 
against  a  railroad  company  for  killing  stock, 
whether  a  county  herd  law  was  in  force, 
which  might  be  put  in  force  by  a  board  of 
county  commissioners  upon  a  petition  of 
more  than  two-thirds  of  the  legal  voters  of 
the  county,  in  the  absence  of  anything  to 
the  contrary  it  will  be  presumed  that  the 
names  on  such  petition  were  the  names  and 
genuine  signatures  of  legal  voters  of  the 
county.  St.  Louis  &*  S.  F.  R.  Co.  v.  Moss- 
man,  30  Kan,  336,  2  Pac.  Rep.  146. — Fol- 
lowing Kansas  Pac.  R.  Co.  v.  Landis,  24 
Kan.  406.  Distinguishing  Noffzigger  v. 
McAllister,  12  Kan.  315;  St.  Louis  &  S.  F. 
R.  Co.  V.  Dudgeon,  28  Kan.  283.— Distin- 
guished IN  Atchison,  T.  &  S.  F.  R.  Co.  v. 
I^iggs,  15  Am.  &  Eng.  R.  Cas.  531,  31  Kan. 
622. 
Where  in  an  action  for  damages  to  stock, 

*  See  ante,  123-125,  358 ;  post,  510. 

t  See  <!»/«,  211,362. 

i  See  ante,  84,  128,  143,  207. 


brought  against  a  company  on  the  ground 
of  negligence  in  failing  to  maintain  a  fence 
between  the  company's  right  of  way  and  the 
land  of  the  plaintiff,  the  defense  interposed 
is  that,  in  the  condemnation  proceeding  by 
which  the  company's  riglit  of  way  was  ac- 
quired, the  expense  of  fencing  was  taken 
into  account  by  the  jury  and  included  in 
the  verdict,  and  the  company,  to  sustain 
such  defense,  gives  in  evidence  the  record 
of  the  proceeding,  and  the  record  is  silent 
on  the  subject,  no  presumption  arises  that 
the  matter  of  building  and  maintaining 
fences  along  the  line  of  the  railroad  was 
considered,  and  that  compensation  to  the 
.  owner  therefor  was  awarded  in  the  verdict. 
Cincinnati,  IV.  &*  Z?.  R.  Co.  v.  Hoffliines, 
40  Am.  (S-  Eng.  R  Cas.  221,  46  0/iio  St.  643, 
22  A^.  E.  Rep.  871. 

470.  Presumption  as  to  ownership 
of  road.* — In  an  action  against  a  railroad 
for  damages  for  the  killing  of  stock  on  the 
road,  it  will  be  presumed,  after  verdict,  in 
the  absence  of  contrary  evidence,  that  the 
defendant  owned  the  road  at  the  time  of  the 
accident.  Brown  v.  Missouri  Pac.  R.  Co., 
14  Mo.  App.  580. 

471. as  to  ownership  of  cattle.! 

— Proof  of  possession  of  the  stock  killed  is 
prima  facie  evidence  of  ownership.     Toledo, 
W.&*  W  R.  Co.  V.  Stevens,  63  Ind.  337. 

472.  Presumption  arising  from 
failure  to  call  employes  as  witnesses. 
— The  failure  of  a  company  to  call  the  en- 
gineer as  a  witness  in  a  suit  against  it  for 
killing  stock  justifies  the  jury  in  assuming 
that  if  he  had  been  called  his  evidence 
would  have  supported  plaintiff's.  Gulf,  C. 
&*  S.  F.  R.  Co.  V.  Ellis,  54  Fed.  Rep.  481,  10 
I/.  S.  App.  640,  4  C.  C.  A.  454. 

Where  the  company  is  charged  with  the 
negligent  killing  of  a  horse  upon  the  track 
of  the  road,  the  absence  at  the  trial  of  the 
agents  or  servants  of  the  company  who 
were  on  the  train  when  the  horse  was  killed, 
raises  a  strong  presumption  against  the 
company.  Murray  v.  South  Carolina  R.  Co., 
10  Rich.  (So.  Car.)  227. — Quoted  in  Broth- 
ers V.  South  Carolina  R.  Co.,  5  So.  Car.  55. 

In  an  action  for  killing  live  stock  there 
was  but  one  witness  for  the  plaintiff — the 
engineer,  who  testified  that  the  company 
had  used  all  ordinary,  reasonable  care  and 
diligence.  A  verdict  was  found  for  the 
plaintiff,  and  it  was  objected  that  the  ver- 

»  See  antf,  339,  446. 
t  See  ante,  340,  445. 


302 


ANIMALS,  INJURIES   TO,  473-475. 


S9W 


-:  I' 


aim  21^1 


.11'  iilii 


liil 


X 


diet  was  against  the  evidence,  as  there  was 
nothing  to  show  negligence.  The  fireman 
was  not  produced  as  a  witness,  nor  was  his 
absence  accounted  for.  I/e/d,  that  it  was  the 
duty  of  the  company  to  produce  all  the  wit- 
nesses present  to  show  that  it  was  without 
fault.and  that  the  absence  of  the  engineer  was 
a  circumstance  from  which  the  jury  might 
infer  that  liad  he  been  produced  his  evidence 
would  have  shown  negligence  on  the  part 
of  the  company.  Gainesville,  J.  Sf  S.  A\  Co. 
V.  IVall,  75  Ga.  282.— Distinguished  in 
Savannah,  F.  &  VV.  R.  Co.  v.  Gray,  '/7  Ga. 
440,  3  S.  E.  Rep.  1 58 ;  Central  R.  &  B.  Co. 
V.  Sims,  80  Ga.  749. 

Where  a  company  is  sued  for  killing 
stock,  if  the  engineer  is  introduced  as  a 
witness  for  the  company,  and  the  fireman 
is  not  accounted  for,  this  will  authorize  the 
jury  to  believe  that  the  fireman  has  been 
kept  away  because  he  knew  something 
which  might  be  against  the  interests  of  the 
company,  but  they  arc  not  compelled  to  so 
believe,  and  are  authorized  to  believe  the 
testimony  of  the  engineer  if  they  see 
proper ;  but  where  the  fireman  is  in  court 
such  inference  cannot  be  drawn  because  he 
is  not  sworn,  as  the  plaintiff  might  have  had 
him  sworn  if  he  had  so  chosen.  Davis  v. 
Central  R.  Co.,  7$  G<i. 645.— Distinguished 
IN  Savannah,  F.  &  W.  R.  Co.  v.  Gray,  77 
Ga.  440,  3  S.  E.  Rep.  1 58. 

47i$.  Presumption  that  animal 
l^as  killed. — Evidence  that  a  dead  ani- 
mal was  found  near  a  railroad  track  raises 
no  legal  presumption  that  it  was  killed,  or, 
if  killed,  that  it  was  killed  on  the  track  or 
by  a  train.  St.  Louis  &•  S.  F.  R.  Co.  v. 
Sageley,  56  Ark.  549,  20  i".  VV.  Rep.  ^x^. — 
Following  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Hagan,  42  Ark.  122. 

474.  Presumption  as  to  place  of 
entry.* — The  place  of  killing  or  injury  of  an 
animal  will  be  presumed  to  be  the  place  of 
entrance  upon  the  track,  in  the  absence  of 
evidence  to  the  contrary ;  and  if  the  place 
of  killing  or  injury  or  of  entrance  on  the 
track  is  not  shown,  the  company  is  not  lia- 
ble. Pearson  v.  Chicago,  B.  &*  K.  C.  R.  Co., 
33  Mo.  App.  543.— Following  McGuire  v. 
Missouri  Pac.  R.  Co.,  23  Mo.  App.  325. 

In  the  absence  of  direct  proof  upon  the 
subject,  the  presumption  is  that  an  animal 
came  upon  the  railway  track  at  a  point 
where  the  railway  company  was  required  to 


fence  hut  failed  to  do  so,  if  the  evidence 
shows  that  the  animal  was  injured  at  such 
a  point.  Duke  v.  Kansas  City,  Ft.  S.  &*  M. 
R.  Co.,  y)  Mo.  App.  105.— Following  Jantz- 
en  V.  Wabash,  St.  L.  &  P.  R.  Co.,  83  Mo. 
171  ;  McGuire  v.  Missouri  Pac.  R.  Co.,  23 
Mo.  App.  325. 

In  the  absence  of  proof  to  the  contrary, 
the  law  presumes  that  an  animal  came  on 
the  railroad  track  where  it  was  killed,  and 
proof  that  the  cow  was  killed  at  a  place  where 
the  railroad  company  was  required  by  law 
to  fence  establishes  a  prima  facie  cise 
against  such  company.  Kinion  v.  Kansas 
City,  Ft.  S.  &'  M.  R.  Co.,  39  Mo.  App.  382.— 
Following  Lantz  v.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  54  Mo.  228 ;  Walther  v.  Pacific  R. 
Co.  55  Mo.  271. — Followed  in  Wood  v. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.,  43  Mo. 
App.  294;  Goodwin  7/.  Kansas  City,  Ft.  S. 
&  M.  R.  Co.,  43  Mo.  App.  359;  Sayer  v. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.,  43  Mo. 
App.  360. 

Where  it  appears  from  the  evidence  that 
the  blood  and  carcass  of  the  animal  are 
found  upon  the  track  at  a  point  which  was 
not  but  should  have  been  fenced,  it  will  be 
presumed,  in  the  absence  of  evidence  to  the 
contrary,  that  it  entered  upon  the  track  at 
that  point.  Jantzeny.  Wabash,  St.  L.  &*  P. 
R.  Co.,&3Mo.  171. 

475.  Presumption  as  to  place  of 
killing.*— The  presumption  is  that  the 
houses  compose  a  village  ;  and  if  the  place 
where  a  cow  is  killed  by  a  railroad  is  beyond 
the  houses,  the  presumption  is  that  it  is 
killed  beyond  the  village ;  if  the  town  ex- 
tends beyond  the  houses,  defendant  should 
liave  shown  it  to  be  so.  Ohio  &'  M.  R.  Co, 
v.  Irvin,  27  ///.  178.— Followed  in  Ohio  & 
M.  R.  Co.  v.  Taylor,  27  111.  207. 

Proof  that  the  killing  or  injury  occurred 
at  or  near  a  mill  brings  the  case  prima 
facie  within  this  rule,  and  puts  it  upon  the 
plaintiff  to  show  that  it  occurred  at  a  place 
where  a  fence  would  not  be  improper. 
Indianapolis  &*  C.  R.  Co.  v.  Kinney,  8  Ind. 
402. 

The  jury,  in  the  absence  of  proof  that  an 
injury  to  cattle  was  inflicted  within  the  depot 
grounds  of  a  railroad  company  where  it  was 
not  required  to  fence,  may  presume  that 
such  was  not  the  fact  when  it  is  shown  that 
such  injury  occurred  one  and  one-fourth 
miles   from    a   certain    station.     Smith  v. 


•  See  ante,  128,  396,  463 ;  post,  519.  •  See  ante,  207,  464 ;  post,  520. 


ANIMALS,  INJURIES  TO,  476-480. 


803 


Chicago,  M.  &>  St.  P.  A\  Co..  13  Am.  »S-  E>tg^. 
R.  Cas.  534,  60  Iowa  512,  15  N.  fV.  Rep. 
303. — Quoting  Comstock  v.  Des  Moines 
Valley  R.  Co.,  32  Iowa,  376. 

Where  ihe  township  must  be  proved  in 
which  an  injury  occurred,  the  jury  are  not 
at  liberty  to  infer  that  the  locality  of  the 
injury,  not  shown  to  be  in  such  township, 
was  a  place  in  said  township.  Harris  v.  St. 
Louis,  I.  M.  <S-  S.  R.  Co.,  23  Mo.  App.  328. 

470.  Presiiuiptioii  of  performance 
of  duty  to  fence.*— If  the  place  at  which 
the  stock  entered  was  one  which  the  road 
was  required  to  fence,  as  alleged,  the  pre- 
sumption is  that  the  company  had  done  its 
duty  in  regard  to  fencing  it.  Louisville,  N. 
A.  &*  C.  R.  Co.  V.  Quitde,  19  Am.  «S-  £ng.  R. 
Cas.  595,  91  /nd.  295. 

477.  Presumption  that  the  road 
was  operntcd  by  defendant.!— Where 
it  appears  that  stock  were  injured  by  a  train 
on  defendant's  road,  plaintifT  is  not  bound 
to  prove  affirmatively  that  the  train  was 
operated  or  controlled  by  defendant.  If 
there  be  no  evidence  to  the  contrary,  the 
jury  is  authorized  to  find  that  it  was  oper- 
ated by  defendant.  SoutA  &*  N.  Ala.  R.  R. 
Co.  v.  Pilgreen,  62  Ala.  305. 

478.  Presuniption  as  to  animal 
Koin{;r  off  track.— When  an  adult  per- 
son is  seen  on  the  track  in  front  of  a  mov- 
ing train  it  may  be  presumed  that,  as  an 
intelligent  being,  he  will  step  off  in  time  to 
avoid  injury;  but  this  presumption  does 
not  apply  to  animals  on  the  track.  Dennis 
v.  Louisville,  N.  A.  &>  C.  R.  Co.,  35  Am.  &* 
Eng.  R.  Cas.  141,  116  Ind.  42,  15  West.  Rep. 
547,  18  A^.  E.  Rep.  179,  i  L.  R.  A.  448.— 
Distinguishing  Chicago  &  E.  I.  R.  Co.  v. 
Hedges,  105  Ind.  398. 

479.  Presumption  as  to  existence 
of  similar  stock-killing  laws  in  two 
states. — In  an  action  in  Colorado  for 
stock  killed  in  ■  New  Mexico,  a  Colorado 
statute  concerning  the  liability  of  railroads 
for  stock  killed  does  not  apply  ;  and  in  the 
absence  of  proof  of  a  New  Mexico  statute, 
the  existence  of  such  a  law  there  will  not  be 
presumed.  But  if  the  stock  were  killed  by 
the  gross  negligence  of  the  company  it  is 
liable  under  common-law  principles  without 
regard  to  the  statutes  of  New  Mexico. 
Atchison,  T.  &*S.F.  R.  Co.  v.  Betts,  31  Am. 
«S-  £■«;'•  ^.  Cas.  563,  10  Colo.  431,  15  Pac. 
Rep.  821. 

*  See  ante,  114-121. 

fSee  ante,  339. 


480.  Presumption  of  negligence 
arising  f!rom  mere  proof  of  killing.* 

—  (i)  At  common  law.  —  At  common  law 
proof  of  injury  to,  or  killing  of,  stock  on 
the  track  raises  no  presumption  of  negli- 
gence. Such  presumption  exists  only  under 
the  statutes.  Etuly  v.  Lafayette,  49  Fed. 
Rep.  798,  4  U.  S.  App.  243.  I  C.  C.  A.  432.— 
Followed  in  Eddy  v.  Dulaney,  49  Fed. 
Rep.  800,  4U.  S.  App.  246,  I  C.  C.  A.  435. 

Where  the  cattle-owner  pursues  the  com- 
mon-law remedy  instead  of  his  statutory 
remedy,  mere  proof  of  killing  or  injury  by 
the  company  does  not  raise  a  presumption 
of  negligence.  Denver  &^  R.  G.  R.  Co.  v. 
Henderson,  31  Am.  &*  Eng.  R.  Cas.  559,  10 
Colo.  I,  13  Pac.  Rep.<)\o.  Atchison,  T.  &- 
S.  F.  R.  Co.  V.  Walton,  3  N.  Mex.  ^ig,  9 Pac. 
Rep.  351.  Indianapolis  &^  C.  R.  Co.  v. 
Means,  14  Ind.  30. — Approved  in  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Walton,  3  N.  Mex.  319.— 
Mobile  (S-  O.  R.  Co.  v.  Hudson,  50  Miss.  572. 

In  an  action  by  an  owner  of  live  stock  for 
killing  or  injuring  the  stock  by  its  train, 
proof  of  the  killing  or  injury  is  not  of  itself 
prima  facie  evidence  of  negligence  upon 
the  part  of  the  company  or  its  agents.  To 
make  out  a  prima  facie  case  of  negligence 
there  must  at  least  be  evidence  of  circum- 
stances from  which  a  presumption  arises 
that  the  stock  would  not  have  been  run 
upon  by  the  train  but  for  want  of  care  on  the 
part  of  those  operating  it.  Savannah,  F. 
iS*  W.  R.  Co.  V.  Geiger,  29  Am.  &*  Eng.  R. 
Cas.  274,  21  Fla.  669,  58  Am.  Rep.  697. 

Where  no  duty  is  imposed  on  the  com- 
pany to  fence  in  its  track,  mere  proof  of 
killing  or  injury  does  not  raise  a  presump- 
tion of  negligence.  Illinois  C.  R.  Co.  v. 
Reedy,  17  ///.  580.  Schneir  v.  Chicago,  R.  I. 
&*  P.  R.  Co.,  40  Iowa  337. — Approved  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Walton,  3  N. 
Mex.  319. 

(2)  The  South  Carolina  rule. — Where  a 
company  is  sued  for  killing  cattle,  proof 
by  plaint ifl  that  his  cattle  were  killed  by 
a  passenger  train  belonging  to  the  com- 
pany while  pasturing  on  his  own  land, 
and  of  the  value  of  the  cattle,  makes  out  a 
prima  facie  case  which  will  entitle  him  to 
recover,  unless  the  company  rebuts  the  pre- 
sumption of  negligence  by  proof  of  the  par- 
ticular circumstances  or  manner  of  the  kill- 
ing.   Danner  v.   South   Carolina  R.  Co.,  4 

*  See  ante,  6,  29-33,  126,  359,  448. 

Killing  of  stock  by  train  raises  a  presump- 
tion of  negligence,  see  note,  i.  L.  R.  A.  448. 


'*  A 

I"* 


1 


304 


ANIMALS,  INJURIES   TO,  480. 


1 


SViiii 


:^ 


I 


Rich.  (So.  Car.)  329.— Applied  IN  Joy nerw. 
South  Carolina  R.  Co.,  29  Am.  &  Eng.  R. 
Cas.  258,  26  Su.  Car.  49,  i  S.  E.  Rep.  52. 
Approved  in  Gorman  v.  Pacific  R.  Co.,  26 
Mo.  441  ;  Walker  ?/,  Columbia  &  G.  R.  Co., 
25  So.  Car.  141  ;  Bcliije  v.  Houston  &  C. 
T.  R.  Co.,  26  Tex.  604.  Disapproved  IN 
Savannah,  F.  &  W.  R.  Co.  v.  Geiger,  29 
Am.  &  Eng.  R.  Cas.  274,  21  Fla.669,  58  Am. 
Rep.  697.  Distinguished  in  Wilson  v. 
Wilmington  &  M.  R.  Co..  10  Rich.  (So.  Car.) 
52.  Explained  in  Jones  v.  Columbia  & 
G.  U.  Co.,  19  Am.  &  Eng.  R.  Cas.  459,  20 
So.  Car.  249 ;  Zeigler  v.  Northeastern  R. 
Co.,  5  So.  Car.  221.  Followed  in  Roof  v. 
Charlotte,  C.  &  A.  R.  Co.,  4  So.  Car.  61 ; 
Galpin  v.  Chicago  &  N.  W.  R.  Co.,  19  Wis. 
604.  Reviewed  hut  not  followed  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Walton,  3  N. 
Mex.  319.  Reviewed  in  Northeastern  R. 
Co.  V.  Sineath.  8  Rich.  (So.  Car.)  185  ;  Fuller 
V.  Port  Royal  &  A.  R.  Co.,  24 So.  Car.  132. 
Proof  of  ownership  cf  stock  by  plaintiff, 
and  of  the  killing  by  defendant,  makes  out 
ii.  prima  facie  case,  and  where  the  company 
produces  no  evidence  in  defense  a  nonsuit 
should  be  denied.  Joyner  v.  South  Carolina 
R.  Co.,  29  Am.  Sf  Eng.  R.  Cas.  258,  26  So. 
Car.  49,  1  S.  E.  Rep.  52.  Roof  v.  Charlotte, 
C.  &-  A.  R.  Co.,  4  So.  Car.  61.— APPLYING 
Murray  v.  South  Carolina  R.  Co.,  10  Rich. 
(So.  Car.)  227  ;  Wilson  v.  Wilmington  &  M. 
R.  Co.,  lo  Rich.  (So.  Car.)  52.  Follow- 
ing Danner  v.  South  Carolina  R.  Co.,  4 
Rich.  (So.  Car.)  329.  Reviewing  New 
York  &  E.  R.  Co.  v.  Skinner,  19  Pa.  St.  298. 
Compare  Nashville  &*  C.  R.  Co.  v.  Fugett, 

3  Coldw.  ( Tenn^  402. 

And  this  presumption  of  negligence  is 
not  confined  to  cases  where  the  company 
introduces  no  testimony  whatever,  but  con- 
tinues until  rebutted  by  affirmative  evidence 
that  the  company  exercised  due  care,  or 
that  the  accident  was  unavoidable.  Joyner 
V.  South  Carolina  R.  Co.,  29  Am.  &•  Eng.  R. 
Cas.  258,  26  So.  Car.  49,  i  S.  E.  Rep.  52.— 
Applying  Danner  t/.  South  Carolina  R.  Co., 

4  Rich.  (So.  Car.)  330.  Quoting  Zemp  v. 
Wilmington  &  M.  R.  Co.,  9  Rich.  (So.  Car.) 
84 ;  Jones  v.  Columbia  &  G.  R.  Co.,  20  So. 
Car.  258;  Fuller  v.  Port  Royal  &  A.  R.Co., 
24  So  Car.  132. 

This  rule  in  Danner's  Case,  that  proof  of 
killing  stock  raises  a  presumption  of  neg- 
ligence and,  unexplained,  entitles  the  owner 
to  recover,  is  not  changed  by  the  subse- 
quent South   Carolina  laws  requiring  stock 


to  be  inclosed.  Simkins  v.  Columbia  fi-  G. 
R.  Co.,  19  Am.  (S-  Eng.  R,  Cas.  i^dy,  20  So. 
Car.  258.— Applied  in  Harlcy  v.  Eutaw- 
ville  R.  Co.,  31  So.  Car.  151.  Followed 
in  Joyner  v.  South  Carolina  R.  Co.,  29  Am. 
&  Eng.  R.  Cas.  258,  26  So.  Car.  49,  i  S.  E. 
Rep.  52.  Quoted  in  Molair  v.  Port  Royal 
&  A.  R.  Co.,  29  So.  Car.  1 52,  7  S.  E.  Rep. 
to.— Jones  V.  Columbia  6-  6".  R.  Co.,  19  Am, 
«S-  Eng.  R.  Cas.  459,  20  So.  Car,  249.— Ex- 
plaining Danner  v.  South  Carolina  R.  Co., 
4  Rich.  (So.  Car.)  329.— Applied  in  Harlcy 
V.  Eutawviile  R.  Co.,  31  So.  Car.  151. 
Quoted  and  followed  in  Joyner  7>.  South 
Carolina  R.  Co.,  29  Am.  &  Eng.  R.  Cas.  258, 
26  So.  Car.  49,  I  S.  E.  Rep.  52. 

(3)  Alabama  statute.— Prool  that  stock 
were  injured  by  a  passing  train  makes  out  a 
prima  facie  case  under  the  Alabama  stat- 
utes, and  casts  the  burden  on  the  company 
to  show  that  there  was  no  negligence,  or  that 
the  statute  had  been  complied  with.  East 
J'enn.,  V.  &>  G.  R.  Co.  v.  Bayliss,  19  Am. 
<S-  Eng.  R.  Cas.  480,  74  Ala.  1 50.— Follow- 
ing Mobile  &  O.  R.  Co.  v.  Williams,  53  Ala. 
595 ;  South  &  N.  Ala.  R.  Co.  v.  Thompson, 
65  Ala.  7^.— Alabama  G.  S.  R.  Co.  v.  McAl- 
pine,  22  Atn.  &^  Eng.  R.  Cas.  602,  75  Ala. 

113. — Disapproved  in  Georgia  Pac.  R.  Co. 
V.  Hughes,  39  Am.  &  Eng.  R.  Cas.  674,  87 
Ala.  610,  6  So.  Rep.  413. — Nashville,  C.  (S- 
St.  L.  R.  Co.  V.  Hembrce,  38  .4;//.  <S-  Eng.  R. 
Cas.  300,  85  Ala.  481.  5  So.  K"p.  173.  Mobile 
6-  G.  R.  Co.  V.  Caldwell,  83  A'a.  196,  3  So. 
Rep.  445.— Disapproved  in  Georgia  Pac. 
R.  Co.  V.  Hughes,  39  Am.  &  Eng.  R.  Cas. 
674,  87  Ala.  610,  6  So.  Rep.  413. 

(4)  Arkansas  statute.— IJnder  the  Arkan- 
sas act  of  Feb.  3,  1875,  proof  that  stock 
were  killed  on  the  track  raises  a  presumption 
of  negligence  and  that  the  killing  was  done 
by  the  company's  train,  but  this  presumption 
is  not  conclusive.  Little  Rock  &*  Ft.  S.  R. 
Co.  V.  Payne,  33  Ark.  816.— Quoting  Macon 
&  Augusta  R.  Co.  v.  Vaughn,  48  Ga.  464. 
Reviewing  Cairo  &  F.  R.  Co.  v.  Parks,  32 
Ark.  131.— Little  Rock  &>  Ft.  S.  R.  Co.  v. 
Finley,  1 1  Am.  <S-  Eng.  R.  Cas.  469 ;  37  Ark. 
562.  Little  Rock  <S-  Ft.  S.  R.  Co.  v.  Jones, 
19  Am.  &•  Eng.  R.  Cas.  443.4'  -^^k.  157. 
St.  Louis,  /.  M.  <S-  S.  R.  Co.  v.  Hagan,  19 
Am.  6-  Eng.  R.  Cas.  446,  42  Ark.  122.  St. 
Louis,  /.  M.  iS-  S.  R.  Co.  v.    Taylor,  57  Ark. 

136. 

The  fact  that  stock  are  found  near  a  rail- 
road, wounded,  creates  no  presumption  that 
the  injury  was  done  by  ^l^e  railroad  train,  as 


ANIMALS,  INJURIES  TO,  480. 


305 


in  cases  of  killing  or  mortally  wounding 
stock ;  but  when  it  is  proved  tliat  the  in- 
jury was  done  by  the  train,  then  the  same 
presumption  of  negligence  arises  against  the 
company  as  in  cases  of  killing.  ^V.  Louis,  I. 
M.  &*  S.  A'.  Co.  V.  Hagan,  1 9  Am,  &>  Etig. 
K.  Cas.  446,  42  Arl:  1 22. 

But  this  presumption  may  be  repelled  by 
proof  of  due  diligence.  St.  Louis  &*  S.  F. 
R.  Co.  V.  Basham,  47  Ark.  32 1,  \  S.  IV.  Rep. 
555.— Following  Little  Rock  &  Ft.  S.  R. 
Co.  V.  Turner,  41  Ark.  161. 

k  prima  fiicic  case  of  negligence  is  made 
under  the  Arkansas  statute  by  proving  the 
killing,  and  that  the  animals  were  attracted 
by  cotton-seed  which  was  allowed  to  ac- 
cumulate upon  the  track.*  Little  Rock  &* 
Ft.  a.  R.  Co.  V.  Dick,  42  Am.  6-  Eng.  R.  Cas. 
591,  52  Ark.  402,  12  5.  IF.  Rep.  785. 

(5)  Florida  statute. — Under  the  act  of 
1887,  chapter  3740,  laws  of  Florida,  the  kill- 
ing of  live  stock  by  a  railway  engine,  cars,  or 
train  \^  prima  facie  evidence  of  negligence 
on  the  part  of  the  company  operating  the 
engine  or  train,  and  where  the  testimony 
shows  that  live  stock  were  killed  by  a  train 
of  cars  on  a  n.i'.road,  and  there  is  nothing 
in  the  evidence  to  relieve  the  killing  from 
the  statutory  presumption  tliat  it  was  neg- 
ligently done,  it  is  sufficient  to  sustain  a- 
judgment  against  the  company.  Jackson- 
ville,  T.  <S- A".  W.  R.  Co.  v.  Garrison,  30  Fla. 
567,  II  So.  Rep.  926.— Quoting  Kentucky 
C.  R.  Co.  V.  Talbot,  7  Am.  &  Eng.  R.  Cas. 
585,  7S  Ky.  621. 

(6)  Georgia  statute. — Tlie  mere  fact  that 
animals  were  killed  by  a  train,  especially 
where  the  law  makes  it  the  duty  of  all  per- 
sons to  maintain  a  fence,  and  there  was 
none  in  this  case,  is  sufficient  to  raise  a  pre- 
sumption of  negligence  on  the  part  of  the 
railroad's  employes.  Georgia  R.  &•  B.  Co. 
v.  Willis,  28  Ga.  317. 

Under  the  Georgia  Code,  §  3033,  the  kill- 
ing of  an  animal  by  a  running  train  raises 
the  presumption  that  the  accident  occurred 
through  the  negligence  of  the  railroad  or  its 
employes.  Georgia  R.  &*  B.  Co.  v.  Mon- 
roe, 49  Ga.  yji. 

But  this  presumption  is  subject  to  be 
rebutted  and  overcome  by  evidence ;  and 
where  this  has  been  done  by  the  uncontra- 
dicted testimony  of  the  employes  of  the 
company,  a  verdict  finding  against  it  is  con- 
trary to  law  and  evidence.     Georgia  R.  &■* 


*Seean/e,  40. 
I  D.  R.  D.— 20. 


£.   Co.  V.  IVall,  80  Ga.  203,  7  S.  E.  Rep. 
639. 

And  where  this  presumption  was  fully  re- 
butted by  the  testimony  on  behalf  of  the 
company,  to  the  effect  that  the  injury  was 
not  the  result  of  negligence  on  the  part  of 
the  defendant  or  its  agents,  but  that  it  used 
all  ordinary  and  reasonable  care  and  dili- 
gence to  prevent  the  injury,  and  where  this 
was  not  contradicted  by  any  other  evidence, 
a  new  trial  should  have  been  granted  on  the 
ground  that  the  verdict  was  without  evi- 
dence to  support  it.  Macon  &*  A.  R.  Co,  v. 
Neivell,  74  Ga.  809. 

(7)  Illinois  statute. — Where  the  plaintiff 
declares  upon  the  statutory  liability  growing 
out  of  a  neglect  to  fence  the  road  within  six 
months  after  it  is  opened,  it  is  sufficient  to 
prove  the  killing  of  the  cattle  by  the  trains 
of  the  company  and  the  company's  neglect 
to  fence.  Such  proof  makes  a  prima  facie 
case  of  liability.  Rockford,  R.  I.  6-  St.  L. 
R.  Co.  v.  Lynch,  67  ///.  149. 

The  law  infers  negligence  where  animals 
are  killed  at  a  point  where  it  is  the  duty 
of  the  company  to  fence  under  the  Illinois 
statute  and  it  has  failed  to  do  so;  but 
where  a  fence  has  once  been  built  then 
negligence  must  be  proven,  as  in  failing  to 
keep  it  in  repair,  etc.  Illinois  C,  R.  Co.  v. 
Whalen,  42  ///.  396. 

(8)  Iowa  statute.— Under  the  Iowa  Code, 
§  1289,  the  fact  of  injury  or  killing  of  an  ani- 
mal by  a  railroad  train  being  shown  raises  a 
presumption  of  negligence  against  the  rail- 
road company.  Stnall  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  50  Iowa  338.  Brent ner  v.  Chi- 
cago, M.  &*  St.  P.  R.  Co.,  19  Am.  &>  Eng. 
R.  Cas.  448,  68  Iowa  530,  23  N.  IV.  Rep.  245, 
27  N.  W.  Rep.  605. 

(9)  Kentucky  statute. — Under  the  Kentucky 
statute  the  killing  of  live  stock  raises  the 
presumption  of  negligence  against  the  rail- 
road company  whose  train  causes  the  in- 
jury. Louisville  &*  N.  R.  Co.  v.  Simmons, 
85  A>.  151,  3  S'.  W.  Rep.  10. 

(10)  Maryland  statute. — Upon  proof  of 
injury  to  the  stock  of  the  plaintiff  by  a  rail- 
road company,  a  prima  facie  case  is  made, 
and  the  plaintiff  is  entitled  under  the  statute 
(Art.  77,%  I,  o*  the  Maryland  Code)  to  re- 
cover, unless  the  defendant  can  prove,  to 
the  satisfaction  of  the  jury,  "  that  the  injury 
complained  of  was  committed  without  any 
negligence  on  the  part  of  the  company  or 
its  agents."  Western  Md.  R,  Co,  v.  Carter, 
13  Am.  &*  Eng.  R.   Cas.  573,  59  Md.  306. 


306 


ANIMALS,  INJURIES  TO,  481. 


■>i;at 


Keech  v.  Baltimore  A*  W.  R.  Co..  17  Md. 
3a.— Approvki)  in  State  v.  Baltimore  &  O. 
R.  Co.,  24  M(l.  %»,.— Northern  C.  A'.  Co.  v. 
lVar</,  63  i»A/.  362, 

(ri)  Mississippi  statute. — Proof  of  the 
killing  of  stock  and  of  its  value  makes  a 
prima  facie  case  for  plaintifl  under  the  Mis- 
sissippi statute  (Code  of  1880,  §  1059),  thus 
casting  the  burden  on  the  company  to  show 
circumstances  of  excuse  or  justification  of 
the  killing.  Kansas  City,  M.  &*  B.  A'.  Co.  v. 
Doggett,  67  Miss.  250,  7  So.  Rep.  278.  Vicks- 
burg  &*  M.  R.  Co.  V.  Hamilton,  62  Miss. 
503.  Mobile  6-  O.  R.  Co.  v.  Dale,  61  Miss. 
206. 

(12)  Missouri  statute.— The  usual  pre- 
sumption of  negligence  that  arises  on  proof 
that  stock  were  killed  on  the  track,  under 
the  Missouri  statute,  does  not  apply  where 
the  killing  is  within  the  corporate  limits  of  a 
village  or  city.  Pryor  v.  St.  Louis,  A'.  C.  &* 
N.  R.  Co.,  69  Mo.  215.— Following  Wierv. 
St.  Lf)uis  &  I.  M.  R.  Co.,  48  Mo.  558 ;  Lloyd 
V.  Pacific  R.  Co.,  49  Mo.  199, 

Especially  when  the  accident  happened 
at  a  crossing  long  used  as  a  public  highway. 
Wier  V.  St.  Louis  &^  I.  M.  R.  Co.,  48  Mo. 
558. — Revikwing  Meyer  v.  North  Mo.  R. 
Co.,  35  Mo.  352  ;  Ibav.  Hannibiil  &  St.  J.  R. 
Co.,  45  Mo. 473. — Followed  in  Pryori/. St. 
Louis.  K.  C.  &  N.  R.  Co.,  69  Mo.  215. 
Not  followed  in  Wymore  v,  Hannibal  & 
St.  J.  R.  Co.,  79  Mo.  247. 

(13)  New  Hampshire  statute. — Proof  of 
killing  by  the  engines  of  a  railroad  company 
establishes  a  prima  facie  case  where  the 
animals  were  upon  a  railroad  crossing  (New 
Hampshire  Comp.  St.,  ch.  150,  §  45).  White 
v.  Concord  R.  Co.,  30  A^.  H.  188. 

The  destruction  of  cattle  while  upon  the 
track  of  a  railroad,  without  the  fault  of  their 
owner,  is  competent />r//;/a /aw  evidence  of 
negligence  on  the  part  of  the  railroad  cor- 
poration running  the  train  causing  the  mis- 
chief (New  Hampshire  Comp.  St.  350). 
Smith  v.  Eastern  R.  C<>.,  35  N.  H.  356.— RE- 
VIEWING Ellis  V.  Portsmouth  &  R.  R.  Co., 
2  Ired,  (N.  Car.)  138;  Suydam  v.  Moore,  8 
Barb.  (N.  Y.)  358 ;  Danner  v.  South  Carolina 
R.  Co.^  4  Rich.  (So.  Car.)  329. 

(14)  North  Carolina  statute. — Where  it 
was  proven  or  admitted  that  cattle  had 
been  killed  by  the  train  within  six  motths 
before  the  action  was  brought,  there  is  a 
presumption  that  the  killing  was  caused  by 
the  negligence  of  such  company,  and  this 
presumption  arises  from  the  fact  of  killing 


(imder  |  2326  of  the  North  Carolina  Code), 
where  the  animal  is  hitched  to  a  wagon  or 
cart,  as  well  as  where  it  is  straying  at  large 
when  killed.  Randall  v.  Richmond  &*  D.  R. 
Co.,  45  Atn.  &*  Eng.  R.  Cas.  507,  107  N.  Car. 
748,  12  S.  E.  Rep.  605. 

Where  an  action  for  killing  plaintiflf's 
mule  is  brought  within  six  months  after  the 
accident,  the  fact  of  such  killing  (nothing 
further  appearing)  is  prima  facie  evidence 
of  defendant's  negligence;  and  the  burden 
of  repelling  the  presumption  is  upon  the 
company.  Wilson  v.  Norfolk  Sf  S.R.  Co., 
19  Am.  &*  F-ng-  A*.  CVu.  453, 90  A'.  Cflr.  69. 
—Distinguished  in  Snowden  v.  Norfolk 
S.  K.  Co.,  95  N.  Car.  93,  Quoted  in  Rigler 
V.  Charlotte,  C.  &  A.  R.  Co.,  26  Am.  &  Eng. 
R,  Cas.  386,  94  N.  Car.  604. 

The  North  Carolina  act  of  1857  (Bat.  Rev. 
ch.  16,  ^  1 1),  which  makes  the  act  of  killing 
stock  by  the  engines  or  cars  of  a  railroad 
company  prima  facie  evidence  of  negli- 
gence, applies  only  when  the  facts  attending 
the  killing  are  unknown  and  uncertain  ;  but 
when  those  facts  are  fully  disclosed  in  evi- 
dence, and  it  is  shown  that  the  defendant 
company  adopted  every  precaution  in  its 
power  to  avert  the  injury,  the  court  should 
instruct  the  jury  that  the  defendant  is  not 
chargeable  with  negligence.  Durham  v. 
Wilmington  6-  W.  R.  Co.,  82  A'.  Car.  352. 
—Quoting  Proctor  v.  Wilmington  &  W. 
R.  Co.,  72  N.  Car.  579. — Approved  in 
Volkman  v.  Chicago,  St.  P.,M.  &0.  R.  Co., 
35  Am.  &  Eng.  R.  Cas.  204,  5  Dak.  69,  37  N. 
W.  Rep.  731.  Explained  in  Aycock  v. 
Raleigh  &  A.  A.  L.  R.  Co.,  89  N.  Car.  321. 

481.  Prcsiiiiiptiuii  upon  proof  of 
prohibited  rate  of  speert.*— -The  run- 
ning of  a  train  through  a  city,  village,  or 
town  at  a  greater  rate  of  speed  than  that 
allowed  by  the  city  ordinance  raises  a  pre- 
sumption of  negligence  against  the  com- 
pany, Toledo,  P.  &*  W.  R.  Co.  v.  Deacon, 
63  ///.  91,  7  Am.  Ry.  Rep.  150.  Cleveland, 
C,  C.  &'  St.  L.  R.  Co.  V.  Ahrens,  42  ///.  App. 
434.  Chicago  &*  N.  W.  R.  Co.  v.  Carpenter, 
45  ///.  App.  294. 

A  jury  may  presume  negligence  on 
the  part  of  a  railroad  where  stock  is 
killed  in  an  incorporated  town  by  a  train 
running  at  a  greater  rate  of  speed  than  al- 
lowed by  an  ordinance.  Chicago,  B.  &*  Q. 
R.  Co.  V.  Haggerty,  67  ///.  113. 

But   the  mere  fact  that  the  train  was 

•  See  ante.  71,211,  345,  400,  457. 


1.  ■•;,:j^ 


ANIMALS,  INJURlliS   TO,  4H2-4H7. 


ao7 


moving  at  a  speed  greater  than  was  cum- 
toniary,  though  not  in  excess  uf  the  speed 
allowed  by  statute  and  the  rules  of  the 
company,  is  not  evidence  of  negligence. 
Louisville  lir*  A'.  A'.  Co.  v.  Afarriott  (A>.),  19 
A1H.&'  Eiig.  N.  Cos.  509.— Distinguishing 
Ml- Lend  v.  Olntijcr,  80  Ky.408. 

4H2.  Pn^Hiiiiiiitioii  of  HfroNH  iu'i;ll- 
fj«'ii««.*— Proof  that  a  train  was  moving  at 
a  usual  speed  when  a  horse  was  seen  on 
tlie  track,  and  that  the  speed  of  the  train 
was  not  slackened,  is  not  suflicient  to  raise 
a  presumption  of  wanton  mismanagement 
of  the  train.  /Mrlinj;  v.  Boston  <S-  A.  A'. 
Co.,  121  Afitss.  118. 

48:i.  PrcHiiiiiption  ofcoiitrilMitury 
iio|orllKencc.f — An  inference  of  contrihu- 
tory  negligence  on  the  part  of  the  plaintiff 
docs  not  arise  as  a  legal  conclusion  from  the 
<iverment  that  the  animal  was  negligently 
killed  at  a  railroad  crossing,  when  accom- 
panied by  the  averment  that  the  plaintitT 
was  without  fault.  Cliicago,  St.  L.  Sr*  P.  R. 
Co.  V.  Nash,  I  Ind.  Afip.  298,  27  A'.  E.  Rep. 
564. 

In  an  action  to  recover  for  stock  killed 
proof  that  the  stock  were  running  at  large 
in  violation  of  law  raises  a  presumption 
that  they  were  at  large  by  permission  of  the 
owner.  Atchison,  T.  &»  S.  F.  R.  Co.  v.  Heg- 
wir,  2!  Kan.  622. 

484.  Prima  t'acio  proof  of  negli- 
gence, {(ciicraliy.t — In  an  action  for  in- 
juries done  to  live  stock  on  a  railroad  track 
by  the  negligence  of  the  defendant,  the  bur- 
rlcn  of  proving  the  negligence  is  upon  the 
plaintiff ;  but  this  does  not  require  him  to 
l)rove  that  he  did  not  contribute  to  the 
npijlijjciice  which  occasioned  the  injury. 
TIk;  plaintiff  will  have  shown  &  prima  facie 
I  ijjlit  to  recover  when  he  has  proven  that 
the  injury  has  in  fact  been  done,  and,  in 
addition  thereto,  facts  and  circumstances 
from  which  a  jury  may  fairly  conclude  that 
such  injury  was  caused  by  the  negligence  of 
the  defendant,  leaving  out  of  consideration 
any  question  of  contributory  negligence. 
Johnson  v.  Baltimore  &*  O.  R.  Co.,  25  W.  Va. 
570. 

The  presumption  of  negligence  which 
prevails  in  case  of  an  injury  to  a  passenger 

*  See  ante,  37,  50,  60,  187, 200,  217, 
218;  284,343. 

tSee.//</<^,  120,  148,  213-288,390, 
.307. 

%  Presumption  of  negligence  in  actions  fur 
killing  stock,  see  note,  35  Am.  &  Enu.  R.  Cas. 
20();  19  /,/.  458;  13/./.  577. 


does  not  obtain  where  the  horse  of  a  trav- 
eller upon  a  highway  is  injured  while  at- 
tempting to  cross  the  track.  Ti-rre  Haute 
&*  /.  A".  Co.  v.  Cli'tn,  42  //;;/.  «S-  Fng.  R,  Cis, 
229,  123  /«</.  15.  23  A^  A".  Ri-p.  065,  7  /..  A'. 
A.  588. 

48A.  SliowiiiK  no  ett'ort  to  Ntop 
train.— Where  cattle  arc  killed  by  an  ordi- 
nary freight  train,  and  no  circumstances 
are  shown  why  it  could  not  be  stoi)ped  in  a 
distance  that  ordinary  trains  can  be,  proof 
that  cattle  ran  some  two  hundred  and  sev- 
enty-five yards  on  the  track  after  the 
whistle  was  blown  before  being  struck,  and 
that  no  effort  was  made  to  stop  the  train,  is 
prima  facie  evidence  of  negligence,  and 
will  warrant  submitting  the  case  to  the 
jury.  Timm  v.  Northern  I'ac.  R.  Co.,  3 
H^ash.  T.  299,  13  Puc.  Rep.  415. 

480.  Prima  facie  eaite  nIiowii  l>y 
eircuniHtantial  evidence.'*'— Proof  of 
marks  of  an  animal  on  the  track  and  of  the 
position  of  a  dead  body  near  the  track,  indi- 
cating that  the  animal  had  been  killed  by  a 
train,  is  sufficient  to  meet  the  requirements 
of  the  Mississippi  Code  1880,  ^  1059,  making 
proof  of  an  injury  to  stock  prima  facie  evi- 
dence of  negligence.  Chicago,  St.  L.  &*  N. 
O.  R.  Co.  V.  Pachwood,  7  Am,  &*  Eng.  R. 
Cas.  584,  59  Miss.  280. 

The  facts  that  the  crossing  of  a  highway 
is  out  of  repair  and  that  a  horse  is  injured 
thereon  raise  the  presumption  of  negligence 
against  the  company.  France  v.  Erie  R. 
Co.,  2  Hun  (N.  Y.)  513.  5  T  <S-  C  12. 

The  mere  fact  that  a  horse  is  found  in  a 
broken  cattle-guard  does  not  raise  such  a 
presumption  that  it  was  struck  by  a  train 
as  to  warrant  a  verdict  for  the  owner,  who 
does  not  give  further  proof  of  collision  with 
the  engine,  which  the  engineer  and  fireman 
positively  deny.  Meade  v.  Kansas  City,  St. 
J.  &*  C.  B.  R.  Co.,  45  lo^ua  699.— Foi.lowku 
IN  Moore  v.  Burlington  &  W.  R.  Co.,  31 
Am.  &  Eng.  R.  Cas.  572,  72  Iowa  75.  33  N. 
W.  Rep.  371.  Reviewed  in  Brockert  ?/. 
Central  Iowa  R.  Co.,  82  Iowa  369. 

487.  Sliowint;  killing  where  track 
Hlioiild  have  been  fenced. +— Whenever 
it  is  shown  that  a  railroad  has  not  been  fenced, 
and  that  an  animal  has  passed  upon  the 
track  and  been  killed  or  injured,  a  prima 
facie  case  has  been  made  out  against  the 
company.    Missouri Pac.  R.  Co.  v.  Baxter,  45 

•  See  antf,  40A,  452. 
t  See  ««/<•,  05-108. 


308 


ANIMALS,  INJURIES   TO,  488. 


i;  'i' 


i'i  '. 


It  8 1 


/l»i.  (S»  En^.  R.  Cas,  471,  45  Kan.  520,  26 
Pac.  Rep.  49. 
Where    an 
been    killed 
the  road    is 
fenced,   it  will    be 
sence   of   evidence 


animal    is    shown    to    have 

by    cars    at    a    point    where 

required  to    be,  but  is  not, 

presumed,   in  the  ab- 

to  the    contrary,  that 


the  loss  was  occasioned  by  the  failure  of 
the  company  to  fence  its  track.  And  evi- 
dence that  the  injury  occurred  where  the 
road  ran  through  woods  establishes  prima 
facte,  at  least,  an  obligation  of  the  com- 
pany to  fence  its  road  at  that  point.  M'ood 
V.  Kansas  City,  Ft.  S.  &>  M.  R.  Co.,  43  Mo. 
App.  294. — Following  Kinion  v.  Kansas 
City,  Ft.  S.  &  M.  R,  Co.,  39  Mo.  App.  382 ; 
Waltherz/.  Pacirtc  R.  Co.,  55  Mo.  271. 

A  prima  facie  case  is  made  out,  under 
Missouri  Rev.  St.,  §  2124,  by  proof  that  the 
animal  got  upon  the  track  and  was  injured 
where  the  track  was  not  inclosed.  Radcliffe 
v.  St.  Louis,  I.  M.  &•  S.  R.  Co.,  90  Mo.  127, 
2  5.  IV.  Rep.  277. 

In  an  action  brought  under  §  43  of  the 
Missouri  act,  touching  railroad  corporations 
for  killing  of  stock  (Wagn.  Stat.  310-31 1), 
wherever  it  ib  shown  that  stock  have  been 
killed  on  the  track  where  it  is  the  duty  of 
the  company  to  fence  in  the  road,  and  the 
company  has  failed  to  fence  in  the  manner 
required  by  law,  a  prima  facie  case  is  made 
for  plaintiff.  It  is  not  requisite  that  the 
plaintiff  should  show  further  by  affirmative 
evidence  that  the  stock  were  caused  to  go 
upon  the  road  by  the  failure  of  the  com- 
pany to  fence  it.  Walther  v.  Pacific  R.  Co., 
55  /_  271.  —  Following  Fickle  v.  St. 
Louis,  X.  C.  &  N.  R.  Co.,  54  Mo.  219.  Not 
FOLLOWING  Cecil  V.  Pacific  R.  Co.,  47  Mo., 
246. — Followed  in  Kinion  v.  Kansas  City, 
Ft.  S.  &  M.  R.  Co.,  39  Mo.  App.  382.  Wood 
V.  Kansas  City,  Ft.  S.  &  M.  R,  Co.,  43  Mo. 
App.  294.  Quoted  in  Walton  v.  Wabash 
W.  R.  Co.,  32  Mo.  App.  634. 

In  an  action  under  §  43,  page  311,  of 
Wagner's  Statutes,  for  damages  to  stock, 
where  it  is  shown  that  plaintiff's  stock  have 
been  killed  at  a  point  where  it  is  the  duty 
of  the  corporation  to  fence,  and  where  it 
has  not  been  fenced,  a  prima  facie  case  is 
made  for  the  plaintiff ;  but  where  plaintiff's 
testimony  further  shows  that  the  defect  in 
the  fence,  for  which  the  corporation  was 
responsible,  had  nothing  whatever  to  do 
with  the  killing  of  the  stock,  the  corpora- 
tion is  not  liable.  Higginbottom  v.  St. 
Louis,  K.  C.  &•  ^'.  R.  Co.,  4  Afo.  App.  596. 


In  an  action  for  double  damages  for  kill- 
ing stock,  proof  that  the  animal  was  killed 
at  a  point  a  quarter  of  a  mile  from  the  de- 
pot, beyond  the  switch  limits,  where  the 
road  was  fenced  on  one  side  but  not  on  the 
other,  is,  prima  facie,  sufficient  to  show  that 
the  killing  did  not  occur  within  the  limits 
of  an  incorporated  town  or  at  a  public 
crossing.  Lepp  v.  St.  Louis,  I.  M.  &'  S.  R. 
Co.,  29  Am.  &^  Eng.  R.  Cas.  242, 87  Afo.  139. 
— Followed  in  Johnson  v.  Chicago,  B.  & 
K.  C.  R.  Co.,  27  Mo.  App.  379. 

When  it  is  shown  in  evidence  that  cattle 
were  killed  by  a  company  where  their  track 
passed  through  uninclosed  prairie-land, 
where  the  track  was  not  fenced,  and  where 
there  was  no  road  crossing,  the  law  pre- 
sumes negligence  on  the  part  of  the  com- 
pany. Lantz  V.  St.  Louis,  K.  C.  &•  A\  /J. 
Co.,  54  Mo.  228.— Followed  in  Kinion  v. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.,  39  Mo. 
App.  382. 

If  a  person's  cattle  are  killed  on  a  railroad 
track,  where  the  track  passes  through  his 
inclosed  field,  at  a  point  which  was  not  a 
public  crossing  and  where  there  was  no 
fence,  the  presumption  is,  unless  the  cir- 
cumstances of  the  case  rebut  it,  that  the 
cattle  strayed  on  the  track  on  account  of 
the  absence  of  the  fence.  Fickle  v.  St. 
Louis,  K.  C.  &*  N.  R.  Co.,  l\  Mo.  219,  12 
Am.  Ry.  Rep.  376.— Following  Aubuchon 
V.  St.  Louis  &  I.  M.  R.  Co.,  52  Mo.  522.  Not 
following  Cecil  v.  Pacific  R.  Co.,  47  Mo. 
246. — Followed  in  Gilmore  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  54  Mo.  227 ;  Walther  v. 
Pacific  R.  Co.,  55  Mo.  271 ;  Sparr  v.  St. 
Louis,  K.  C.  &  N.  R.  Co.,  57  Mo.  152. 
Quoted  in  Walton  v.  Wabash  W.  R.  Co., 
32  Mo.  App.  634. 

Where  an  un  fenced  railroad  passes 
through  a  farm  where  live  stock  are  run- 
ning, which  stray  upon  the  track  and  are 
killed  by  the  train,  these  facts  make  a  prima 
facie  case  against  the  railroad  company. 
Johnson  v.  Baltimore&r*  O.  R.  Co.,  25  W.  Va. 
570. — Following  McCoy  7/.  California  Pac. 
R.  Co.,  40  Cal.  532;  Huyett  v.  Philadelphia 
&  R.  R.  Co.,  23  Pa.  St.  373. 

Proof  that  the  killing  occurred  within 
the  station  grounds  will  not  raise  a  pre- 
sumption of  negligence.  Plaster  \.  Illinois 
C.  R.  Co.,  35  Iowa  449,  5  Am.  Ry.  Rep.  528. 

488.  Showing;  defective  fence  or 
gate."' — In  an  action  under  the  Missouri 


»See   ante,  10.'i-ll»,  304  ; /w/,  fiOO. 


ANIMALS,  INJURIES   TO,  480-4»2. 


309 


double  damage  act,  proof  that  plaintiff's 
mule  was  injured  on  the  track  by  reason  of 
passing  from  his  adjoining  field  over  a  fence 
which  the  company  was  bound  to  maintain, 
but  which  was  not  such  as  the  law  requires, 
makes  out  a  prima  facie  case,  and  a  demui  - 
rer  to  such  evidence  is  properly  overruled. 
Williams  v.  Missouri  Pac.  R.  Co.,  74  Mo. 
453. — Followed  in  Campbell  v.  Missouri 
Pac.  R.  Co.,  78  Mo.  639. 

In  an  action  ^or  killing  stock  under  the 
Missouri  doubi^  damage  act,  evidence  by 
plaintiff  as  to  the  defective  condition  of  the 
company's  fence,  and  proof  of  such  circum- 
stances as  would  raise  an  inference  that  the 
cattle  entered  the  track  at  such  place,  make 
out  a  prima  facie  case  justifying  its  sub- 
mission to  the  jury.  Walihers  v.  Missouri 
Pac.  R.  Ct?.,  19  Am.  &*  Eng.  R.  Cas.  662,  78 
Mo.  617. — Followed  in  Marrett  v.  Hanni- 
bal &  St.  J.  R.  Co.,  84  Mo.  413. 

Proof  that  a  farm-crossing  gate  was  con- 
structed defectively  and  was  out  of  repair 
will  not  raise  the  presumption  that  an  ani- 
mal was  injured  by  reason  of  such  defects. 
Johnson  v.  Chicago,  R.  I.  <S-  P.  R.  Co.,  55 
Iffwa  707,  8  N.  W.  Rep.  664. 

489.  Sliowingr  failure  to  give  sig- 
nals.*—Under  Georgia  Code,  §  303^,  proof 
that  a  cow  was  killed  by  a  locomotive  whose 
wiiistle  was  not  blown,  as  required  by  §  708, 
raises  a  presumption  of  negligence  of  the 
engineer.  Western  &»  A.  R.  Co.  v.  Steadly, 
65  Ga.  263. 

In  an  action  for  killing  stock,  the  death 
of  the  animal  and  the  failure  to  sound 
the  whistle  ar?d  ring  the  bell,  as  required  by 
Mo.  Rev.  St.,  §  806,  make  out  a  prima  facie 
case.  Persinger  v.  Wabash,  St.  L,  6^  P. 
R.  Co.,  82  Mo.  196. — Approved  in  Keimv. 
Union  R.  &  T.  Co.,  90  Mo.  314. 

While  proof  that  a  failure  to  ring  a  bell 
or  sound  a  whistle  is  prima  facie  evidence 
of  negligence,  still  the  law  does  not  pre- 
sume ^at  uH  injury  to  stock  was  caused  by 
such  failure.  Chicago  &*  A.  R.  Co.  v.  I/an- 
ley,  26  III.  A  pp.  351. 

490.  What  will  ^^bu^  the  pre- 
sumption of  negligence,  generally. 
— To  rebut  successfully  the  presumption 
of  negligence  against  a  railroad  company, 
arising  upon  proof  of  killing  of  stock,  it  is 
better  that  the  agents  of  the  company  who 
were  on  the  engine  at  the  time  be  called. 

*  See  ante,  35,  65,  192-194,  209, 
449. 


East  Tenn..  V.  is^  O.  R.  Co.  v.  Culler,  75  Ga. 
704. 

And  when  the  servants  of  the  railroad 
company  are  called  to  rebut  the  statutory 
presumption  of  negligence,  they  niusi,  un- 
der the  peculiar  circumstances  of  this  case, 
be  presumed  to  have  known  the  facts. 
Louisville  &*  N.  R.  Co.  v.  Marriott,  (Ky.)  19 
Am.  &*  Eng.  R.  Cas.  509. 

The  law  presumes  negligence  when  the 
action  is  brought  within  six  months  of  the 
killing,  but  this  presumption  may  be  re- 
butted by  showing  there  was  none  in  fact. 
Bethea  v.  Raleigh  &*  A.  R.  Co.,  106  N.  Car. 
379,  10  S.  E.  Rep.  1045. 

491.  Showing  that  animal  was 
trespassing  upon  the  track.  —  Under 
the  Arkansas  statute,  proof  that  stock  are 
killed  or  injured  by  passing  trains  raises  a 
presumption  of  a  lack  of  due  care  and  skill 
or  diligence  on  the  part  of  the  company; 
but  this  presumption  may  be  rebutted.  If 
the  stock  injured  or  killed  be  trespassing  on 
the  track,  the  company  is  only  required  to 
use  ordinary  or  reasonable  care  to  avoid  in- 
juring them.  Little  Rock  &*  Ft.  S.  R.  Co. 
V.  Henson,  19  Am.  <&»  Eng.  R.  Cas.  440,  39 
Ark.\iy — Approved  in  Atchison,  T.  &S. 
F.  R.  Co.  V.  Walton,  3  N.  Mex.  319. 

492.  Showing  actual  absence  of 
negligence  on  company's  part. — Un- 
der the  Kentucky  statute  declaring  that  the 
killing  or  damaging  of  stock  by  the  cars  of 
a  railroad  company  shall  be  prima  facie 
evidence  of  negligence,  the  uncontradicted 
and  unimpeached  testimony  of  such  em- 
ployes of  the  company  as  are  presumed  to 
know  the  facts,  to  the  effect  that  there 
was  no  negligence,  overcomes  the  prima 
facie  case  of  the  plaintiff,  and  he  can- 
not recover.  Kentucky  C.  R.  Co.  v.  7a/- 
bot,  7  Am.  <S-  Eng.  R.  Cas.  585,  78  Ky. 
621. — Approved  in  Volkman  v.  Chicago, 
St.  P.,  M.  &  O.  R.  Co.,  35  Am.  &  Eng. 
R.  Cas.  204,  5  Dak.  69,  37  N.  W.  Rep.  731 ; 
Huber  v.  Chicago,  M.  &  St.  P.  R.  Co.,  6 
Dak.  392.  Quoted  in  Little  Rock  &  Ft. 
S.  R.  Co.  71.  Turner,'  41  Ark.  161 ;  Jackson- 
ville, T.  &  K.  W.  R.  Co.  V.  Garrison,  30  Fla. 
567. 

The  statutory  presumption  arising  from 
the  killing  of  stock  by  a  train.underthe  Mis- 
sissippi statute,  is  rebutted  by  the  company 
when  it  is  shown  that  the  whistle  was 
sounded  at  the  time  of  the  accident.  Mo- 
bile &*  O.  R.  Co.  V.  Dale,  61  Miss.  206. 

Where  an  action  is  brought  against  a 


■'.""^% 

•'■   ^^l^ji^ 

."■WW.. 

310 


ANIMALS,  INJURIES   TO,  4»3. 


mm 


company  for  the  negligent  killing  of  a  do- 
mestic animal,  the  plaintiff  can,  if  he  sees 
fit  to  do  so,  make  out  a  prima  facie  case 
under  North  Dakota  statute,  without  show- 
ing actual  negligence,  by  proving  the  value 
of  the  animal,  and  the  fact  that  it  was 
killed  by  defendant's  train  of  cars;  but  jn 
such  case,  if  the  defendant,  to  overcome  the 
statutory  presumption  of  negligence  arising 
from  the  killing,  shows  conclusively,  by  un- 
disputed evidence,  that  the  train  in  question 
was  at  the  time  of  the  accident  in  good  re- 
pair and  condition,  and  was  equipped  with 
the  best  modern  appliances  and  improve- 
ments in  use,  and  was  operated  skilfully  and 
with  due  care ;  then  the  statutory  presump- 
tion of  negligence  arising  from  the  killing 
is  rebutted  and  entirely  overcome ;  and 
where,  in  such  case,  at  the  close  of  the  testi- 
mony defendant  requested  the  trial  court  to 
direct  a  verdict  for  the  defendant,  and  the 
court  refused  to  do  so,  such  refusal  was 
reversible  error.  Hodgins  v.  Minneapolis, 
St.  P.  <5-  S.  St.  M.  R.  Co.,  (iV.  Dai'.)  56  Am. 
&*  Eng.  R.  Cas.  137,  56  N.  W.  Rep.  139. 

493.  Showing  that  the  accident 
was  unavoidable."'  ~  If  the  evidence 
shows,  without  any  conflict,  that  the  en- 
gineer of  the  train,  on  seeing  several  cattle 
on  the  track,  sounded  the  cattle-alarm  and 
frightened  them  oflF,  checking  the  speed  of 
the  train  until  they  got  down  the  embank- 
ment, where  there  was  a  wire  fence  thirty 
or  forty  feet  distant ;  and  that  as  the  train 
again  got  under  headway  one  of  the  animals 
ran  up  the  embankment,  fifty  feet  in  front 
of  the  engine,  and  was  run  over  and  killed 
before  the  train  could  be  checked,  the  pre- 
sumption of  negligence  is  rebutted,  and  the 
court  may  give  the  general  charge  in  favor 
of  the  defendant.  Alabama  G.  S.  R.  Co.  v. 
Moody,  45  Am.  &*  Eng.  R.  Cas.  524,  90  Ala. 
46,  8  So.  Rep.  57. 

If  the  engineer  is  keeping  a  proper  look- 
out, and  an  animal  that  is  killed,  when  dis- 
covered on  the  track,  is  so  near  to  the  engine 
that  the  accident  could  not  be  prevented  by 
the  use  of  all  proper  appliances,  the  presump- 
tion of  negligence  against  the  company  is 
overcome ;  neither  can  it  be  said  to  be  neg- 
ligence per  se  for  an  engineer  to  signal  the 
brakeman  first,  which  prevented  him  signal- 
ling at  the  same  time.  Mobile  &*  G.  R.  Co. 
V.  Caldwell,  83  Ala.  196,  3  So.  Rep.  445. 


•See  ante,  52,    53,   460;   post,  515, 
550. 


The  uncontradicted  testimony  of  defend- 
ant's witnesses  that  the  killing  was  unavoid- 
able is  sufficient  to  rebut  the  statutory  pre- 
sumption of  negligence.  Memphis  &*  L.  R. 
R.  Co.  V.  Shoecraft,  53  Ark.  96, 13  5.  W.Rep. 
422. 

The  presumption  of  negligence  on  the 
part  of  a  railroad  arising  from  proof  that 
stock  were  killed  is  sufficiently  rebutted  l.y 
evidence  showing  that  the  train  and  its  ap- 
pliances were  in  perfect  condition  ;  that  the 
engineer  was  keeping  a  look-out;  that  iis 
soon  as  the  stock  were  seen  the  air-brakes 
were  applied,  the  cattle-alarm  was  sounded, 
and  everything  possible  was  done  to  prevent 
the  killing;  but  that  by  reason  of  the  fog 
and  the  rails  being  wet  it  was  impossible  to 
stop  the  train  in  the  distance  that  the  cattle 
could  be  seen  in  time  to  avoid  a  collision. 
Georgia  M.  &•  G.  R.  Co.  v.  Harris,  83  Ga. 
393,  9  S.  E.  Rep.  786. — Following  Georgia 
R.  &  B.  Co.  V.  Wall,  80  Ga.  202. 

Where  there  was  no  conflict  in  the  evi- 
dence, and  it  showed  that  a  railroad  train 
killed  a  mule  ;  that  the  night  was  a  clear, 
starlight  night,  but  that  at  the  place  where 
the  casualty  occurred  the  track  was  envel- 
oped by  a  smoke  or  fog,  so  that  the  engineer 
and  fireman,  who  were  on  the  look-out,  were 
unable  in  consequence  thereof  to  discover 
the  mule  on  the  track  until  they  were  witlyn 
fifty  or  sixty  yards  of  it,  when  it  was  impos- 
sible to  have  stopped  the  train  so  as  to  avoid 
killing  the  mule;  and  that  the  whistle  was 
blown,  the  presumption  was  rebutted,  and  a 
verdict  finding  damages  against  the  com- 
pany on  account  of  the  killing  of  the  mule 
was  contrary  to  the  evidence  and  without 
evidence  to  support  it.  Georgia  R.  &^  li. 
Co.  V.  Wilhoit,  78  Ga.  714,  3  5.  i?.  Rep.  698. 

A  company  sufficiently  rebuts  a  presump- 
tion of  negligence  raised  by  the  Kentucky 
statute  making  the  killing  of  stock  prima 
facie  evidence  of  negligence,  when  it  shows 
that  the  stock  were  killed  early  in  the  morn- 
ing when  very  foggy,  near  a  curve  in  the 
road,  and  where  from  the  speed  of  the  train 
and  the  facts  in  the  case  it  was  plain  that 
the  killing  could  not  have  been  avoided 
after  the  stock  could  have  been  seen. 
Grundy  v. Louisville  Sf  N.  R.  Co.,  {Ky.)  2  S. 
W.  Rep.  899. 

In  an  action  against  a  company  for  kill- 
ing plaintiflf's  mules,  where  negligence  is 
established  by  force  of  the  North  Carolina 
statute  (Bat.  Rev.  ch.  16,  §  11),  it  can  only 
be  rebutted  by  showing  that  by  the  exercise 


ANIMALS,  INJURIES  TO,  4»4,  496. 


311 


of  due  diligence  the  stocic  could  not  have 
been  seen  in  time  to  save  them.  Pippen  v. 
Wilmington,  C.  S-  A.  R.  Co.,7S  N.  Car.  54. 
—Reviewed  in  Doggett  v.  Richmond  &D. 
R.  Co..  81  N.  Car.  459. 

494.  What  will  not  rebut  the  pre- 
sumptiou  of  negligence.— Where  the 
proof  shows  that  negligence  in  killing  stock 
could  be  imputed  to  a  company  from  the 
acts  or  omissions  of  either  its  engineer  or  its 
fireman,  the /r/>«a/a«>  case  of  negligence 
established  by  proof  that  the  animal  was 
killed  by  a  moving  train  is  not  overcome  by 
proof  that  the  engineer  only  exercised  due 
diligence.  Little  Rock  &-  M.  R.  Co.  v. 
Chriscoe,  57  Ark.  192,  21  S.  W.  Rep.  431. 

The  statutory  presumption  of  negligence 
from  a  killing  of  stock  on  defendant's  track 
is  not  rebutted  where  defendant's  engineer 
testified  that  the  killing  was  unavoidable,  if 
his  testimony  was  improbable  or  inconsist- 
ent. St.  Louis,  I.  M.  <S«»  S.  R.  Co.  v.  Cham- 
bliss,  54  Ark.  214,  15  5.  W.  Rep.  469. 

Evidence  that  all  possible  efforts  were 
used  to  avoid  a  collision  of  a  running  train 
with  stock  upon  the  track,  without  specify- 
ing the  usual  appliances  resorted  to  in  such 
cases,  is  not  sufficient  to  rebut  the  presump- 
tion of  negligence  in  striking  the  animal. 
Kansas  City,  S.  &>  M.  R.  Co.  v.  Summers, 
45  Ark.  295. 

Where  it  appears  that  an  animal  is  killed 
by  a  locomotive  and  no  whistle  was  sounded, 
in  order  to  rebut  the  presumption  of  negli- 
gence, under  Georgia  Code,  §  3033,  the  com- 
pany must  show  that  its  agents  exercised 
"  all  ordinary  and  reasonnble  care  and  dili- 
gence," and  merely  showing  that  an  animal 
was  killed  at  a  curve,  and  was  hobbled,  is 
not  sufficient.    Georgia  R.  Co.  v.  Fisk,  65  Ga, 

714. 

The  statutory  presumption  of  negligence 
for  killing  live  stock,  when  the  action  is 
brought  within  six  months  (North  Carolina 
Code,  §  2326),  is  not  rebutted  by  showing 
that  the  live  stock  were  under  the  control 
of  a  person  at  the  time.  Randall  v.  Rich- 
mond &>  D.  R.  Co.,  42  Am.  S-  Eng.  R.  Cas. 
603,  104  N.  Car.  410,  \o  S.  E.  Rep.  691. 

The  prima  facie  evidence  of  negligence 
on  the  part  of  a  company  in  a  suit  for  dam- 
ages for  killing  stock  is  not  impaired  by  a 
local  act  requiring  stock  to  be  fenced  in,  but 
the  defendant  must  repel  the  presumption 
by  satisfactory  proof  to  the  jury.  Roberts  v. 
Richmond  &»  D.  R.  Co.,  20  Am.  &»  Eng.  R. 
Cas.  473,  88  A^.  Car.  560. 


It  is  enacted  by  the  North  Carolina  act  of 
1856-57,  ch.  7,  "that  when  any  cattle  or 
other  live  stock  shall  be  killed  or  injured  by 
the  engines  or  cars  running  upon  any  rail- 
road, it  shall  be  prima  facie  evidence  of  neg- 
ligence ; "  this  rule  can  only  be  rebutted  by 
showing  that  the  agents  of  such  railroad 
company  used  all  proper  precautions  to 
guard  against  damage.  It  is  not  sufficient 
to  prove  that  there  was  probably  no  negli- 
gence. Battle  V.  Wilmington  (S»  W.  R.  Co., 
66  N.  Car.  343.— Reviewed  in  Doggett  v. 
Richmond  &  D.  R.  Co.,  81  N,  Car.  459;  ^u- 
lars  V.  Richmond  &  D.  R.  Co.,  25  Am,  & 
Eng.  R.  Cas.  451,  94  N.  Car.  654. 

The  prima  facie  case  under  such  act  is  not 
rebutted  where  the  testimony  of  the  plain- 
tiff showed  that  his  horse  had  been  injured 
on  the  defendant's  road  by  the  running  of 
a  train  against  it,  and  the  evidence  on  the 
part  of  the  defense  left  it  doubtful  whether 
the  brakes  had  been  applied  after  the  animal 
was  discovered  to  be  on  the  track.  Clark 
V.  Western  N.  C.R.  Co.,  i  Winst.  {N.  Car.) 
109. — Reviewed  in  Doggett  v.  Richmond 
&  D.  R.  Co.,  81  N.  Car.  459. 

d.  Burden  of  Proof.* 
495.  On  ^>Iaiutiff'  to  show  defend- 
ant's   negligence,  generally.!  —  The 

burden  of  proof  in  a  suit  in  damages  for  the 
killing  of  animals  by  a  railway  company 
rests  on  the  plaintiff  to  show  negligence. 
Day  V.  New  Orleans  Pac.  R.  Co. ,  36  La.  Ann. 
244.  Waldron  v.  Portland,  S.  &•  P.  R.  Co. ,  35 
Me.  422. — Reviewing  Quimby  v.  Vermont 
C.  R  Co.,  23  Vt.  393. — Bethje  v.  Houston 
Sf'C.  T.  R.  Co.,  26  Tex.  604.— Approving 
Danner  v.  South  Carolina  R.  Co.,  4  Rich. 
(So.  Car.)  329. 

Where  plaintiff  sues  for  stock  killed,  the 
burden  is  on  him  to  show  negligence,  or 
such  facts  as  create  a  liability  under  the 
statute.  Calvert  v.  Hannibal  &•  St./.  R.  Co., 
34  Mo.  242.— Followed  in  Calvert  z/.  Han- 
nibal &  St.  J.  R.  Co.,  38  Mo.  467.  Quoted 
IN  Hill  V.  Missouri  Pac.  R. Co.,  49 Mo.  App. 
520.  Reviewed  in  Iba  v.  Hannibal  &  St. 
).  R.  Co.,  45  Mo.  469. 

Mere  proof  of  killing  stock  does  not 
raise  a  presumption  of  negligence,  so  as  to 
make  the  company  liable,  but  the  burden  of 


*  See  ante,  285,  286. 

f  Burden  of  proof,  where  it  is  claimed  that 
statutory  signals  were  not  given  to  prevent  in- 
juries to  stock  because  such  would  have  been 
unavailing,  see  note,  21  L.  R.  A.  724. 


3l;i 


ANIMALS,  INJURIES   TO,  405. 


showing  negligence  is  on  the  plaintiff.  Illi- 
nois C.  R.  Co.  V.  Jieedy,  17  ///.  580.— Quoted 
IN  Galena  &  C.  U.  R.  Co.  v.  Jacobs,  20  111. 
478.  Distinguished  in  Toledo,  W.  &  W. 
R.  Co.  V.  Furgusson,  42  111.  449;  Illinois  C. 
R.  Co.  V.  Phillips,  55  111.  194.  Overruled 
IN  Illinois  C.  R.  Co.  v.  Middlesworth,  46 
111.  494. — Mobile  &*  O.  Ji.  Co.  v.  Hudson, 
50  Miss.  572.  Schneir  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  40  Iowa  337.  —  Approved  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Walton,  3  N. 
Mex.  319. 

In  an  action  to  recover  for  stock  killed  or 
injured,  the  burden  is  on  plaintiff  to  show 
either  negligence  on  the  part  of  the  com- 
pany, or  that  it  was  its  duty  to  fence  at  the 
place  of  the  accident,  which  it  had  failed  to 
do.  Comstock  v.  Des  Moines  Valley  R.  Co., 
32  Iowa  376,  10  Ant.  Ry.  Rep.  23. — FOL- 
LOWED IN  Kyser  v.  Kansas  City,  St.  J.  &  C. 

B.  R.  Co.,  56  Iowa  207.  Quoted  in  Smith 
V.  Chicago,  M.  &  St.  P.  R.  Co.,  13  Am.  & 
Eng.  R.  Cas.,  534,  60  Iowa  512. 

Proof  of  killing  cattle  on  station  grounds 
does  not  raise  a  presumption  of  negligence, 
and  the  burden  of  proving  it  is  upon  the 
plaintiff,  when  such  proof  is  necessary  to 
entitle  him  to  recover.     Plaster  v.  Illinois 

C.  R.  Co.,  35  Iowa  449,  s  Am.  Ry.  Rep.  528. 
Proof  that  an  animal  was  killed  on  the 

track  raises  no  presumption  of  negligence 
in  a  common-law  action  for  damages,  but 
the  burden  of  proving  negligence  is  on 
plaintiff.  Atchison,  T.  Of  S.  F.  R.  Co.  v. 
Walton,  3  N.  Mex.  319,  9  Pac.  Rep.  351. — 
Reviewing  New  Jersey  R.  &  T.  Co.  v. 
Pollard,  22  Wall.  (U.  S.)  341 ;  Stokes  v. 
Saltonstall,  13  Pet.  (U.  S.)  181 ;  Danner  v. 
South  Carolina  R.  Co.,  4  Rich.  (So.  Car.) 
329.  Quoting  McCoy  v.  California  Pac.  R. 
Co.,  40  Cal.  532.  Approving  Lyndsay  v. 
Connecticut  &  P.  R.  R.  Co.,  27  Vt.  643; 
Chicago  &  M.  R.  Co.  v.  Patchin,  16  111.  198; 
Great  Western  R.  Co.  v.  Morthland,  30  III. 
451 ;  Schneir  v.  Chicago,  R.  I.  &  P.  R.  Co., 
40  Iowa  337;  Indianapolis  &  C.  R.  Co.  v. 
Means,  14  Ind.  30;  New  Orleans,  J.  &G.  N. 
R.  Co.  V.  Enochs, 42  Miss. 603 ;  Mobile  & O. 
R.  Co.  7>.  Hudson,  50  Miss.  572 ;  Grand 
Rapids  &  I.  R.  Co.  v.  Judson,  34  Mich.  507 ; 
Brown  v.  Hannibal  &  St.  J.  R.  Co.,  33  Mo. 
309 ;  Scott  V.  Wilmington  &  R.  R.  Co.,  4 
Jones  (N.  Car.)  432 ;  Walsh  v.  Virginia  4  T. 
R.  Co.,  8  Nev.  in;  Flattes  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  35  Iowa  191 ;  Kentucky  R.  Co. 
V.  Talbot,  78  Ky.  621 ;  Whittier  v.  Chicago,. 
M.  &  St.  P.  R.  Co.,  26  Minn.  484;  Little 


Rock  &  Ft.  S.  R.  Co.  V.  Henson,  39  Ark. 
413  ;  Little  Rock  &  Ft.  S.  R.  Co.  v.  Holland, 
40  Ark.  336. 

The  burden  of  showing  negligence  in  the 
manner  of  running  and  operating  a  train  is 
upon  plaintiff.  Pittsburgh,  C.  Sf  St.  L.  R. 
Co.  V.  Heiskell,  13  Am.  &*  Eng.  R.  Cas.  555, 
38  Ohio  St.  666. 

In  an  action  to  recover  damages  for  kill- 
ing live  stock,  the  plaintiff  must  prove 
affirnrntively  that  want  of  ordinary  care  on 
the  part  of  the  company  or  its  employes 
caused  the  injury.  Such  inference  does  not 
arise  from  the  mere  fact  that  the  animal 
was  killed ;  and  evidence  showing  that  a 
horse  escaped  from  pasture  during  the 
night  and  galloped  upon  a  railroad  track 
for  about  forty  rods,  where  it  was  killed  by 
the  engine,  is  not  sufficient  to  fix  lia- 
bility upon  the  company.  Pittsburgh,  C.&* 
St.  L.  R.  Co.  V.  McMillan,  7  Am.  <S-  Eng.  R. 
Cas.  588, 37  Ohio  St.  554.-  Reviewing  Ruff- 
ner  v.  Cincinnati,  H.  &  D.  R.  Co.,  34  Ohio 
St.  96 ;  Central  Ohio  R.  Co.  v.  Lawrence,  13 
Ohio  St. 66.— Distinguished  in  Cleveland, 
C,  C.  &  I.  R.  Co.  V.  Walrath,  8  Am.  &  Eng. 
R.  Cas.  371,  38  Ohio  St.  461,  43  Am.  Rep. 

433- 

Where  suit  is  brought  to  recover  for 
cattle  killed  at  a  public  road  crossing,  un- 
less it  appears  that  the  cattle  were  lawfully 
upon  the  road,  the  burden  is  on  plaintiff  to 
prove  negligence  on  the  part  of  the  com- 
pany. Galpin  v.  Chicago  &*  N.  IV.  R.  Co., 
19  Wis.  604. — Followed  in  Spaulding  v. 
Chicago  &  N.  W.  R.  Co.,  30  Wis.  1 10. 

Where  the  owner  pursues  his  common- 
law  remedy  he  has  the  burden  of  proof,  and 
he  does  not  make  out  a  prima  facie  case  of 
negligence  by  showing  that  the  injury  was 
occasioned  by  defendant's  locomotive  strik- 
ing the  plaintiff's  stock,  and  that  the 
damages  were  a  sum  certain,  railroad  com- 
panies not  being  required  in  Colorado  to 
fence  their  track,  and  stock  being  per- 
mitted to  run  at  large.  Denver  &'  R.  G.  R. 
Co.  V.  Henderson,  31  Am.  &•  Eng.  R.  Cas.  559, 
13  Pac.  Rep.  910,  10  Colo.  i.  See  also  Den- 
ver &•  R.  G.  R.  Co.  V.  Henderson,  10  Colo.  4, 
13  Pac.  Rep.  912. 

Before  the  adoption  of  the  Texas  statute 
requiring  railroads  to  fence,  the  burden  was 
always  on  the  plaintiff  to  show  negligence 
on  the  part  of  the  company  where  stock 
was  killed  ;  but  under  the  statute  requiring 
companies  to  fence,  proof  of  killing  raises  a 
presumption  of  negligence  and  casts  the 


AM.MALS,  INJURIES    TO,  4«.)(»-r>04. 


313 


burden  on  the  company  to  show  that  tlic 
track  was  fenced.  Texas  &>  P.  /i'.  Co.  v. 
Miller,  i   Tex.  App.  (Civ.  Cas.)  104. 

By  the  common  law,  in  order  to  main- 
tain an  action  against  a  company  for  in- 
jury to  stock,  it  was  incumbent  on  the 
plaintifl  to  prove  that  the  damage  resulted 
from  the  fault  or  negligence  of  the  defend- 
ant or  its  agents;  this  has  been  clianged 
by  the  Maryland  statute,  which  casts  the 
onus  of  proof  on  tlie  defendant.  Keech  v. 
Baltimore  &*  IV.  R.  Co.,  17  Md.  32.— Apply- 
ing Baltimore  &  O.  R.  Co.  7/.  Lamborn,  12 
Md   257. 

490.  To  show  gross  or  wilful  neg- 
ligence.— If  the  railway  has  erected  and 
maintained  sufficient  fences  and  cattle- 
guards,  and  stock  are  killed  '^r  injured,  the 
burden  of  proof  is  upon  tlie  owner  to  show 
that  the  injury  resulted  from  the  negligence 
or  wilful  act  of  the  servants  of  the  company. 
But  if  it  has  failed  to  comply  with  the  stat- 
ute, the  owner  has  only  to  show  the  injury 
and  the  omission.  Galena  &•  C.  If.  H.  Co. 
V.  Crarvford,  25  ///.  529. 

497.  To  show  that  killing  was  clone 
hy  company's  traiiN*— Where  suit  is 
brought  to  recover  01  a  company  for 
cattle  found  dead  along  the  track,  it  is 
incumbent  on  plaintiff  to  show  that  they 
were  killed  by  trains,  but  this  may  be 
done  by  circumstantial  evidence.t  Gulf,  C, 
&*  S.  F.  /?.  Co.  V.  Washington,  49  Fed.  Rep. 
347.  4  U.  S.  App.  121.  I  CCA.  286. 

498.  To  show  company's  negli- 
gence after  discovering  animal.|— 
The  onus  is  on  plaintifl  to  show  want  of  such 
care  after  the  cow  was  discovered  by  those 
in  charge  of  the  train.  Locke  v.  First  Div. 
St.  P.  &*  P.  R.  Co.,  15  Minn.  350  {Gill.  283). 

A  company  is  not  liable  for  an  injury  to 
a  horse  which  becomes  frightened  and  runs 
into  a  trestle,  unless  it  appears  that  there 
was  negligence  after  the  dangerous  condition 
of  the  animal  'vas  discovered,  the  burden  to 
prove  which  'a  on  the  plaintiff.  Illinois  C 
R.  Q>  V.  V/eathersby,  63  Miss.  581. 

499.  To  show  killing  within 
con  ity  where  suit  is  brought.— The 
burden  of  proving  that  the  killing  was  done 
within  the  county  where  suit  is  brought,  is 
upon  plaintiff.  Indianapolis  <S>»  C.  R.  Co.  v. 
Renner,  17  Ind.  135. — Criticised  in  Indian- 

*  Burden  of  proving  that  a  train  killed  animals, 
see  56  Am.  &  Eng.  R.  Cas.  142,  abstr. 
fSee  atite,  405,  452.  486. 
I  See  ante,  49-52,  63,  64,  115. 


apolis  &   M.    R.  Co.  7>.  Solomon,   23   Ind. 

534- 

500.  To  show  company's  failure 
to  post  statutory  notice  of  injury. 

— Where  a  plaintiff  claims  double  damages 
under  the  Arkansas  statutes,  on  the  ground 
that  the  company  failed  to  post  notice  of 
the  injury  as  required  by  statute,  the  burden 
is  on  him  to  prove  such  failure.  Kansas 
City,  S.  &*  M,  R.  R.  Co.  v.  Summers,  45 
Ark.  295. 

501.  To  show  ownership  of  animal.* 
— It  is  incumbent  on  one  suing  for  damages 
for  injury  to  stock  to  establish  his  ownership 
of  the  stock  before  he  is  entitled  to  recover. 
Welsh  V.  Chicago,  B.  €f  Q.  R.  Co.  53  Iowa 
632,  6  N.  W.  Rep.  13,  21  Am.  Ry.  Rep.  181. 

502.  To  .show  violation  of  ordi- 
nance as  to  speed. — In  an  action  to  re- 
cover the  value  of  a  horse  killed  on  defend- 
ant's track,  plaintiff  alleged  a  violation  of  an 
ordinance  which  prohibited  the  running  of 
trains,  where  the  accident  occurred,  at  a 
greater  rate  of  speed  than  six  miles  an  hour. 
Held,  the  burden  of  proving  this  averment 
was  upon  plaintiff,  and  the  mere  proof  that 
the  animal  was  killed  on  defendant's  track 
within  such  portion  of  the  town  did  not 
raise  the  presumption  that  the  train  was 
running  at  the  prohibited  rate  of  speed. 
Chicago  <S«»  A.  R.  Co.   v.  Engle,  58  ///.  381. 

503.  To  show  animal  was  not  tres- 
passing on  adjacent  lands.— Where  an 
owner  of  live  stock  seeks  to  recover  damages 
from  a  railroad  for  injuries  thereto,  and  it 
appears  that  the  stock  went  upon  the  track 
from  the  lands  of  a  third  party,  by  reason  of 
an  insufficient  fence  on  the  side  bordering 
the  railroad,  but  which  were  properly  fenced 
upon  the  other  three  sides,  the  burden  is  on 
the  owner  to  show  that  his  cattle  were  on 
such  lands  by  license  from  the  owner.  Car- 
penter V.  St.  Louis,  I.  M.  Sr-  S.  R.  G?.,  25  Mo. 
App.  no. — Followed  in  Smith  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  25  Mo.  App.  113. 

504.  To  show  defective  gate 
CRiised  accident.  —  Where  plaintiff's 
horses  were  injured  on  defendant's  track, 
having  entered  thereon  in  the  night  through 
a  gateway  in  defendant's  fence,  which  was 
closed  the  evening  previous — held,  that  the 
fact  that  the  gate  was  defectively  constructed 
and  out  of  repair  would  not  raise  a  pre- 
sumption that  the  injury  occurred  by  reason 
of  such  defects,  so  as  to  cast  upon  defend- 


•See  ante,  313.  445,  471. 


i 


^I^ 


.Til 


ANIMALS,  INJURIKS   TO,  506-509. 


mm 


^ 


ant  the  burden  of  flisproving  such  fact  to 
defeat  a  recovei  y.  Johnson  v.  Chicago,  R.  I. 
&•  P.  y?.  Co.,  55  /met  707.  8  N.  IK  Rep.  664. 

505.  To  show  that  road  watt  not 
f'eiiceil. — In  an  action  for  killing  stock 
upon  the  track  of  iis  road,  at  a  place  where 
tlie  road  was  not  fenced,  the  burden  of  proof 
that  the  road  was  not  fenced  at  the  place  of 
tlie  killing,  or  at  the  place  of  the  entry  of 
the  animals  upon  the  track,  is  on  the  plain- 
tiff; but  that  it  wa-  not  ''  '  nipany's  duty 
to  fence  at  such  p.  i<  e  i.'  i  <■  of  defense. 
Indianapolis,  P.  &*  C.  i  ''  indley,  1 1 
Am.&r*  En^.  R.  Cas.  495,  75  jmi.  4. 5.  /«- 
dianapolis,  B.  &^  IV.  R  Co.  v.  Penry,  48  Ind. 
128. 

Where  plaintiff  sues  under  .he  Niiisouri 
double  damage  act.  Rev.  St.  1889,  §  261 1, 
to  recover  for  stock  killed,  he  must  show 
whether  the  track  was  fenced  or  not  at  the 
point  where  the  animals  came  on  it.  Good- 
win V.  Kansas  City,  Ft.  S.  &*  M.  R.  Co.,  43 
Mo.  App.  359.— Following  Kinion  v.  Kan- 
sas City,  Ft.  S.  &  v..  R.  Co.,  39  Mo.  App. 
382. 

506.  To  show  that  the  fence  waH 
defective.— In  actions  to  recover  for  cattle 
killed  by  moving  trains',  the  burden  is  on  the 
plaintiff  to  show  that  the  track  was  not  suf- 
ficiently fenced  at  the  place  where  the  cattle 
entered  the  track.  Lake  Erie  <&*  W.  R. 
Co.  V.  Kneadle,  19  Am.  &^  Eng.  R.  Cas. 
568,  94  Ind.  454. 

When,  however,  in  such  a  case  the 
railroad  company  asserts  that  the  place 
was  one  which  it  was  not  bound  to  fence, 
then  the  burden  is  on  it  to  establish  that 
fact.  Evansville  &•  T.  H.  R.  Co.  v.  Mosier, 
22  Am.  df  Eng.  R.  Cas.  569,  loi  /nd.  597. 

507.  To  show  place  of  iiijiiry  to  be 
where  company  should  fence.— Where 
suit  is  brought  under  the  Illinois  statute  to 
recover  for  stock  killed,  the  burden  is  on 
plaintiff  to  show  that  it  was  the  duty  of  the 
company  to  fence  at  the  place.  Cleveland, 
C.,C.&'  St.  L.  R.  Co.  V.  Myers,  43  ///.  App, 
251. 

In  an  action  for  killingcattle  by  a  railroad, 
plaintiff  should  negative,  by  proof,  that  there 
was  a  public  crossing  where  the  killing  oc- 
curred, and  should  show  that  the  company 
was  bound  to  fence  at  that  point;  and  the 
proof  should  show  that  the  injury  was  done 
by  the  road  of  the  company  sued.  Ohio  &* 
M.  R.  Co.  V.  Taylor,  27  ///.  207.— Distin- 
guished IN  Toledo,  P.  &  W.  R.Co.  v.  East- 
burn,  54  111.  381. 


Tiie  burden  of  proof  under  the  Indiana 
statute  is  upon  the  plaintiff  to  show  that 
the  animal  came  upon  the  track  at  a  place 
where  the  company  was  bound  to  fence  and 
that  there  was  no  fence.  Louisville,  N.  A. 
&•  C.  R.  Co.  v.  Goodbar,  102  Ind.  596,  2  N.  E. 
l<(p.  337,  3  N.  E.  Rep.  162. 

In  in  action  under  the  Iowa  statute  for 
injuring  stock,  where  the  issues  are  made, 
whether  the  stock  was  running  at  large,  and 
as  to  the  place  of  the  injury,  and  whether 
the  company  was  bound  to  fence  at  such 
place,  the  burden  is  on  plaintiff  to  maintain 
these  issues.  Taylor  v.  Chicago,  St.  P.  <3- 
K.  C.  R.  Co.,  76  loTva  753,  40  A'.  W.  Rep.  84. 

Where  stock  are  killed,  the  burden  is  on 
plaintiff  to  show  that  the  injury  was  done 
where  the  company  is  required  to  fence  its 
track,  which  does  not  include  station 
grounds.  Kyser  v.  Kansas  City,  St.  J.  &*  C. 
li.  R.  Co.,  56  Iowa  207,  9  A^.  W.  Rep.  133.— 
Following  Comsiock  v.  Des  Moines  Val- 
ley R.  Co.,  32  Iowa  376. 

508.  To  bring  himself  within  the 
benefit  of  the  fence  law.* — The  obliga- 
tion imposed  upon  railroad  companies  to 
fence,  under  Missouri  Rev.  St.  §  809,  is  for 
the  benefit  of  adjoining  proprietors  only,  and 
not  for  the  benefit  of  strangers,  and  the  bene- 
fit extends  to  lessees,  occupiers,  and  licensees 
of  the  owner  of  the  land ;  and  where  plaintiff 
sues  for  stock  killed,  the  burden  is  on  him 
to  bring  himself  within  the  terms  and  mean- 
ing of  the  statute.  Summers  v.  Hannibal^ 
St.  J.  R.  Co.,  29  Mo.  App.  41. 

500.  To  show  company's  knowl- 
edge of  defective  fence.f — Where  a 
company  has  once  erected  a  fence  along  its 
track  as  required  by  law,  which  has  since 
been  broken  down,  the  burden  is  upon  the 
plaintiff,  in  an  action  for  damages  for  injury 
to  cattle,  to  show  that  the  company  knew  of 
the  damage  to  the  fence,  or  that  it  had  been 
down  for  such  a  length  of  time  as  to  have 
enabled  it,  by  the  exercise  of  due  care,  to 
have  had  knowledge  of  the  defect.  Young 
V.  Hannibal  &*  St.  J.  R.  Co.,  82  Mo.  427.— 
Quoting  Clardy  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  73  Mo.  576.—  Followed  in  Foster  v. 
St.  Louis,  I.  M.  &  S.  R.Co., 44  Mo.  App.  11. 

The  burden  of  proving  facts  which  will 
raise  a  presumption  of  negligence  against 
the  company  for  allowing  bars  to  remain 
down  a  long  period  of  time   is  upon   the 

»Seeo«/^  92-04. 
t  See  <!»/<-,  142-144. 


41 


ANIMALS,  iNjrRii:s  ro,  .->io-r>i:t. 


:n5 


plaiiitill.  Perry  v.  Diii'iK/iir  S.  A'.  Co.,  2,6  I<m>a 

I02. 

510.  Where  suit  is  nut  broiif^ht 
within   Mix   months  after  injury.*— 

Where  a  company  is  sued  for  damages  by 
its  train  to  stock  after  six  months  from  the 
time  of  the  injury,  not  only  is  the  burden  of 
provinjj  negligence  on  tiie  plaintiff,  but  he 
must  show  facts  inconsistent  with  the  proba- 
bility of  care  :  e.g.,  that  the  whistle  was  not 
blown.  Jones  v.  North  Carolina  R.  Co.,  67 
N.  Car.  122. 

511.  When  action  is  brought  with- 
in six  inontiis  after  opening  of  road. 
— Where  stock  were  killed  by  the  engine  of 
a  railroad,  and  the  road  was  not  open  for 
use  six  months  prior  to  the  killing,  it  was 
incumbent  on  the  owner  to  show  negligence 
ont'ii;  part  of  the  company  before  a  recovery 
could  be  had.  Rock/or d.  A'.  /.  &>  Si.  L.  R. 
Co.v.  Connell,  67  ///.  2 r6.— Quoting  Chi- 
cago &  N.  W.  R.  Co.  7'.  Barrie.  55  111.  226.— 
Quoted  in  Peoria,  D.  &  E.  R.  Co.  v.  Aten, 
43  111.  A  pp.  68. 

512.  Upon  defendant,  generally.— 
Under  statutory  provisions  now  in  force 
(Alabama  Code,  §  1147;  Sess.  Acts  1886-7, 
p.  146,  in  footnote  to  said  section)  the 
bunien  of  disproving  negligence  is  not  on 
the  railroad  company,  when  the  action  is 
brought  to  recover  damages  for  killing  or 
injuring  a  cow,  and  it  appears  that  the  in- 
jury was  caused  by  a  freight  car  which, 
having  been  left  standing  on  a  side-track 
with  its  wheels  scotched,  broke  loose  and 
ran  down  on  the  cow.  Montgomery  &*  E.  R. 
Co.  \.  Ferryman,  91  Ala.  413.  8  So.  Rep.  699. 

513.  To  rebut  statutory  presump- 
tion of  negligence,  generally.— Proof 
that  stock  were  injured  by  a  running  train 
establishes  sl  prima  facte  CAse  oi  negligence, 
and  casts  the  burden  on  the  company  to 
overthrow  this  by  proof  of  proper  diligence. 
Alabama  G.  S.  R.  Co.  v.  Mc Alpine,  22  Am. 
(Sm  Eng.  R.  Cas.  602,  75  Ala.  113. — Disap- 
I'ROVKU  IN  Georgia  Pac  R.  Co.  7'.  Hughes, 
39  Am.  &  Eng.  R.  Cas.  674,  87  Ala.  610,  6 
So.  Rep.  413. — Birmingham  Mineral  R.  Co. 
V.  Harris,  98  Ala.  326.— Following  South 
iS:  N  Ala.  R.  Co.  v.  Bees,  82  Ala.  340. 
OvKRRULiNGGeorgiaPac.  R. Co.v.  Hughes, 
87  Ala.  610;  Montgomery  &  E.  R.  Co.  z/. 
Perryman,  91  Ala.  413. 

It  being  shown  that  the  animal,  for  the 
negligent  killing  of  which  the  action  was 

*  See  ante,  123-125,  358,  467. 


brought,  was  on  the  railroad  track  when  it 
was  struck  and  killed  (Alabama  Code.  § 
1 147),  the  onus  is  on  the  defendant  to  acquit 
itself  of  the  charge  of  negligence.  Louis- 
ville (S»  N.  R.  Co.  V.  Kelscy,  42  Am.  «S-  Eng. 
R.  Cas.  584,  89  Ala.  287,  7  So.  Rep.  648. 

In  an  action  for  tlie  killing  of  plaintiff's 
sheep  by  the  defendant's  train,  the  burden 
of  negativing  negligence  is  upon  the  de- 
fenflant.  Louisville  iS^  A'.  R.  Co.  v.  Barker, 
96  Ala.  435,  1 1  So.  Rep.  453.— Applying 
Georgia  Pac.  R.  Co.  v.  Hughes,  87  Ala.  610  ; 
Alabama  G.  S.  R.  Co.  v.  Moody,  90  .Ala. 
46;  Alabama  G.  S.  R.  Co.  v.  Moody,  92  Ala. 
279.  Distingulshing  Montgomery  &  E. 
R.  Co.  v.  Perryman,  91  Ala.  413. 

The  presumption  of  negligence  is  against 
the  railroad  company,  and  the  burden  of 
proof  upon  it  to  show  the  contrary,  even 
where  the  animal  killed  was  in  a  pasture  in- 
closed on  both  sides  of  the  railroad.  Wool- 
folk  V.  Macon  &>  A.  R.  Co..  56  Ga.  457. — 
Following  Macon  &  A.  R.  Co.  v.  Vaughn, 
48  Ga.  464. 

Where  it  was  proved  that  a  row  was  killed 
by  a  train,  this  imposed  on  the  company  the 
burden  of  showing  that  it  was  in  the  exer- 
cise of  all  ordinarj'  and  reasonable  care  and 
diligence,  or  that  the  damage  was  caused 
solely  by  the  negligence  of  the  owner  of  the 
cow,  or,  to  diminish  damages,  that  both  were 
at  fault.  Negligence  is  a  question  for  the 
jury,  and  the  issues  thus  presented  neces- 
sarily  depend  upon  facts.  Therefore,  where 
the  plaintiff  obtained  a  verdict  on  the  appeal 
trial  in  a  justice's  court,  and  the  defendant 
carried  the  case  to  the  superior  court  by 
certiorari,  if  the  judge  sustained  the  cer- 
tiorari, it  was  proper  to  order  a  new  trial 
and  not  to  finally  dispose  of  the  case. 
Georgia  R.  Co.  v.  Bird,  76  Ga.  13. 

The  burden  of  proof  under  the  Illinois 
statute  is  upon  the  company  to  disprove 
negligence  upon  its  part  where  the  evidence 
shows  that  the  stock  were  killed  within  the 
limits  of  a  city,  town,  or  village,  while  the 
train  was  running  at  a  rate  of  speed  pro- 
hibited by  the  city  ordinance.  Toledo,  P. 
<S>»  W.  R.  Co.  V.  Deacon,  63  ///.  i)i,7  Am.  Ry. 
Rep.  150. 

In  an  action  under  §  i,  of  article  77, of  the 
Maryland  Code,  negligence  is  imputed  to  the 
railroad  company,  and  the  burden  of  proof  is 
on  the  company  to  negative  this  imputa- 
tion, and  to  establish  affirmatively  that  the 
injury  complained  of  resulted  from  a  dis- 
aster which  could  have  been  avoided  by  the 


s'\-A 


»:! 


31(5 


ANIMALS,  INJUKlhS   TO,  514,  r.ir». 


if;'  ,v| 


use  ()-  proper  care  and  diligeiK  c  on  the  part 
of  its  agents,  and  tliat  such  proper  care  and 
diligence  were  observed  by  tiicin.  North- 
ern C.  A\  Co.  V.   Ifar,/,  63  A/</.  362. 

Where  suit  is  under  the  Mississippi  Code,  § 
1059,  10  recover  for  stoci<  killed,  proof  of 
killing  casts  the  burden  on  the  defendant 
to  disprove  negligence.  Louisville,  N.  O.  &* 
T.  R.  Co.  v.  Smith,  67  Miss.  ' ;,  7  So.  Rep. 
212. 

The  rule  in  Danner's  Case,  that  mere 
proof  that  cattle  were  killed  upon  a  railroad 
track  by  the  train  of  the  company  is  suffi- 
cient to  throw  the  onus  of  showing  that 
tiiere  was  no  negligence  on  the  company, 
held  applicable  to  a  case  of  the  killing  of  a 
horse  at  night.  Murray  v.  South  Carolina 
R.  Co.,  10  Rich.  (.So.  Car.)  227.— APPLIED 
IN  Roof  V.  Charlotte,  C.  &.  A.  R.  Co.,  4 
So.  Car.  61. 

514.  To  show  due  care  on  com- 
pany'.s  part.  —  When  the  plaintiff  has 
proved  that  his  mare  was  killed  by  a  train, 
the  burden  is  then  cast  upon  the  company 
to  show  that  it  has  employed  that  measure 
of  diligence  which  th:  law  exacts  of  railroad 
companies,  and  that  the  injury  was  not 
caused  by  its  failure  to  do  so ;  or  it  must 
show  that  the  injury  could  not  have  been 
averted  by  the  employment  of  such  dili- 
gence. South  &^  iV.  Ala.  R.  Co.  v.  Bees, 
82  Ala.  340,  2  So.  Rep.  752. — Disapproved 
IN  Georgia  Pac.  R.  Co.  v.  Hughes,  39  Am. 
&  Eng.  R.  Cas.  674,  87  Ala.  610,  6  So.  Rep. 

413- 

Under  the  Arkansas  statute,  the  burden 
is  on  defendant  railroad  company  to  show 
reasonable  care  and  diligence  in  the  man- 
agement of  its  trains,  where  it  appears  that 
stock  have  been  killed.  St.  Louis,  I.  M.  &» 
S.  R.  Co.  v.  Vincent,  36  Arh.  451.  Kansas 
City,  S.  (S-  M.  R.  Co.  v.  Summers,  45  Ark. 
295.  Memphis  6)^  L.  R.  R.  Co.  v.  Jones,  ^6 
Ark.  87. 

Where  cattle  are  attracted  by  cotton-seed 
which  has  been  permitted  to  accumulate 
near  a  railroad  track,  a  prima  facie  case  of 
negligence  is  made  by  proof  of  the  killing 
under  the  Arkansas  statute,  the  burden  of 
overcoming  which,  by  showing  that  the 
company's  servants  used  reasonable  care  to 
avert  the  injury,  is  upon  the  company.* 
Little  Rock  &•  Ft.  S.  R.  Co.  v.  Dick,  42  Am. 
&*  Eng.  R.  Cas.  591,  52  Ark.  402,  12  5.  W. 
Rep.  785. 

*  See  ante,  40. 


Where  tlic  driver  ol  a  team  of  mules  was 
using  the  right  of  way  of  a  railroad  com- 
pany between  its  main  and  sidc-tr.icks  for  the 
purpose  of  unloading  freight  from  (me  of 
its  cars,  having  gone  there  upon  invitation 
of  the  company,  and  one  of  the  mules  was 
struck  and  killed  by  a  passing  engine,  the 
court  properly  instructed  the  jury  that  the 
fact  of  the  killing  made  a  prima  facie  case 
of  negligence  under  the  Arkansas  statute, 
which  cast  upon  the  company  the  burden 
of  showing  that  it  had  used  due  care.  .SV. 
Louis,  I.  M.  &-  S.  R.  Co.  v.  Taylor,  57  Ark. 
136. 

Where  a  railroad  company  is  sued,  under 
the  Georgia  Code,  §  3033,  for  killing  stock, 
whicli  is  admitted,  the  burden  of  proof  is 
on  it  to  show  that  it  exercised  reasonable 
and  ordinary  care.  Atlantic  &»  G.  R.  Co.  v. 
Griffin,  61  Ga.   11. 

The  burden  of  proof  was  on  the  defend- 
ant, in  an  action  against  a  railroad  company 
for  damages  for  killing  a  mare,  the  killing 
being  admitted  by  the  defendant.  The 
admission  of  killing  by  the  defendant  being 
made  prima  facie  evidence  of  carelessness 
and  negligence  of  the  company  by  §  5, 
ch.  57,  Gen.  St.  Ky.,  the  burden  was  on  the 
defendant  to  show  that  the  killing  was 
done  without  actionable  fault  on  the  part 
of  the  company.  Louistnllc  &*  N.  R.  Co. 
V.  Brown,  13  Bush  {Ky.)  475. 

If  the  cattle  of  a  landowner,  being  right- 
fully on  a  railroad  crossing,  are  killed  by 
the  engines  of  the  corporation,  their  de- 
struction is  prima  facie  evidence  of  negli- 
gence, and  the  burden  is  thrown  upon  the 
corporation  to  show  that  the  injury  was 
occasioned  without  any  fault  on  its  part. 
Gross  negligence  need  not  be  shown  in 
order  to  sustain  an  action  for  the  injury. 
White  v.  Concord  R.  Co.,  30  A^.  H.  188. 

Where  plaintiff  sues  to  recover  for  stock 
killed  on  the  track,  the  burden  of  showing 
due  care  is  not  cast  upon  the  defendant  un- 
til plaintiff  has  produced  some  evidence 
tending  to  show  a  want  of  due  care.  Jones 
V.  North  Carolina  R.  Co.,  67  A^.  Car.  122. 

515.  To  show  unavoidable  acci- 
dent.*—In  an  action  for  damages  for  the 
killing  of  plaintiff's  live  stock  by  one  of  de- 
fendant's trains,  when  it  is  proved  that  the 
stock  were  so  killed,  the  statuti  Alabama 
Code,  footnote  to  §  1147)  casts  upon  the 
defendant  the  duty  of  acquitting   itself  of 

*  See  ante,  52,  53,  466 ;   fptt,  550. 


ANIMALS,  INJURIES   TO,  616. 


317 


2  5.  PV.  Rep.  899. 
Co.  V.  Simmons,  85 
10. 

that  a  horse  ran  for 
in  front  of  a  moving 


any  negligence  by  showing  thai,  th"  require- 
ments of  §  1 144  of  the  Code  were  complied 
with,  or  by  proving  to  the  satisfaction  of 
the  jury  that  an  attempt  to  comply  with 
them  was  rendered  futile  by  the  circum- 
stances, without  any  fault  on  the  part  of  the 
defendant's  employes.  Louisville  Sr'  N.  R. 
Co.  V.  Posey,  96  Ala.  262,  1 1  So.  Rep.  423.— 
Quoting  Savannah  &  W.  R.  Co.  v.  Jarvis, 
95  Ala.  149;  Louisville  &  N.  R.  v.  Kel- 
sey,  89  Ala.  287  ;  Nashville,  C.  &  St.  L.  R. 
Co.  V.  Hembree,  85  Ala.  481. 

Under  the  Kentucky  Gen.  St,  ch.  57,  § 
5,  making  the  fact  of  stock  being  killed  by 
a  railroad  prima  facie  evidence  of  negli- 
gence on  the  part  of  the  company,  it  de- 
volves upon  the  road  to  show  that  the  kill- 
ing was  unavoidable.  Grundy  v.  Louisville 
&>  N.  R.  Co.,  (Aj.) 
Louisville  &>  N.  R. 
Ky.  151,  3  S.  W.  Rep. 

Where  it  is  shown 
two  hundred  yards 
engine  before  being  struck,  the  burden  is  on 
the  company  to  show  that  the  train  could 
not  be  safely  stopped  in  that  distance,  as  it 
is  a  matter  of  common  knowledge  that 
trains  can  ordinarily  be  stopped  in  that  dis- 
tance or  less.  Gulf,  C.  &•  S.  F.  R.  Co.  v. 
Ellis,  IX  Fed.  Rep.  481,  10  U.  S.  App.  640, 
4  C.  C.  A.  454. 

Proof  that  stock  were  killed  on  the  track 
by  the  company's  train  raises  a  presumption 
of  negligence,  and  casts  the  burden  on  it  to 
show  proper  care,  or  that  the  killing  was 
unavoidable.  Nashville  &*  C.  R.  Co.  v.  Fu- 
gett,  3  Coldw.  (  Tenn.)  402.  Lapine  v.  New 
Orleans,  O.  &-  G.  IV.  R.  Co.,  20  La.  Ann. 
158. 

516.  To  show  observance  of  statu- 
tory precautions.— Alabama  Code,  § 
1699,  providing  that  an  engineer  on  perceiv- 
ing any  obstruction  on  the  track  must  use 
all  means  within  his  power  to  stop  the  train  ; 
and  §  1700,  providing  that  railroad  com- 
panies shall  be  liable  for  all  damages  to  per- 
sons or  property  resulting  from  a  failure  to 
comply  with  the  preceding  section,  or  from 
any  negligence  on  the  part  of  the  company  or 
its  agents ;  and  that  when  stock  are  killed  or 
injured  the  burden  of  proof  is  on  the  com- 
pany to  show  a  compliance  with  the  preced- 
ing section :  construed  to  mean  that  in  any 
suit  for  injuries  to  property  the  burden  of 
proof  is  on  the  company  to  show  that  these 
regulations  were  observed,  if  the  injury  oc- 
curred at  any  of  the   places  mentioned  in 


the  statute.  SoutA  &*  N.  Ala.  R.  Co.  v. 
IVilliams,  65  Ala.  74.— Followed  in  East 
Tenn.,  V.  &  G.  R.  Co.  v.  Bayliss,  19  Am.  & 
Eng.  R.  Cas.  480,  74  Ala.  1 50. 

Where  suit  is  brought  in  Alabama  to  re- 
cover for  cattle  killed,  if  it  be  shown  that 
they  were  killed  on  or  near  a  public  road 
crossing,  the  burden  is  then  upon  the  com- 
pany to  disprove  negligence  by  showing  a 
compliance  with  all  the  statutory  require- 
ments, or  reasons  why  they  were  not  com- 
plied with.  Alabama  G.  S.  R.  Co.  v. 
McAlpine,  80  Ala.  73.— Limiting  Mobile 
&  O.  R.  Co.  v.  Williams,  53  Ala.  595; 
Clements  v.  East  Tenn.,  V.  &  G.  R.  Co., 
77  Ala.  533. 

If  live  stock  are  injured  by  a  railroad 
company  by  reason  of  an  obstruction  which 
could  or  ought  to  have  been  perceived, 
when  within  the  corporate  limits  of  a  city 
or  town  at  or  near  a  depot  or  a  public 
crossing,  in  order  to  excuse  the  company 
from  liability,  all  the  requirements  of  the 
statute  as  to  signals,  etc.,  must  have  been 
complied  with;  and  under  all  circumstances 
railroad  companies  are  liable  for  injuries 
which  result  from  the  negligence  of  its  ser- 
vants or  agents  ;  and  in  either  case,  where 
the  plaintiff's  evidence  shows  the  injury, 
the  burden  is  on  the  company  to  show  a 
compliance  with  the  statute,  or  to  show 
that  it  was  not  negligent.  Mobile  Sf  O. 
R.  Co.  V.  Williams,  53  Ala.  595,  13  Am.  Ry. 
Rep.  153.— Explained  in  Clements  v.  East 
Tenn.,  V.  &  G.  R.  Co.,  77  Ala.  533.  Fol- 
lowed IN  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Bayliss,  19  Am.  &  Eng.  R.  Cas.  480,  74 
Ala.  150.  Limited  in  Alabama  G.  S.  R. 
Co.  V.  McAlpine  &  Co.,  80  Ala.  73. 

After  it  is  shown  that  plaintiff's  mules 
were  killed  on  defendant's  railroad  by  a 
moving  train,  the  burden  of  proof  is  on  de- 
fendant to  show  that  it  was  not  negligent  in 
respect  to  a  look-out.  Birmingham  Min- 
eral R.  Co.  V.  Harris,  98  Ala.  326,  13  So. 
Rep.  337. 

In  an  action  for  damages  for  killing  a 
cow,  the  killing  by  the  defendant's  train  being 
proved,  it  is  not  only  incumbent  on  the  de- 
fendant to  prove  that  it  did  all  in  its  power 
to  avert  the  accident  after  the  cow  was  dis- 
covered on  the  track,  but  it  must  also  show 
that  it  was  maintaining  a  careful  and  pru- 
dent look-out,  and  that,  in  the  maintenance 
of  such  look-out,  the  cow  could  not  have 
Oeen  sooner  discovered.  Central  R.  &»  B. 
Co.  V.  Lee,  96  Ala.  444,  1 1   So.  Rep.  424.— 


:b 


318 


ANIMALS,  INJURIES   TO,  517-flao. 


^ 


Quoting  Louisville  &  N.  R.  Co.  v.  Posey, 
96  Ala.  263. 

Under  the  Mississippi  statute,  after  proof 
of  the  killing  of  stock,  the  burden  is  on  the 
company  to  show  that  it  exercised  proper 
care,  and  this  burden  is  not  shifted  by 
simply  proving  that  the  whistle  was  blown 
at  the  lime  of  the  accident.  Mobile  &•  0. 
R.  Co.  V.  Dale,  61  Miss.  206. 

517.  To  mIiow  Niifllclciicy  of  fence. 
— While  a  company  is  not  required  to 
fence  its  track  or  to  maintain  cattle-pits  at 
points  where  to  do  so  would  interfere  with 
the  safety  of  its  employes  in  operating 
trains,  or  where  fences  or  cattle-pits  would 
interfere  with  its  rights  or  with  the  rights 
of  the  public  in  travelling  or  doing  business 
with  the  company,  yet  the  burden  is  upon 
the  company  to  show  that,  in  constructing 
and  maintaining  a  bridge  abutting  upon  a 
highway,  it  had  adopted  all  reasonable  and 
practicable  precautions  to  keep  animals 
from  entering  upon  the  bridge  from  the 
highway ;  and  it  does  not  alter  the  case 
that  the  bridge  may  have  been  partially  in 
the  highway,  or  that  the  animal  may  have 
been  struck  while  upon  that  part  of  the 
bridge  extending  into  the  highway,  on 
ground  ajjpropriated  by  the  company.  Cin- 
cinnati, H.  &•  I.  Ji.  Co.  V.  Jones,  31  Am.  &• 
Eng.  li.  Cas.  491,  in  Ind.  259,  9  West. Rep. 
602,  12  N.  E.  Rep.  113. 

Iowa  Code,  §  1289,  provides  that  proof 
that  stock  were  killed  by  a  train  shall  be 
prima  facie  evidence  of  negligence  on  the 
part  of  the  company;  therefore  the  burden 
is  on  the  company  to  show  tiiat  it  had  a 
sufficient  fence  under  the  statute,  lircntner 
V.  Chicago,  M.  Sf  St.  P.  R.  Co.,  19  Am.  (S- 
Eng.  R.  Cas.  448,  68  /on>a  530,  23  /V.  IV. 
Rep.  245,  27  A'.  IV.  Rep.  605.— Following 
Small  V.  Chicago,  R.  I.  &  P.  R.  Co.,  50  Iowa 

338- 

518.  To  show  no  duty  to  fence, 
generally.— In  a  suit  for  killing  an  animal 
on  account  of  the  want  of  a  sufficient  fence, 
if  the  company  relies  upon  the  fact  that  its 
road  could  not  be  fenced  at  the  place  in 
question,  it  has  the  burden  of  proof  as  to 
that  matter.  Louisville,  N.  A.  6-  C.  R.  Co. 
V.  Clark,  19  Am.  6>»  Eng.  R.  Cas.  623,  94  Ind. 
III. 

In  an  action,  under  Missouri  Rev.  St.  § 
809,  for  double  damages  for, killing  stock, 
the  burden  is  on  the  company  to  show  any 
circumstances  exempting  it  from  its  duty  to 
fence  its  right  of  way,  as  enjf)ined  by  the 


statute.  Hamilton  v.  Missouri  Pac.  R.  Co., 
87  Mo.  85. 

5 10.  To  hIiow  no  duty  to  fence  ut 
place  of  entry. — The  burden  is  upon  the 
defendant  to  show  atfirmatively  that  the 
place  where  the  animals  entered  was  one 
that  it  could  not  fence  without  endangering 
the  safety  of  its  employes.  Chicago  &^  E.  I. 
R.  Co.  V.  Modcsftt,  124  Ind.  212,  24  N.  E. 
Rep.  986.  Cincinnati,  I.,  St  I..  &'  C.  R.  Co. 
V.  Parker,  109  Ind.  235,  9  A'.  E.  Rep.  787. 
Chicago  &*  E.  R.  Co.  v.  Rrannegan,  5  Ind. 
App.  540,  32  N.  E.  Rep.  790.  Jeffersonvillc, 
M.  &*  I.  R.  Co.  V.  Peters,  i  Ind.  App.  69,  27 
A'.  E.  Rep.  299.  Toledo,  St.  L.  &•  A'.  C.  R. 
Co.  V.  Jackson,  5  Ind.  App.  547,  32  A'.  /;". 
Rep.  793.  Pennsylvania  R.  Co.  v.  Lindley,  2 
Ind  App.  1 1 1,  28  N.  E.  Rep.  106. 

In  an  action  to  recover  damages  for  the 
killing  of  animals  which  entered  upon  the 
track  at  a  point  where  it  was  not  fenced, 
the  burden  of  proof  is  upon  the  defendant, 
when  seeking  to  defeat  a  recovery  upon  the 
ground  that  the  conjpany  was  not  bound  to 
maintain  a  fence  at  that  point,  as  it  would 
have  endangered  the  lives  of  its  employe;) 
engaged  in  switching;  and  a  verdict  in  favor 
of  the  plaintiff  will  not  be  disturbed  where 
it  does  not  clearly  appear  from  the  evidence 
that  the  maintenance  of  a  fence  and  cattle- 
guards  at  the  point  where  the  cattle  entered 
upon  the  track  would  have  endangered  the 
safety  of  the  employes  of  the  company. 
Indianapolis,  D.  &*  W.  R.  Co.  v.  Clay,  4 
Ind.  App.  282,  28  A'.  E.  Rep.  567,  30  N.  E. 
Rep.  916. 

In  a  suit  for  killing  plaintiff's  cow,  if  the 
company  claims  that  the  animal  entered 
its  premises  within  its  station  or  depot 
grounds,  which  are  not  required  to  be 
fenced,  it  has  the  burden  of  proof  of  such 
defense.  Wilder  v.  Chicago  (S-  W.  M.  A\ 
Co.,  35  Am.  &^  Eng.  R.  Cas.  162,  70  Afich. 
382,  14  West.  Rep.  627,  38  A'.  W.  Rep.  289. 
—Followed  in  Rinear  v.  Grand  Rapids  & 
I.  R.  Co.,  70  Mich.  620. 

520.  To  8I10W  no  duty  to  fence  nt 
place  of  injury. — To  relieve  a  company 
from  liability  for  killing  or  injuring  animals 
by  locomotives  or  cars  at  a  place  not  se- 
curely fenced,  it  is  necessary  that  the  com- 
pany show  that  it  was  not  legally  bound  to 
fence  at  that  place.  Banister  v.  Pennsyl- 
vania R.  Co.,  19  Am.  &*  Eng.  R.  Cas.  570,  98 
Ind.  220.— Quoting  Evansville  &  T.  H.  R. 
Co.  V.  Willis,  93  Ind.  507  ;  Baltimore,  O.  & 
C.   R.  Co.  V.  Kreiger,  90  Ind.  380.  —  Ft. 


ANIMALS,  INJURIES  TO,  r.21-r»2«. 


319 


Wrtyw^,  C.  6-  L.  R.  Co.  v.  Herbold,  23  Am. 
&*  Etig.  R.  Cas.  221,  99  Ind.  91.  Cincinnati, 
If.  &*  /.  R.  Co.  V.  Ford,  13  Apn.  <5-  Eng.  K. 
Cas,  571,  89  Ind,  92.  JeffersonviUe,  M.  6- 
/.  ^.  Co.  V.  O'Connor,  37  /«^.  95,  5  /Jw.  Ay. 
AV/.  566. 

In  an  action  under  the  Kansas  statute  to 
recover  of  a  railroad  company  for  stock 
killed,  if  it  appears  from  the  plaintiff's  tes- 
timony that  the  road  was  unfenced  at  the 
place  of  injury,  the  burden  of  proof  is  on 
the  company  to  show  that  it  was  under  no 
obligation  to  fence  at  such  place,  or  that  the 
night  herd  law  was  in  operation,  and  that 
the  animals  were  killed  in  the  night-time. 
Union  Pac.  R.  Co.  v.  Dyche,  28  Kan. 
200. 

Where  domestic  animals  are  killed  or  in- 
jured on  a  railway  track  not  protected  by 
fences  or  cattle-guards,  the  burden  rests 
upon  the  railway  company  to  show  that  it  is 
not  bound  to  fence  at  that  place,  on  the 
{^ound  that  it  is  necessary  to  be  kept  open 
for  the  accommodation  of  the  public.  Cox 
V.  Minneapolis.  S.  St.  M.  <5-  A.  R.  Co.,  38 
Am.  &*  Eng.  R.  Cas.  287,  41  Minn.  loi,  42 
N.  W.  Rep.  924. 

Where  it  is  shown  that  a  mare  was  killed  at 
a  point  on  the  track  which  is  not  fenced,  the 
burden  is  on  the  company  to  show  that  it 
could  not  lawfully  have  placed  a  fence  there, 
and  proof  that  the  killing  was  within  an 
incorporated  city  is  not  sufficient  unless  it 
appear  that  it  was  within  grounds  that  were 
laid  out  into  streets  and  squares,  and  occu- 
pied. Texas  <S-  P.  R.  Co.  v.  Mitchell,  2  Tex. 
App.  (Civ.  Cas.)  324. 

521.  To  show  that  animal  coiihl 
not  be  kept  out  by  lawful  fence.— 
Where  the  company  claims  that  the  animal 
is  such  that  a  good  and  lawful  fence  would 
be  no  protection,  the  burden  of  showing 
it  is  on  the  company.  Missouri  Pac.  R.  Co. 
V.  Bradshaw,  33  Kan.  533,  6  Pac.  Rep.  917. 
— Reconciled  in  Leebrick  v.  Republican 
V.  &  S.  W.  R.  Co.,41  Kan.  756,  21  Pac. 
Rep.  796. 

522.  To  show  that  injuries  re- 
ceived did  not  cause  animal's  death. 
— Where  a  company  is  sued  for  injuries  to 
stock  which  caused  their  death,  and  it  sets 
up  the  defense  that  some  of  the  injured 
stock  would  not  have  died  if  they  had  re- 
ceived proper  care  by  plaintiff,  the  burden 
of  proving  such  defense  is  on  the  company. 
Gulf,  C.  6-  S.  F.  R.  Co.  V.  Hudson,  77  Tex. 
494,  145.  W.  Rep.  158. 


523.  To  show  owner's  duty  and 
failure  to  fence.— In  a  suit  for  killing 
stock  on  the  ground  of  a  neglect  to  fence 
its  track,  if  the  landowner  had  received  a 
sum  for  fencing,  or  had  agroed  to  build  and 
maintain  a  fence,  or  had  received  compen- 
sation for  so  doing  by  way  of  damages  in 
the  condemnation  of  the  land,  the  burden 
rests  upon  the  company  to  show  such  fact 
in  defense.  Toledo,  P.  &*  If.  R.  Co.  v. 
/Vwf**,  68 ///.  524.  — Followed  in  Toledo, 
P.  &  W.  R.  Co.  V.  Pence,  71  III.  174. 

7.  Matters  Relating  to  Trial. 
a.  In  General. 

524.  Right  to  a  jury  trial.*— Upon 
the  hearing  of  a  motion  for  tiie  writ  pro- 
vided for  in  3  Ind.  Stat.  415,  §  5,  to  require 
an  agent,  conductor,  etc.,  of  a  railroad  com- 
pany, against  which  a  judgment  for  the 
value  of  an  animal  killed  has  l)een  rendered 
under  such  statute,  to  appear  and  answer  as 
to  the  amount  of  money  in  his  hands,  etc., 
the  defendant  is  not  entitled  to  a  jury  trial. 
Logansport,  C.  <S-  S.  W.  R.  Co.  v.  Patton,  51 
Ind.  487. 

Under  the  constitutional  provision  that 
"  the  right  of  trial  by  jury,  as  heretofore 
enjoyed,  shall  remain  inviolate  "  (Constitu- 
tion, art.  2,  §  23),  the  company  is  entitled  to 
a  jury  in  assessing  the  value  of  the  attor- 
ney's services,  and  of  this  right  the  statute 
cannot  deprive  it.  Briggs  v.  St.  Louis  &* 
S.  F.  R.  Co.,\\\  Mo.  168,  20  S.  IV.  Rep.  32. 

525.  Effect  ot  counsel  reading 
statutes  to  the  jury. —1  he  only  question 
involved,  in  an  action  to  recover  for  stock 
killed  which  went  on  the  track  through  a 
gate,  was  as  to  the  sufficiency  of  the  fasten- 
ings of  the  gate.  At  the  trial  plaintiff's 
counsel  read  to  the  jury  Iowa  Code,  §  1507, 
describing  a  lawful  fence  :  that  is,  the  mate- 
rial, height,  and  construction  of  fences,  but 
containing  nothing  as  to  the  fastening  of 
gates.  Held,  that  the  statute  had  no  appli- 
cation to  the  case,  but  as  it  could  have  had 
no  influence  on  the  jury  its  reading  consti- 
tuted no  error  for  which  a  judgment  should 
he  reversed.  McKinley  v.  Chicago,  R.  I.  &' 
P.  R.  Co.,  47  Iowa  76. 

526.  Submitting  a  section  of  Code 
to  the  jury  as  the  law  of  the  case.— 
Georgia  Code,  §  708,  requiring  a  post  to  be 
set  on  each  side  of  a   railroad  track  400 

*  See  mile,  8. 


if 


1 


320 


ANIMALS,  INJUKIHS   TO,  527  ;»ai. 


i:rrF'! 


Jk 

■  1 

1 

\ 

§ 

i 

^  : 

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j 

yards  from  road  crossings,  and  requiring 
engineer  to  blow  a  whistle  from  such  post 
to  the  crossing,  and  to  check  the  speed  of 
his  train  so  as  to  be  able  to  stop  if  any  ob- 
struction is  seen  on  the  track,  may  be  sub- 
mitted to  the  jury  as  the  law  of  the  ciisc, 
where  stock  arc  killed  between  such  posts 
and  the  crossing;  and  said  section  and  § 
710,  prescribing  a  penalty  for  failing  to 
comply  with  the  former  section,  and  provid- 
ing specially  for  signals  in  municipal  corpo- 
rations, should  be  construed  together.  Port 
A'oya/  S^  IV.  C.  R.  Co.  v.  Phinizy,  40  Am. 
6-  Eng.  R.  Cas.  212,  83  Gn.  192.  9  .S",  E.  Rep. 
609.— Following  Western  <S  A.  R.  Co.  v. 
Jones,  65  Ga.  631, 

527.  Admitting  evidence— Order 
of  proof.  — Proof  of  killing  or  damaging 
stock  by  railroad  cars,  under  Kentucky  Gen. 
St.  ch.  57,  §  5,  is  made  prima  facie  evi- 
dence of  negligence ;  and  the  burden  of 
proof  is  on  the  plaintiff  to  show  the  killing, 
iind  on  the  defendiint  to  disprove  careless- 
ness and  negligence,  and  in  establishing  the 
fact  of  killing,  plaintiff  has  no  rij^ht  to  in- 
troduce any  evidence  tending  to  show  care- 
lessness or  negligence  of  the  defendant,  but 
he  may  introduce  such  evidence  in  rebuttal. 
Kentucky  C.  R.  Co.  v.  Lebus,  14  Bmh  (Ky.) 
518. 

After  the  plaintiff,  in  an  action  against  a 
company  for  killing  stock,  had  established 
his  prima  facie  case,  and  the  railroad  com- 
pany had  closed  its  exculpatory  evidence,  it 
was  not  error  to  permit  the  plaintiff  to  in- 
troduce witnesses  again,  to  show  the  nature 
of  the  accident  and  that  the  necessary  pre- 
cautions had  not  been  observed.  Louisville 
&*  N.  R.  Co.  v.  Parker,  12  Heisk.  (Tenn.) 
49. 

An  error  in  admitting  improper  evidence 
as  to  the  limit  of  the  depot  grounds,  in  an 
action  against  a  railroad  company  for  an  in- 
jury to  cattle  on  its  unfenced  track,  will  be 
deemed  immaterial  where  the  other  evi- 
dence clearly  shows  that  they  did  not  extend 
to  the  place  where  the  cattle  entered  upon 
the  track.  Plunkett  v.  Minneapolis,  S.  St. 
M.  6-  A.  R.  Co.,  79  Wis.  222, 48  A^.  W.  Rep. 

5'9- 

528.  Discretion  of  court  in  ad- 
mitting or  excluding  evidence.— In 

an  action  for  double  damages  for  killing 
stock,  proof  of  the  condition  of  the  fencing 
at  a  particular  point  may,  in  the  discretion 
of  the  court,  be  properly  admitted  before 
proof,  or  an  offer  to  prove,  that  sucli  stock 


entered  upon  the  railroad  at  that  point. 
Walthers  v.  Missouri  l\ic.  R.  Co.,  19  ,•/;;/. 
&*  Eng.  R.  Cas.  662,  78  Mo.  617. 

Plaintiff's  horse  escaped  fron\  his  lands 
and  went  on  the  track  through  a  gate  whicii 
the  company  was  bound  to  maintain. 
Plaintiff  testified  that  the  gate  had  been  »o 
out  of  repair  as  to  make  it  difficult  to  open 
or  close,  and  had  been  permitted  to  stand 
open  for  some  years ;  and  was  then  asked  on 
cross-examination  whether  he  had  ever  re 
quested  the  company  to  repair  the  gate, 
which  was  excluded  by  the  court,  //eld, 
that  the  exclusion  was  within  the  discretion 
of  the  trial  court.  Taft  v.  A'ew  York,  P.  &* 
/i.  R.  Co.,  157  Mass.  297,  32  N.  E.  /iep.  168. 

529.  Witlidruwing  evidence  tVom 
the  Jury. — When  a  company  is  sued  for 
negligently  killing  plaintiff's  mules  by  run- 
ning over  them  with  its  train,  and  seeks  to 
defend  by  showing  that  the  injury  com- 
plained of  was  caused  by  a  fog  produced  by 
the  proximity  of  a  creek,  and,  in  further- 
ance of  that  theory,  inquired  as  to  the  condi- 
tions as  to  fog  at  other  creeks  along  the 
route,  and  thus  elicited  testimony  unfavor- 
able to  the  defense,  it  cannot,  as  a  matter  of 
right,  have  the  evidence  withdrawn  from 
the  jury.  Central  R.  &*  B,  Co.  v.  /ngram, 
98  Ala.  395.— Approving  Memphis  &  C.  R. 
Co.  V.  Lyon,  62  Ala.  71 ;  Alabama  G.  S.  R. 
Co.  V.  Jones,  71  Ala.  487. 

530.  View  by  jury.  —  The  gate  in 
question  being  a  subject  of  testimony  upon 
trial,  it  was  a  matter  within  the  discretion 
of  the  court  whether  to  permit  the  jury  to 
be  taken  to  view  the  same.  Morrison  v. 
Burlington,  C.  R.  Gf  N.  R.  Co.,  84  /oTva  663, 
St  N.  IV.  Rep.  75. 

531.  Di8mi88ul  and  nonsuit.  — 
Where  the  court  announced  that  a  new 
trial  should  be  allowed,  and  plaintiff  then 
declared  that  he  elected  to  stand  by  his  case 
as  made,  and  thereupon  the  court  dismissed 
the  action — /leld,  that  the  circumstances 
showed  that  all  parties  intended  to  treat 
the  case  as  though  the  court  had  dismissed 
the  action  or  granted  a  nonsuit  on  the 
ground  that  plaintiff  had  failed  to  "  prove  a 
sufficient  case  for  the  jury."  Wadswort/i  v. 
Union  Pac.  R.  Co.,  56  Am.  6-  Eng.  R.  Cas. 
145,  18  Colo.  600. 

In  an  action  for  the  killing  of  an  ox  on  a 
railroad,  the  evidence  being  conflicting  as 
to  the  sufficiency  of  the  gate  or  bars  main- 
tained by  the  company  at  a  farm  crossing 
where  the  animal  got  upon  the  track,  and 


ANIMALS,  INJURIES  TO,  n3a-rt30. 


321 


there  being  no  evidence  that  the  plaintiff 
was  negligent  —  held^  that  a  nonsuit  was 
properly  denied.  Welch  v.  Abbot,  Ji  /{'/>. 
512,  40  A'.  W,  Rtp.  223.  Com|)are  AfcCitnd- 
/iss  V.  Chititgo  6-  N.  W.  K.  Co.,  45  W^"- 
365,  19  Am,  Ry.  Rep.  374.  Carey  v.  Chicago, 
A/.  *-  .S'A  P.  R.  Co.,  20  Am.  **  Eng.  R. 
Ciis.  469,  61  Wis.  71.  20  yV.  W.  Rep.  648. 

r3a.  What  Im  a  qiieMtioii  of  law 
lor  the  voiirt,  geuerally.— The  record 
of  a  board  of  appraisers,  appointed  by  a  jus- 
tice of  the  peace  to  fix  the  value  of  a  mare 
killed  hy  a  train  of  cars  on  a  railway,  as 
provided  in  §  6,  chapter  57,  Kentucky  Gen. 
St.,  is  not  competent  to  be  read  as  evidence 
bef'ire  the  jury  by  the  plaintifT  In  his  action 
against  the  railroad  company  for  killing  the 
mare.  The  questions  arising  on  the  pro- 
ceedings before  the  appraisers  were  for  the 
court  and  not  for  the  jury.  Louisville  &• 
N.  R.  Co.  v.  Bro7vn,  13  Bush  (A>.)  475. 

n33.  Ah  to  when  statutory  pre- 
NUiiiptioii  of  negligence  is  overcome. 
— Dakota  Code  Civ.  Proc.  §  679,  makes 
proof  of  killing  of  slock  prima/acie  evidence 
of  negligence  on  the  part  of  the  company. 
Held,  that  the  question  as  to  when  this 
prima  facie  evidence  is  overcome  by  proof 
on  behalf  of  the  company  is  a  question  of 
law  for  the  court.  Volkman  v.  Chicago,  St. 
P.,  Af.  <S-  O.  R.  Co.,  35  Am.  &•  Eng,  R.  Cas. 
204,  5  Da/(:  69,  37  A^.  W.  Rep.  731. 

534.  Sufficiency  of  Hcrvice  of  no- 
tice.— Where  a  statute  provides  for  giving 
notice  of  stock  killed  by  a  railroad,  suffi- 
ciency of  service  of  notice  is  a  question 
of  law  where  proof  of  the  service  is  un- 
contradicted or  in  writing ;  but  such  ques- 
tions as  the  authority  of  the  agent  upon 
whom  service  is  had  are  questions  of  fact  for 
the  jury.  Cole  v.  Chicago  6-  A^.  W.  R.  Co., 
38  Iowa  311.— Distinguished  in  Peyton  v. 
Chicago,  R.  I.  &  P,  R.  Co.,  70  Iowa  522. 

535.  Negligence  when  there  is  no 
conflict  as  to  the  facts.— If  the  facts 
are  unambiguous  and  there  is  no  room  for 
two  honest  and  apparently  reasonable  con- 
clusions, the  court  should  not  be  compelled 
to  submit  the  question  to  the  jury  as  one  in 
dispute,  //oge  v.  Ohio  Biver  B.  Co.,  35  W. 
Va.  562,  14  S.  E.  Rep.  152. 

Where  the  testimony  shows,  without  dis- 
pute and  beyond  question,  that  the  station 
grounds  of  a  company  are  not  unreasonably 
extensive  for  the  accommodation  of  the 
public  and  of  the  patrons  of  the  road  at  that 
place,  and  that  the  animal  killed  entered 
I  D.  R.  D.— 21. 


upon  the  premises  of  the  company  within 
their  limits,  the  question  of  their  extent 
should  not  be  submitted  to  the  jury,  it 
being  a  question  of  law  for  the  court. 
Rinear  v.  Grand  Rapids  &*  I.  R.  Co.,  35  /////. 
6-  Eng.  R.  Cas.  166,  70  Mich.  620,  14  West. 
Rep.  908,  38  A'.  W.  Rep.  599.— Following 
McGrath  v.  Detroit,  M.  &  M.  R.  Co.,  57 
Mich.  555,  24  N.  W.  Rep.  854. 

Where  an  action  is  brought  against  a  rail- 
road company  for  killing  a  colt,  and  the  en- 
gineer testifies  thai  it  came  on  the  track  less 
than  fifty  feet  from  the  engine  and  was  not 
seen  until  struck,  though  he  was  at  his  post 
and  on  the  look-out,  and  there  is  nothing  to 
contradic  his  evidence,  the  court  should 
direct  a  verdict  for  the  company.  Yasoo^' 
M.  V.  R.  Co.  V.  Smith,  68  Miss.  359,  8  So. 
Rep.  508.— Distinguished  in  Mobile  &  O. 
R.  Co.  V.  Gunn,  68  Miss.  366. 

In  an  action  for  injury  to  stock,  if  the 
owner,  when  called  as  a  witness  by  the  rail- 
way company,  testifies  that  he  knew  his 
stock  was  running  at  large,  his  knowledge 
should  be  treated  as  a  conceded  fact,  and 
should  not  be  submitted  to  the  jury  as 
matter  in  issue.  Windsor  v.  Hannibal  &* 
St./.  B.  Co.,  45  Mo.  App.  123. 

In  an  action  for  killing  or  injuring  live 
stock,  the  force  of  the  presumption  of  negli- 
gence, under  ti.'t.  Rev.  ch.  16,  §  11,  only 
applies  when  the  facts  are  not  known,  or 
when  from  the  testimony  they  are  uncertain. 
When  the  facts  are  fully  disclosed  and  there 
is  no  controversy  as  to  them,  the  court  must 
decide  whether  they  make  out  a  case  of 
negligence;  and  when  they  fail  to  do  so  the 
defendant  cannot  be  held  liable.  Doggett  v. 
BichmondSf  D.  B.  Co.,  81  A'^,  Car.  459.  Re- 
viewing Herring  v.  Wilmington  &  R.  R. 
Co.,  10  Ired.  402 ;  Scott  v.  Wilmington  &  R. 
R.  Co.,  4^Jones432;  Aycock  v.  Wilmington 
&  W.  R.  Co.,  6  Jones  231  ;  Battle  v.  Wil- 
mington &  W.  R.  Co.,  66  N.  Car.  343 ;  Jones 
V.  North  Carolina  R.  Co.,  70  N.  Car.  626; 
Clark  V.  Western  N.  C.  R.  Co.,  Winst.  109; 
Pippen  V.  Wilmington,  C.  &  A.  R.  Co.,  75 
N.  Car.  54 ;  Proctor  v.  Wilmington  &  W.  R, 
Co.,  72  N.  Car.  579.— Explained  in  Aycock 
V.  Raleigh  &  A.  A.  L.  R.  Co,  89  N.  Car.  321. 

530.  Questions  of  fact  —  Negli- 
gence, generally.*— (i)  Generally.— The 
question  of  negligence  in  injuring  stock  is  a 
question  of  fact  for  the  jury,  and  when  the 

*  When  company's  negligence  in  killing  stock 
is  for  the  jury,  see  40  Am.  &  Eng.  R.  Cas.  187, 
abstr. 


322 


ANIMALS,  INJURIES   TO,  536. 


■■««■ 


Hi' 


case  is  submitted  on  proper  instructions,  the 
finding  of  a  jury  will  not  be  disturbed  unless 
clearly  against  the  weight  of  evidence. 
B(ggs  V.  Chicago  &•  N.  W.  R.  Co.,  29  Jmva 

577- 

Where  suit  was  brought  for  killing  an  ox, 
and  the  only  question  was,  whether  the 
agents  of  the  road,  at  the  time  of  the  casu- 
alty, exercised  all  ordinary  and  reasonable 
care  and  diligence,  that  issue  was  for  the 
jury ;  and  it  having  been  fairly  submitted, 
and  there  being  conflicting  accounts  of  the 
transaction,  and  the  court  below  being  satis- 
fied with  the  finding,  there  was  no  abuse  of 
discretion  in  refusing  a  new  trial.  Savan- 
nah, F.  (S-  W.  R.  Co.  V.  Stewart,  72  Ga.  207. 

Mere  proof  that  stock  were  killed  at  a 
public  crossing,  and  that  the  engineer  failed 
to  give  the  usual  signals,  is  not  sufficient  in 
itself  to  establish  a  negligent  killing,  but  it 
is  for  the  jury  to  determine  from  all  the 
facts  of  the  case  whether  the  injury  was  the 
result  of  negligence.  Jackson  v.  Chicago  &* 
N.  W.  R.  Co.,  36  Iowa  451.— Followed  in 
Gates  V.  Burlington,  C.  R.  &  M.  R.  Co.,  39 
Iowa  45. 

In  a  suit  at  common  law  for  an  injury 
done  to  animals  by  the  cars  of  a  railway 
company,  the  question  whether  the  injury 
was  occasioned  by  negligence,  misconduct, 
or  unavoidable  accident  is  for  the  jury. 
Lafayette  <S>»  /.  R.  Co.  v.  Shriner,  6  Ind.  141. 
— Followed  in  Northern  Ind.  R.  Co.  v. 
Martin,  10  Ind.  460. 

The  question  as  to  whether  employes  in 
charge  of  a  train  were  negligent  or  not  in 
killing  stock  is  for  the  jury,  and  evidence 
that  no  signals  were  given,  and  that  the 
train  was  running  at  a  high  rate  of  speed,  is 
proper  for  the  jury  to  consider  in  deter- 
mining the  question  of  negligence.  Edson 
V.  Central  R.  Co.,  40  Iowa  47,  8  Am.  Ry.  Rep. 
412. 

But  unless  there  is  evidence  of  negligence 
on  the  part  of  a  railroad  sued  for  injuries 
done  by  its  servants  to  cattle  on  the  track, 
it  is  error  to  submit  the  question  to  the 
jury.  New  York  &•  E.  R.  Co.  v.  Skinner, 
19  Pa.  St.  298.— Quoted  and  disapproved 
IN  Trout  V.  Virginia  &  T.  R.  Co.,  23  Gratt. 
(Va.)  619.  Reviewed  in  Roof  v.  Charlotte, 
C.  &  A.  R.  Co..  4  So,  Car.  61. 

However,  when  there  is  any  evidence  fairly 
tending  to  prove  the  negligent  act  of  the 
defendant,  it  is  not  proper  for  the  court  to 
withdraw  the  decision  of  the  issue  from  the 
jury  by  excluding  the  plaintiff's  evidence  or 


by  directing  the  jury  to  find  for  the  defend- 
ant. Hoge  V.  Ohio  River  R.  Co.,  35  W.  Va. 
562,  14  S.  E.  Rep.  1 52. 

And  the  fact  that  there  was  no  evidence 
that  the  ringing  of  the  bell,  the  sounding  of 
the  whistle,  or  other  efforts  to  avoid  the 
injury  which  might  have  been  made,  would 
probably  have  averted  the  accident,  will  not 
justify  the  court  in  taking  the  case  from  the 
jury.  White  v.  St.  Louis  <&»  S.  F.  R.  Co.,  20 
Mo.  App.  564. 

If  the  jury  can,  with  reasonable  certainty 
infer  from  the  surrounding  circumstance, 
that  the  cattle  in  question  were  crippled  by 
being  struck  by  defendant's  engines,  the 
question  will  be  submitted  to  them,  and 
their  verdict  will  not  be  disturbed.  Harned 
V.  Missouri  Pac.  R.  Co.,  51  Mo.  App.  482. — 
Applying  Gee  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  80  Mo.  283 ;  Mayfield  v.  St.  Louis  & 
S.  F.  R.  Co.,91  Mo.  296;  McBride z/.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co.,  20  Mo.  App.  216. 
As  soon  as  a  company  enters  inclosed 
lands  for  the  purpose  of  constructing  its 
road,  it  is  bound  to  use  all  reasonable  and 
prudent  means  to  prevent  cattle  from  stray- 
ing on  the  track  and  to  prevent  the  cattle 
of  others  from  going  upon  the  owner's  land, 
and  the  question  whether  such  means  have 
been  adopted,  when  applied  to  matters  aris- 
ing before  the  company  commences  to 
run  trains,  depends  upon  the  fpcts  of  each 
case,  and  must  be  left  to  the  jury.  Holden 
v.  Rutland &*  B.  R.  Co.,y>Vt.  297.— Quoted 
IN  Comings  v,  Hannibal  &  C.  M.  R.  Co.,  48 
Mo.  512. 

(2)  Illustrations. —  Defendant's  fence  be- 
tween its  track  and  plaintiff's  pasture  was 
swept  away  by  a  flood,  which  was  at  its  height 
about  eight  days  before  plaintiff's  horses 
were  injured  on  said  track.  During  the 
three  days  immediately  preceding  the  injury 
the  water  along  the  line  of  the  fence  had 
fallen  at  the  rate  of  nearly  eight  inches  each 
day,  but  at  the  time  of  the  injury  it  had 
not  subsided  so  as  to  leave  the  entire  line  of 
the  fence  at  the  place  in  question  uncovered. 
The  jury  found  that  a  new  fence  might  have 
been  properly  and  reasonably  constructed 
two  days  before  the  injury.  Held,  that  the 
court  erred  in  submitting  to  them  the  ques- 
tion whether  defendant  was  negligent  in 
neglecting  to  rebuild  the  fence,  for  the  evi- 
dence was  insufficient  to  show  negligence 
even  if  undisputed.  Goddard  w.  Chicago  &* 
N.  IV.  R.  Co.,  54  Wis.  548. 

In  an  action  for  negligently  killing  plain- 


ANIMALS,  INJURIES   TO,  636. 


328 


tiff's  mare,  he  proved  that  on  the  night 
of  October  13  the  train  was  stopped  while 
passing  through  or  near  his  land,  and 
that  a  passenger  on  the  train  saw  the  con- 
ductor and  some  of  the  other  men  em- 
ployed on  the  train  exaniining  a  mare 
wliich  was  lying  at  the  foot  of  an  embank- 
ment near  the  railway,  and  unable  to  rise 
without  assistance;  that  early  the  next 
morning  plaintiff's  mare  was  found  dead 
near  the  same  place  with  several  of  her  ribs 
broken ;  and  that  she  had  been  grazing 
about  there  the  previous  evening  and  was 
tiien  uninjured,  ^^/r/,  that  there  was  ample 
evidence  of  the  identity  of  the  mare  for  the 
consideration  of  the  jury.  New  Brunswick 
R.  Co.  V.  Armstrong,  23  New  Brun,  193. 

Evidence  held  sufficient  to  warrant  submis- 
sion of  .  ompanys  negligence  to  the  jury  in 
the  following  instances: 

In  an  action  for  killing  a  cow  in 
passing  a  curve,  where  the  proof 
showed  that  she  could  be  seen  from  the 
engine  at  a  distance  of  about  175  yards, 
and  that  had  the  engineer  been  looking 
from  the  right  side  of  the  cab  he  could  have 
seen  her  in  time  to  have  stopped  the  train. 
Denver  &*  R.  G.  R.  Co.  v.  Henderson, 
10  Colo.  I,  31  Am.  6^  Eng.  R.  Cas.  559,  13 
Pac.  Rep.  910.  See  also  Denver  <&>»  R.  G.  R. 
Co.  V.  Henderson,  lo  Colo.  4,  13  Pac.  Rep. 
912. 

Where,  under  the  statute  exempting  the 
inhabitants  of  ten  counties  in  Dakota  Terri- 
tory from  liability  for  .ill  damages  done  by 
their  animals  while  trespassing  upon  the 
lands  of  another,  S.'s  stock  strayed  upon 
the  defendant's  railroad  track,  and  it  ap- 
peared the  engineer  saw  it  a  mile  and  a  half 
distant  but  did  not  discover  its  presence  on 
the  track  until  he  was  about  sixty  rods  from 
it ;  that  he  then  whistled  for  brakes  and  they 
were  applied,  also  air-brakes ;  that  it  was 
down-grade,  and  there  was  a  train  of  thir- 
teen loaded  cars ;  that  the  stock,  instead  of 
leaving  the  track,  ran  ahead  of  the  train, 
when  one  was  caught  and  killed ;  that  the 
others  gathered  around  this  one,  and  another 
train  coming  close  behind,  ran  into  them 
and  injured  two  others ;  that  the  engineer 
of  the  second  train  did  not  see  tlie  stock 
till  within  five  rods  of  it.  Sprague  v.  Fre- 
mont, E.  &»  M.  V.  R.  Co.,  6  Dah.  86,  50  A^. 
IV.  Rep.  617. 

Where  it  appeared  from  the  evidenee 
that  a  hand-car  was  moving  along  the  track 
at  a  high  rate  of  speed;  that  a  cow  was 


moving  slowly  towards  the  crossing  and 
might  have  been  seen  by  those  on  the  car 
two  or  three  hundred  feet  off ;  that  no  at- 
tempt, however,  was  made  to  put  on  the 
brake  until  within  about  thirty  feet  of  the 
cow,  which  was  then  directly  on  the  crossing : 
and  that  the  brake  being  worn  smooth  did  not 
operate,  and  the  car  ran  over  the  cow,  kill- 
ing it.  Missouri  Pac.  R.  Co.  v.  King,  15 
Am.  &*  Eng.  R.  Cas.  529,  31  X'an.  500,  3  Pac. 
Rep.  371.— Following  Missouri  Pac.  R.  Co. 
V.  Wilson,  28  Kan.  637. 

Where  sheep  were  killed  by  a  train  near  a 
cattle-guard  at  a  highway  crossing,  and  there 
was  testimony  that  the  fencing  near  by  was, 
and  had  long  been,  insufficient,  and  that  the 
cross- fence  was  two  feet  short  of  the  cattle- 
guard,  and  the  latter  shallow.  Agnew  v. 
Michigan  C.  R.  Co.,  20  Am.,  &•  Eng.  R.  Cas. 
441,  56  Mich.  56,  22  N.  W.  Rep.  108. 

In  an  action  for  killing  a  mule,  where  the 
engineer  testified  that  the  train  was  com- 
posed of  twenty-two  loaded  cars  and  was 
ruiming  twenty  miles  an  hour,  and  that  every 
precaution  was  taken,  but  it  was  impossible 
to  stop  the  train  in  time ;  but  where  there  was 
other  evidence,  to  the  effect  that  the  engineer 
saw  the  mule  when  some  seventy-five  to  one 
hundred  yards  in  advance  of  the  engine,  and 
that  it  ran  three  hundred  yards  before  being 
struck.  Mobile  6-  O.  R.  Co.  v.  Gunn,  68 
Miss.  366, 8  So.  Rep.  648. — Distinguishing 
Yazoo  &  M.  V.  R.  Co.  v.  Smith,  68  Miss. 
359;  Chicago,  St.  L.  &  N.  O.  R.Co.  v.  Pack- 
wood,  59  Miss.  280. 

Where,  after  plaintiff  had  proved  the  kill- 
ing of  his  mule  by  the  company  and  made 
out  a  prima  facie  case,  the  engineer,  testify- 
ing for  the  company,  stated  that  the  mule 
was  killed  at  night  when  very  dark  and 
foggy  ;  that  when  first  seen  it  was  only  about 
forty  feet  away  and  he  was  running  rapidly 
on  a  down-grade,  and  that  the  locomotive 
struck  the  mule  in  less  than  two  seconds  ; 
that  he  did  not  sound  the  alarm  nor  reverse 
the  engine  because  he  did  not  have  time ; 
and  that  there  was  a  trestle  just  ahead  which 
would  have  endangered  the  train  if  he  had 
run  on  it  with  down  brakes  and  reversed 
engine ;  and  another  witness  for  the  defense 
stated  that  the  alarm  could  have  been 
sounded  in  two  seconds,  but  that  the  train  in 
that  time  would  have  moved  sixty  feet ;  but 
where  in  rebuttal  there  was  evidence  tend- 
ing to  show  that  the  mule  ran  forty  feet  be- 
fore it  was  struck,  and  that  there  was  no  such 
fog  as  claimed  by  the  engineer.     Ross  v. 


I :; 


( 

!< 


324 


ANIMALS,  INJURIES   TO,  536. 


««: 


^ 


Si' 


lit 


Naiches,  /.  «S-  C.  R.  Co,,  23  Am.  &•  E>ig.  R. 
Cas.  196,  62  Miss.  23.— Distinguishing 
Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Packwood, 
59  Miss.  280. 

In  an  action  for  killing  an  animal,  where 
it  appearea  that  it  was  on  a  clear  starlight 
night,  and  that  the  animal  ran  some  three 
hundred  yards  on  the  track  in  front  of  the 
engine,  though  the  engineer  testified  that 
he  was  on  the  look-out  and  only  saw  it  when 
within  some  twenty  to  thirty  yards  away. 
Kent  V.  NcTu  Orleans  &*  T.  R.  Co.,  67  Miss. 
608,7  So.  Rep.  391. 

Wiiere  the  railroad  company  allowed 
quantities  of  salt  to  be  deposited  on  and 
near  its  track,  at  or  near  its  station,  where 
it  would  attract  animals,  and  allowed  the 
same  to  remain  after  it  knew  the  salt  was 
there,  or,  by  reasonable  care  and  diligence, 
might  have  known  it.*  Brown  \.  Hannibal 
&•  St.  J.  R.  Co.,  27  Mo.  App.  394.— Fol- 
lowed IN  Burger  v.  St.  Louis,  K.  &  N.  W. 
R.  Co.,  52  Mo.  App.  1 19. 

Where  evidence  showed  that  defendant's 
train  was  running  at  the  rate  of  twenty 
miles  an  hour,  that  plaintiff's  cow  was  in  full 
view  at  a  town  crossing  when  the  train  was 
thirty  yards  away,  and  that  no  signal  was 
given  or  effort  made  to  stop  the  train  until 
just  before  the  cow  was  struck.  White  v. 
St.  Louis  Sf  S.  F.  R.  Co.,  20  Mo.  App.  564.— 
Reconciling  Evans  v.  St.  Louis,  I.  M.  &S. 
R.  Co.,  i6  Mo.  App.  522. 

Ii  an  action  for  the  killing  of  horses  be- 
longing to  plaintiff,  which  had  strayed  upon 
the  track  through  an  open  gate  in  the  fence 
erected  by  the  company,  where  the  evidence 
showed  that  the  train  struck  them  in  the 
night;  that  there  was  snow  on  the  ground 
whi.h  had  lain  there  some  time,  and  was 
packed  and  solid  ;  that  a  light  snow  had 
fallen  on  the  night  of  the  accident  but  pre- 
vious thereto;  that  the  train  was  running  at 
a  high  rate  of  speed ;  and  that  from  the  tracks 
made  in  the  recently-fallen  snow  it  was  ap- 
parent that  the  horses  had  run  at  a  rapid 
rate  of  speed  in  front  of  the  engine  for  some 
distance,  but  were  finally  caught,  thrown 
from  the  track,  and  killed.  Missouri  Pac. 
R.  Co.  V.   Vandeventer,  28  Neb.  1 1 2. 

Where  the  evidence  shows  that  the  ani- 
mals were  killed  at  a  place  where  there  was 
no  fence  between  the  right  of  way  and  the 
owner's  fields  where  the  animals  pastured  ; 
that  at  the  time  of  the  accident  they  were 

*  See  ante,  40. 


feeding  on  the  right  of  way  on  the  opposite 
side  from  the  owner's  lands  where  there  was 
a  fence ;  that  the  animals  could  have  been 
seen  for  some  distance;  that  the  train  ran 
without  signals  or  without  slowing  its  speed 
until  within  two  hundred  and  fifty  feet  of 
the  animals.  Johnson  v.  Rio  Grande  IV.  R. 
Co.,  7  Utah  346,  26  J'ac.  Rep.  926. 

In  an  action  for  killing  a  mule,  where 
there  was  evidence  to  show  that  the  fence 
at  or  near  where  it  was  killed  was  down  in 
several  places,  that  certain  cattle-guards 
were  so  filled  up  as  to  allow  stock  to  pass 
over  them,  that  the  mule  was  killed  while 
running  on  the  track  in  front  of  the  train, 
there  was  high  grass  on  the  right  of  way, 
and  that  the  fence  was  in  good  condition 
the  day  before.  Wines  v.  Rio  Grande  W.  R. 
Co.,  9  Utah  228,  33  Pac.  Rep.  1042. 

In  an  action  for  killing  two  horses,  where 
plaintiff  produced  a  witness  who  testified 
that  she  saw  them  running  on  the  track  a 
short  distance  ahead  of  the  engine  ;  that  the 
train  was  running  about  twenty-five  miles  an 
hour ;  that  she  watched  the  train,  the  train- 
men, and  the  horses  until  they  passed  out  of 
sight,  and  that  as  far  as  she  could  discover  the 
engineer  and  fireman  did  nothing  to  check 
the  speed  of  the  train  ;  and  that  no  bell  was 
rung  until  just  after  the  train  passed  out  of 
sight,  when  the  train  was  only  one  or  two  ii  U 
egraph  poles  behind  the  horses.  Tiiere  was 
other  evidence  that  the  horses  were  found 
soon  after  the  train  had  passed  near  the 
track  with  their  legs  broken  and  otherwise 
cut  and  bruised.  Johnson  v.  Baltimore  &" 
O.  R.  Co.,  25  W.  Va.  570. 

Where  the  evidence  showed  that  the 
plaintiff's  steer  was  turned  loose  to  graze  on 
uninclosed  lands  beside  the  railway  track, 
at  a  place  where  the  defendant  was  required 
by  law  to  fence  but  had  failed  to  do  so,  and 
the  animal  was  afterwards  found  near  the 
track  verv  badly  injured,  and  blood  and 
hair  were  found  en  the  railway,  indicating 
that  the  steer  had  been  dragged  or  shoved 
along  by  a  passing  train.  Jackson  v.  St. 
Louis,  I.  M.  <S-  S.  R.  Co.,  36  Mo.  App.  170. 

Where  a  horse  is  alleged  to  have  been 
killed  by  reason  of  the  company's  failing  to 
maintain  a  proper  fence,  and  there  is  any 
evidence  that  the  fence  was  insufficient  and 
defective,  which  was  known  to  the  company 
or  its  agents,  and  that  the  horse  got  upon  the 
track  by  means  of  such  defects.  Morrison 
V.  New  York  6-  A^.  H.  R.  Co.,  32  Barb  (N.  J'.) 
568.— Approved  in  Cecil  v.  Pacific  R.  Co., 


Ilw^t- 


ANIMALS,  INJURIES   TO,  537-539. 


32C 


47  Mo.  246.  DlSTlNiiUlSHEU  IN  Leyden  v. 
New  York  C.  &  H.  R.  R.  Co..  55  Hun.  (N.  Y.) 
114.  28  N.  Y.  S.  R.  72.  8  N.  Y.  Supp.  187. 

Evidence  held  insufficient  to  warrant  sub- 
mission of  company's  negligence  to  the  jury  in 
the  following  instances : 

Where,  under  an  averment  that  the  com- 
piiny  caused  the  killing  of  the  plaintifT's 
iiorse  "  where  the  defendant  had  a  right  to 
fence  but  did  not  fence,"  the  evidence  failed 
X.J  support  the  statutory  ground  of  recovery, 
namely,  that  the  horse  running  at  large  was 
killed  by  reason  of  the  want  of  a  fence  (the 
existence  of  which  ground  may  possibly  be 
inferred  from  the  pleadings).  Gilman  v. 
Sioux  City  &>  P.  R.  Co.,  13  Am.  &*  Eng.  R. 
Cas.  538,  62  /owa  299,  17  A'.  IV.  Rep.  520. — 
Followed  in  YouU  v.  Sioux  City  &  P.  R. 
Co.,  21   Am.  &  Eng.  R.  Cas.  589,  66  Iowa 

346. 

In  an  action  for  killing  stock,  where  plain- 
tiff claimed  that  the  negligence  making  the 
company  liable  was  in  running  the  train 
with  the  engine  behind,  and  the  evidence 
showed  that  the  train  was  a  short  one  with 
ii  man  on  the  front  car  to  keep  a  look-out, 
that  the  accident  occurred  while  going  round 
a  curve  at  a  slow  rate  of  speed,  that  every 
precaution  was  exerted  after  the  stock  were 
discovered  to  avoid  the  injury,  and  that 
th'.;  train  was  stopped  as  soon  as  it  could 
have  been  stopped  if  the  engine  had  been  in 
front.  Falconer  v.  European  &^  N.  A.  R. 
Co.,  \\  New  Brun.  179. 

537.  Negligence  where  facts  are  in 
conflict. — In  an  action  for  killing  cattle, 
where  the  evidence  is  such  that  a  verdict 
for  either  party  could  not  be  disturbed  on 
appeal,  the  question  of  a  conflict  of  evidence 
should  have  been  submitted  to  the  jury  and 
not  decided  by  the  court.  Cage  v.  Louis- 
ville, N.  O.  6f  T.  R.  Co.,  {Miss)  7  So.  Rep.  509. 

Where  the  evidence  as  to  the  situation 
and  surroundings  of  an  animal  killed  by  a 
railroad  train  is  conflicting,  and  is  such  that 
under  some  phase  of  it  the  jury  might  prop- 
erly conclude  that  the  place  was  such  as  re- 
quired the  company  to  fence,  the  question 
must  be  left  to  the  jury  under  proper  in- 
structions. Pennsylvania  R.  Co.  v.  Lindley, 
2  Ind.  App.  Ill,  28  N.E.  Rep.  106. 

Where  the  evidence  was  conflicting  as  to 
the  condition  of  the  fence,  which  it  was  the 
duly  of  the  railroad  company  to  keep  in  re- 
pair, at  or  a  short  time  before  the  time  of 
the  injury,  the  question  as  to  the  knowl- 
edge, care,  and  diligence  of  the  defendant 


should  have  been  submitted  to  the  jury. 
lirentner  v.  Chicago.  M.  fi*  St.  P.  R.  Co.,  7 
Am.  &>  Eng.  R.  Cas.  574,  58  Io7t>a  625,  12  A^. 
W.  Rep.  611. 

Where  there  is  a  conflict  of  evidence  as  to 
the  speed  of  the  train  which  killed  plaintifl's 
cow  at  a  crossing,  and  as  to  the  distance 
that  she  could  have  been  seen  by  the  en- 
gineer, and  the  evidence  shows  that  there 
was  a  sharp  curve  in  the  track,  and  that  the 
train  was  a  wild  one,  the  question  as  to 
whether  the  speed  of  the  train  was  a  danger- 
ous one  is  for  the  jury.  Courson  v.  Chicago, 
M.  **  St.  P.  R.  Co.,  71  Iffwa  28,  32  A^.  W. 
Rep.  8. 

In  an  action  for  killing  live  stock  at  a 
crossing,  the  evidence  showed  that  the  stock 
were  in  plain  view  of  the  engineer  for  half  a 
mile,  that  the  train  was  running  from  forty 
to  forty-five  miles  an  hour  and  approached 
without  signals,  that  those  in  charge  of  the 
stock  knew  the  train  was  riue,  and  that  as 
soon  as  the  animals  were  seen  the  brakes 
were  applied.  Held,  that  as  the  evidence 
was  conflicting,  the  questions  of  negligence 
and  of  contributory  negligence  should  have 
been  left  to  the  jury.  Wines  v.  Rio  Grande 
W.  R.  Co.,  9  Utah  228,  33  Pac.  Rep.  1042.— 
Quoting  Grand  Trunk  R.  Co.  v.  Ives,  144 
U.  S.  417,  12  Sup.  Ct.  Rep.  679. 

538.  Negligence  as  to  repairs  in 
fence,  etc.—  Where  a  fence  along  a  track 
was  found  to  be  burned  in  the  evening,  and 
a  horse  was  killed  the  following  night,  the 
question  of  negligence  in  postponing  the 
repairs  is  for  the  jury.  Crosby  v.  Detroit,  G. 
H.Sf  M.  R.  Co.,  58  Mich.  458,  25  N.  IV. 
/?<r/.  463.— DiSTiNOUiSHiNG  Stephenson  v. 
Grand  Trunk  R.  Co.,  34  Mich.  323. 

One  issue  being  whether  the  cotton  yard 
of  a  railway  company  was  negligently  out  of 
repair,  there  was  ro  error  in  allowinj^ 
evidence  of  repairs  v.hich  were  made  at 
the  place  where  the  injury  to  a  mule  oc- 
curred, although  made  after  it  happened. 
Whether  they  should  have  been  made  be- 
fore, or  were  rendered  necessary  by  the  ac- 
cident, was  a  question  for  the  jury.  Central 
R.  Co.  V.  Gleason,  69  Ga.  200. 

530.  Negligence  in  failing  to  stop 
train. — The  question  of  the  negligence  of 
an  engineer  in  failing  to  stop  his  train  wlien 
signalled  by  a  man  whose  horse  had  fallen 
on  the  track  is  for  the  jury.  Memphis  &*  L. 
R.  R.  Co.  V.  Sanders,  19  Ant.  &*  Eng.  R. 
Cas.  497, 43  '^r*.  225. 

In  an  action  for  killing  a  cow  it  appeared 


'"A 
I 


!?l 


'v'l 


A3. 


^■Vi!}&- 


326 


ANIMALS,    INJURIES   TO,  540-544. 


'     \ 


m 


that  the  whistle  was  blown  to  frighten  the 
cow  off  the  track,  and  tliat  the  cow,  after 
running  along  a  fence  parallel  with  the 
track  for  some  distance,  suddenly  turned 
and  attempted  to  cross  the  track  and  was 
struck  by  the  train.  HcM,  that  the  question 
of  the  company's  negligence  in  not  stopping 
the  train  or  slackening  its  speed  after  the 
cow  first  went  off  the  track  is  for  the  jury. 
MoMe  &•  O.  A',  y?.  Co.  v.  NoU.  62  Mtss.  170. 

540.  Negligence  in  regard  to  look- 
out.— The  question  as  to  whether  an  en- 
gineer was  negligent  in  not  seeing  cattle  on 
the  track  in  time  to  have  avoided  injuries 
thereto  is  a  question  of  fact  for  the  jury. 
OAio  &■  M.  R.  Co.  V.  Stribling,  38  ///.  App. 

17- 

541.  Negligence  in  not  properly 
manning  train. — It  cannot  be  held  as  a 
matter  of  law  that  it  does  not  tend  to  show 
reckless  management  of  a  train  to  send  it 
out  with  so  few  brakemen  that  its  speed  can- 
not be  checked  on  some  grades  of  the  road. 
As  to  whether  the  tniiii  was  sufficiently 
manned  is  for  the  jury,  and  If  the  company 
shows  special  circumstances  tending  to  ex- 
cuse sending  it  out  in  that  way  they  also  are 
for  the  jury.  McDonald  v.  Chicago  &*  N. 
W.  R.  Co.,  13  Am.  &•  Eng.  R.  Cas.  585,  51 
Mi'c/i.  628,  17  iV.  IV.  Rep.  210.— Distin- 
guishing Marquette,  H.  &.  O.  R.  Co.  v.  Mar- 
cott,  41  Mich.  433. 

542.  Negligence  in  leaving  gate 
open.— Where  a  railroad  corporation  had 
inclosed  its  line  of  road  with  a  barbed-wire 
fence,  except  a  gateway  into  plaintiff's  field, 
which  it  had  negligently  left  open,  and 
through  which  plaintiff's  horses  escaped 
within  its  right  of  way,  where  they  were 
suddenly  frightened  by  an  approaching  car 
and  were  thereby  caused  to  run  violently 
against  the  adjoining  railroad  fence  and 
were  seriously  injured  thereby — AeM,  that 
the  question  of  defendant's  liability  was 
properly  left  to  the  jury  upon  the  evidence, 
and  that  the  negligence  of  the  company  in 
leaving  open  the  fence  might,  under  the 
circumstances,  in  connection  with  the  act 
of  its  servants  in  operating  the  road,  be 
deemed  the  proximate  cause  of  the  injury. 
Savage  v.  Chicago,  M.  6>»  St.  P.  R.  Co.,  13 
Am.  &*  Eng.  R.  Cas.  566,  31  Afinn.  419,  18 
N.  W.  Rep.  272. 

A  company  had  fenced  its  track  on  both 
sides,  but  afterward  opened  a  g.ip  on  one 
side  for  its  own  convenience.  Sheep  that 
had  strayed  on  the  track  were  killed  while 


attempting  to  escape  through  the  gap. 
Held,  that  it  was  a  case  which  was  proper  to 
submit  to  the  jury  to  pass  upon  the  question 
as  to  whether  the  company  had  exercised 
proper  care.  Tyler  v.  Illinois  C.  R.  Co.,  19 
Am.  &*  Eng.  R.  Cas.  519,  61  Miss.  445.— 
Limiting  Chicago,  St.  L.  &  N.  O.  R.  Co.r-. 
Packwood,  59  Miss.  280.— Explained  in 
Illinois  C.  R.  Co.  ?/.  Wiilktr.  63  Miss.  13. 

543.  Defective  gate.— Where  it  is 
claimed  that  stock  were  killed  by  reason  of 
escaping  through  a  gate  which  the  com- 
pany was  required  to  maintain,  and  which 
was  not  provided  witii  proper  fastenings, 
the  question  of  the  negligence  of  the  com- 
pany in  the  construction  of  the  gate  is 
properly  submitted  to  the  jury.  Hammond 
V.  Chicago  &^  N.  W.  R.  Co.,  43  Iowa  168, 
14  Am.  Ry.  Rep.  412. 

Whether  or  not  a  company  has  been 
negligent  in  allowing  bars  to  remain  down 
for  such  a  length  of  time  as  to  make  it 
liable  for  injury  to  animals  coming  upon 
the  track,  is  a  question  of  fact  for  the  jury. 
Perry  v.  Dubuque  S.  W.  R.  Co.,  36  Iowa  102. 

544.  Defective  public  crossing.— 
If  the  approaches  to  a  railway  at  a  high- 
way crossing  are  not  built  exactly  opposite 
each  other,  it  is  a  question  for  the  jury 
whether  the  defect  is  such  as  to  render  the 
company  liable  for  stock  killed  at  the  cross- 
ing. Meeker  v.  Chicago,  M.  <S-  St.  P.  R. 
Co.,  19  Am.  &*  Eng.  R.  Cas.  477,  64  Iowa 
641,21  N.  IV.  Rep.  120. 

In  crossing  a  railroad  track  at  a  crossing 
the  horse  which  plaintiff  was  driving  caught 
his  foot  in  the  space  between  the  rail  and 
the  plank  on  the  crossing  and  fell  on  the 
track.  Plaintiff  alighted  and  endeavored 
for  about  two  minutes  to  extricate  the  foot, 
when  a  train  came  along  and  broke  the 
horse's  leg.  In  a  suit  for  damages  the  court 
nonsuited  plaintiff,  invoking  the  rule  that 
he  should  have  "  stopped,  looked,  and 
listened,"  before  approaching  the  crossing. 
Held,  that  the  rule  was  not  applicable  to 
the  case;  that  the  true  question  was 
whether  the  company  was  guilty  of  negli- 
gence in  allowing  the  track  at  the  crossing 
to  be  in  an  insecure  condition ;  and  that 
this  question  should  have  been  submitted 
to  the  jury.  Baughman  v.  Shenango  &*  A. 
R.  Co.,  6  Am.  &'  Eng.  R.  Cas.  51,  92  Pa.  St. 
335.  37  -^w-  R^P'  690.— Distinguishing 
North  Pa.  R.  Co.  v.  Heileman,  49  Pa.  St.  Co ; 
Hanover  R.  Co.  v.  Coyle,  55  Pa.  St.  396; 
Pennsylvania  R.  Co.  v.  Beale,  73  Pa.  St.  504. 


im 


ANIMALS,  INJURIES  TO,  545-547. 


327 


Whether  a  company  has  been  negligent 
in  not  keeping  its  cattle-guards  clear  of 
snow  and  ice  is  a  question  for  the  jury  to 
determine  from  all  the  circumstances  of  the 
case ;  and  the  location  of  the  road^  position 
and  condition  of  the  cattle-guards,  as  well 
as  the  number  of  animals  which  might 
reasonably  be  supposed  to  be  running  at 
large,  nd  the  prevailing  storms  and  the 
nature  and  character  of  the  weather  are 
among  the  facts  which  may  be  taken  in 
consideration.*  IVat't  v.  Bennington  &»  R. 
R.  Co.,  6 1  Vt.  268,  17  Atl.  Rep.  284. 

545.  Negligence  with  respect  to 
speed. — No  rate  of  speed  is  negligence  as 
a  matter  of  law.  Potter  v.  Hannibal  &»  St. 
J.  R.  Co.,  18  Mo.  Afip.  694. 

It  is  a  question  for  the  jury  to  determine 
whether  the  injury  was  caused  by  the  un- 
lawful rate  of  speed  of  the  train,  or  whether, 
under  the  circumstances,  it  rould  have  been 
avoided  if  the  train  had  been  running  at  the 
rate  of  not  more  than  six  miles  an  hour. 
Louisn/ille,  N.  O.  &*  T.  R.  Co.  v.  Caster,  (M/ss.) 

5  So.  Rep.  388. 

Where  it  is  sought  to  show  negligence  in 
the  rate  of  >peed  at  which  a  train  was  run- 
ning when  cattle  were  killed,  it  is  proper  to 
Inquire  whetiier,  under  all  the  circumstances 
of  the  case,  the  defendants  exercised  rea- 
sonable and  proper  care  in  '-unning  their 
engine  to  avoid  injury  to  plainiiff's  cattle; 
but  it  is  not  proper  to  inquire  wl;ether  the 
train  at  the  particular  time  and  pkce  was 
running  faster  than  usual,  and  if  so,  why. 
All  facts  going  to  show  a  want  of  proper 
care  should  be  left  to  the  consideration  of 
the  jury.  Centra/  Ohio  R.  Co.  v.  Lawrence, 
13  Okio  St.  66.— Following  Cleveland.  C. 

6  C.  R.  Co.  V.  Elliott,  4  Ohio  St.  474.  Quot- 
ing Cincinnati,  H.  &  D.  R.  Co.  v.  Waterson, 
4  Ohio  St.  434. 

In  an  action  for  killing  a  mule  on  the 
track  the  evidence  showed  that  the  mule  was 
about  the  color  of  earth  and  was  fastened 
in  a  culvert,  but  it  did  not  appear  how  much 
of  the  mule  was  above  the  track ;  and  that 
it  was  night-time,  and  there  was  no  evidence 
to  show  how  far  the  headlight  would  shine, 
which  was  shown  to  be  of  the  best  kind  and 
in  good  order ;  but  the  evidence  did  show 
that  by  its  light  the  engineer  could  not  see 
more  than  thirty  yards  distant,  and  that  he 
could  not  stop  the  train  in  less  than  forty 
rods.    Held,  that  the  question  of  negligence 

«Seeoif/<,  169. 


in  running  a  train  at  a  rate  of  speed  so  that  it 
could  not  be  stopped  after  seeing  the  mule 
was  for  the  jury.  Memphis  &*  C.  R.  Co.  v. 
Zytf«,  62  .^/rt.  71.— Followed  in  Alabama 
G.  S.  R.  Co.  V.  Jones,  15  Am.  &  Eng.  R. 
Cas.  549,  71  Ala.  487.  Qualified  in  Ala- 
bama G.  S.  R.  Co.  V.  Moody,  92  Ala.  279. 

546.  Wilful  negligence.—  In  an  ac- 
tion for  wilfully  killing  plaintitl's  cow,  a 
witness  for  the  plaintitf  testified  that  the 
train  came  almost  to  a  stop  about  a  thou- 
sand feet  from  the  crossing  where  the  cow 
was  standing;  that  she  could  be  seen  by 
one  upon  the  engine  for  a  half-mile;  that 
the  train  started  up  and  increased  its  speed 
to  thirty  miles  an  hour  until  it  struck  the 
cow,  and  then  ran  much  slower ;  that  the 
engineer  was  looking  out  of  the  cab  in  the 
direction  of  the  crossing,  but  gave  no  sig- 
nal and  made  no  attempt  to  frighten  her 
from  the  track.  The  engineer  testified  that 
he  did  not  see  the  cow  in  time  to  avoid 
striking  her,  that  he  tried  to  stop  his  en- 
gine, and  that  he  did  not  intend  to  kill  her. 
Held,  that  it  was  error  to  withdraw  the  case 
from  the  jury,  as  it  was  for  them  to  say 
whether  the  killing  was  wilful.  Overton  v. 
Indiana,  B.  (S-  \V.  R.  Co.,  i  Ind.  App.  436, 
27  N.E.Rep.  651. 

547.  Proximate  cause. — (i)  Gener- 
ally.— Whether  the  failure  to  ring  a  bell, 
sound  a  whistle,  or  the  excessive  rate  of 
speed  at  which  a  train  is  running  through 
the  streets  of  a  city  was  the  proximate  cause 
of  an  injury  to  an  animal,  is  a  question  of 
fact  for  the  jury.  Ohio  &*  M.  R.  Co.  v. 
Crayeraft,  5  Ind.  App.  335,  32  N.  E.  Rep. 
297.  Chica^i^o.  St.  L.  &•  P.  R.  Co.  v.  Fenn,  3 
Ind.  App.  250,  29  iV.  E.  Rep,  790. 

It  is  a  question  for  the  jury  to  say 
whether  a  failure  to  blow  a  whistle  to 
frighten  stock  away  that  are  seen  on  the 
right  of  way,  but  not  on  the  track,  is  negli- 
gence, as  the  duty  to  blow  a  whistle  is  not 
imperative  in  all  cases.  Louisville,  N.  &* 
G.  S.  R.  Co.  V.  Reidmond,  13  Am.  &•  Eng. 
R.  Cas.  515,  II  Lea  {Tenn.)  205. — Ap- 
proved IN  East  Tenn.,  V.  &  G.  R.  Co. 
V.  Bayliss,  77  Ala.  429,  54  Am.  Rep.  69. 

Those  in  charge  of  a  train  have  a  right 
to  sound  a  whistle,  to  give  notice  of  its 
approach  both  to  the  people  that  may  be 
about  street  crossings  and  to  the  station 
agent,  when  the  train  is  nearing  a  station  ; 
but  where  such  sounding  of  the  whistle 
frightens  horses  at  a  street  crossing  and 
causes  them  to  run  on  the  track,  the  ques- 


s   m 


328 


ANIMALS,  INJURIES   TO,  548. 


«% 


liMei 

WW  as;* 


tion  of  whether  the  right  to  sound  the 
whistle  was  abused  is  for  the  jury,  and  if  an 
abuse  of  the  right  is  found,  as  to  whether 
the  negligence  caused  the  injury.  Mayer 
V.  New  York  C.  &>  H.  R.  R.  Co.,  8  N.  Y. 
Supp.  461. 

Where  all  the  circumstances  connected 
with  tiie  striking  of  an  animal  by  a  train, 
including  the  illegal  rate  of  speed  of  the 
train,  are  in  evidence,  it  is  proper  to  sub- 
mit to  the  jury  whether  the  animal  was 
struck  by  reason  of  such  illegal  rate  of 
speed.  Backenstoe  v.  Wabash,  St.  L.  &•  P. 
R.  Co.,  23  Mo.App.  148;  affirmed  86  Mo. 
492,  I  West.  Rep.  743. 

In  an  action  for  the  value  of  a  colt  killed 
by  a  passing  train  in  a  cattle  guard  which 
was  filled  with  snow — held,  that  the  question 
whether  the  condition  of  the  cattle-guard 
in  that  respect  was  the  proximate  cause  of 
the  injury  was,  under  the  evidence,  properly 
submitted  to  the  jury.  Giger  v.  Chicago, 
Sr*  N.  W.  R.  Co.,  80  Iowa  492,  45  N.  W. 
Rep.  906. 

(2)  Illustrations. — Plaintiff  sued  to  re- 
cover for  a  horse  killed  on  the  track,  which 
went  thereon  through  a  gate  which  the 
company  was  bound  to  maintain.  Plain- 
tiff and  his  servant  testified  that  the  gate 
had  stood  open  most  of  the  time  for  some 
two  years  by  reason  of  its  being  so  sagged 
that  it  would  not  close,  and  that  they 
always  kept  it  closed  as  long  as  it  was  in 
proper  condition.  The  defendant  intro- 
duced evidence  tending  to  show  that  the 
sagging  was  caused  by  plaintiff  leaving  it 
open.  Held,  that  it  was  proper  to  submit 
to  the  jury  the  question  of  plaintiff's  care 
in  using  the  gate,  and  also  whether  the 
company's  negligence  in  not  repairing  it 
was  the  sole  cause  of  the  injury.  Taft  v. 
New  York,  P.  &•  B.  R.  Co.,  157  Mass.  297, 
yzN.E.Rep.  168. 

Where  stock  go  upon  the  track  over  a 
fence  which  has  been  erected  by  the  com- 
pany, and  are  killed,  and  the  evidence  does 
not  conclusively  show  that  a  fence  such  as 
the  law  requires  would  not  have  turned  the 
cattle,  it  is  for  the  jury  to  determine 
whether  the  failure  of  the  company  to  have 
such  a  fence  was  the  cause  of  the  injury. 
Alexander  v.  Chicago,  M.  &»  St.  P.  R.  Co., 
41  Minn.  515,  43  N.  W.  Rep.  481. 

Plaintiff  was  driving  i.  a  highway  beside 
the  railroad  track,  and  his  horses,  becoming 
frightened  by  a  passing  train,  got  beyond 
his  control,  ran  upon  the  track,  and  were 


injured.  Held,  that  it  was  proper  to  leave 
to  the  jury  the  question  whether  or  not  the 
failure  to  fence  the  road  was  the  proximate 
cause  of  the  injury.  Maker  v.  Winona  &* 
St.  P.  R.  Co.,  13  Am.  &>  Eng.  R.  Cas.  572, 
31  Afinn.  401,  18  N.  W.  Rep.  105. — Fol- 
lowing Nelson  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  30  Minn.  74. 

In  an  action  against  a  railroad  company, 
under  Missouri  Rev.  St.  §  806,  for  killing 
live  stock  at  a  public  crossing,  alleged  to 
have  been  caused  by  failure  to  give  the 
statutory  signals,  where  there  is  no  evi- 
dence to  show  anything  to  hinder  the  ani- 
mal from  escaping,  it  is  proper  to  leave  it 
to  the  jury  to  find  whether  the  killing  was 
due  to  such  failure.  Kendrick  v.  Chicago 
&'  A.  R.  Co.,  81  Mo.  521.— Approved  in 
Keim  v.  Union  R.  &  T.  Co.,  90  Mo.  314. 

A  township  highway,  unguarded  by  bar- 
riers, lay  between  two  railroads,  the  fills  of 
which  crowded  it  somewhat  on  either  side. 
The  plaintiffs'  cattle,  driven  thereon,  were 
frightened  by  a  train  on  one  railroad  and 
ran  off  upon  the  track  of  the  other  railroad, 
where  they  were  struck  by  a  locomotive 
and  killed.  In  trespass  against  the  town- 
ship, the  questions  whether  the  defendant 
was  negligent  in  not  providing  barriers,  and 
whether  the  absence  of  the  latter  was  the 
proximate  cause  of  the  injury,  were  prop- 
erly submitted  to  the  jury.  Ewing  v.  North 
Versailles  Tp.,  146  Pa.  St.  309,  23  Atl.  Rep. 
338.— Distinguishing  West  Mahanoy  Tp. 
V.  Watson,  112  Pa.  St.  574. 

648.  Place  of  entry.— Where  the  evi- 
dence tends  to  show  that  plaintiff's  animals 
went  upon  defendant's  road  at  a  point 
where  it  was  the  duty  of  defendant  to  fence, 
it  is  prof)er  to  overrule  a  demurrer  to  the 
whole  evidence  and  submit  the  case  to  the 
jury.  Emmerson  v.  St.  Louis  &•  H.  R.  Co., 
35  Mo.  App.  621. 

Where  the  evidence  showed  that  there 
were  two  points  in  the  fence  at  which  the 
stock  sued  for  could  have  entered  upon  the 
railroad  tracks,  but  did  not  positively  or  in 
any  direct  manner  show  at  which  of  these 
twj  places  the  entry  had  actually  been 
made,  it  was  held  that  it  was  for  the  jury 
to  determine  the  point  of  actual  entry. 
Jones  V.  St.  Louis,  I.  M.  &^  S.  R.  Co.,  ^Mo. 
App.  IS. 

In  an  action  for  killing  stock,  whether 
the  place  where  the  plaintiff's  animals 
strayed  upon  the  defendant's  railway  track 
was  not  only  within  the  claimed  station 


ANIMALS,  INJURIES   TO,  54»-r,rt3. 


329 


grounds  and  switch  limits,  but  also  whether 
such  grounds  were  necessary  for  the  com- 
pany in  conveniently  and  safely  transacting 
its  business,  and  for  the  accommodation  of 
the  public  transacting  business  at  the  sta- 
tion, is  a  question  for  the  jury.  Straub  v. 
Eddy,  47  Mo.  A  pp.  189. 

If  the  evidence  shows  that  there  was  no 
fence  on  the  side  of  the  railroad  track  at  a 
point  on  the  same  where  by  law  a  fence 
was  required,  and  that  at  that  point  the 
animal  was  killed,  that  is  sufficient  evidence, 
nothing  more  appearing,  upon  which  to 
submit  to  a  jury  the  question  whether 
or  not  the  animal  got  upon  the  track  at  the 
point  at  whicii  there  was  no  fence,  and 
direct  proof  of  such  fact  is  not  necessary. 
Ehret  v.  Kansas  City,  St.  J.  &•  C.  B.  R.  Co., 
20  Mo.  App.  251.— Applied  in  Miller  v. 
Wabash  R.  Co.,  47  Mo.  App.  630.  Fol- 
lowed IN  Pearson  v.  Chicago,  B.  &  K.  C. 
R.  Co.,  33  Mo.  App.  543.  Quoted  in  Wal- 
ton V.  Wabash  W.  R.  Co.,  32  Mo.  App.  634. 

Stock  went  from  plaintiff's  lands  to  ad- 
joining lands,  whicli  were  occupied  by  him 
and  another  person  in  common,  and  thence 
to  a  wood-yard  which  plaintifi  had  leased 
to  the  railroad  company,  and  thence  to 
the  track  and  were  injured.  There  was 
no  express  agreement  between  plaintifi  and 
the  railroad  company  as  to  who  should 
fence  the  wood-yard,  or  as  to  whether  the 
company's  use  should  be  exclusive.  Held, 
under  these  circumstances  the  court  sliould 
leave  it  to  the  jury  to  say  whether  the  com- 
pany was  in  the  exclusive  use  of  the  wood- 
yard,  and  whether  the  stock  escaped  from 
adjoining  lands  to  the  wood-yard  through  a 
defective  fence  which  the  company  was 
bound  to  repair.  Holden  v.  Rutland  Or*  B. 
R.  Co.,  30  yt.  297. 

Ill  an  action  to  recover  for  the  killing  of 
plaintiff's  ox  by  reason  of  defendant's  fail- 
ure to  fence  its  right  of  way,  the  testimony 
of  plaintiff  that  there  were  ox  tracks  lead- 
ing from  the  west  across  a  ditch,  up  an  em- 
bankment, and  across  the  side-track  of  a 
railroad  to  the  main  track,  where  the  ox 
was  killed,  and  that  he  found  no  cattle 
tracks  at  any  other  place  on  the  right  of 
way,  warranted  the  submission  to  the  jury 
of  tlie  question  whether  the  ox  came  upon 
the  right  of  way  at  the  point  where  such 
tracks  were  seen.  Dinwoodie  v.  Chicago,  M. 
<S-  St.  P.  R.  Co.,  70  Wis.  160,  35  N.  fV.  Rep. 
296. 
540.  Place  of  killing.—The  question 


whether  the  kiliini;  of  an  animal  was  on  a 
public  highway  is  simply  one  of  fact,  to  be 
fairly  submitted  to  the  jury  under  proper 
instructions.  Chaney  v.  IVadas/t,  St.  L.  &- 
P.  R.  Co.,  18  Mo.  App.  661. 

Where  suit  is  under  Wagn.  Missouri  St. 
310,  to  recover  for  stock  killed,  it  is  error  to 
refuse  to  leave  to  the  jury  the  question 
whether  the  killing  occurred  at  a  place 
where  the  road  passed  through  inclosed  or 
uninciosed  lands.  Mumpower  v.  Hannibal 
&*  St.  J.  R,  Co.,  59  Mo.  245. 

550.  Whether  accident  was  un- 
avoidable.*—In  an  action  for  killing  a 
cow  it  was  not  error  to  refuse  to  charge: 
"  If  plaintiffs  cow  fe\l  down  a  bank  and 
rolled  under  the  train  after  the  engine 
passed  her,  or  if  the  cow  jumped  on  the 
track  fifteen  feet  in  front  of  the  engine, 
then  the  accident  was  unavoidable,  and  the 
company  is  not  liable.  The  question  of  the 
company's  negligence  is  for  the  jury.  Selnia 
R.  &*  D.  R.  Co.  v.  Fleming,  48  Ga.  514. 

561.  Whether  evidence  rebuts 
presumption  of  ne{;iigrence.t— In  an 
artion  to  recover  damages  for  killing  stock 
proof  of  the  killing  makes  out  a  prima- 
facie  case  for  the  plaintiff,  and  the  suffi- 
ciency of  the  evidence  to  rebut  the  pre- 
sumption of  negligence  is  a  question  for  the 
jury  ;  hence,  the  general  charge  in  favor  of 
the  defendant  is  properly  refused.  Savan- 
nah &*  IV.  R.  Co.  v.Jarvis,  95  Ala.  149. 

552.  Whether  land  was  necessary 
for  depot  purposes.— Whether  the  de- 
fendant's right  of  way  at  a  point  sixty  rods 
from  the  station  building,  where  there  was 
a  side-track  in  addition  to  the  main  track, 
was  necessary  or  convenient  and  actually 
used  for  loading  or  unloading  freight,  so  as 
to  make  it  a  part  of  the  depot  grounds,  and 
thus  relieve  the  company  from  the  duty  of 
fencing,  was  a  question  for  the  jury.  Din- 
woodie v.  Chicago,  M.  &*  St.  P.  R.  Co.,  70  IVis. 
160, 35  N.  W.  Rep.  296.— Reviewing  Fowler 
V.  Farmers'  L.  &  T.  Co.,  21  Wis.  78.— Dis- 
tinguished IN  Jaeger  v.  Chicago,  M.  &  St. 
P.  R.  Co.,  40  Am.  &  Eng.  R.  Cas.  194,  75 
Wis.  130.  Reviewed  in  Anderson  v. 
Stewart,  76  Wis.  43. 

553.  Whether  it  was  possible  to 
fence. — Under  evidence  that  a  cow  was 
killed  by  a  train  of  cars  outside  of  the  cor- 
porate limits  of  a  town,  and  adjacent  to  the 


•See  antf,  52,  5.3,  466,  515. 
t  See  ante,  490-494. 


i 


m 


330 


ANIMALS,  INJURIES   TO,  534-550. 


9Bmt 


m 


railroad  station,  at  a  place  used  by  tiic  rail- 
road for  switching  purposes  in  connection 
with  its  station  grounds,  the  court  cannot 
declare,  as  a  matter  of  law,  that  the  railroad 
company  was  not  bound  to  fence  its  tracks. 
The  question  whether  the  company  could 
fence  without  great  inconvenience  is  one  of 
fact.  Bean  v.  .SV.  Lou/s,  I.  M.  <S-  S.  R.  Co., 
20  Mo.  App.  641.— Followed  in  Branden- 
burg V.  St.  Louis  &  S.  F.  R.  Co.,  44  Mo. 
App.  224. 

564.  Weight  of  evidence  and  cred- 
ibility of  witnesses.  —  The  Kentucky 
statute,  making  the  fact  of  stock  being 
killed  by  railroads  prima-facie  evidence  of 
negligence,  does  not  raise  any  presumption 
that  persons  in  charge  of  the  train  who 
testified  as  to  the  cause  and  manner  of 
the  killing  swore  falsely.  Their  evidence 
should  go  to  the  jvry,  who  are  to  determine 
whether  such  evidence  is  siifRcient  to  rebut 
the  ^r/wayVif/f  presumption  of  negligence 
created  by  the  statute.  Crundy  v.  Louisville 
<S-  A^.  y?.  Co.,  {Ky.)  2  S.  W.  Rep.  899. 

Plaintiff's  horse  was  found  with  a  broken 
leg,  and  he  sued  the  railroad  company,  and 
at  the  trial  produced  no  witnesses  who  saw 
the  animal  injured,  but  proved  marks  tend- 
ing to  show  that  the  horse  had  been  struck 
and  had  dragged  along  the  track  for  some 
distance.  The  company's  fireman  and  en- 
gineer testified  that  the  horse's  leg  was 
broken  in  a  water-gap.  Held,  that  the  jury 
had  a  right  to  believe  plaintiff's  evidence 
and  disbelieve  the  fireman  and  engineer, 
and  to  find  a  verdict  for  plaintiff.  New  Or- 
leans, M.  (S-  T.  R.  Co.,  V.  Toulmi,  59  Miss. 
284.— Distinguishing  Chicago,  St.  L.  &  N. 
O.  R.  Co.  V.  Packwood,  59  Miss.  280. 

The  evidence  of  a  witness  who  testified 
that  the  stock  Jdlled  were  worth  $140,  but 
admitted  on  cross-examination  that  he 
appraised  them  at  $100  when  he  thought 
the  claim  would  be  paid  without  suit,  should 
not,  for  that  reason,  have  been  excluded,  but 
should  have  been  allowed  to  go  to  the  jury 
for  what  it  was  worth.  Maberry  v.  Missouri 
Pac.  R.  Co.,  83  Mo.  664. 

In  an  action  to  recover  for  injuries  to  a 
horse,  the  owner  and  another,  the  rider,  tes- 
tified to  injuries  that  would  have  justified  a 
verdict  for  a  substantial  sum,  but  it  appeared 
that  a  veterinary  surgeon,  who  was  called  on 
soon  after  the  accident  to  treat  the  horse, 
did  not  discover  any  such  injuries.  The 
jury  awarded  the  plaintiff  a  verdict,  and 
fixed  his  damages  at  six  cents.    Held,  that 


the  cre<lit  to  be  given  the  witnesses  was  for 
the  jury,  and  that  the  verdict  should  not  be 
disturbed.  O'Neill  v.  Brooklyn  Heights  R. 
Co.,7\  Hun{N.  Y.)  114. 

In  an  action  for  killing  stock  trespassing 
upon  defendant's  right  of  way  the  jury  is 
not  obliged  to  accept  as  conclusive  the  posi- 
tive evidence  of  the  engineer  that,  although 
he  was  looking  forward  along  the  track,  he 
did  not  see  such  stock  until  within  twenty- 
five  or  thirty  feet  of  them,  if  they  believe 
from  other  evidence  that  at  the  time  of  the 
accident  it  was  so  light  as  to  render  such 
statement  improbable.  Lighthouse  v.  Chi- 
cago, M.  6-  St.  P.  R.  Co.,  (S.  Dak.)  54  A^.  W. 
Rep.  320. 

555.  Verdict  and  findings— Inter- 
pretation and  eftfeflt.— Where  there  is 
a  conflict  of  evidence  <>s  to  whether  an  en- 
gineer had  seen  animals  on  the  track  in 
time  to  have  stopped  the  train,  a  verdict  for 
the  plaintiff  decides  the  question  in  his  favor 
as  to  whether  a  failure  to  give  the  statutory 
signals  was  the  proximate  cause  of  the  injury, 
though  the  stock  may  have  been  on  the 
track  through  plaintiff's  want  of  care. 
Orcutt  v.  Pacific  Coast  R.  Co.,  85  Cal.  291, 24 
Pac.  Rep.  661. 

Where  it  appears  that  plaintiff's  land 
did  not  adjoin  the  railroad  company's,  and 
that  the  highway  was  uninclosed  on  either 
side,  so  that  a  want  of  gates  could  not  have 
occasioned  the  death  of  plaintiff's  ox,  a  ver- 
dict acquitting  the  company  of  negligence 
in  not  having  gates  will  bar  a  recovery  for 
killing  the  ox.  Jack  v.  Ontario,  S.  &*  H.  R. 
Co.,  14  U.  C.  Q.  B.  328. 

A  finding  that  animals  entered  upon  the 
railroad  track  "  at  a  point  where  the  railroad 
crosses  a  cartway  or  private  way  known  as 
McQuiddy's  crossing,"  is  equivalent  to  a 
finding  that  the  entrance  was  effected  at  a 
private  farm  crossing.  Louisville,  N.  A.  &* 
C.  R.  Co.  V.  Eizler,  40  Am.  6-  Eng.  R.  Cas. 
205,  1 19  Ind.  39,  If)  N.E.  Rep.  615,  21  A''.  E, 
Rep.  466. 

556.  SuflBciency  of  form  of  ver- 
dict.— In  an  action  for  double  damages  for 
killing  stock,  an  instruction  that  if  the  stock 
got  upon  the  track  at  a  place  where  defend- 
ant failed  to  maintain  a  lawful  fence,  or  at 
a  necessary  farm  crossing  where  defendant 
had  failed  to  erect  and  maintain  a  gate  four 
and  one-half  feet  high,  with  a  latch  or  hook, 
and  were  killed  by  defendant's  cars,  the 
verdict  should  be  for  plaintiff,  is  defective 
in  not  stating  that  the  killing  or  damage 


ANIMALS,  INJURIES  TO,  r..-»7-.-»«H. 


331 


must  have  been  caused  by  leasun  ut  tbc 
failure  of  defendant  to  so  erect  and  main- 
tain such  fence  or  gate.  Montgomery  v. 
Wabash,  St.  L.  6-  P.  R.  Co.,  90  Afo.  446,  2 
S.  W.  Rep.  409. 

557.  Special  verdict.— In  an  action 
against  a  railroad  company  for  negligently 
killing  an  animal  on  a  public  crossing,  be- 
cause of  Its  failure  to  blow  the  whistle  or 
ring  the  bell,  the  special  verdict  must  show 
that  tne  animal  was  on  or  ut  the  crossing 
when  killed.  Lake  Shore  &*  M.  S.  R.  Co.  v. 
Van  Auken,  i  Ind.  App.  492,  27  N.  E.  Rep. 
119. 

558.  Special  flndlniir.— The  evidence 
tended  to  snow  that  when  theanimals  came 
to  the  gateways  in  a  fence  they  could  freely 
pass  in  and  along  the  right  of  way  to  where 
the  fence  was  close  to  the  track,  so  that  they 
could  not  retreat  into  the  open  field  upon 
the  approach  of  a  train.  The  gates  were 
subject  to  ihe  defendant's  control,  and  after 
the  killing  of  the  stock  the  defendant  made 
and  enforced  a  rule  to  the  effect  that,  if  the 
said  gates  were  not  kept  closed  and  locked 
by  those  who  used  them,  the  railroad  com- 
pany would  nail  them  up.  The  conditions 
were  favorable  for  the  construction  of  cattle- 
guards  which  would  obviate  the  necessity 
of  any  gates  at  Jl.  It  was  shown  to  the 
jury  that  the  fence  with  the  said  gates  might 
be  less  safe  than  no  fence  at  all,  and  that 
the  defendant's  employes  knew  that  the 
gates  were  open.  Held,  that  a  special  find- 
ing of  the  jury  that  the  defendant  was  neg- 
ligent in  not  keeping  the  said  gates  closed 
and  locked  was  not  unreasonable  or  ground- 
less in  its  premises.  Mc Master  v.  Montana 
Union  R.  Co.,  56  Am.  &*  Eng.  R.  Cas.  195, 
12  Mont.  163,  30  Pac.  Rep.  268. 

559.  Motion  for  judgment  non  ob- 
stante veredicto. — Where  there  was  a 
verdict  upon  a  complaint  charging  a  wilful 
injuring,  and  were  interrogatories  sub- 
mitted to  the  jury  relating  wholly  to  the 
diligence  of  the  trainmen  and  the  train's 
coming  in  contact  with  the  colt,  a  motion 
for  judgment  non  obstante  was  correctly 
overruled.  Ft.  Wayne,  C  .&>  L.  R.  Co.  v. 
O'Keefe,  4  Ind.  App.  249,  30  N.  E.  Rep.  916. 

b.  Instructions.* 

560.  Interpretation.— Where  an  in- 
struction informed  the  jury  that,  in  an  action 

*  Proper  instruction  on  question  of  negligence, 
in  action  for  killing  stock,  see  40  Am.  &  Eng.  R. 
Cas.  188,  abstr. 


for  killing  stock,  plaintiff's  damage  would  be 
the  "  assessed  value  "  of  the  cattle,  and  there 
was  no  proof  of  any  assessment  of  their 
value— ^^/d/,  that  these  words  must  have 
been  used  and  understood  as  the  value 
proved  or  estimated  by  the  jury  from  the 
evidence  before  them.  Ohio  (S-  M.  R.  Co.v. 
Clutter,  ^2  III.  123. 

In  an  action  to  recover  double  the  value 
of  stock  killed,  under  the  statute,  after 
there  was  evidence  showing  that  a  tender 
had  been  made,  the  jury  were  instructed  that 
if  the  stock  were  worth  more  than  the 
amount  tendered,  then  ihcy  should  return  a 
verdict  for  double  their  value.  Held,  that 
this  was  equivalent  to  saying  that  the  plain- 
tiff had  the  burden  of  proof  to  show  that 
they  were  worth  more  than  the  amount 
tendered.  Scott  v.  Chicago,  M.  &*  St.  P.  R, 
Co.,  78  Io7va  199,  42  N.  W.  Rep.  645. 

A  statute  making  railroad  companies 
liable  for  injury  to  stock  had  a  proviso  that 
"  this  act  shall  not  apply  to  any  railroad 
company  or  corporation  *  *  ♦  whose  road 
is  inclosed  with  a  good  and  lawful  fence,  to 
prevent  such  animal  from  being  on  such 
road."  The  court,  after  quoting  the  statute, 
charged  the  jurj'  that  it  "  does  not  apply  to 
any  railway  or  corporation  *  *  *  whose  road 
is  inclosed  with  a  good  and  lawful  fence 
which  prevents  such  animals  from  being  on 
such  road."  //>/</,  that  the  words  "which 
prevents,"  as  used  by  the  court,  instead  of 
the  language  "  to  prevent,"  did  not  mislead 
the  jury.  Missouri  Pac.  R.  Co.  v.  Eckel,  56 
Am.  &*  Eng.  R.  Cas.  174,  49  Kan.  794,  31 
Pac.  Rep.  693. 

501.  What  instructions  are  proper, 
generally. — In  an  action  for  killing  stock 
it  appeared  that  the  train  was  running  some 
twenty-five  miles  per  hour  on  a  starlight 
night,  and  could  have  been  stopped  by 
proper  appliances  in  less  than  one  hundred 
and  twenty  yards;  that  the  headlight  only 
enabled  the  engineer  to  see  some  sixty 
yards  ahead ;  and  that  the  stock  killed  could 
have  been  seen  in  time  to  have  prevented 
the  injury  if  a  proper  headlight  had  been 
provided.  Held,  that  an  instruction  that  if 
the  jury  believed  this  evidence  they  might 
find  the  company  guilty  of  negligence,  was 
proper.  Alabama  G.  S.  R.  Co.  v.  Jones,  1 5 
Am.  6-  Eng.  R.  Cas.  549,  71  Ala.  487. 

The  company  is  liable  for  ordinary  negli- 
gence towards  stock  on  its  track  without 
default  of  the  owner,  and  the  omission  of 
the  word  "  gross  "  before  the  word  "  negli- 


V    ' 


r 
I 


! 


332 


ANIMALS,  INJURIES   TO,  ft«2,  5«;i. 


g 


-"^'i 

s 

M^ 

gence  "  in  an  instruction  in  such  a  cusc  is 
not  error.  Kichmond  &*  I).  A.  Co.  v.  AW/, 
86  ya.  19,  13  Frt.  L.y.  320,  9  5.  A".  A'ep.  473. 
Where  there  is  evidence  sug(;estive  of 
such  u  theory,  the  court  may  instruct  the 
jury  that  if  a  whistle  was  blown  to  frigliten 
an  animal,  and  not  to  keep  it  away  from  a 
railr(<ad  track,  this  could  be  considered. 
Central  R.  &»  B.  Co.  v.  HolUnshead,  81  Ga. 
208,7  S.  E.  Rep.  172. 

Where  stock  are  killed  through  what  isal- 
lefjed  to  have  been  a  want  of  ordinary  care, 
it  is  proper  to  instruct  the  jury  that,  in  de- 
termining whether  there  was  a  want  of 
ordinary  care,  they  may  consider  the  fact 
that  a  crossing  was  in  such  a  condition  as 
to  make  it  more  than  ordinarily  dangerous. 
Ktihn  V.  Chicago,  R.  I.  Sf  P.  R.  Co.,  42  Iowa 
420. 

The  Kansas  act  of  1870,  §  i,  providing 
"that  railroads  shall  be  liable  for  all  dam- 
ages done  to  persons  or  property  when 
done  in  consequence  of  any  neglect  on  the 
part  of  the  railroad  companies,"  changes 
the  rule  of  law  as  to  the  liability  of  such 
companies,  and  a  failure  to  use  ordinary 
care  will  make  it  liable,  and  an  instruction 
so  stating  the  law  is  correct.  St.  Joseph  &• 
D,  C.  R.  Co.  V.  Graver,  \  i  Kan.  302. 

An  instruction  that  the  defendant  was 
liable  if  its  locomotive  killed  the  plaintiff's 
heifer  at  a  point  on  the  track  where  there 
was  no  fence,  but  where  the  defendant  was 
required  by  law  to  maintain  a  fence,  while 
it  does  not  literally  follow  the  statutory 
condition  that  the  animal  came  upon  the 
track  at  such  a  point,  is  yet  not  open  to 
fatal  objection,  since  it  does  not  materially 
affect  the  merits  of  the  action  when  the 
natural  and  reasonable  inference  from  all 
the  testimony  is  that  the  animal  got  upon 
the  track  at  an  unfenced  point  where  a 
fence  was  required  by  law.  Vaughan  v. 
Kansas  City,  S.  &*  M.  R.  Co.,  34  Mo.  App. 
141. 

602.  Instriictions  relating  to  duty 
to  ffive  HignalH. — If  an  engineer  sees  a 
horse  within  a  few  feet  of  the  track  and 
running  parallel  with  it,  under  such  circum- 
stances as  indicate  danger  of  his  going  on 
the  track,  it  is  the  engineer's  duty  to  use 
reasonable  means  to  frighten  him  away, 
and  an  instruction  so  stating  the  law  is  cor- 
rect. Alabama  G.  S.  R.  Co.  v.  Poivers,  19 
Am.  &*  Eng.  R.  Cas.  502,  73  Ala.  244. 

It  is  proper  to  instruct  the  jury  that  the 
law  prescribes  a  different  rule  as  to  the 


safety  of  animals  seen  <^n  the  track  from 
that  provided  when  intelligent  human  be- 
ings are  seen.  When  the  latter  are  seen  it 
may  be  presumed  that  they  will  leave  the 
track  in  time,  but  not  so  with  dumb  ani- 
mals, and  in  addition  to  sounding  a  wh'nle 
the  brakes  should  be  applied  and  the  train 
slowed  or  stopped,  if  necessary  to  prevent 
injury.  Alabama  G.  S.  R.  Co.  v.  Powers, 
19  Am,  6-  Eng.  R.  Cas.  502,  73  Ala.  244. 

An  instruction  to  find  for  plaintiff  if  the 
jury  believe  that  the  cow  was  struck  by  de- 
fendant's engine  at  a  crossing,  and  that  a  bell 
was  not  rung  and  a  whistle  was  not  sounded 
at  least  eighty  rods  from  such  crossing,  is 
not  objectionable  as  imposing  upon  the 
company  the  duty  of  ringing  the  bell  and 
sounding  the  whistle  eighty  rods  from  the 
crossing.  Braddy  v.  Kansas  City,  Ft.  S.  &• 
M.  R.  Co.,  47  Mo.  App.  519.— Followed  in 
McCormick  v.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.,  50  Mo.  App.  109. 

563.  IiistriictionH  relatinip  to  duty 
to  keep  a  lookout  aud  stop  trains.— 
The  general  charge  stating  that  if  the  com- 
pany had  used  all  reasonable  and  ordinary 
care  and  diligence  to  prevent  the  injury  the 
plaintiff  could  not  recover,  an  instruction 
to  find  out  who  was  upon  the  train,  what 
they  did,  what  kind  of  lookout  they  kept, 
and  whether  the  company's  servants  were 
doing  all  they  could  have  done,  was  not 
erroneous.  Central  R.  &*  B.  Co.  v.  Warren, 
84  Ga.  329,  10  S.  E.  Rep.  918. 

In  this  case  the  jury  found  that  the  engi- 
neer of  the  appellant's  train  was  negligent 
in  that  he  made  no  effort  to  stop  the  train 
before  striking  the  animals.  The  appellant 
claimed  that  the  evidence  showed  that  at  the 
time  and  place  of  the  killing  of  the  animals 
the  condition  of  the  weather  and  the  dark- 
ness were  such  that  the  employes  could  not, 
by  the  exercise  of  ordinary  care,  have  seen 
the  stock  on  the  right  of  way  in  time  to 
avoid  the  accident.  The  testimony  as  to 
the  condition  of  the  weather  at  the  time  of 
the  accident  was  conflicting,  but  it  was 
shown  that  if  the  weather  was  clear  the 
exercise  of  ordinary  care  would  have  re- 
vealed the  presence  of  the  animals  in  time 
to  avert  their  destruction.  The  court 
charged  the  jury  that  it  was  the  "  duty  of 
the  engineer  to  keep  a  lookout  for  obstruc- 
tions on  the  track,  and  to  use  all  appliances 
at  his  command  to  avoid  accident ;  and  if 
he  fails  to  see  an  animal  when  he  should, 
and  thereby  injures  it,  or  if,  seeing  it,  he 


ANIMALS,  INJURIES  TO,  »«4. 


XV\ 


does  not  use  the  appliances  at  his  command 
to  avoid  injuring  it,  then  the  c(inipaiiy  is 
liable,  unless  it  appears  from  the  circum- 
stances surrounding  the  case  that  the  use  of 
these  means  to  stop  the  train  would  injure 
the  lives  of  the  passengers."  /Mii,  that 
the  verdict  of  the  jury  ^vould  not  be  dis- 
turbed and  that  the  instruction  to  the  jury 
was  correct.  Mc Master  v.  Montaua  Union 
K.  Co.,  56  Am.  6-  Eng.  R.  Cas.  195,  12  Mont. 
163.  30  Pac.  Rep.  268. 

An  instruction  given  by  the  court  "that 
if  the  jury  believe  the  train  which  killed  the 
plaintiff's  cows  could  not  have  been  stopped 
after  the  engineer  saw  the  cows  on  the  track 
and  before  they  were  struck,  you  will  find  for 
the  defendant,  provided  the  jury  believe 
from  the  evidence  the  engineer  in  charge  of 
said  train  used  ordinary  diligence,  as  herein 
explained  " — field,  not  erroneous.  Kansas 
City,  Ft.  S.  &»  G.  R.  Co.  v.  Lane,  23  ///«.  &» 
Eng.  R.  Cas.  237,  33  A'an.  702,  7  Pac.  Rep. 

587. 

The  court  charged  the  jury  upon  the  evi- 
dence in  this  case:  (i)  If  the  engineer  saw, 
or  could  have  seen  by  vigilance,  the  plain- 
tiff's mule  upon  the  track  a  quarter  or  half 
a  mile  ahead,  and  could  have  stopped  the 
train  in  time  to  avoid  the  accident,  the 
company  is  guilty  of  negligence;  (2)  if  after 
thus  discovering  the  mule,  it  left  the  track 
a  quarter  of  a  mile  ahead  of  the  train,  and 
the  engineer  had  reason  to  believe  that 
it  was  no  longer  in  danger,  and  afterward 
the  mule  ran  upon  the  track  a  second  time 
and  was  killed,  then  the  company  is  not 
guilty  of  negligence  unless  the  engineer 
could,  by  the  use  of  the  appliances  at  his 
command, have  stopped  the  train  in  time  to 
prevent  the  injury.  HeM,  no  error.  Wilson 
V.  Norfolk  &*  S.  R.  Co.,  19  Am.  &-  Eng.  R. 
Cas.  453,  90  N.  Car.  69. 

504.  Ingtructlons  relating  to  duty 
to  fence. — In  an  action  for  killing  stock, 
an  instruction  is  not  objectionable  which 
fails  to  exclude  all  the  places  excepted  by 
the  statute  from  being  fenced,  where  it  is 
apparent  from  the  testimony  that  the  in- 
jury did  not  occur  in  one  of  the  excepted 
places,  witnesses  having  been  permitted  to 
testify  without  objection  that  the  injury 
happened  at  a  place  where  the  defendant 
was  bound  to  fence  its  road.  Toledo,  P.  &* 
W,  R.  Co.  V.  Parker,  49  ///.  385. 

In  an  action  to  recover  the  value  of  an 
animal  killed  by  the  cars  of  the  defendant 
the  following  instruction  given  to  the  jury. 


applicable  to  the  evidence,  was  correct: 
"  A  railroad  company  is  not  bound  to  build 
and  maintain  a  fence  at  a  point  in  a  town  or 
village  if  by  so  doing  it  will  obstruct  or  in- 
terfere with  the  free  use  of  a  public  street 
in  the  town  or  village  ;  and  it  is  not  hound 
or  required  to  build  and  maintain  a  fence  at 
a  point  that  would  obstruct  a  public  higli- 
way,  or  where  it  will  interfere  in  any  way 
with  the  free  use  of  such  highway,  whether 
such  highway  is  in  a  town  or  village  or  in 
the  country.  Neither  docs  the  law  require 
a  railway  company  to  build  and  maintain  a 
fence  at  a  point  where  by  so  doing  it  will 
interfere  with  the  free  use  of  a  switch  or 
side-track,  constituting  a  part  of  the  road  ; 
nor  is  such  company  bound  to  build  or 
maintain  a  fence  at  a  point  on  its  road  where 
it  will  interfere  with  the  free  use  of  a  piece 
or  parcel  of  ground  kept  and  used  by  the 
company  as  a  coal-  or  wood-yard,  nor  when 
it  will  interfere  with  the  free  use  of  a  yard 
or  lot  kept  for  the  purpose  of  loading  or 
unloading  stavec,  lumber,  timber,  wood,  or 
other  kinds  of  freight  shipped  or  ta  be 
shipped  on  the  cars  of  the  company.  And 
when  there  is  a  mill  or  hay-press  on  or  near 
a  railroad  track,  if  the  maintaining  of  a  fence 
at  or  near  the  mill  or  press  would  interfere 
with  the  free  use  of  the  same,  then  the 
company  is  not  required  to  build  or  main- 
tain a  fence  so  as  to  interfere  with  the  free 
use  of  the  mill  or  press.  And  if  there  is  a 
lot  or  yard  used  in  connection  with  the  mill 
or  press,  the  company  is  not  bound  to  build 
or  maintain  a  fence  at  any  point  where  the 
same  will  interfere  with  the  free  use  of  such 
lot  or  yard.  But  whenever  a  company  can 
build  and  maintain  a  fence  without  interfer- 
ing with  the  rights  of  the  public,  or  with 
the  free  use  of  property  belonging  to 
private  individuals,  or  of  its  own  property, 
then  it  is  bound  to  maintain  a  fence,  whether 
it  will  be  in  a  town  or  village  or  in  the  coun- 
try. "  Ohio  &*  M.  R.  Co.  V.  Rowland,  50  Ind. 
349. — Quoted  in  Cincinnati,  R.  &  F.  W.  R. 
Co.  V.  Wood,  82  Ind.  593. 

A  charge  to  the  jury  that  "  if  you  should 
find  by  the  preponderance  of  the  testimony 
that  the  colt  in  controversy  was  injured  by 
the  defendant  and  killed  by  its  servants  at 
a  point  where  it  had  a  right  to  fence,  then 
you  should  find  for  plaintiff,  unless  you  fur- 
ther find  that  the  defendant,  at  the  point 
where  said  colt  got  upon  its  ri:rhtof  way, 
had  a  good  and  sufficient  fence,"  cannot  be 
complained  of  as  erroneous  in  not  excepting 


j>  :- 


334 


ANIMALS,  INJURIIiS   TO,  rt«5-A«7. 


|]l;:i!. 


S 


the  company  from  liability  In  case  it  should 
be  found  that  at  the  time  of  the  accident 
the  colt  was  not  running  at  large,  within 
the  meaning  of  g  1289  of  the  Code,  where 
the  petition  did  not  allege  that  the  colt  was 
running  at  large  when  killed,  and  no  objec- 
tion to  the  omission  was  made  by  any  plead- 
ing in  the  case,  nor  by  a  motion  in  arrest  of 
judgment.  Daugherty  v.  Chkago,  M.  &* 
St.  /:  A'.  Co.,  (Iowa)  54  N.  IV.  R,p.  219. 

I'laintiQT  was  engaged  with  teams  In  con- 
structing u  side-track  along  defendant's 
road,  which  was  fenced,  and  for  the  con- 
venience of  his  work  he  made  two  K^^ps  in 
the  fence  about  four  hundred  feet  apart,  but 
between  these  two  gaps  there  was  another 
gap  not  made  by  him,  and  through  this  gap 
the  mules  in  question,  having  escaped  from 
plaintiff's  control,  went  upon  the  track  and 
were  killed.  Held,  that  the  jury  were  justi- 
fied in  finding,  so  far  as  the  mere  character 
of  the  place  was  concerned,  that  the  mules 
were  killed  by  reason  of  the  want  of  a  fence, 
and  that  instructions  given  upon  the  theory 
that  they  might  so  find,  provided  defendant 
could  be  charged  with  knowledge  of  the 
gap,  were  not  erroneous.  Accola  v.  Chica- 
go, B.  &*  Q.  K.  Co.,  70  Iowa  185,  30  N.  IV. 
AV/.  503. 

Where  suit  is  brought  to  recover  for  a 
colt  killed  the  company  is  not  liable  under 
the  Missouri  double  damage  act  if  it  ap- 
pears that  a  fence  of  a  proper  kind  had 
been  built  by  the  company,  but  had  been 
broken  down  by  the  colt  or  other  animals, 
by  reason  of  which  it  went  upon  the  track  ; 
and  an  instruction  that  so  states  the  law  is 
free  from  objection.  Wifliatiisv.  Hannibal 
6-  St.  J.  R.  Co.,  80  Mo.  597. 

565.  Instructions  relating  to  duty 
to  construct  and  maintain  cattle- 
guards. — ]n  a  suit  by  the  owner  of  an  ani- 
mal injured  for  the  neglect  of  the  defend- 
ant in  not  maintaining  sufficient  cattle- 
guards,  it  is  not  assignable  error  to  instruct 
the  jury  that  the  duty  of  maintaining  cattle- 
guards  is  laid  upon  railroad  companies  with 
reference  both  to  the  preventing  of  animals 
from  straying  onto  the  track  and  to  the 
safety  of  passengers.  Wait  v.  Bennington 
&>  R.  R.  Co.,  61   Vt.  268,  17  Atl.  Rep.  284. 

An  instruction  that,  if  an  animal  enters  on 
the  track  from  a  highway  because  of  in- 
sufficient cattle-guards  the  company  is  by 
statute  made  liable  for  injury  received  by 
the  animal  from  its  locomotive  or  cars,  is 
not  objectionable.      Whftewater  R.  Co.  v. 


Bridgctt,  20  Am,  &»  Eng.  R,  Cat.  443,  94 
/nd.  216. 

In  an  action  to  recover  damages  for  the 
killing  of  stock  by  a  passing  train,  the  court 
instructed  the  jury,  first,  that  to  enable  a 
person  to  recover  under  said  statute  he 
must  show  that  the  place  where  the  animal 
went  upon  the  railroad  was  at  a  point  where 
the  company  was  bound  to  fence  the  road, 
and  that  the  road  was  not  fenced  at  that 
point,  or  that  the  company  was  bound  to 
maintain  a  cattle  guard  at  said  place,  and 
that  such  guard  was  not  in  proper  condition 
to  keep  stock  off  the  railroad  ;  second,  that 
said  statute  does  not  apply  to  the  crossing 
of  a  public  city  or  alley  in  a  city,  or  a  place 
within  a  city  where,  from  the  necessary  use 
of  the  grounds,  it  would  be  unlawful  or  un- 
reasonable to  require  the  railroad  company 
to  maintain  a  fence;  third,  that  a  railroad 
company  is  not  bound  under  said  statute  to 
erect  and  maintain  cattle-guards  at  the 
crossings  of  public  streets  and  alleys  within 
the  corporate  limits  of  a  city,  or  to  fence  the 
lots  lying  on  either  side  of  the  railroad 
track  between  such  crossings;  but  beyond 
such  crossings  the  company  is  bound  to 
maintain  fences  and  guards,  the  same  as 
outside  the  corporation.  Ne/d,  that  the  de- 
fendant could  not  complain  of  these  instruc- 
tions. 'Jeffersomiille,  M.  <&«»  /.  R.  Co.  v. 
Parkhurst,  34  Ind.  501. 

500.  InstructionH  relating  to  main- 
tenance of  gates  at  farm  crosHings.— 
Where  it  is  claimed  that  company  i^   Uab' 
by  reason  of  insufficiency  of  gate  ^  ^s, 

it  was  proper  to  instruct  the  jui  the 

questions  were  whether  or  not  i  uisten- 
ings  of  the  gate  were  safe  and  rt.i  Miiably 
sufficient  for  their  purpose,  and  if  not 
whether  plaintiff's  cattle  got  upon  the  trark 
and  were  injured  by  reason  of  such  insuffi- 
ciency, and  whether  the  fastenings  were 
such,  and  put  on  in  such  a  place  and  in  such 
a  way,  as  a  man  of  usual  and  ordinary  pru- 
dence would  consider  safe  and  sufficient  for 
the  purpose  in  that  place.  Payne  v.  Kansas 
City,  St.  J.  &*  C.  B.  R.  Co.,  35  Am.  &*  Eng. 
R.  Cas.   113,  72  Iowa  214,  33  N.  W.  Rep. 

633- 

507.  IVliat  instructions  are  im- 
proper, generally.— An  instruction  that 
if  the  defendant,  by  its  agent  or  servants, 
was  guilty  of  negligence  in  killing  the  ani- 
mal, a  verdict  must  be  returned  for  the 
plaintiff,  is  erroneous  as  subjecting  the  de- 
fendant to  liability  for   negligence   other 


ANIMALS,  INJURIES  TO,  fl67. 


335 


than  that  causing  or  contributing  to  the  in- 
jury. Nashville,  C.  &*  Sf.  /,.  A'.  Co.  v.  Hem- 
tree,  38  Am.  &•  Eng.  K.  Las.  300,  85  A/a. 
481.  5  So.  Rep.  173. 

Where  the  evidence  tends  to  show  the 
use  of  a  defective  lieadlight  on  the  en- 
l^ine  at  the  time  of  the  accident,  a  charge 
which  instructs  the  jury  tliat  a  headlight 
"such  as  are  in  use  on  tlic  best  equipped 
railroads  "  is  the  test  of  a  proper  headlight, 
is  erroneous.  Alabama  G.  S.  A'.  Co.  v. 
Moody,  92  Ala.  279,  9  So.  Rep.  238.— Fol- 
lowing Alabama  G.  S.  R.  Co.  v.  Jones,  71 
Ala.  487 ;  Alabama  G.  S,  R.  Co.  v.  McAl- 
pine,  7S  Ala.  113.— Qualifving  Memphis 
&  C.  R.  Co.  V.  Lyon,  62  Ala.  71. 

If  there  is  evidence  tending  to  show  that 
the  engineer  was  competent,  was  keeping  a 
proper  lookout,  and  did  not  and  could  not 
see  the  approaching  animal  until  it  was  too 
late  to  give  the  cattle-alarm  or  check  the 
train  It  prevent  tiie  injury,  it  is  error  to 
charge  tii"  jury  that  the  defendant  is  liable 
unless  its  servants  or  agents  in  charge  of 
the  train  did  all  in  their  power  which  they 
could  reasonably  do  to  avoid  the  killing, 
without  qualifying  the  charge  by  requiring 
the  jury  to  be  satisfied  that  there  was  no 
fault  in  not  sooner  discovering  the  stock, 
and  that,  when  discovered,  it  was  possible, 
by  the  exercise  of  diligence,  to  prevent  the 
accident.  Nashville,  C.  &*  St.  L.  R.  Co.  v. 
Hembree,  38  Am.  6-  Eng.  R.  Cas.  300,  85 
^/<i.  481,  5  So.  Rep.  173. 

A  charge  which  instructs  the  jury  that 
the  plaintiff  is  entitled  to  recover  if  the 
animal  could  and  ought  to  have  been  seen 
in  time  for  the  engineer  to  check  the  speed 
of  the  train  and  blow  the  whistle,  though  it 
might  not  and  could  not  have  been  seen  in 
time  to  stop  the  train,  so  as  to  avoid  the  in- 
ji'"^,  is  erroneous,  and  the  error  is  not  cured 
b\  a  subsequent  charge,  called  an  "  explana- 
tory charge,"  instructing  the  jury  that  they 
"must  further  believe  that  the  accident 
could  have  been  prevented  if  the  engineer 
had  seen  the  animal  as  soon  as  he  could 

id  ought  to  have  seen  him."  Alabama  G. 
S.  R.  Co.  v.  Moody,  92  Ala.  279,  9  So.  Rep. 
238. 

Where  the  killing  of  plaintifT's  mule  by 
the  train  is  admitted,  but  the  evidence  is 
conflicting  as  to  the  circumstances  attend- 
ing the  killing,  a  charge  which  instructs  the 
jury  to  find  for  the  plaintiff  "  if  the  defend- 
ant's engineer  was  negligent  in  not  seeing 
the  mule  on  the  track  and  not  keeping  a 


proper  lookout  near  the  track,"  is  a  revers- 
ible error.  Kansas  City,  M.  &•  li.  R.  Co.  v. 
Watson,  91  Ala.  483,  8  .So.  R,p.  793. 

The  fact  that,  after  those  in  charge  see 
animals  on  the  track,  it  is  impossible  to 
stop  a  train  in  time  to  avoid  a  collision, 
will  not  relieve  the  company  from  lialiility 
if  tlicre  was  previous  negligence  in  failing 
to  see  them  or  otherwise,  and  it  is  error  to 
so  instruct  the  jury.  Louisville,  N.  O.  &*  T. 
R.  Co.  v.  Suddoth,  70  Miss.  265,  12  So.  Rep. 
205. 

In  an  action  for  killing  stock  at  a  depot — 
held,  that  it  is  the  duty  of  those  operating 
the  train,  if  they  discover  the  perilous  con- 
dition of  the  stock  in  time  to  avert  the  in- 
jury, to  use  every  reasonable  effort  at  their 
command  consistent  with  the  safety  of  the 
train,  and  that  if  they  fail  to  do  so,  and  in- 
jury thereby  results,  plaintiff  is  entitled  to 
recover,  and  that  an  instruction  failing  to 
advise  the  jury  as  to  the  constituent  ele- 
ments of  negligence  in  such  case  is  errone- 
ous. Senate  v.  Chicago,  M.  &•  St.  P.  R.  Co., 
41  Mo.  App.  295. 

Where  cattle  go  upon  a  track  near  a 
trestle  to  seek  shelter  from  a  storm  at  niglit 
and  are  killed,  it  is  error  to  instruct  the  jury 
that  running  a  train  at  such  a  rate  of  speed 
that  it  could  not  be  checked  within  one- 
half  a  mile  was  of  itself  such  negligence  as 
to  entitle  plaintiff  to  recover.  Doggett  v. 
Richmond  ^  D.  R.  Co.,  81  A^.  Car.  459. 

In  an  action  for  the  negligent  killing  of 
stock,  the  court  instructed  the  jury  that,  to 
constitute  contributory  negligence  on  the 
part  of  the  plaintiff  in  allowing  said  stock 
to  run  at  large,  he  must  have  knowingly 
suffered  his  stock  to  habitually  run  at  large 
in  the  immediate  vicinity  of  the  place  where 
it  was  killed,  and  that  the  plaintiff  "  cannot 
recover,  although  he  may  have  been  guilty 
of  less  negligence  "  than  the  employes  of 
the  defendant.  Held,  that  the  instruction 
was  erroneous.  Jeffersonville,  M.  &-  I.  R. 
Co.  V.  Foster,  63  Ind.  423. 

In  an  action  for  the  killing  of  hogs  in  the 
operation  of  a  railroad,  where  it  is  admitted 
that  the  railroad  was  not  fenced  where  the 
injury  occurred,  which  was  in  a  township 
where  hogs  were  prohibited  from  running 
at  large;  and  that,  even  if  the  railroad  had 
been  inclosed  with  a  fence  constructed  as 
designated  by  §  2  of  the  fence  law,  said 
fence  would  not  have  prevented  said  hogs 
from  going  upon  the  defendant's  right  of 
way — held,  that  under  said  admissions  it  was 


^\k 


336 


ANIMALS,  INJURIES  TO,  iiO»,  569. 


^ 


error  to  instruct  the  jury  to  find  for  the 
phiintifT  unless  they  found  that  he  con- 
tributed negligently  to  the  \n]\xvy— further 
held,  that  under  the  admissions  it  was  im- 
material whether  the  said  railroad  was 
fenced  or  not.  Leavenworth,  T.  &*  S.  II'. 
K.  Co.  V.  Forbes,  31  Atn.  &•  Eng.  K.  Cos. 
522,37  Kan.  445,  15  Pac.  Rep.  595.— Fol- 
lowed IN  St.  Louis  &  S.  F.  R.  Co.  v. 
Sanders,  40  Kan.  469. 

Where  a  horse  escapes  from  his  keeper 
on  a  highway,  runs  some  distance,  and 
passes  from  the  highway  onto  a  railroad 
track,  and  is  there  injured,  it  is  error  to  in- 
struct the  jury  in  a  suit  to  recover  for  the 
injury  that  the  horse  was  unlawfully  on  the 
highway.  Amstein  v.  Gardner,  132  Mass. 
28,  42  Am.  Rep.  42 1 . 

508.  IriHtructioiiM  excluding  esHeu- 
tiul  matters  from  coiisideratloii  of 
Jury. — A  company  whose  road  had  not 
been  in  operation  six  months  was  sued  for 
injuring  plaii)tiff's  hogs,  and  the  court  in- 
structed the  jury  that  if  they  believed  from 
the  evidence  that  the  hogs  were  killed  by 
defendant's  engine,  through  a  failure  on  the 
part  of  its  employes  to  use  ordinary  care, 
then  the  company  was  liable.  Held,  that 
the  instruction  was  erroneous  as  e^ccluding 
the  necessary  elements  that  the  injury 
might  have  been  avoided  by  the  exercise  of 
ordinary  care,  and  in  making  the  liability 
dependent  upon  not  attempting  to  prevent 
the  injury,  whether  it  would  have  availed  or 
not.  Gilman,  C.  &-  S.  R.  Co.  v.  Spencer,  76 
///.  192. 

Where  a  horse  intrusted  by  the  owner  to 
a  drunken  servant  runs  away,  enters  upon  a 
railroad  track,  and  is  killed,  an  instruction  in 
an  action  for  the  death  of  the  animal  which 
excludes  from  the  jury  the  negligent  act  of 
the  drunken  driver  is  erroneous.  Cleveland, 
C,  C.  &'  St.  L.  R.  Co.  V.  Ducharme,  49  ///. 
App.  520. 

Where  a  company  sets  up  contributory 
negligence  as  a  defense  to  an  action  for  kill- 
ing stock,  an  instruction  allowing  a  finding 
for  plaintiff  if  the  jury  find  the  defendant 
negligent  in  the  management  of  its  t.ains, 
without  reference  to  such  contributory  neg- 
ligence, is  error.  St.  Louis,  A.  &*  T.  H.  R. 
Co.  V.  Fullerton,  45  ///.  App.  618. 

So  also  where  a  company  which  is  sued  for 
killing  a  horse  sets  up  in  defense  contribu- 
tory negligence  of  plaintifT's  son,  who  was  in 
charge  of  the  horse,  an  instruction  which 
limits  the  consideration  of  the  jury  to  the 


contributory  negligence  of  the  plaintiff 
alone,  excluding  that  of  the  son,  is  error. 
St.  Louis,  A.  &»  T.  H.  R.  Co.  v.  Fullerton, 
45  ///.  App.  618. 

An  instruction  to  the  effect  that  a  com- 
pany is  not  liable  for  killing  animals  if  the 
engineer  did  not  '.tit  them  on  the  track  until 
too  near  to  stop  his  engine  in  time  to  avoid 
a  collision  is  erroneous,  as  there  may  have 
been  negligence  in  failing  to  see  the  stock 
sooner.  Ohio  6»  M.  R.  Co.  v.  St r idling,  38 
///.  Ap/>.  17. 

Where  the  evidence  does  not  show  the 
character  of  the  place  at  the  point  where 
the  innny  to  a  colt  occurred,  an  instruction, 
excluding  from  the  jury  the  consideration 
that,  if  the  colt  was  injured  where  the  de- 
fendant had  no  right  to  fence,  it  would  not 
be  liable,  was  erroneous.  Smith  v.  Kansas 
City,  St.  J.  i3-  C.  B.  R.  Co.,  58  Imva  622,  1 2  A'. 
,W.  Rep.  619. 

500.  luHtructioiis  omitting  to  state 
essential  facts. — If  an  instruction  for 
plaintiff,  which  undertakes  to  enumerate 
the  facts  upon  which  a  recovery  may  be  had, 
omits  the  essential  fact  that  the  road  had 
been  opened  six  months,  a  judgment  for 
plaintiff  will  be  reversed  unless  such  omitted 
fact  is  shown  by  the  evidence.  Chicago  &^ 
N.   W.  R.  Co.  v.  Dichl,  $2  /ll.  441. 

It  is  error  to  leave  it  to  the  jury  to  say 
whethf^r  cattle  were  killed  near  enough  to 
a  rr  ■  crossing  to  afford  the  owner  that 
protection  which  the  law  gives  to  a  cross- 
ing, without  telling  them  what  the  law  is. 
Neely  v.  Charlotte.  C.  &*  A.  R.  Co.,  33  So. 
Car.  136,  II  S.  E.  Rep.  636. 

Plaintiff's  horse  escaped  from  his  pasture 
at  night  onto  a  track  over  a  fence  which  the 
company  was  bound  to  maintain,  and  was 
found  in  the  morning  in  another  pasture, 
some  distance  away,  crippled.  There  was 
some  evidence  tending  to  show  that  it  was 
crippled  in  the  field  where  found.  Held, 
that  an  instruction  to  the  effect  that  if  the 
jury  were  satisfied  from  the  evidence  that 
there  was  a  clear  connection  between  the 
escape  of  the  horse  and  the  injury  received, 
plaintiff  would  be  entitled  to  recover,  was 
erroneous  in  not  calling  the  attention  of  the 
jury  to  the  difference  between  a  direct  and 
remote  connection  between  the  want  of  a 
suitable  fence  and  the  injury.  Holden  v. 
Rutland  &*  B.  R.  Co.,  30  Vt.  297. 

The  trial  court  instructed  the  jury  as  to 
proximate  and  remote  negligence,  and  added 
that  "  plaintiff,  in  (uflfering  his  animus  to 


ANIMALS,  INJURIES  TO,  570,571. 


337 


run  at  large  in  the  vicinity  of  the  road,  was 
only  guilty  of  remote  negligence,"  and  that 
if  they  find  the  company  guilty  of  gross 
negligence  plaintiff  might  recover.  Held, 
that  the  instruction  was  erroneous  in  not 
calling  attention  to  the  degree  of  negligence 
of  plaintiff  contributing  to  the  injury,  as  well 
as  to  its  time  of  happening.  Chicago  &*  N. 
W.  R.  Co.  V.  Goss,  17  Wis.  428.— Distin- 
guished IN  HelW  V.  Abbot,  79  Wis.  409. 

570.  Iustriicti«:!!*«  asHiiiiiiiig  I'auts. 
— An  instruction  wiiich  assumes  that  a 
plaintiff's  claim  was  presented  to  an  agent 
of  the  company  within  six  months,  as  re- 
quired, is  error  where  the  evidence  relating 
to  the  fact  is  oral  and  only  tends  to  prove 
the  fact  of  presentation.  Alabama  G.  S.  R, 
Co.  v.  Roebuck,  23  A»i,  &•  Eng.  K.  Cas.  176, 
76  Ala.  277. 

A  company  is  not  liable  for  double  dam- 
ages for  animals  killed  for  failing  to  main- 
tain suitable  fences,  under  the  Missouri 
statute,  unless  it  appears  that  the  killing  re- 
sulted from  such  failure ;  and  an  instruction 
which  makes  it  liable,  without  reference  to 
whether  the  killing  resulted  from  the  failure 
to  fence,  is  erroneous.  Ridenore  v.  Wabash, 
St.  L.  &-  P.  R.  Co.,  81  Afo.  227.— Following 
Harrington  v.  Chicago,  R.  I.  &  P.  R.  Co.,  71 
Mo.  384;  Fitierling  7'.  Missouri  Pac.  R.  Co., 
79  Mo.  504. 

In  a  statutory  action  for  double  damage 
for  the  killing  of  stock,  an  instruction 
which  authorizes  a  recovery,  without  a  find- 
ing that  the  stock  came  upon  the  track  at 
a  point  where  the  statute  required  the  com- 
pany to  fence  its  right  of  way,  is  erroneous ; 
and  the  error  is  prejudicial  when,  under  the 
evidence,  it  is  uncertain  whether  the  stock 
came  upon  the  track  at  such  a  point. 
Roberts  v.  Qtiincy,  O.  6-  K.  C.  R.  Co.,  49  Mo. 
App.  164. 

Instructions  that  the  stock  reached  the 
obstructed  crossing  without  the  negligence 
of  the  plaintiffs;  that  if  the  obstruction 
turned  or  caused  the  stock  to  turn  up  the 
track  and  they  were  killed  by  a  passing  train, 
then  the  jury  should  find  for  the  plaintiffs,  is 
erroneous,  in  assuming  as  a  matter  of  infer- 
ence that  the  injury  was  caused  by  the  ob- 
struction. Richmond  6-/?.  R.  Co.  v.  Noell, 
86  Va.  19,  13  Va.  L.J.  320,  9  5.  E.  Rep.  473. 

571.  Misleading  iiistructioiiH.— The 
Alabama  Code,  §  1700,  relating  to  the  duty 
of  engineers  in  approaching  hifthway  cross- 
ings or  depots,  applies  exclusively  to  live 
stock.    The  next  prerf^ding  section  relates 

I  D.  R.  D.— aa. 


to  the  safety  of  human  beings,  and  in  a 
suit  based  on  one  section  a  charge  as  to  the 
measure  of  duty  under  the  other  is  mislead- 
ing. Mobile  (S-  M.  R.  Co.  v.  Blakely,  59  Ala. 
471.— Followed  in  Alabama  G.  S.  R.  Co. 
V.  Powers,  19  Am.  &  Eng.  R.  Cas.  502,  73 
Ala.  244. 

The  fact  that  a  horse  is  killed  on  the 
track  is  not  in  itself  proof  of  negligence,  but 
where  the  killing  is  at  a  place  where  the 
company  is  required  to  fence,  may  be  taken 
as  a  circumstance  '  enable  the  jury  to  de- 
termine whether  '  nces  and  cattle-guards 
were  sufficient  or  not ;  and  an  instruction 
which  the  jury  might  understand  to  mean 
that  the  fact  of  killing  was  proof  of  negli- 
gence, is  misleading.  Chicago  &*  A.  R.  Co. 
V.  Utley,  38  ///.  4ro. 

Instruoiions  are  misleading  which  in 
effect  tell  the  jury  that  if  the  stock  while 
running  at  large  went  upon  the  road  where 
it  was  unfenced,  they  were  lawfully  there, 
and  that  the  company  would  be  liable  for 
killing  the  same  if  there  was  want  of  ordi- 
nary care  and  diligence;  and  that  if  the 
animals  were  killed  by  reason  of  the  engi- 
neer not  keeping  a  proper  lookout,  regard- 
less of  his  other  duties,  then  the  company 
was  liable.  Central  M.  T.  R.  Co.  v.  Rocka- 
fellow,  17  111.  541. 

The  statute  provides  that  the  steam- 
whistle  attached  to  an  engine  drawing  a 
train  of  cars  shall  be  sounded  three  times, 
at  least,  eighty  rods  from  the  place  where 
the  railroad  shall  cross  any  public  road  or 
street,  except  in  cities  and  villages ;  and  in 
an  action  to  recover  damages  for  killing  a 
colt  at  the  crossing  of  a  public  road  outside 
of  a  city  or  village,  caused  by  the  alleged 
negligence  of  the  railroad  company,  an  in- 
struction that,  if  the  jury  find  from  the  evi- 
dence that  the  natural  effect  of  sounding 
the  whistle,  as  done  by  the  engineer,  was  to 
drive  the  stock  towards  the  track,  then  such 
whistling  was  negligence,  is  misleading. 
Manhattan,  A.  &*  B.  R.  Co.  v.  Stewart,  13 
Am.  (?••  Eng.  R,  Cas.  503,  30  Kan.  226,  2  Pac. 
Rep  15J. 

In  an  action  brought  by  the  plaintiff  to 
recover  the  value  of  stock  killed  at  a  public 
crossing  by  the  negligence  of  the  railroad 
company,  the  bifl  of  particulars  alleged, 
among  other  things,  "that  the  whistle  of 
the  engine  was  not  sounded  as  prescribed 
by  law ;  and  that  in  consequence  thereof  the 
stock  were  not  warned  of  the  approach  of 
the  train  until  it  was  too  late  to  prevent 


*    -fj 


TO 

m 


-A 


338 


ANIMALS,  INJURIES  TO,  572,573. 


them  ti'om  being  killed;  and  that  if  the 
whistle  of  the  engine  had  been  sounded,  as 
prescribed  by  law,  the  person  in  charge  of 
the  stocic  could  have  prevented  any  injury." 
The  bill  of  particulars  further  stated  "  that 
the  company  permitted  a  very  high  and 
dense  growth  of  hedge  to  extend  out  on 
its  right  of  way  and  nearly  to  the  track," 
which  "prevented  persons  travelling  upon 
the  public  road  from  observing  the  ap- 
proach of  trains."  Held,  that  under  the 
allegations  of  the  bill  of  particulars  it  was 
misleading  to  instruct  the  jury  that  "if 
the  company  permitted  and  suffered  a 
hedge  to  stand  upon  its  right  of  way,  so  as 
to  obstruct  the  view  of  the  track,  and  but 
for  such  obstruction  the  injury  to  the  stock 
would  not  have  happened,  the  company  is 
liable  for  the  injury  to  the  stock ; "  and  held, 
also,  that  where  it  appears  from  the  instruc- 
tions and  findings  of  the  jury,  under  the 
allegations  of  such  a  bill  of  particulars, 
that  the  liability  for  the  injury  to  the  stock 
was  fixed  by  the  jury  for  the  negligence  of 
the  company  in  permitting  the  hedge  to 
grow  upon  the  right  of  way  as  alleged,  the 
verdict  and  judgment  must  be  set  aside. 
Atchison,  T.  &•  S.  F.  R.  Co.  v.  Hawkins,  40 
Am.  &-  Eng.  R.  Cas.  201,  42  Kan.  355,  22 
Pac.  Rep.  322. 

572.  lustructlons  outside  the  Issue. 
—In  a  common-law  action  for  killing  stock, 
negligence  must  be  averred  and  proved ;  and 
it  is  error  to  instruct  the  jury  that  if  the 
company  fail  to  fence  its  road  as  required  by 
statute,  by  reason  of  which  the  cattle  were 
killed,  it  is  liable,  whether  the  killing  re- 
sulted from  negligence  or  not.  Terre Haute, 
A.  &*  St.  L.  R.  Co.  V.  Augustus.  21  ///.  186. 

Where  a  company  is  sued  for  common- 
law  negligence  in  killing  stock,  it  is  error  to 
instruct  the  jury  that  plaintiff  may  recover 
for  statutory  negligence,  such  as  failing  to 
ring  a  bell  before  reaching  a  crossing.  Chi- 
cago, B.  &'  Q.  R.  Co.  V.  IVells,  42 ///.  App.  26. 

In  an  action  at  common  law  or  under  the 
Missouri  damage  act,  §  5,  for  killing  stock, 
it  is  error  to  instruct  the  jury  as  to  the  law 
laid  down  in  the  Missouri  railroad  act,  $  43. 
Tnrner  v.  St.  Louis  6^  S.  F.  R.  Co.  76  Mo. 
261. 

Where  suit  is  brought  under  Missouri  Rev. 
St.  §  809,  for  the  killing  of  stock,  an  instruc- 
tion which  makes  the  company  liable  if  the 
killing  was  at  a  place  where  the  track  was 
not  fenced,  regardless  of  whether  it  came 
upon  the  track  where  it  was  fenced  or  not. 


is  error.  Henson  v.  St.  Louis,  I,  M.  &*  S.  R. 
Co.,  34  Mo.  App.  636.— Reviewing  Muehl- 
hausen  v,  St.  Louis  R.  Co.,  91  Mo.  332. 

In  a  suit  for  damages  for  the  killing  of  the 
plaintiff's  cow  by  the  defendant's  railroad 
train,  it  is  error  to  submit  to  the  jury  a  ques- 
tion of  the  defendant's  liability  for  common- 
law  negligence  when  the  evidence  related 
only  to  the  statutory  negligence  of  failing 
to  ring  the  bell  or  blow  the  whistle  while 
approaching  a  public  road  crossing.  Barrv. 
Hannibal  6-  St.  J.  R.  Co.,  30  Mo.  App.  248. 
Jeffersonville,  M.  &*  /.  R.  Co.  v.  Lyon,  55 
Ind.  477. 

673.  Instructions  not  correctly 
stating  tlie  law.— The  cattle  of  the  plain- 
tiff below  were  killed  on  the  railroad 
track  of  the  defendant  by  a  train  running 
over  them.  Held,  that  it  was  error  for  the 
court  below  to  charge  the  jury  that  the  de- 
fendant was  liable  if  the  cattle  were  killed 
through  the  negligence  or  want  of  ordinary 
care  of  the  defendant.  Union  Pac,  R.  Co. 
V.  Rollins,  5  Kan.  167. — QUOTED  IN  Hill  v. 
Applegate,  40  Kan.  31. 

Proof  of  killing  of  stock,  and  of  owner- 
ship by  plaintiff,  raises  a  presumption  of 
negligence,  and  makes  out  a  prima-facie 
case  for  plaintiff,  which  must  be  overthrown 
by  proof  by  the  defendant ;  therefore  an  in- 
struction asked  by  the  defendant  company 
that  when  the  defendant  introduces  evi- 
dence and  explains  the  fact  of  killing,  the 
plaintiff  is  required  to  prove  by  a  prepon- 
derance of  testimony  that  the  company  was 
negligent,  does  not  correctly  state  the  law. 
Vicksburg  6-  M.  R.  Co.  v.  Hart,  19  Am.  &• 
Eng.  R.  Cas.  521,  61  Miss.  468. 

Where  the  legislature  has  determined 
what  signals  ought  to  be  given  by  moving 
trains  to  avoid  injuries,  it  is  error  for  a  court 
to  instruct  a  ju;y  that  they  are  at  liberty  to 
determine  what  signals  should  be  adopted, 
and  to  regard  their  omission  as  negligence. 
Hollender  v.  New  York  C.  6-  H.  R.  R.  Co.,  14 
Daly  (N.  V.)  219,  6  A^.  V.  S.  R.  352,  19  Aid. 
(N.  Cas.)  18. 

The  following  instructions  have  been  held 
erroneous  as  not  correctly  stating  the  law : 

An  instruction  which  assumes  that  an  en- 
gineer owes  no  duty  to  stock  that  are  near 
the  track,  for,  if  they  are  seen  near  the 
track  under  circumstances  tnat  indicate 
ilanger,  he  is  required  to  use  necessary  pre- 
cautions to  avoid  injury.  Western  R.  Co.  t. 
S/strunk,  85  Ala.  352,  5  So.  Rep.  79. 

An  instruction  which  made  the  company 


ANIMALS,  INJURIES  TO,  374,576. 


339 


liable  for  killing  stock,  if  it  did  not  "  do 
everything  in  its  power  to  prevent  the  in- 
jury," is  erroneous,  as  stating  a  higher  de- 
gree of  care  than  the  law  requires,  for  the 
company  is  bound  only  to  use  reasonable 
care  in  the  running  of  its  trains.  Cantrell 
V.  Kansas  City,  M.  &*  B.  R.  Co.,  69  Miss.  435, 
10  So.  Rep.  580.  St.  Louis,  I.  M.  6-  S.  R, 
Co.  V.  Vincent,  36  Ark.  451. 

An  instruction  to  the  effect  that  "  when 
a  railroad  is  properly  fenced  an  engineer 
running  a  train  thereon  has  a  right  to  pre- 
sume that  he  will  find  a  clear  track,  except 
at  highway  crossings,  and  in  villages,  towns, 
and  cities,  and  is  not  bound  to  keep  a  look- 
out for  animals  trespassing  on  the  track  or 
elsewhere."    Ohio  &*  M.  R.  Co.  v.  Stribling, 

iiin.App.  17. 

An  instruction  that  submits  the  case  on 
the  old  rule  of  contributory  negligence  and 
not  of  comparative  negligence,  as  recognized 
in  Illinois.  Chicago  &*  E.  I.  R.  Co.  v.  Bog- 
gess,  21  ///.  App.  336. 

An  instruction  which  authorizes  the  jury 
to  find  for  plaintiff,  if  they  find  defendant 
guilty  of  a  greater  degree  of  negligence  than 
plaintiff,  assuming  to  correctly  siate  the  law 
uf  comparative  negligence  as  applied  in  Illi- 
nois. Wabash  R.  Co.  v.  Jones,  5  ///.  App, 
007. 

An  instruction  that  "  defendant  is  not 
liable  for  injury  to  plaintiff's  ar  .nals  unless 
it  appears  from  the  evidence  tt.at  the  em- 
ployes in  charge  of  defendant's  engine  wil- 
fully and  maliciously  blew  the  whistle  on 
said  engine  with  the  intent  of  frightening 
plaintiff  s  animals,  and  not  for  the  purpose 
of  getting  them  to  leave  the  track  and  get 
out  of  the  way  of  approaching  trains." 
Louisville  <S-  A^.  R.  Co.  v.  Upton,  18  ///.  App. 
60s. 

An  instruction  that  "  the  running  of  a 
train  past  or  through  the  streets  of  a  city  at 
a  speed  of  eighteen  miles  an  hour  would  be 
gross  negligence,"  there  being  no  evidence 
as  to  the  character  of  the  particular  locality 
distinguishing  it  as  an  inhabited  or  business 
portion  of  the  city.  Burlington  &»  Af.  R. 
A'.  Co.  v.  Wentit,  \2  Neb.  76. — Reviewing 
Urown  V.  Buffalo  &  S.  L.  R.  Co.,  22  N.  Y. 
191. 

574.  liiMtniutious  invadin^r  the 
province  of  the  Jury.— In  an  action  to 
recover  for  horses  killed,  if  the  evidence 
simply  shows  that  they  were  run  over  and 
killed,  and  that  the  engineer  in  charge  of 
the  train  failed  tn  comply  with  the  requisi- 


tions of  Alabama  act  1857-8,  p.  1 5,  as  to  the 
blowing  of  a  whistle,  ringing  a  bell,  or  re- 
versing the  engine,  the  court  is  not  author- 
ized to  charge  the  jury  that  if  they  believe 
the  evidence  they  must  find  for  plaintiff. 
Such  a  charge  is  an  invasion  of  the  province 
of  the  jury,  who  alone  can  determine  whether 
the  injury  was  caused  by  the  negligence  of 
the  engineer.  Memphis  &•  C.  R.  Co.  v.  Bibb, 
37  Ala.  699, 1  Ala.  Sel.  Cas.  630.— Reviewed 
IN  Copeland  v.  Memphis  &  C.  R.  Co.,  3 
Woods  (U.  S.)  651, 

In  an  action  for  injury  to  a  horse,  plain- 
tiff showed  that  the  horse  had  fallen  on  de- 
fendant's track  at  a  foot-crossing  on  account 
of  getting  his  foot  hung  by  a  defectively- 
driven  spike,  and  that  before  he  could  get 
him  off  he  was  struck  by  defendant's  dump- 
car,  in  charge  of  its  agents,  who  were  called 
on  to  stop  more  than  a  hundred  yards  away , 
and  the  court  charged  the  jury  that  though 
the  plaintiff  may  have  been  negligent  in  en- 
tering defendant's  track,  said  negligence  was 
not  the  approximate  cause  of  the  injury 
complained  of,  and  they  should  respond  to 
the  second  issue.  No.  HeM,  to  be  error. 
Lay  v.  Richmond  <S<»  D.  R.  Co.,  42  Am.&»  Eng. 
R.  Cas.  no,  106  A^.  Car.  404, 11  5.  ^.  Rep.  412. 

575.  What  requests  for  instruc- 
tions sliould  be  granted.— It  is  error 
to  refuse  to  submit  to  the  jury  properly- 
framed  inquiries  upon  controlling  facts 
which  are  not  covered  by  any  other  ques- 
tion. Benton  v.  St.  Louis  &*  S.  F,  R.  Co., 
25  Mo.  App.  155. 

Where  plaintiff  sues  for  killing  stock,  and 
the  evidence  in  support  of  his  claim  is  very 
slight,  the  defendant  company  is  entitled  to 
an  instruction  that  the  jury  is  not  to  infer 
negligence  from  the  mere  fact  that  the  train 
struck  and  killed  the  animal.  McKissock\. 
St.  Louis,  K.  C.  <S-  A^.  R.  Co.,  7  Am.  &*  Eng. 
R.  Cas.  590,  73  Mo,  456, 

The  question  of  negligence  is  for  the  jury, 
but  the  finding  thereon  must  be  upon  proof 
of  acts  done  or  omitted  from  which  negli- 
gence is  legally  inferable.  Where  the  ques- 
tion is  whether  the  defendant  could,  by  the 
exercisf^  of  proper  care,  have  avoided  injur- 
ing stoi^k,  the  court's  refusal  to  submit  to 
the  jury  for  a  special  finding  the  question 
of  what  did  the  defendant's  negligence  con- 
sist, is  error.  Gourley  v.  St,  Louis  <S»  S.  F.  R. 
Co.,  25  Mo.  App.  144.— Following  Benton 
V.  St.  Louis  &  S.  F.  R.  Co.,  25  Mo.  App.  155. 

Though  the  employ6s  of  a  company  may 
he  negligent  in  killing  stnrk,  still  the  com- 


340 


ANIMALS,  INJURIES   TO,  576. 


1^ 


,4 


pany  is  not  liable  if  the  killing  could  not 
have  been  prevented  by  the  exercise  of  due 
care,  and  it  is  error  for  the  court  to  refuse 
to  so  charge.  BeUefontaine  &*  I.  R.  Co.  v. 
Bailey,  1 1  Ohio  St.  333. 

In  an  action  for  injuries  alleged  to  have 
been  occasioned  by  the  negligence  of  a  com- 
pany in  failing  to  ring  a  bell  or  sound  a 
whistle,  as  required  by  section  806,  Missouri 
Rev.  St.,  there  was  no  evidence  that  the 
bell  was  rung  or  the  whistle  sounded,  and 
all  the  testimony  on  the  subject  was  that 
neither  had  been  done.  Held,  that  an  in- 
struction assuming  that  the  negligence 
charged  had  been  established  would  have 
been  justifiable.  Keenig  v.  Missouri  Pac. 
R.  Co.,  19  Mo.  App.  327.— Following  John- 
son V.  Chicago,  R.  I.  &  P.  R.  Co.,  77  Mo. 
546. 

There  being  no  statute  requiring  railroad 
tracks  to  be  fenced  in  the  Indian  Territory, 
it  is  error  not  to  so  instruct  the  jury  when 
requested.  Gulf,  C.  6-  S.  F.  R.  Co.  v.  El- 
li(ige,  49  Fed.  Rep.  356,  4  U.  S.  App.  136,  i 
C.  C.  A.  295. 

As  there  is  no  statute  requiring  railroad 
companies  to  fence  their  tracks  in  the  In- 
dian Territory,  companies  owe  no  duty  to 
owners  of  stock  in  the  operation  of  their 
trains  except  to  use  ordinary  care  to  avoid 
injuring  the  same  after  they  are  seen  on  the 
track,  or  by  the  exercise  of  ordinary  care 
might  have  seen,  and  a  refusal  so  to  charge 
is  error.  Gulf,  C.  &-  S.  F.  R.  Co.  v.  Ellidge, 
49  Fed.  Rep.  356,4  U.  S.  App.  136, 1  C.  C.  A. 
295.— Applying  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Washington,  49  Fed.  Rep.  347. 

576.  What  requests  for  instruc- 
tions sliould  be  refused.— When  the 
defendant's  counsel  requested  the  judge  to 
charge  the  jury  "that  Mrs.  B.  turning  out 
the  cow  in  the  vicinity  of  the  railroad  just 
before  the  coming  of  the  train  was  negli- 
gence and  carelessness  to  be  considered  by 
the  jury,  and  that  when  said  cow  got  upon 
the  track  it  made  B.  a  trespasser,"  which 
the  judge  refused ;  but  charged  the  jury 
"  that  if  it  were  shown  that  plaintiff's  cow 
was  injured  by  the  defendant's  servants,  the 
law  presumes  negligence  on  their  part  and 
they  must  explain  it ;  and  the  fact  that  Mrs. 
B.  turned  out  the  cow  in  the  vicinity  of  the 
railroad  before  the  train  came,  was  no  evi- 
dence of  carelessness  to  be  considered  by 
the  jury,  and  it  was  not  true  that  if  said 
cow  so  turned  out  got  upon  the  track  it 
made  plaintiff  a  trespasser,  unless  it  was 


inclosed  by  a  lawful  fence— //<■/</  that  such 
refusal  and  the  charge  given  by  the  court 
were  not  error,  under  the  facts  of  the  case, 
for  the  fact  of  contributory  negligence  can- 
not be  presumed  against  the  owner  of  such 
cattle  as  ordinarily  are  turned  out,  by  turn- 
ing such  animals  out,  and  the  act  uf  their 
going  upon  an  uninclosed  railroad  track  did 
not  constitute  her  a  trespasser.  Macon  &* 
W.  R,  Co.  v.  Baber,  42  Ga.  300.— Applying 
Buxton  V.  Northeastern  R.  Co.,  L.  R.  3  Q. 
B,  549.  Distinguishing  Central  R.  &  B. 
Co.  V.  Davis,  19  Ga.  437. 

In  an  action  against  a  railroad  company 
to  recover  the  value  of  cattle,  belonging  to 
the  plaintiff,  alleged  to  have  been  injured 
by  the  negligence  of  the  railroad  company 
at  a  public  crossing,  the  company,  upon  the 
trial,  requested  the  court  to  direct  the  jury 
to  find  upon  the  following  question :  "  If 
the  jury  should  find  that  the  defendant  was 
negligent,  state  fully  in  what  such  negligence 
consisted."  The  court  refused  to  submit 
the  question  to  the  jury,  and  thereby  com- 
mitted no  error.  Under  sec.  286  of  the 
Code,  the  court  is  not  bound  to  submit  such 
general  questions  of  fact  to  the  jury  as  will 
require  them  to  find  a  special  verdict  upon 
the  issues  in  the  case,  or  compel  them  to 
state  at  length  or  in  detail  new  facts  not 
particularly  mentioned  in  the  general  ques- 
tion ;  but  where  in  the  nature  of  things  the 
jury  can  point  out  the  negligence  imputable 
to  the  defendant,  the  court,  if  requested, 
may,  in  its  discretion,  direct  the  jury  to  fix 
the  negligence  or  state  in  what  the  alleged 
negligence  consists,  and  the  jury  should  do 
so.  If  it  is  impossible  for  them  to  do  this 
upon  the  evidence,  the  failure  to  fix  the 
negligence  will  not  defeat  a  recovery.  Mis- 
souri Pac.  R.  Co.  v.  Reynolds,  1 3  Am.  &»  Eng. 
R.  Cas.  510,  31  Kan.  132,  1  Pac.  Rep.  150. 

Four  horses  belonging  to  plaintiff's  intes- 
tate were  killed  on  a  siding  of  defendant's 
road  under  the  following  circunistances : 
Plaintiff's  intestate  was  in  the  habit  of  haul- 
ing cars  on  that  siding  for  the  Blaisdell 
mill.  The  defendant  daily  used  the  siding, 
on  the  arrival  of  a  certain  train,  for  sendinj; 
cars  loaded  with  logs  to  the  Bullis  mills, 
situated  on  the  same  siding  beyond  the 
Blaisdell  mill.  This  was  done  by  means  of 
a  "  flying  switch,"  the  loaded  cars  being  cut 
out  of  the  train  while  in  motion,  and  pro- 
pelled by  their  own  momentum  down  the 
siding.  The  plaintiff's  intestate  was  fiimiliar 
with  this  use  of  the  siding,  and  knew  the 


ANIMALS,  INJURIES   TO,  57«. 


341 


time  at  which  the  log  train  was  accustomed 
to  arrive,  and  it  was  his  duty  to  iceep  tiie 
siding  clear  at  such  time.  At  the  time  of 
the  accident  his  teams  were  employed  in 
moving  a  string  of  empty  cars  on  the  siding. 
When  the  log-train  arrived  and  the  flying 
switch  was  made,  the  empty  cars  had  been 
drawn  onto  a  branch  siding  near  the  Blais- 
dell  mill,  but  the  loaded  cars  came  down 
the  main  siding  and  followed  the  empty 
cars,  by  means  of  the  open  switch,  onto  the 
branch,  and  the  collision  occurred  which 
resulted  in  the  loss  of  the  horses,  it  was 
the  duty  of  the  plaintiff's  intestate  and  his 
men  to  close  the  switch  behind  them,  but 
the  loaded  cars  followed  so  closely  as  not  to 
give  time  to  do  so.  There  was  some  evi- 
dence tiiat  the  men  in  charge  of  the  train 
were  warned  by  Dunn  of  the  presence  of  the 
empty  cars  on  the  siding  before  the  flying 
switch  was  made.  The  weight  of  the  evi- 
dence showed  that  the  train  did  not  arrive 
ahead  of  the  schedule  time,  but  a  little  after. 
Held,  that  it  was  not  error  in  the  trial  court 
to  refuse  to  instruct  the  jury  tiiat  the  omis- 
sion of  the  engineer  to  observe  the  warning 
given  by  Dunn  did  not  constitute  negligence 
on  the  part  of  the  defendant.  Held,  also> 
that  as  the  train  was  in  advance  of  its  sched- 
ule time  when  the  flying  switch  was  made, 
that  was  a  fact  the  jury  might  consider. 
They  might  well  have  found  it  negligence 
on  the  part  of  the  defendant's  servants  to 
throw  the  loaded  cars  on  the  siding  before 
the  usual  time  for  so  using  it,  when  men 
and  teams  might  be  there  engaged  in  mov- 
ing empty  cars.  Good  v.  New  York,  L.  E. 
6-  W.  R.  Co.,  li  N.  Y.  S.  E.  77 i,  50  Hun 
601,  2  A^.  Y.  Stipp.  419. 

Where  the  complaint,  asking  damages 
against  a  railway  company  for  injury  to 
stock,  charges  negligence  and  carelessness 
generally,  it  is  not  error  to  refuse  to  give  in 
the  charge  to  the  jury  a  request  limiting  the 
cause  of  injury  to  the  negligence  of  a  single 
one  of  defendant's  servants.  Pittsburgh,  C. 
&*  St.  L.  R.  Co.  V.  Fleming,  30  Ohio  St.  480. 

Where  the  killing  of  cattle  by  a  railroad 
train  was  proved,  and  the  company  offered 
no  testimony  in  defense,  the  circuit  judge 
committed  no  error  in  refusing  to  charge 
liiat  the  company  were  not  liable  unless 
shown  to  have  been  guilty  of  gross  negli- 
gence or  wilful  injury.  Jones  v.  Columbia 
&*  G.  R.  Co.,  19  Am.  &>  Et^.  R.  Cas.  459,  20 
.SV.  Car.  249. 

Handing  to  a  trial  judge  the  syllabus  of 


a  former  case  and  asking  him  to  read  it  to 
the  jury,  in  an  action  for  killing  stock, 
where  no  more  formal  request  is  made, 
which  is  refused,  such  refusal  is  not  ground 
for  reversing  a  judgment,  where  the  same 
proposition  of  law  had  been  fully  stated  in 
the  hearing  of  the  jury.  [McIver,  J.,  dis- 
senting.] Molair  v.  Port  Royal &•  A.  R.  Co., 
31  So.  Car.  510,  10  S.  E.  Rep.  243.— Distin- 
guishing Harley  v.  EutawvilleR.Co.,31  So. 
Car.  151. 

The  following  requests  for  instructions  were 
properly  refused  by  the  court  : 

An  instruction  that  if  the  jury  believed 
that  none  of  the  mules  was  seen  in  time  to 
stop  the  trains  by  the  use  of  all  possible 
means,  or  that,  at  their  rate  of  speed,  they 
could  not  have  been  stopped  within  the  dis- 
tance within  which  the  headlights  would  re- 
veal objects  on  the  track,  and  that  the  head- 
lights were  such  as  were  used  on  well-regu- 
lated roads,  they  must  find  for  defendant, 
since  such  instruction  ignored  the  duty  of 
the  engineers  to  keep  a  lookout,  and  not  to 
run  their  trains  at  a  negligent  rate  of  speed. 
Birmingham  Mineral  R.  Co.  v.  Harris,  98 
Ala.  326,  13  So.  Rep.  377. 

Instructions  which  required  plaintiff  to 
show  by  what  train  the  mules  were  killed, 
and  that  defendant  was  negligent.  Birming- 
ham Mineral  R.  Co.  v.  Harris,  98  Ala.  326, 
135^.  Rep.  177. 

An  instruction  that  if  the  jury  believed 
the  evidence  they  could  not  allow  damages 
for  the  mules  killed  by  either  train  was 
properly  refused,  since  both  engineers  testi- 
fied that  it  was  impossible,  at  the  rate  of 
speed  at  which  they  were  running  at  the 
time  of  the  accident,  to  stop  their  trains  in 
time  to  save  the  mules.  If  so,  it  was  negli- 
gence for  which  the  company  wns  liable. 
Birmingham  Mineral  R.  Co.  v.  Harris,  98 
Ala.  326,  13  So.  Rep.  377. 

An  instruction  which  claims  a  verdict  for 
the  company,  in  an  action  for  damages  for 
killing  a  mule,  "  if  the  engineer  was  on  the 
lookout  for  obstructions  when  he  discovered 
the  animal  on  the  track,  and  then  used  all 
the  means  in  his  power  to  prevent  the  in- 
jury," ignoring  the  question  whether  the 
animal  might  not  have  been  sooner  dis- 
covered if  a  proper  lookout  had  been  kept, 
is  properly  refused.  East  Tenn.,  V.  &*  G. 
R.  Co.  V.  Baker,  94  Ala.  632,  10  So.  Rep. 
211. 

An  instruction  "  that  if  the  engineer,  on 
preceiviig  the  animal  on  the  track,  used 


342 


ANIMALS,  INJURlL'S   TO,  57«. 


M 


4;^ 


all  the  means  within  his  power  known  to 
skilful  engineers  in  order  to  stop  the  train, 
then  plaintiff  cannot  recover,"  because  mis- 
leading, since  the  accident  may  have  been 
proximately  caused  by  his  failure  to  keep 
a  diligent  lookout  for  obstructions.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  IViitson,  90  Ala. 
41,  7  So.  Rep.iiy 

An  instruction,  in  an  action  for  killing  a 
cow,  that  the  failure  of  the  company  to 
keep  its  right  of  way  clear  of  bushes  is 
negligence,  the  question  of  negligence  being 
exclusively  for  liie  jury.  Woolfolk  v.  Macon 
d»  A.  R.  Co.,  56  Ga.  457- 

A  request  to  charge  in  general  terms  that 
a  less  degree  of  diligence  is  required  in  a 
county  where  the  stock  law  prevails  than  in  a 
county  where  it  does  not.  Also  a  reque&t  to 
charge  that  a  less  degree  of  diligence  in 
looking  out  for  stock  is  required  while  run- 
ning through  a  field  than  while  running 
through  lands  uninclosed.  Central  R.  Co. 
v.  Summerford,  87  Ga.  626,  13  .S".  E.  Rep. 
588. 

An  instruction  that,  if  the  cattle  were 
killed  by  the  trains  upon  defendant's  road 
it  was  incumbent  upon  plaintifT  to  show 
that  the  damages  were  caused  by  the  negli- 
gence of  defendant,  as  the  jury  might  have 
inferred  from  it  that  it  was  necessary  for 
plaintiff  to  prove  wilful  negligence,  or  some 
other  negligence  than  the  fact  of  the  kill- 
ing and  the  omission  to  fence.  Rockford, 
R.  I.  <S-  St.  L.  R.  Co.  V.  Lynch,  67  ///.  149. 

Instructions,  in  effect,  that  if  animals 
went  on  the  railroad  track  at  a  crossing  of 
the  highway  and  were  killed  some  distance 
from  the  highway,  the  railroad  company 
would  not  be  liable  upon  the  ground  of  the 
want  of  a  fence.  Evansville  &*  C.  R.  Co.  v. 
Bar  bee,  74  Ind.  169. 

An  instruction  that  "  if  the  plaintiff 
knowingly  and  consentingly  permitted  his 
mule  to  habitually  run  at  large  in  the  im- 
mediate vicinity  uf  the  place  where  he  was 
killed,"  he  himself  was  not  ..ee  from  negli- 
gence and  not  entitled  to  recover,  where  the 
evidence  clearly  showed  that  the  animal 
was  not  running  at  large  with  the  plaintiff's 
knowledge  at  the  time  it  was  killed,  but  that, 
on  the  contrary,  the  plaintiff  had  taken 
every  precaution  that  a  man  of  ordinary  pru- 
dence would  take  to  securely  fasten  the 
animal  in  his  stable,  and  that  it  escaped 
without  his  knowledge  or  fault,  and  wan- 
dered along  the  street  to  the  place  on  the 
(rack  where  it  was  killed.    Ohio  &*  M.  R.  Co. 


V.  Craycrafi,  5  Ind.  App.  335,  32  N.  E.  R,/>. 
297. 

An  instruction  that  the  burden  of  proof 
of  negligence  is  on  plaintiff,  or  that  plain- 
tiff's son  should  have  notified  the  company 
of  the  defective  condition  of  the  fence, 
when  an  instruction  had  already  been  given 
directingthe  jury  that  defendant  is  not  liahle 
unless  there  was  negligence  in  failing  to 
repair  the  fences  within  a  reasonable  time 
after  notice  of  their  defective  condition 
was  had,  and  that  defendant  should  have 
received  notice  of  the  want  of  repair.  Du/i/i 
V.  Chicago  &*  N.  W.  R.  Co.,  7  Am.  &*  Eng. 
R.  Cas.  573,  58  Iowa  674,  12  A^.  W.  Rep.  734. 

An  instruction  that,  "if  the  jury  finds 
from  the  testimony  in  the  case  that  the  cow 
was  struck  in  the  highway  by  the  defend- 
ant's engine  and  killed,  the  plaintiff  cannot 
recover,"  the  plaintiff  claiming  that  if  the 
animal  was  upon  the  highway  crossing 
when  injured  it  was  because  of  the  neglect 
of  the  defendant  to  properly  fence  its  track, 
as  such  instruction  excludes  all  idea  that 
the  defendant's  negligence  might  have  oc- 
casioned the  cow's  being  upon  the  highway. 
/ebb\.  Chicago &*  G.  T.  R.  Co.,  31  Am.  &• 
Eng.  R.  Cas.  532,  67  Mich.  160,  10  IVest. 
Hep.  905.  34  A'.  W.  Rep.  538. 

An  instruction  that  "  the  mere  fact  that 
the  gate  in  question  was  not  hung  or  pro- 
vided with  latches  or  hooks,  and  that  plain- 
tiff's animal  escaped  through  such  gate  and 
was  killed,  does  not  of  itself  make  this  de- 
fendant liable,"  when  the  same  matter  is 
made  a  distinct  condition  of  recovery  in 
other  instructions.  Cooper  v.  Atchison,  T. 
<S-  S.  F.  R.  Co.,  39  Mo.  App.  489. 

An  instruction  as  to  the  condition  of  the 
fence  at  a  point  other  than  that  at  which  it 
was  shown  the  animal  got  upon  the  track. 
Coryell  V.  Hannibal  &*  St.  J.  R.  Co.,  82  Mo. 
441. 

Instructions  that  if  an  empIoy6  of  the 
company  made  an  examination  of  the  fence 
the  day  before  the  accident  and  discovered 
no  defect,  and  if  he  made  such  examina- 
tion as  in  his  judgment  was  deemed  proper 
under  the  circumstances,  then  the  company 
is  not  liable — as  such  examination  might 
have  been  made  and  still  the  whole  duty  of 
the  company  not  discharged.  McGuirt  v. 
Ogdtnsburg  6-  L.  C.  R.  Co.,  44  A'.  Y.  S.  R. 
348,  63  Hun  632,  18  A'.  V.  Supp.  313. 

An  instruction  asked  for  by  defendant,  in 
an  action  for  killing  a  horse,  "  that  when 
the  plaintiff  proves  the  ownership  and  the 


ANIMALS,  INJURIES   TO,  577,578. 


343 


fact  of  the  killing  he  makes  out  a  ptima- 
/<i^/>  case,  and  negligence  is  presumed  ;  but 
that  when  the  defendant  introduces  evidence 
and  explains  the  fact  of  the  killing,  the 
plaintiff  is  required  to  prove  by  a  pre- 
ponderance of  testimony  that  the  defendant 
was  negligent."  Fuller  v.  Port  Royal &*  A. 
R.Co.,  2\So.  Car.  132.— REVIEWING  Dan- 
ner  v.  South  Carolina  R.  Co.,  4  Rich.  (S. 
Car.)  329. — Quoted  in  Joyner  v.  South 
Carolina  R.  Co.,  29  Am.  &  Eng.  R.  Cas. 
258,  26  So.  Car.  49,  I  S.  E.  Rep.  52. 

677.  Directing  verdict.— T^^  court 
properly  directed  a  verdict  for  defendant  in 
the  following  cases: 

Where  there  is  no  evidence  tending  to 
prove  plaintiff's  case.  Hoge  v.  Ohio  River 
R.  Co.,  35  IV.  Va.  562,  14  S.  E.  Rep.  152. 

Where  an  engineer  is  the  only  witness 
who  testifies  as  to  the  circumstances  at- 
tending the  killing  of  a  horse,  and  his  evi- 
dence disproves  all  negligence,  and  he  is 
not  impeached  or  contradicted.  Alabama 
G.  S.  R.  Co.  v.  Roebuck,  23  Am.  &»  Eng.  R. 
Cas.  176,  76  Ala.  277. 

Where  proof  of  killing  stock  has  made 
out  a  prima-facie  case  under  the  Dakota 
statute,  but  defendant's  evidence  shows  be- 
yond a  doubt  that  the  killing  was  withr>ut 
fault  on  the  part  of  the  employes  of  the  com- 
pany. Volkman  v.  Chicago,  St.  P.,  M.  &•  0. 
R.  Co.,  3S  Am.&*Eng.  R.  Cas.  204,  5  Dai.  69, 
37  A'.  IV.  Rep.  731.— Approving  Louisville 
&  N.  R.  Co.  V.  Wainscott,  3  Bush.  (Ky.) 
149;  Chicago,  St.  L.  &  N.  O.  R.  Co.  v. 
Packwood,  7  Am.  &  Eng.  R.  Cas.  584,  59 
Miss.  280;  Kentucky  C.  R.  Co.  v.  Talbot, 
78  Ky.  621 ;  Durham  v.  Wilmington  &  W. 
R.  Co..  82  N.  Car.  352.— Followed  in  Hu- 
ber  V.  Chicago,  M.  &  St.  P.  R.  Co.,  6  Dak. 

392- 

Wliere  the  evidence  vindicates  a  railway 
company  from  all  blame  for  an  accident 
which  resulted  in  the  rashness  of  a  mule  in 
walking  across  the  track  in  front  of  a  rap- 
idly moving  train.  /Kansas  City,  M.  d*  B.  R. 
Co.  v.  Myers,  (Miss.)  7  So.  Rep.  321. 

In  an  action  to  recover  damages  for  in- 
juries to  several  mules,  which  were  run 
over  by  a  freight  train  before  daybreak  one 
frosty  morning  as  the  train  was  crossing  a 
trestle  over  a  small  creek,  when  the  engi- 
neer of  the  train  testifies  that  he  did  not  see 
the  animals  until  he  was  within  ten  feet  of 
them,  and  could  not  see  them  sooner  be- 
cause of  a  dense  fog  about  one  hundred 
yards  wide,  which  covered  the  track  at  that 


point,  extending  up  and  down  the  creek ; 
there  being  no  evidence  in  conflict  with 
his  testimony,  and  none  which  authorized 
an  inference  inconsistent  with  it.  Central 
R.  &»  B.  Co.  V.  Ingram,  95  Ala.  1 52. 

Where  in  an  action  for  killing  a  horse  the 
undisputed  evidence  showed  that  the  acci- 
dent occurred  at  a  place  where  there  was  a 
down-grade;  that  the  train  was  running 
from  eighteen  to  twenty  miles  an  hour ;  that 
the  horse  came  upon  the  track  from  five  to 
ten  rods  ahead  of  the  engine ;  that  the  engi- 
neer immediately  upon  seeing  the  horse 
whistled  and  reversed  the  engine ;  that  the 
brakes  were  applied  and  everything  was  done 
possible  to  avert  the  accident ;  that  the  en- 
gine and  cars  were  provided  with  the  neces- 
sary appliances  for  stopping  them ;  that  the 
employes  in  charge  of  the  train  were  experi- 
enced and  competent ;  and  that  the  horse  was 
hobbled  at  the  time  of  the  accident.  Huber 
V.  Chicago,  M.  &*  St.  P.  R.  Co.,  40  Am.  6- 
Eng.  R.  Cas  188,  6  Dak.  392,  43  N.  W.  Rep. 
819.— Approving  Grundy  V.  Louisville  &  N. 
R.  Co.,  (Ky.)  2  S.  W.  Rep.  899;  Spaulding 
V.  Chicago  &  N.  W.  R.  Co.,  33  Wis.  582; 
Kentucky  C.  R.  Co.  v.  Talbot,  7  Am.&  Eng. 
R.  Cas.  585, 78  Ky.  621.  Following  Volk- 
man V.  Chicago,  St.  P.M.  A  R.  Co.,  5  Dak. 
69. 

Where  in  an  action  for  killing  a  mule 
plaintiff  testified  that  the  animal's  tracks 
showed  that  it  had  run  some  forty  yards  on 
the  track  before  it  was  struck,  and  the  en- 
gineer testified  for  the  company  that  the 
animal  was  killed  at  night,  and  when  first 
seen  by  the  use  of  the  headlight  was 
standing  on  the  track  about  fifty  yards 
ahead  of  the  engine,  and  then  it  was  im- 
possible, at  the  rate  of  speed  he  was  run- 
ning, to  stop  the  train  in  time  to  avoid  the 
accident,  as  the  evidence  was  easily  recon- 
cilable, and  that  of  the  engineer  was  prob- 
able. Louisville,  N.  O.  &*  T.  R.  Co.  v.  Tate, 
70  Miss.  348,  12  So.  Rep.  333. 

But  where  there  is  no  direct  evidence  in 
an  action  for  killing  stock,  but  there  are 
circumstances  tending  to  show  the  killing, 
the  jury  must  determine  whether  the  cir- 
cumstantial evidence  is  sufficient  or  not, 
and  it  is  error  to  give  a  peremptory  in- 
struction to  find  for  the  defendant.  South 
&-  N.  Ala.  R.  Co.  V.  Small,  70  Ala.  499. 

578.  Erroneous  yet  harmless  in- 
structions.—(1)  Generally. — A  Connecti- 
cut statute  provides  that  railroad  com- 
panies  shall     construct    cattle-guards    at 


344 


ANIMALS,  INJl'RIKS   TO,  578. 


1^1 


highway  crossings,  nnless  ihc  railroad  (  om- 
missioners  are  of  the  opinion  that  they  are 
not  necessary.  When  sued  for  killing  stock 
through  the  alleged  failure  to  construct 
such  cattle-guards,  the  company  introduced 
evidence  that  the  commissioners  had  fre- 
quently passed  over  that  portion  of  the 
road  on  official  business  and  had  never  di- 
rected a  cattle-guard  ;  but  it  appeared  that 
their  attention  had  never  been  specially 
called  to  it.  The  court  instructed  the  jury 
that  such  evidence  was  not  conclusive  as  to 
the  opinion  of  the  commissioners.  Held, 
that  as  the  evidence  was  scarcely  admis- 
sible, the  company  could  not  complain  of 
such  instruction,  it  being  more  favorable 
than  it  was  entitled  to.  Hulkley  v.  New 
York  6-  N.  H.  A'.  Co.,  27  Conn.  479- 

In  a  suil  for  killing  a  cow,  where  no 
negligence  was  imputable  to  plaintiff,  and 
consequently  the  doctrine  of  comparative 
negligence  was  not  involved,  an  instruc- 
tion which  states  the  rule  in  such  case  in- 
correctly will  not  be  such  an  error  as  to 
reverse  a  just  judgment ;  nor  will  evidence 
that  there  was  much  trouble  in  the  vicinity 
with  the  company.  Rockford,  R.  I.  6*«  St.  L, 
R.  Co.  V.  Rafferty,  73  ///.  58. 

(2)  Relating  to  measure  of  damages.*— 
Where  suit  is  brought  to  recover  both  for 
animals  killed  and  injured,  an  objection 
that  the  instructions  given  as  to  the  value 
of  the  animals  injured  does  not  state  the 
measure  of  damages  correctly  is  not 
ground  for  the  reversal  of  a  judgment  for 
plaintifl  for  a  total  of  $436,  where  the 
value  of  the  cattle  killed  was  alleged  to  be 
$425  and  of  those  injured  ^o.  Lainiger  v. 
Kansas  City,  St.  J.  &*  C.  B.  R.  Co.,  41  Mo. 
App.  165. 

An  error  in  instructing  the  jury  In  an 
action  under  the  43d  section  of  the  Missouri 
railroad  act  that  they  may  allow  interest  on 
the  value  of  animals  killed  is  not  ground 
for  reversing  a  judgment  where  it  appears 
that  no  interest  was  allowed.  Wade  v. 
Missouri  Pac.  R.  Co.,  19  Am.&»Eng.  R.  Cat. 
586,  78  Mo.  362. 

(3)  Relating  to  degree  of  care.\ —  The 
owner  of  cattle  which  stray  upon  a  track 
by  reason  of  the  insufficiency  of  a  fence 
which  the  railroad  company  is  under  ob- 
ligation to  maintain,  who  brings  an  action 
upon   the  case   against   the  company  for 

•  See  toit,  586-589. 

t  See  ante,  48, 58,  02, 116, 141. 186. 


killing  the  cattle  by  means  of  a  loco- 
motive engine,  is  entitled  to  have  the  de- 
gree of  care  which  the  company  is  bound 
to  exercise  defined  in  a  more  strict  manner 
than  by  instructing  the  jury  that  the  com- 
pany is  bound  to  the  exercise  of  such 
care  as  a  man  of  ordinary  prudence  would 
use,  who  was  the  owner  of  both  the  rail- 
road and  the  cattle;  but  if  such  instruction 
is  given  to  the  jury  the  defendant  cannot 
complain.  Quimby  v.  Vermont  C.  R.  Co., 
23  Vt.  387.— FoLLOWKU  IN  Sioux  City  &  P. 
R,  Co.  V.  Stout,  17  Wall.  (U.  S.)  657. 

Where  plaintiiT  produces  several  witnesses 
who  testify  that  his  mutes  were  killed  by  a 
train,  in  daylight,  with  nothing  to  obstruct 
the  view ;  that  no  eflort  was  niade  to  stop 
the  train,  but  that,  on  tho  other  hand,  the 
engineer  seemed  to  be  trying  10  run  them 
down ;  and  that  the  mules  ran  a  considerable 
distance  ahead  of  the  train  on  the  track, 
which  evidence  is  undisputed,  as  it  goes  to 
show  a  liability  of  the  company  in  any 
event,  it  is  harmless  error  to  instruct  the 
jury  that  the  engineer  was  bound  to  use  the 
"  utmost  care."  St.  Louis  6»  S.  /<".  A'.  Co.  v. 
O'Loughlin,  49  Fed.  Rep.  440,  4  U.  S.  App. 
283,  I  C.C.A.iw. 

(4)  Relating  to  company's  failure  to  fence.* 
— Where  a  company  is  sued  for  killing  stock 
by  reason  of  a  failure  to  fence  its  track 
within  six  months,  as  required  by  statute,  a 
failure  to  instruct  the  jury  that  the  com- 
pany was  not  liable  for  a  failure  to  fence 
until  the  lapse  of  six  months  after  the  road 
was  opened  is  harmless  error,  where  the 
evidence  clearly  shows  that  the  road  had 
been  used  for  much  longer  than  six  months. 
Chicago  &*  N.  IV.  R.  Co.  v.  Dement,  44  ///. 

74- 

An  instruction  to  the  effect  that  where 
cattle  get  on  the  track  of  a  railroad  on  ac- 
count of  the  want  of  a  fence  where  the  right 
to  fence  exists,  and  are  killed  by  the  cars, 
the  company  is  liable,  whether  the  cattle 
were  running  at  large  at  the  time  or  not,  was 
erroneous;  but,  since  it  was  clearly  shown 
on  the  trial  that  the  cattle  in  question  were 
running  at  large,  the  error  could  not  have 
prejudiced  defendant,  and  was  no  ground  for 
reversal.  Brent ner  v.  Chicago,  M.  &>  St.  P. 
R.  Co.,  19  Am.  &*  Fng.  R.  Cas.  448,  68  /o7t/a 
S30,  23  A^  IV.  Rep.  245,  27  N.  IV.  Rep.  605. 

The  error  in  charging  the  jury  that  to 
entitle  the  stock-owner  to  recover  it  is  only 

*  Sit  ante.  122-130. 


AMMAI-S,  IN  JURIES   TO,  571»-5M2. 


345 


necessary  for  liiin  to  |ii'i>ve  Uie  injury  lo  ur 
(lestructiuii  uf  his  property,  is  cured  by 
subsequent  instructions  that  the  plaintiff 
must  prove  tlie  allegations  of  his  complaint 
by  a  preponderance  of  evidence,  and  could 
only  recover  in  case  it  appeared  that  the 
(olt  while  running  at  large  passed  onto  de- 
fendant's track  by  reason  of  its  omission  or 
neglect  to  inclose  its  right  of  way  with  a 
sutHcient  fence,  and  while  so  upon  the  track 
i>'  a  point  where  defendant  had  a  right  to 
fence  was  struck  and  injured  by  an  engine. 
Ktxrr  V.  Chicago,  R.  I.  &*  P.  R.  Co.,  {Iowa) 
54  A'.  IV.  Rep.  144.— RicviEWlNG  Manwell 
V.  Burlington,  C.  R.  &  N.  R.  Co.,  80  Iowa 
666,  4S  N.  W,  Rep.  568. 

In  an  action  lor  injury  to  cattle  under 
Missouri  Rev.  St.  §  809,  if  the  complaint  is 
sulllcient  and  the  fuels  warrant  a  judgment 
for  ihc  piaintifT,  the  judgment  will  not  be 
set  aside  because  the  instructions  do  not 
require  the  jury  to  find  that  the  injury  was 
occasioned  by  the  company's  failure  to 
fence.  Terry  v.  Missouri  Pac,  R.  Co.,  77 
Mo.  254.— Following  Moore  v.  Missouri 
I'ac.  R.  Co.,  73  Mo.  438;  Williams  v.  Mis- 
souri Pac.  R.  Co.,  74  Mo.  453.— Approved 
IN  Phi!lips  V.  Missouri  Pac.  R.  Co.,  24  Am. 
k  Eng.  R.  Cas.  368,  86  Mo.  540. 

8.  Afnount  of  Recovery, 

579.  Generally.*— A  jury  need  not  fix 
the  value  of  stock  killed  at  the  exact  sum 
testified  to  by  any  one  witness  or  by  any 
two,  but  may  find  an  intermediate  sum. 
Jeffersonville,  M.  &'/.  R.  Co.  v.  Tull,  yj  Ind. 

34 1  • 

The  Indiana  statute  requiring  company 
to  fence,  and  awarding  damages  to  the  own- 
ers of  animals  killed  or  injured  by  the  roll- 
ini;  stock  of  any  company,  applies  to  ani- 
mals killed  by  freight  as  well  as  passenger 
trains.  Indianapolis^*  C.  R.  Co.v.  Snelling, 
16  Ind.  4iS. 

ft80.  Coiiipeiisatory  damageH.— The 
damages  for  stock  killed  by  a  railway 
through  negligence  merely,  as  a  neglect  to 
fence  its  track,  are  compensatory  only.  To 
authorize  more,  circum.stances  of  aggrava- 
tion must  be  shown.  Toledo,  P.  &*  W.  R. 
Co.  v.  Johnston,  74  ///.  83, 

Consequential    damages   resulting   from 

*  Damages  for  killing  or  injuring  animals,  see 
note,  49  Am.  &  Enc.  R.  Cas.  563. 

Damages  for  stock  liable  to  be  killed,  see 
note,  44  Am.  &  Eno.  R.  Cas.  113. 


fright  to  animals  injured  by  falling  through 
a  bridge,  not  caused  by  actuiil  collision,  or 
any  negligence  or  wilful  misconduct  on  the 
part  of  the  servants  of  the  company,  are  not 
embraced  in  Nebraska  Coinp.  St.  ch.  72,  J§ 
I,  2.  Burlington  &*  M.  R.  R.  Co.  v.  Shoe- 
maker,  22  /////.  <S-»  Eng,  R.  Cas.  565,  18  Neb. 

369- 

And  the  rule  is  the  same  under  the  Illinois 
act  of  1874,  as  amended  by  act  of  1879. 
.^cherts  v.  Indianapolis,  li.  &*  IV.  R.  Co., 
15  Am.  <&-  luig.  R.  Cas.  523,  107  ///.  577.— 
DiSTlNOUISHJiU  IN  Chicago  &  E.  I.  R.  Co. 
V.  People,  120  111.  667,  12  N.  E.  Rep.  207,  9 
West.  Rep.  740. 

081.  Proximate  and  remote  dani- 
ageH.— The  plaintiff,  whose  horses  were  in- 
jured through  defendant's  negligence,  may 
legally  recover  for  the  reduced  market  value 
of  the  horses,  but  cannot  recover  the 
amount  that  he  could  have  earned  with 
them  during  several  weeks  that  they  could 
not  be  used.  He  could,  however,  if  he  had 
shown  it,  have  recovered  what  would  have 
been  the  value  of  their  use  if  they  had  not 
been  injured.  Fritts  v.  New  York  &•  N. 
E.  R.  Co.,  62  Conn.  503,  26  All.  Rep.  347. 

When  a  railroad  is  sued  for  frightening  a 
horse  and  causing  him  to  run  against  a 
barbed-wire  fence,  the  compensation  should 
be  for  a  sum  to  cover  the  reasonable  hire 
of  the  horse  while  disabled,  and,  in  ad- 
dition, enough  to  make  good  any  diminu- 
tion in  his  market  value.  Atlanta  &*  W. 
P.  R.  Co.  V.  Hudson,  62  Ca.  679. 

In  an  action  for  injuries  to  a  span  of 
horses  by  coming  against  a  barbed-wire 
fence,  which  rendered  them  unfit  for  use  for 
a  time,  the  owner  may  recover  for  the  per- 
manent diminution  in  the  market  value  of 
the  horses,  and,  in  addition  thereto,  such 
expenses  as  he  incurred  in  reasonable  at- 
tempts to  effect  a  cure,  together  with  rea- 
sonable compensation  for  the  loss  of  the 
use  of  the  horses  while  under  treatment, 
provided  the  whole  damages  do  not  exceed 
the  original  value  of  the  property.  Keyes  v. 
Minneapolis  &*  St.  L.  R.  Co.,  36  Minn.  290, 
30  A^.  IV.  Rep.  888. 

082.  Trouble  and  expense  in  at- 
tempting to  cure  injured  animal.— 
Where  live  stock  are  wrongfully  injured  by 
a  railway  company,  the  owner  may  recover 
such  reasonable  expenses  as  were  neces- 
sarily incurred  in  taking  care  of  and  curing 
the  injured  stock.  International  &*  G.  N.  R. 
Co.  V.  CocJte,  23  Am.  &*  En^.  R.  Cas.  226,  64 


.n  ^:^ 


:-  4 


:)40 


ANIMALS,  I\jrk!i:S   to,  5H;»,  584. 


Sf 


':%         ■     ■* 


Tex.  151.— yuuiEU  IN  Dall.is  Ciiy  U.  Co. 7-. 
Becman,  74  lex.  291. 

Where  slock  arc  negligently  injured  by  a 
company  but  not  killed,  it  is  the  duty  of 
the  company  to  take  prober  care  of  them, 
and  if  it  fails  to  do  so  the  owner  may  give 
the  animals  necessary  attention  and  care  and 
recover  from  tiie  company  reasonable  com- 
pensation therefor.  Finch  v.  Central  R.  Co, 
0/  Iowa,  42  /(nva  304. 

Where  a  horse  is  injured,  the  measure  of 
the  owner's  damages  is  tlie  diminution  of 
the  market  value  of  the  horse  at  the  time 
that  action  is  commenced,  and,  in  addition, 
such  sum  as  he  iiad  paid  out  in  reasonable 
attempts  to  effect  a  cure,  with  such  further 
reasonable  sums  as  will  compensate  the 
owner  for  the  loss  of  the  use  of  the  horse 
while  disabled,  and  for  his  own  services 
in  attempting  to  cure ;  but  in  no  case 
can  the  whole  damages  allowed  exceed 
the  market  value  of  the  horse.  Gilletl  v. 
Western  R.  Co.,  8  Allen  (A/ass.)  560.— AP- 
PROVED IN  Keyes  v.  Minneapolis  &  St.  L. 
R.  Co.,  36  Minn.  290,  30  N.  W.  Rep.  888. 

And  whether  there  is  a  reasonable  belief 
that  the  horse  can  be  cured,  and  whether 
the  expenditure  was  made  in  good  faith, 
are  questions  for  the  jury.  £llts  v.  Hilton, 
78  Mich.  150,  6  L.  R.  A.  454.  43  N.  W. 
Rep.  1048.— Following  Watson  v.  Lisbon 
Bridge,  14  Me.  201. 

Where,  through  the  negligence  of  a  rail- 
way company,  an  animal  is  so  injured  as  to 
entirely  destroy  its  usefulness,  the  owner 
may  recover  its  full  value,  with  compensa- 
tion for  reasonable  expensf;  and  care  in  at- 
tempting to  effect  a  cure.  Gulf,  C.  SfS.  F. 
R.  Co.  v.  Keith, 74  Tex.  287,  \\  S.  W.  Rep. 
1 117. 

In  an  action  for  damages  for  killing  one 
mule  and  injuring  another,  it  was  not  error 
to  allow  the  plaintiff  to  testify  as  to  the  ex- 
pense of  feeding  and  doctoring  the  crippled 
mule  during  the  lime  it  could  not  work,  as 
a  measure  of  damages  touching  that  animal. 
Central  R.  &*  B.  Co.  v.  Warren,  84  Ga.  329, 
10  5.  E.  Rep.^ii. 

In  an  action  for  an  injury  to  plaintiff's 
mare  from  which  she  died,  and  which  is 
alleged  to  have  been  caused  by  a  defective 
highway,  it  was  error  to  admit  evidence  of 
the  value  of  the  use  of  the  animal  during 
the  period  which  intervened  between  the 
injury  and  the  death,  "  including  plaintiff's 
service  in  taking  care  of  her."  Page  v. 
Sumpter,  53  Wis.  652,  1 1  A'.  W.  Rep.  60. 


58.'t.  Exviiipliiry    daiiiatfeM.  —  The 

jury  may  allow  exemplary  damages  against 
a  railroad  company  if  it  appear  that  stock 
are  killed  or  injured  by  the  gross  negli(;cnce 
or  wilful  and  wanton  mischief  of  its  agents. 
I'icksburg  &'  J.  R.  Co.  v.  Pat  ton,  31  Miss. 
156.— DisriNGUiSHKD  IN  Cox  V.  Keahcy,  36 
Ala.  340.  Quoted  in  South  k  N.  Ala.  H. 
Co.  V.  McLendon,  63  Ala.  266  ;  New  Orleans, 
J.  &  G.  N.  R.  Co.  V.  Bailey,  40  Miss.  395. 

Where  cattle  are  killed  on  the  track 
through  ordinary  negligence  the  measure 
of  damages  is  limited  to  their  value,  and 
nothing  can  be  allowed  as  smart-money. 
Toledo,  P.  &*  W.  R.  Co.  v.  Arnold,  43  JH- 
418. 

Where  it  appears  that  cattle  are  killed 
through  ordinary  carelessness  by  the  em- 
ployes of  a  company,  it  is  error  to  instruct 
the  jury  that  if  they  believed  from  the  evi- 
dence "  that  said  stock  was  killed  through 
the  wilful  and  wanton  negligence  or  miscon- 
duct of  the  company's  agents  and  em- 
ployes," they  may  award  exemplary  dam- 
ages. Chicago,  St.  L.  &*  N.  O.  R.  Co.  v. 
Jarrett,  11  Am.  &*  Eng.R.  Cas.  455,  S9Miss. 
470. 

In  an  action  for  killing  mules  in  a  field 
through  which  the  railroad  ran,  it  was  error 
to  charge  the  jury  that  if  the  train  could 
have  been  easily  stopped  after  the  mules 
were  in  sight  from  the  train,  or  near  the 
track,  the  jury  should  award  as  damages  the 
value  of  the  mules,  and  also  such  additional 
sum  as  to  the  jury  should  seem  proper  and 
just,  as  punitive  damages  ;  it  appearing  that 
those  in  charge  of  the  train  did  all  they 
could  to  avoid  a  collision  after  the  danger 
to  the  stock  was  apparent.  Vazoo  &-  M.  V. 
R.  Co.  v.  Brumfield,  (Miss.)  4  So.  Rep.  341. 

S84.  Attorney 'h  fee.*— ////«wi.— The 
attorney's  fee  is  allowable  only  where  the 
company  has  failed  to  comply  with  the  re- 
quirements of  the  statute,  and  such  failure 
must  appear  from  evidence  in  the  record. 
Wabash,  St.  L.  &*  P.  R.  Co.  v.  Lavieux,  14 
///.  App.  469.— Followed  in  Wabash,  St. 
L.  &  P.  R.  Co.  V.  Murphy.  14  111.  App.  472. 

Where  a  company  issued  for  killing  stock 
plaintiff  is  not  entitled  to  '•ecover  attorney's 
fees  if  no  negligence,  except  what  is  known 
as  common-law  negligence,  is  shown.  Such 
fees  are  only  recoverable  where  the  loss  is 

»  See  ante,  9. 

Recovery  of  attorney's  fees  in  actions  against 
railroads  under  various  statutes,  see  note,  49 
Am.  &  Eng.  R.  Cas.  515;  20  Id.  49:. 


ANIMALS,  INJURIliS   TO,  rtMft  587. 


34? 


attributable  to  statutory  negligence,  sucli  as 
a  failure  to  fence.  Chicago,  M,  &»  St.  P.  A. 
Co.  V.  PhilUf>%,  14  ///.  App.  265. 

A  reasonable  attorney's  feu  is  allowable 
under  the  statute  only  where  a  railroad 
company  is  sued  to  recover  damages  caused 
by  its  failure  to  erect  a  fence  on  each  side 
of  its  track.  Wabash.  St.  L.  &*  P.  A'.  Co. 
V.  Xeikirk,  13  ///.  App.  387.  Chicago,  M. 
Sf*  St.  P.  A.  Co.  V.  Phillips,  14  ///.  App.  265. 

The  owner  of  stock  cannot  recover  their 
value  and  an  attorney's  fee,  as  provided  by 
statute,  unless  it  appears  tliat  the  road  was 
opened  to  use  for  at  least  six  months  be- 
fore the  injury  complained  of.  Peoria,  D. 
&*  K.  A.  Co.  V.  Purviance,  1 5  ///.  App.  1 1 2. 

Under  a  statute  allowing  a  plaintiff  in  an 
action  for  stock  killed  to  recover  reason- 
able attorney's  fees,  where  there  is  a  second 
trial  he  is  entitled  to  such  fees  at  both 
trials,  though  the  second  trial  was  granted  by 
conse  't  of  his  counsel.  Indianapolis,  B.  &* 
W.  A'.  Co.  V.  Buckles,  21  ///.  App.  181. 

The  statute  making  a  railway  corporation 
liable  to  the  owner  of  animals  injured  or 
killed  on  its  track  when  it  has  failed  to 
make  and  keep  in  repair  fences,  etc.,  and 
also  for  reasonable  attorney's  fees,  is  notice 
to  such  corporation,  when  sued  for  such  an 
injury,  that  such  attorney's  fees  will  be 
claimed,  and  it  is  not  necessary  it  should 
have  any  other  notice.  Peoria,  D.  &*  E.  A. 
Co.  v.  Duggan,  20  Am,  6-  Eng.  A.  Cas.  489, 
109  ///.  537,  50  Am.  Aep.  619. 

The  liability  of  a  company  for  attorney's 
fees  in  an  action  to  recover  for  an  injury  to 
animals,  growing  out  of  its  neglect  to  fence 
its  track,  etc.,  under  the  Illinois  act  of  1879, 
arises  at  the  same  instant  with  its  liability 
for  damages;  and  such  fees  may  be  assessed 
in  the  same  suit  with  the  damages,  the  law 
not  favoring  a  multiplicity  of  actions. 
Peoria,  D.  6-  E.  A.  Co,  v.  Duggan,  20  Am. 
ijr*  Eng.  A.  Cas.  489,  109  ///.  537,  50  Am.  Aep. 
619. 

(2)  Kansas— Missouri. — Where  the  find- 
ings show  that  an  animal  was  injured  on  a 
railroad  track  through  the  failure  of  the 
company  to  fence  the  track  and  the  negli- 
gence of  the  company  in  running  and  oper- 
ating the  cars  on  its  road,  attorney's  fees 
are  recoverable  under  the  statute  of  1874. 
Central  Branch  U.  P.  R.  Co.  v.  Nichols,  24 
Kan.  242.  See  also  Missouri  Pac.  R.  Co.  v. 
Abney,  30  Kan.  41,  i  Pac.  Rep.  385. 

No  attorney's  fees  can  be  allowed  for  de- 
fending in  this  court  a  proceeding  in  error 


to  review  a  judgment  rendered  under  the 
Kansas  railroad  stock  law  of  1874.  Kansas 
Pac.  A.  Co.  v.  IVooii,  24  Kan.  619. 

Under  ?  3613,  Rev.  St.  Missouri,  1889,8 
reasonable  attorney's  fee  may  be  taxed  in 
favor  of  a  plaintitT  prevailing  in  an  action 
founded  on  ^  2612,  for  injury  to  live  stock 
which  entered  upon  the  company's  right  of 
way  at  a  place  not  inclosed  by  a  fence  as 
required  by  law,  and  received  injuries  in 
consequence  of  being  frightened  by  passing 
cars.  Briggs  v.  St,  Louis  (S-  S.  F.  A.  Co.  ,111 
Mo.  168,  20  S.  W.  Rep.  32. 

ff8A.  ExpeiiseN  of  litigious  litiga- 
tion.—In  an  action  for  killing  an  animal, 
evidence  that  plaintifT  offered  to  compro- 
mise, and  that  defendant  offered  a  small  sum 
which  he  would  not  accept,  though  weak,  is 
still  admissible  to  show  special  litigiousness 
on  part  of  defendant,  in  order  to  the  recov- 
ery of  expenses  of  litigation  under  §  2891, 
Irwin's  Rev.  Code.  Selma,  A.  6-  D.  A.  Co. 
V.  Fleming,  48  Ga.  514. 

58<S.  Mensiire  of  dniiioges,  geiier- 
ally.* — In  an  action  for  killing  stock,  their 
value  is  the  measure  of  damages.  Galveston, 
H.  <S-  S.  A.  A.  Co.  V.  Turner,  \  Tex.  App. 
{Civ.  Cas.)  344.  Lapine  v.  A'ew  Orleans,  O. 
&"  G.  W.  A.  Co.,  20 La  Ann.  158, 

Under  Texas  Rev.  St.  art.  4245,  the 
measure  of  damage  for  stock  killed  by  a 
railroad  is  the  value  of  the  stock  when 
killed.  Texas  6-  P.  R.  Co.  v.  Lanham,  i 
Tex.  App.  (Civ.  Cas.)  99. 

The  measure  of  damages  for  injury  to  a 
domestic  animal  or  other  perishable  chattel 
is  usually  its  reduced  value  at  the  time ;  it 
can  hardly  be  fixed  by  the  rules  applicable 
in  the  case  of  injury  to  a  human  being. 
Davidson  v.  Michigan  C.  R.  Co.,  49  Mich. 
428,  13  A^.  IV.  Aep.  804. 

Where  a  company  obtains  a  right  of  way 
through  a  farm,  and  in  consideration  of  the 
grant  agrees  to  erect  and  maintain  a  secure 
fence,  but  fails  to  erect  such  fence,  and 
animals  enter  upon  the  track  by  reason 
thereof  and  are  killed,  the  measure  of  dam- 
ages is  the  value  of  the  animals  killed,  and 
not  the  cost  of  erecting  and  maintaining  a 
fence.  Chicago  &•  A.  R.  Co.  v.  Barnes,  38 
Am.  &*£ng.  R.  Cas.  297,  16 /nd.  126,  18  N. 
E.  Rep.  459. 

687.   market   value.— Where  a 

company  is  found  to  be  liable  for  stock 

•  See  ante.  578, 

Measure  of  damages  for  killing  stock,  see 
note,  35  Am.  &  Eng.  R.  Cas.  130 ;  13  Id.  592. 


H 


•'(',',  /•:' 


•MH 


ANIMALS,  INJUKIKS   TO,  .-•»»,  5N<». 


Ai 


killed,  its  liability  in  duma^cs  is  limited  to 
the  true  market  value  of  the  animals  killed. 
Ga/vtstOH,  //.  &•  S.  A.  A'.  Co.  v.  liuckUy,  i 
/>-••.  App.  (CVv.  L'as.)  377. 

The  measure  uf  damages  is  the  market 
value  of  the  animal  killed.  The  market 
value  at  u  given  time  and  place  may  be 
proved  by  the  evidence  of  cattle  sales  for 
like  property,  and  evidence  as  tu  a  single 
sale  is  relevant  and  admissible,  but  not  suf- 
ficient alone  to  establish  the  market  value. 
In  the  absence  of  evidence  to  establish  the 
market  value,  it  is  competent  to  prove  what 
price  had  been  ofTcred  for  the  animal,  as 
tending  to  show  its  market  value.  Houston 
&*  T.  C.  A'.  Co.  V.  LoUf;hbrii1ge,  1  Tex,  App. 
(Civ.  Ciis.)  754. 

Under  Texas  Kev.  St.  art  4245,  declaring 
that  railroad  companies  shall  be  liable  to 
the  owner  for  the  value  of  all  stock  killed 
or  injured,  the  "  value  "  contemplated  by 
the  statute  is  the  measure  of  damage,  and 
this  value  is  ordiNarily  to  be  ascertained  by 
proof  of  the  price  at  which  such  animals  are 
bought  and  sold ;  if  there  is  a  market  for 
such  animals,  the  market  price  is  the  meas- 
ure of  value ;  if  there  is  no  market  at  the 
place,  evidence  may  be  admitted  of  the 
price  at  the  nearest  market.  S/.  Louis,  A. 
&*  T.  R.  Co.  v.  Pickens,  3  Tex.  App.  (Civ. 
CrtJ.)  471. 

In  an  action  for  the  recovery  of  damages, 
under  the  Kansas  stock  law  of  1874,  for  the 
killing  of  a  cow,  the  plaintiff  is  entitled  to 
recover  the  market  value  of  the  animal. 
The  jury,  in  estimating  this  value,  may  con- 
sider all  the  qualities  of  the  animal  which 
affect  her  market  value,  and  are  not  limited 
in  their  inquiry  to  the  value  of  the  cow  for 
beef  or  milking  purposes.  Central  Branch 
U.  P.  R.  Co.  V.  Nichols,  24  Kan.  242. 

Upon  an  issue  in  respect  to  the  value  of 
a  chattel,  in  an  action  to  recover  for  the  de- 
struction thereof,  the  measure  of  damages 
is  its  market  value.  Evidence  of  its  intrinsic 
qualities  is  not,  as  a  rule,  alone  sufficient  to 
establish  such  value.  Additional  evidence 
is  required,  and  that  which  is  commonly  re- 
ceived is  evidence  of  th«-  opinions  of  wit- 
nesses shown  to  be  competent  to  speak  on 
the  subject,  and  which  is  to  be  considered 
and  weighed  by  the  jury  in  connection  with 
the  evidence  of  the  description  of  the  prop- 
erty. Harrow  v.  St.  Paul  «S-  I).  R.  Co.,  43 
Minn.  71,  44  A^-  W-  Hep.  881. 

The  measure  of  damages  is  the  value  of 
the  stock  when  killed;   that  value  is  the 


market  value  of  such  stock,  not  some  |>«'- 
culiar  or  particular  value  attached  to  it  by 
plaintiff.  Uullington  v.  A'eii'Port  AWw  <»- 
A/,  r.  R.  Co.,  32  /F.  ya.  436.  9  a.  E.  Rep. 
876. 

rt88.  wlicro   iiijiirod   Htock    In 

retaliie<l  by  tli«  owiht.— The  owner  of 
stock  injured  but  not  killed  is  not  bound  to 
surrender  it  to  the  company,  but  may  retain 
it,  in  which  case  his  recovery  would  be  lim- 
ited to  the  extent  of  the  injury.  Jackson  v. 
St.  Louis,  I.  M.  «*»  S.  R.  Co.,  74  Mo.  526. 

S8f>.  value  of  live  animal  lesH 

tliv  value  of  the  liide  or  beef.*— 
The  measure  of  damages,  when  a  railroad 
company  negligently  kills  a  cow,  is  the  dif- 
ference between  the  value  of  the  cow  alive 
and  its  value  for  beef.  Roing  v.  Raleijih  &^ 
G.  R.  Co..  91  A'.  Car.  199.— Following 
Roberts  v.  Richmond  &  D.  R.  Co.,  20  Am. 
&  Eng.  R.  Cas.  473,  88  N.Car.  ^60.— Roberts 
V.  Richmond  &*  L).  R.  Co.,  20  Am.  &*  JCng. 
R.  Cas.  473,  88  A'.  Car.  560.— FOLLOWED  IN 
Doing  V.  Raleigh  &  G.  R.  Co.,  91  N.  Car. 
199.  Reconcilkd  in  Godwin  v.  Wilming- 
ton &  W.  R.  Co.,  104  N.  Car.  146.  10  S.  E. 
Rep.  136. 

In  an  action  for  an  animal  killed  by  neg- 
ligence, in  which  there  is  no  evidence  of 
the  value  of  the  dead  body,  the  measure  of 
damages  is  the  value  of  the  animal  less  a 
price  received  by  the  owner  for  the  hide. 
Godwin  v.  Wilmington  &*  IV.  R.  Co.,  104  A'. 
Car.  146,  10  5.  E.  Rep.  136.— RECONCILING 
Roberts  v.  Richmond  &  D.  R.  Co.,  20  Am. 
&  Eng.  R.  Cas.  473.  88  N.  Car.  560. 

Where  a  company  is  found  liable  for  kill- 
ing stock,  if  it  appears  that  the  owner  has 
used  the  dead  body  or  given  it  away,  the 
company  is  entitled  to  have  the  value  of  the 
body  deducted  in  estimating  the  damages. 
Case  V.  St.  Louis  6-  S.  F.  R.  Co.,  1 3  Atn.  &> 
Eng.  R.  Cas.  564,  75  Afo.  668. 

If  an  ox  is  killed  by  a  company,  and  the 
owner  is  informed  of  the  accident  in  such 
time  that  he  could  by  reasonable  diligence 
have  used  the  hide  or  the  meat  for  beef,  the 
value  of  the  hide  and  of  the  meat  should, 
in  assessing  damages  against  the  railroad 
company,  be  deducted  from  the  value  of 
the  ox  when  killed.  Memphis  &*  C.  R.  Co.  v. 
Hembree,  35  Am.&*  Eng.  R.  Cas.  128,  84/1/0. 
182,  4  So.  Rep.  392.— Following  Georgia 
Pac.  R.  Co.  V.  Fullerton,  79  Ala.  298. 


*  Value  of  animal  after  injury,  see  note,  35  AM. 
ft  Eno.  R.  Cas.  130. 


item 

m 


ANIMALS,  INJURIES   TO,  ftIM). 


340 


In  an  action  for  killing  plaintiff's  heifer  he 
joicied  a  count  for  trover,  unci  a  verdict  was 
rendered  for  the  value  of  the  heifer  as  beef, 
and  not  for  her  value  before  the  injury. 
Held,  error  for  which  a  new  trial  should  be 
ordered.  Sampsell  v.  Chicitgo  &*  G.  T,  A". 
Co.,  13  Am.  &*  Eng,  A'.  Cus,  591,  51  Mn/i, 
Cos,  17  N.  W.  Rep.  77. 

5»0.  Uiity  of  piuiiititr  to  keep 
(IniiiageH  iin  Iowrh  poMHible.— (i)  Gett- 
er a  fly.— 1\\c  owner  of  cattle  negligently 
killed  by  a  railroad  train  can  only  recover 
the  difference  between  their  value  before 
the  injury  and  immediately  thereafter,  and 
it  is  his  duty  to  use  reasonable  effort  to  pre- 
vent loss  after  the  injury,  and  reduce  the 
damage  as  much  as  possible;  and  where 
such  cattle  are  available  after  the  injury,  he 
cannot  abandon  them  and  then  claim  their 
full  value.  Harrison  v.  Missouri  Pac.  R. 
Co.,  88  Mo.  625.— QuorrNO  Illinois  C.  R. 
Co.  V.  Finnigan,  31  III.  649. 

Where  animals  fit  for  food  are  killed  the 
owner  should  dispose  of  them  to  the  best 
advantage,  and  if  he  fails  to  do  so  without 
excuse  he  cannot  recover  full  value.  The 
proper  measure  of  damages  in  such  case  is 
the  ditTerence  between  the  value  of  the 
cattle  living  and  dead.  Illinois  C.  R.  Co.  v. 
Finnigan,  21  ///.  646.— Quoted  in  Harrison 
V.  Missouri  Pac.  R.  Co.,  88  Mo.  625. 

And  in  such  a  case  the  owner  is  entitled 
to  a  reasonable  time  after  the  killing  within 
which  to  dispose  of  the  animals.  Toledo, 
P.  &*  IV.  R.  Co.  V.  Parker,  49  ///.  385. 

What  is  a  reasonable  time  is  a  question 
for  the  jury;  but  taking  charge  of  a  dead 
animal  by  the  company's  employes  on  the 
evening  of  the  same  day  that  it  was  killed 
and  burying  it  is  not  a  reasonable  time. 
Toledo,  P.  6-  W.  R.  Co.  v.  Parker,  49  ///. 

385. 

The  measure  of  damages  for  cattle  killed 
is  the  difference  between  the  value  of  the 
animals  when  living  and  when  dead,  and  it 
is  only  where  the  body  is  worthless  that  the 
owner  may  abandon  it  and  recover  the  full 
value.  If  by  reasonable  diligence  he  can 
dispose  of  it  he  should  do  so,  and  the 
amount  realized  should  be  deducted  from 
the  full  value.  Georgia  Pac.  R.  Co.  v.  Ful- 
lerlon,  79  Ala.  298.— DISTINGUISHING  Ohio 
&  M.  R.  Co.  V.  Hays,  35  Ind.  173.— Foi,- 
LOWKi)  IN  Memphis  &  C.  R.  Co.  v.  Hem- 
bree,  3S  Am.  &  Eng.  R.  Gas.  128,  84  Ala. 
182,  4  So.  Rep.  392. 


Where  the  value  of  a  milch  cow  is  de- 
stroyed as  such,  but  she  is  still  valuable  for 
beef,  the  owner  cannot  abandon  her  and  re- 
cover full  value  from  the  t.iilrciad  company 
injuring  her.  though  notice  of  ihc  intention 
to  abandon  be  givt  n  the  company.  Har- 
rison V.  Missouri  Pac.  R.  Co.,  88  .\/o.  625. 

(2)  When  owner  way  ahandon  animal. — 
The  owner  of  an  animal  killed  bv  a  loco- 
motive at  a  point  on  a  railroad  where  the 
road  is  not  fenced  may  abandon  the  animal; 
and  the  company  will  be  liable  for  the  value 
of  an  animal  when  injured.  Ohio  &*  M.  R, 
Co.  v.  Hays,  35  ///</.  173,  5  //w.  Ry.  Rep.  576. 
—  Following  Indianapolis,  V.  &  C.  R.  Co. 
V.  Mustard,  34  Ind.  50.— Distinguishku  in 
Georgia  Pac.  R.  Co.  v.  Fullcrton,  79  Ala. 
298. 

If  a  company  or  a  private  individual  kill 
the  animal  of  another,  under  circumstances 
that  render  the  company  or  the  individual 
liable  therefor,  the  rule  of  damages  will  be 
the  value  of  the  animal,  unless  the  case 
calls  for  vindictive  or  punitive  damages ; 
and  these  damages  arc  not  to  be  diminished 
by  the  value  of  the  dead  animal,  unless  the 
owner  thereof  in  some  way  derives  an  actual 
benefit  therefrom,  or  does  some  act  evinc- 
ing an  election  to  appropriate  the  dead 
animal  to  himself.  A  man  whose  animal  is 
wrongfully  killed  is  not  obliged  to  take  the 
dead  animal  in  part  pay  for  the  living  one. 
Indianapolis,  P.  &•  C.  R.  Co.  v.  Mustard,  34 
Ind.  50.— Followed  in  Ohio  &  M.  R.  Co. 
V.  Hays,  35  Ind.  173. 

The  damages  of  the  owner  of  stock  for 
the  negligent  killing  thereof  cannot  be  re- 
duced by  proof  of  the  value  of  parts  of  the 
carcass,  it  not  being  the  duty  of  the  owner 
to  make  use  of  the  carcass.  Burger  v.  St. 
Louis,  K.&*N.  W.  R.  Co.,  52  Mo.  App.  119. 

Where  cattle  are  killed  and  become  so  far 
swollen  and  decomposed  as  to  be  unfit  for 
food  when  discovered  by  the  owner,  he  is 
entitled  to  recover  their  full  value.  Toledo, 
P.  **  W.  R.  Co.  v.  Sweeney,  41  ///.  226. 
Georgia  Pac.  R.  Co.  v.  Fullerton,  79  Ala.  298. 

Where  a  railroad  killed  ctittle  which  had 
strayed  upon  its  unfenced  track,  and  they 
were  mangled,  bruised,  and  swollen  when 
discovered — held,  that  owner  was  not  re- 
quired to  use  diligence  to  dispose  of  their 
dead  bodies  to  entitle  him  to  recover  their 
full  value.  Rockford,  R.  I.  &*  St.  L.  R.  Co. 
V.  Lynch,  67  ///.  149. — Quoted  in  Illinois 
C.  R.  Co.  ?'.  Trowbridge,  31  III.  App.  190. 


350 


ANIMALS,  INJURIES  TO,  591. 


B91.  Interest.*— (I)  IV/ien  recoverable. 
— Interest  is  recoverable  as  part  of  the  dam- 
ages in  an  action  against  a  railroad  for  kill- 
ing cattle.  St.  Louis,  I.  M.  &■»  S.  A\  Co.  v. 
Biggs,  50  Ark.  169,  6  S,  IV.  Rep.  724.— 
pUOTiNG  Texas  &  P.  R.  Co.  v.  Tankersley, 
63  lix  57 ;  Varco  v.  Chicago,  M.  &  St.  P.  R. 
Co.,  11  Ani.&  ti)ng.  R.  Cas. 419,  30  Minn.  18. 

Whcro  cattl(.- arc  killed  through  a  failure 
of  the  company  to  maintain  proper  cattlc- 
guarde,  ii  is  liable  for  their  value  with  inter- 
est. Lackin  v.  Delaware  &*  H.  C.  Co.,  22 
Hun{N.  ]'.)  309.— Following  Crawford  z/. 
New  York,  C.  &  H.  R.  R.  Co.,  18  Hun  108. 

Inlcrcst  on  the  value  of  stock  lost  or  de- 
stroyed through  the  negligence  of  a  railway 
company  may  be  included  in  damages.  I'arco 
V.  Chicago,  M.  &•  Si.  /'.  A'.  Co.,  1 1  Am.  &* 
Eng.K.  Cas.  419,  30. »//;/«.  18,  13  ;V.  IV.  Rep. 
921.— Quoted  in  St.  Louis,  I.  M.  &  S.  R. 
Co.  V.  Biggs,  50  Ark.  169,  6  S.  W.  Rep.  724. 

In  an  action  fortiic  value  of  a  horse  killed 
by  a  railroad,  interest  may  be  recovered  on 
the  value  of  the  animal  from  the  time  0/  the 
accidetit.  Baltimore  ^^  O.  R.  Co.  v.  Schults, 
22  Am.  &•  Eng.  R.  Cas.  579,  23  Am.  (S-  Eng. 
R.  Cas.  21 1,  43  Ohio  St.  270,  54 /iw.  Rep.  805, 
I  A'.  E.  Rep.  324. 

In  an  action  for  killing  stock,  an  instruc- 
tion to  the  jury  that  if  they  found  in  favor 
of  plaintitT  they  should  return  a  verdict  for 
the  value  of  the  stock  which  they  might  a.s- 
certain,  with  interest  from  the  date  of  the 
loss  to  the  time  of  the  trial,  correctly  states 
the  law.  Alabama  G.  S.  R.  Co.  v.  Mc Alpine, 
22  Am.  &•  Eng.  R.  Cas.  602,  75  Ala.  1 13. 

Where  a  horse  in  killed  by  the  negligent 
operation  of  a  railroad,  the  measure  of  dam- 
ages is  his  value  when  killed,  with  intcre.st 
to  the  time  of  recovery.  St.  Louis,  I.  M.  &* 
S.  R.  Co.  V.  Biggs,  50  Ark.  169.  6  S.  IV.  Rep. 
724.— Quoting  Texas  &  P.  R.  Co.  ?'.  Tan- 
kersley, 63  Tex.  57 ;  Varco  v.  Chicago,  M.  & 
St.  P.  R.  Co.,  II  Am.  &  Eng.  R.  Cas. 419,  30 
Minn.  18. 

Where  plaintiff  recovers  from  a  railroad 
company  the  value  of  a  horse  killed  by  the 
train  he  is  entitled  to  interest  from  the  time 
the  suit  was  instituted.  Woodland  v.  Union 
Pac.  R.  Co.,  (Utah)  26  Pac.  Rep.  298. 

An  instruction  that  if  the  plaintiff's  cow 
escaped  from  the  plaintiff's  field  through  a 
defect  ill  the  fence  which  it  was  the  duty  of 
the  defendant  to  erect  and  maintain,  and 


■f 

I 


*  When  interest  allowed  on  damages  for  stock 
kille'i,  see  note,  18  I..  R.  A.  449. 


such  defect  was  an  open,  visible  one,  exist- 
ing for  some  time  before  tlie  killing  of  the 
cow,  the  plaintiff  was  entitled  to  recover  for 
the  killing;  and  interest  on  the  value  of  the 
animal  was  proper.  Jebb  v.  Chicago  &-  G.  T. 
R.  Co.,  31  Am.  6-  Eng.  R.  Cas.  532,67  Mich. 
160,  10  IVest.  Rep.  905,  34  A'.  IV.  Rep.  538. 

(2)  irhen  not  recoverable. — In  fixing  the 
amount  of  damages  under  a  suit  for  killing 
live  stock,  interest  is  not  recoverable  eo  no- 
mine,but  the  jury  may  consider  the  length  of 
timediimages  have  been  withheld,  the  char- 
acter of  the  tort,  the  conduct  of  the  defend- 
ant, and  all  the  circumstances  of  the  transac- 
tion,and  may,  in  their  discretion,  increase  the 
amount  of  the  damages  allowed  accordingly. 
Western  <S-  A.  R.  Co.  v.  McCauley,  68  Ga. 
818. 

The  owner  of  stock  killed  by  a  railway 
for  want  of  a  fence  is  not  entitled  to  inter- 
est on  its  value  frpm  the  time  of  killing. 
Toledo,  P.  &*  \V.  R.  Co.  v.  Johnston,  74  ///. 
83.— Distinguishing  Chicago  &  N.  W.  R. 
Co.,  V.  Shuliz,  55  III.  421. 

Plaintiff  is  not  entitled  to  the  interest  on 
his  damages  prior  to  the  finding  of  the  ver- 
dict, and  it  was  error  to  instruct  the  jury 
that  they  might  include  interest  at  six  per 
cent.  Brentner  v.  Chicago,  M.  &*  St.  P.  R. 
Co.,  19  Am.  &-  Eng.  R.  Cas.  448,  68  loTva 
530,  23  A^  IV.  Rep.  245.  27  A^  IV.  Rep.  605. 

In  the  absence  of  any  statutory  provision 
in  Kansa.<;  allowing  interest  in  actions 
against  railroads  for  stock  killed  it  is  not 
recoverable.  Atchison,  T.  &*  S.  E.  R.  Co. 
v.  Gabber t,  22  .,•////.  &•  Eng.  R.  Cas.  621,  34 
Kan.  132.  S/'rtr.  ;?<;/».  218.— Distinguishing 
Mote  7A  Chicago  &  N.  W.  R.  Co.,  27  Iowa  2:' ; 
Dean  v.  Chicago  &  N.  W.  R.  Co.,  43  Wis.  305. 

Under  the  Kansas  railroad  stock  law  of 
1874,  in  an  action  for  the  value  of  an  animal 
killed  by  the  company  in  the  operation  of 
its  railroad — held,  that  the  plaintiff  can 
recover  only  what  the  statute  permits  him 
to  recover,  and  cannot  recover  interest  on 
the  value  of  the  animal  killed  prior  to  the 
day  of  trial.  Atchison,  T.  &*  S.  E.  R.  Co.  v. 
Gabbert,  22  Am.  <S-  /ing.  R.  Cas.  621,  34 
Kan.  132,8  Pac. Rep.  218  — Dl.STiNGUlSHiNG 
Motet'.  Chicago  &  N.  W.  R.  Co.,  27  Iowa 
22 ;  Dean  v.  Chicago  Sr.  N.  W.  R.  Co.,  43  Wis. 

305- 

In  an  action  against  a  company  for  negli- 
gently killini,  stock,  interest  is  not  allowable 
for  the  time  between  the  date  of  the  killiii}^ 
and  that  of  the  recovery.  Meyer  v.  Atlant/, 
&'P.R.  Co.,  64  Mo.  542,  17  Am.  Ry.  R,p. 


ANIMALS,  INJURIES   TO,  5»2-6««. 


351 


249.— Following  Kenney  v.  Hannibal  & 
St.  J.  R.  Co.,  63  Mo.  99;  Atkinson  v.  Atlan- 
tic &  P.  R.  Co.,  63  Mo.  367. 

Under  the  Texas  statute  the  measure  of 
damages  for  stock  killed  is  limited  to  the 
vaiiie  of  the  stock,  or  to  the  amount  of  the 
injury,  where  they  are  not  killed,  and  in 
neither  case  is  interest  allowable.  Houston 
&s  T.  C.  A'.   Co.  V.  Muldraw,  54  Tc.x.  233. 

5f>2.  What  may  not  be  hIiowii  in 
niltluatloii.— The  jury  having  been  in- 
structed that  the  owner  of  an  injured  ani- 
mal must  use  ordinary  care,  judgment,  and 
prudence  in  taking  care  of  it  and  in  em- 
ploying a  veterinary  surgeon  to  treat  it, 
were  further  instructed  that  such  owner  "  is 
not  responsible  for  all  mistakes  made,  if  any 
are  made,  by  such  surgeon."  Held,  no  error. 
Page  V.  Sumpter,  53  Wis.  652,  11  N.  W. 
Rep.  60. 

503.  ExccMgivo  damages.— The  meas- 
ure of  plaintiff's  recovery  in  an  action  for 
killing  stock  is  limited  to  the  amount 
claimed,  and  where  the  judgment  is  in  ex- 
cess of  that  amount  it  will  be  reversed. 
Horton  v.  St.  Louis,  I.  M.  &-  S.  A\  Co.,  83 
A/o.  541. 

Where  the  judgment  as  to  the  value  of  an 
animal  alleged  to  have  been  killed  exceeds 
its  market  value  as  shown  by  the  testimony, 
it  is  excessive  and  will  be  set  aside,  /aciit- 
sonviile,  T.  &*  K.  W.  R.  Co.  v.  Garrison,  30 
Fla.  431,  II  So.  Rep.  932. 

But  if  the  finding  of  the  jury  is  slightly 
in  advance  of  what  the  court  would  have 
assessed  the  damages  at,  the  verdict  will 
not,  for  such  reason,  be  disturbed.  Rock- 
ford,  R.  /.  <S-  St.  L.  R.  Co.  v.  He_^iu,  65  ///. 
366. 

Suit  was  brought  to  recover  for  the  kill- 
ing of  a  cow  alleged  to  be  worth  $20  and  a 
calf  of  a  certain  mixed  breed  alleged  to  be 
worth  $175;  the  plaintiff  testified  that  the 
calf  was  worth  $150  to  $175,  but  that  he 
knew  of  no  market  in  the  coimty  for  such 
calves.  An  expert  witness  testified  for  the 
company  that  Durhams,  Jerseys,  and  other 
full-blood  varieties  were  worth  more  than 
one  of  the  variety  sued  for,  and  that  full- 
blood  Jerseys  were  worth  from  J50  to  $150, 
while  one  of  mixed  blood  such  as  the  calf 
killed  was  worth  much  less.  He/d,  that  the 
value  of  the  calf  was  not  sufficiently  proved, 
and  that  a  verdict  for  $165  was  excessive. 
5/.  Louis,  A.Q^  T.  R.  Co.  v.  Pickens,  3  Tex. 
App.  {Civ.  Cas.)  471. 

rt04.  Remitting  excels.— If  a  verdict 


against  a  company  be  excessive,  in  an  action 
for  negligently  killing  stock,  the  plaintiff 
should  be  given  the  choice  between  a  new 
trial  and  entering  a  remitter.  St.  Louis,  I. 
M.  &•  S.  R.  Co.  V.  Hagan,  19  Am.  &^  Kng. 
R.  Cas.  446,  42  Ark.  122. 

Where  a  plaintiff  sues  for  $50  for  stock 
killed  a  recovery  for  $70  cannot  be  sup- 
ported, but  where  the  evidence  justifies  a 
finding  for  plaintiff  leave  will  be  given  him 
to  remit  $30,  and  upon  his  doing  so  the 
judgment  will  be  affirmed.  Indiana,  I.  &* 
/.  R.  Co.  V.  Dooling,  42  ///.  App.  63. 

In  an  action  for  killing  mules  the  whole 
of  the  amount  awarded  by  the  verdict  is 
damages,  although  it  may  include  interest 
iidded  by  the  jury  to  the  value  of  the  mules. 
And  if  the  amount  thus  found  is  in  excess 
of  the  amount  claimed  in  the  declaration, 
there  being  no  amendment  to  cover  the  ex- 
cess, the  verdict  is  illegal  and  siiotild  be  set 
aside,  unless  the  court,  being  otherwise  sat- 
isfied with  the  verdict,  order  the  excess  to 
be  written  off.  Georgia  R.  <S-  B.  Co,  v. 
Crawley,  87  Ga.  191,  13  S.  E.  Rep.  508; 
former  appeal,  82  Ga.  190. 

9.  Double  Damages. 

595.  Under  tlie  ArlcansaM  statute. 

— Under  the  /Arkansas  statute,  providing  for 
th^  ••fcovery  of  double  damages  in  "  all  " 
c- d*-  or  a  failure  of  a  railroad  company  to 
adverdsc  the  killing,  such  damages  may  be 
recovered  where  the  owner  has  actual  no- 
tice of  the  killing.  Memphis  &*  L.  R.  R.  Co. 
V.  Carlley,  39  Ark.  246. 

It  is  not  settled  by  practice  in  Arkansas 
whether  double  damages  for  stock  killed 
should  be  assessed  by  the  jury,  or  only  single 
damages  to  be  doubled  by  the  court;  but 
either  mode  would  not  be  reversed  on  ap- 
peal. Memphis  6f*  L.  R.  R.  Co.  v.  Carlley, 
39  Ark.  246. 

AUO.  Under  tlie  Colorado  statute. 
— The  penalty  provided  by  Colorado  statute 
for  the  recovery  of  double  damages  for  stock 
killed,  in  cases  where  the  company  fails  to 
enter  in  a  book,  kept  for  the  purpose,  a  de- 
scription of  the  animals  within  a  certain 
time,  does  not  survive  a  repeal  of  the  stat- 
ute, and  a  judgment  giving  double  dam- 
ages will  be  reversed  where  the  statute  is 
repealed  while  the  case  is  pending  on  appeal. 
Union  Pac.  R.  Co.  v.  Proctor,  12  Colo.  194, 
20  Pac.  Rep.  615,  2  Denver  Leg.  News  99. 
— Following  Denver  &  R.  G.  R.  Co.  ?'. 
Crawford,  1 1  Colo.  $g8.— Denver  &*  R.  G.  R, 


4 


It 


i'^iC 


Sb'2 


ANIMALS,  INJURIHS   TO,  r.»7-noO. 


Co.  V.  Craw/orif,i  i  Co/o.  598,  igPac.  Rep.  673. 
— Followed  in  Union  Pac.  R.  Co.  v.  Proc- 
tor, 12  Colo.  194,  20  Pac.  Rep.  615,  2  Denver 
Leg.  News  99. 

5tt7.  Under  the  Georfcia  Code.— 
The  penalty  provided  by  Georgia  Code,  §§ 
3038-3041,  for  a  failure  on  the  part  of  a  rail- 
road company  to  report  stock  killed,  is  a 
separate  and  independent  matter  from  liie 
daniafj;e  done  by  killing  the  animals,  and 
must  be  a.ssesscd,  as  provided  by  law  in  a 
separate  action.  Jones  v.  Americus,  P.  &^ 
L  R.  Co..  80  Ga.  803,  7  .V.  E.  Rep.  wj. 

598.  Under  the  Indiana  statute. 
— On  appeal  to  the  circuit  court  from  a 
judgment  by  a  justice  of  the  peace  against  a 
company  for  killing  stock,  a  judgment  for 
double  damages  and  a  docket-fee,  under  g  3 
of  the  Indiana  art  of  March  i,  1853,  is  er- 
roneous. Indiana  C.  R.  Co.  v.  Gapen,  lo 
Ind.  292. 

590.  Un<ler  the  Iowa  statute.*— 
The  right  of  the  owner  of  stock  killed 
through  the  failure  of  a  railroad  company  to 
fence  as  required  by  Iowa  Code,  §  1289,  to 
recover  double  damages  against  the  com- 
pany, is  limited  to  twice  the  amount  stated 
in  the  notice  and  affidavit  of  such  owner 
upon  failure  of  the  company  to  paythesame 
within  thirty  days  after  such  notice  and  affi- 
davit. Manwelf  v.  Burlington,  C.  R.  &^  N. 
R.  Co.,  45  Am.  &"  Eng.  R.  Cas.  501,  80  loiva 
662,  45  A'.  IV.  Rep.  568.  — Rkviewing  Men- 
dell  7'.  Chicago  &  N.  W.  R.  Co.,  20  Iowa  1 1 ; 
Marsh  v.  Benton  County,  75  Iowa  469. 

The  statutory  provision  for  the  recovery 
of  double  damages  authorizes  double  dam- 
ages for  the  depreciation  in  value  of  the 
stock  resulting  from  the  injuries,  and  also 
for  care  and  attention  provided  for  the 
stock,  and  for  other  resulting  charges. 
Manwell  v.  Burlington,  C.  R  &*  N.  R.  Co.,  45 
Am.  6-  Eng.  R.  Cas.  501,  80  Iowa  662,45 
yV.  W.  Rep.  568.— Revif.winc;  Koons  7. 
Chicago  &  N.  W.  R.  Co.,  23  Iowa  497  — 
Reviewed  in  Hammans  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  83  Iowa  287. 

The  facts  that  the  owner  of  a  steer  killed 
by  a  train  states  its  value  at  $60,  in  a  notice 
and  affidavit  by  his  agent  served  on  the 
company  under  Iowa  Code,  ^  1289,  and  that, 
in  his  own  sworn  petition,  filed  after  thirty 


*  Iowa  statute  making  railroad  companies  lia- 
ble In  double  damages  for  slock  killed,  if  not 
paid  ill  thirtv  days,  construed.  Effect  of  giving 
due-bill  which  is  not  paid  in  thirty  day,  see  45 
Am.  &  En(;   K.  C\s.  505,  aluir. 


days,  he  states  its  '  iluc  at  $40,  do  not  in 
the  absence  of  fraud  prevent  hiir,  from  re- 
covering double  damages.  Valleou  v.  C///- 
eago,  M.  6-  St.  P.  R.  Co.,  73  Iowa  723,  36  A'. 
IV.  Rep.  760. 

Section  1 289  of  the  Iowa  Code,  allowing  thci 
recovery  of  double  damages  for  stock  killed 
by  railroads  by  rea.son  of  the  want  of  a  ;'ence, 
applies  to  cases  where  the  fence  is  intiuffi- 
cient,  as  well  as  to  those  where  there  is  no 
fence  ;  and  the  rule  applies  to  a  case  where 
stock  got  on  the  track  through  a  defective 
gate  in  defendant's  fence.  Payne  v.  Kansas 
City,  St.  J.  &•  C.  B.  R.  Co.,  35  Am.  &"  Eng. 
R.   Cas.   113,  72  Iowa   214,  33  A'.  IV.  Rep. 

633- 

The  first  part  of  §  1289,  Iowa  Code,  pro- 
vides for  the  recovery  of  double  damages 
for  stock  killed  by  reason  of  th.^  railroad 
company  failing  to  properly  fence,  and  the 
latter  part  of  the  section  declares  the  run- 
ning of  trains  on  depot  grounds  at  a  rate  of 
speed  greater  than  eight  miles  per  hour  proof 
of  negligence.  Held,  that  the  first  provision 
of  the  section,  being  in  the  nature  of  a  pen- 
alty, does  not  apply  to  the  latter  provision. 
Miller  v.  Chicago  Sm  A'.  W.  R.  Co..  59  lo^va 
707,  13  A^.  IV.  Rep.  859.— Quoted  in  Mo- 
riarty  v.  Central  Iowa  F*.  Co,,  20  Am.  &  Eng. 
R.  Cas.  .V38,  64  Iowa  696. 

An  affidavit  in  a  proceeding  under  the 
Iowa  statute  giving  double  damages,  alle:;- 
ing  that  stock  were  killed  because  the  com- 
pany had  "  fenced  up  a  crossing,"  estops 
plaintiff  from  claiming  double  damages,  as 
the  statute  allows  such  damages  only  for 
the  '•  want  of  a  fence."  Davis  v.  Chicago,  R. 
I.  &*  P.  R.  Co.,  40  Iowa  292,  8  Am.  Ry.  Rep. 
407. 

A  steer  killed  was  one  of  a  herd  of  80, 
which  had  been  in  charge  of  a  boy,  who  left 
them  for  a  short  time,  when  another  boy 
took  charge,  and,  supposing  that  he  had  all, 
drove  them  over  the  railroad  track,  but  the 
one  killed  had  separated  from  the  others 
and  was  left  behind.  JlelJ.  that  the  steer 
was  "  running  at  large  "  within  the  meaning 
of  Iowa  Code,  !s  1289,  giving  double  dam- 
ages. Vaileau  v.  Chicago,  M.  iS-  St.  P.  R, 
Co.,  73  Iowa  723,  36  A',  iv.  Rep.  760. 

Iowa  Code,  ^'  1289,  allowing  a  recover^  of 
double  damages  for  .stock  killed  by  a  rail- 
road for  want  of  a  sufficient  fence,  applies 
to  cases  where  the  fence  is  defective  as 
well  as  to  those  where  there  is  no  fence,  and 
tn  defective  gat  s  which  are  a  part  of  the 
f«'nce.    Payne  v.  iCansns  City,  St.  /.  C"  C.  B 


ANIMALS,  INJURIES  TO,  <IOO-004. 


863 


A'.  Co.,  iS  Am.  &*  Eng.  R.  Cas.  113,  72  /oTva 
214.  33  ''^   f^-  Rep.  633. 
000.    Under    Michigran   statute.— 

Where  a  law  giving  double  damages  for 
stdik  killed  by  a  railroad  is  repealed  be- 
tween the  date  of  a  verdict  and  that  of  the 
entry  of  judgment,  the  judgment  should  be 
for  actual  damages  only.  Bay  City  &*  E.  S. 
It  Co.  V.  Austin,  2  Mich.  {N.  P.)  \Supp.\  2. 

((01.  Under  Minnesota  statute.— 
Minnesota  Gen.  St.  1878,  ch.  34,  §  56.  (;iv- 
injj  double  damages  for  stock  killed,  applies 
to  cases  brought  to  the  district  court  by 

ppeal  from  a  justice  of  the  peace,  as  well  as 
ti:  actions  brought  originally  in  said  court. 
Schimmele  v.  Chicai^o,  M.  &*  St.  P.  R.  Co., 
34  Minn.  216.  25  M.  IV.  Rep.  347. 

002.  lender  the  Missouri  statute, 
fj«'ncrally.*  —  The  statutory  provisions 
subjecting  railroads  to  the  payment  of 
(l()ut)le  damajjes  for  injuries  caused  by  stock 
breaking  over  the  fence  from  the  railroad's 
ii;j;lit  of  way  into  adjacent  fields,  and  au- 
thorizing adjacent  landowners  to  repair  the 
fence  at  the  cost  of  the  railroad  company, 
are  cumulative.  Carpenter  v.  St.  Louis,  I. 
M.  &•  S.  R.  Co.,  20  Mo.  A  pp.  644.— Fol- 
lowed IN  Buttles  V.  Chicago,  S.  F.  &  C,  R. 
Co.,  43  Mo.  App.  280;  Cobb  V.  Kansas  City, 
Ft.  S,  &  M.  R.  Co.,  43  Mo.  App.  313. 

Where  a  railroad  track  passes  through 
cultivated  lands,  the  liability  of  the  com- 
pany for  killing  stock,  under  Wagn.  Mo.  St. 
p.  310,  §  43,  providing  for  double  damages, 
does  not  depend  on  proof  of  neg  igence 
where  the  killing  occurs  before  the  track  is 
fenced,  but  otherwise  where  the  killing  is 
after  the  track  is  fenced.  Nail  v.  ^V.  Louis, 
K.  C.  <S-  IV.  R.  Co.,  59  Mo.  112,  8  Am.  Ry. 
Rep.  447. 

In  proceedings  against  a  railroad  for 
double  damages  for  the  killing  of  stock 
under  §  43,  Wagn.  Stat.  310,  the  proper 
pr.ictice  is  for  the  jury  tn  find  a  verdict  for 
single  damages  only,  and  the  court  may 
then  render  judgment  for  double  damages. 
Wood  V.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  58  Mo. 
109,  9  Am.  Ry.  Rep.  84  Holly  man  v.  Han- 
iii/>al&*  St.J.  R.  Co.,  58  Mo.  480. 

Although  the  jury's  finding  is  'u\  excess  of 
the  amount  claimed,  an  appellate  court  will 
not  presume  that  the  jury  intended  to  find 
double  damages  where  the  record   recites 


*  For  note  on  the  Missouri  double  damage  act 
fnr  stock  killed,  see  52  Am.  Rep.  3)5. 

Aitioii  (or  double  <Jainagrs  for  killing;  stock  in 
Mivsniiri,  see  note,  33  Am.  &  E.no.  J.  Cas.  176. 
I  n.  R,  I)  -23 


that  the  verdict  is  supported  by  the  evi- 
dence, and  where  the  jury  are  limited  by 
the  instructions  to  single  damages.  Car- 
penter v.  St.  Louis,  L  M.  6-  i^  R.  Co.,  20 
Mo.  App.  644.— Distinguishing  Wood  v. 
St.  Louis,  K.  C.  &  N.  R.  Co..  58  Mo.  109. 

In  an  action  for  double  damages  for  the 
killing  of  a  bull,  which  was  more  valuable 
for  breeding  purposes  than  for  meat,  such 
greater  value  should  be  taken  into  consid- 
eration in  the  assessment  of  the  damages. 
Young  V.  Kansas  City,  Ft.  S.  &'  M.  R.  Co., 
52  Mo.  App.  530. 

003.  When  such  damages  may  be 
recovered.— Missouri  Rev.  St.  1879,  §  809, 
providing  for  the  recovery  of  double  dam- 
ages for  the  killing  of  "  horses,  cattle, 
mules,  or  other  animals" — held,  to  include 
hogs.  Henderson  v.  Wabash,  St.  L,  &*  P. 
R.  Co.,Z\  Mo.  605. 

Railroad  companies  a.e  only  liable  for 
double  damages  for  stock  killed,  under  the 
Mo.  Gen.  St.  1865,  ch.  63,  §  43,  where  the 
stock  are  killed  by  a  direct  collision  with  the 
engine  or  cars,  and  not  where  animals  be> 
come  frightened  while  on  the  track  and  are 
injured  by  jumping  oflf.  Lafferty  v.  Hanni" 
bal  &»  St.  J,  R.  Co.,  44  Mo.  291. — Distin- 
guishing Coy  V.  Utica  &  S.  R.  Co.,  23 
Barb.  (N.  Y.)  643.  Following  Peru  &  I. 
R.  Co.  V.  Haskett,  10  Ind.  409.  Nor  fol- 
lowing Moshier  7/.Utica  &  S.  R.  Co..  8  Barb. 
(N.  Y.)  427.— Not  followed  in  Meeker 
V.  Northern  Pac.  R.  Co.,  21  Oreg.  513.  Re- 
viewed IN  Young  :'.  St.  Louis,  K.  C.  &  N. 
R.  Co.,  44  Iowa  172. 

A  company  is  liable  for  double  damages 
for  injuries  to  cattle  entering  upon  the  rail- 
way tracks  by  reason  of  a  failure  to  erect 
fences  between  the  railway  tracks  and  a 
contiguous  parallel  public  highway.  Patton 
V.  West  End  N.  G.  R.  Co.,  14  Mo.  App.  589. 

Under  Mo.  Rev.  St.  1889,  §  261 1,  the 
owner  of  stock  killed  may  recover  double 
damageswhen  the  killing  occurs  where  the 
track  runs  through  uninclosed  lands, whether 
the  stock  went  on  the  track  from  such  lands 
or  not,  and  without  reference  as  to  whether 
he  is  an  adjoining  owner  or  not.  Jackson  v. 
St.  Louis,  /,  M.  &-  S.  R.  Co.,  43  ''"^^-  App.  324. 
—Distinguishing  Ferris  v.  St.  Louis  4 
H.  R.  Co.,  30  Mo.  App.  122. 

604.  When  suoh  damapres  may  not 
be  recovered.— In  an  action  under  Mo. 
Rev.  St.  §  809,  for  double  damages  for  in- 
juries  to  an  animal  caused  by  a  failure  to 
fence,  it  is  enor  to  charge  that  plaintiff 


r 


il' 


III 


!-'CS 


'<'"' 


I 

!! 


If  fl 


354 


ANIMALS,  INJURIES  TO,  «Ort. 


may  recover  if  the  animal  was  injured  where 
the  tracit  was  not  fenced,  without  regard  to 
where  it  entered  on  the  track.  Foste,  v. 
St.  Louis,  J.  Af.  <&*  S.  A\  Co.,  90  Afo.  1 16,  2  .V. 
JV.  Kep.  138.  Compare  Snider  v.  Current 
River  R.  Co.,  53  Mo.  App.  638.  hatman  v. 
Kansas  City,  Ft.  S.  6-  M.  R.  Co.,  53  Mo. 
App.xi. 

Where  a  complaint  is  filed  under  §  43  of 
the  Missouri  act,  giving  double  damages, 
plaintiff  must  recover,  if  at  all,  under  that 
section.  He  cannot  recover  under  §  5  of  the 
dama^^e  act,  or  on  a  cause  of  action  at  com- 
mon law.  Luckie  v.  Chicago  &*  A.  A.  Co., 
67  Mo.  245. 

Under  VVagn.  Mo.  St.  p.  310,  §  43,  pro- 
viding for  double  t'amages  for  stock 
killed,  a  company  is  not  liable  wherr  the 
killing  occurs  wlicre  the  track  cosses  a  pri- 
vate road,  or  v  nerc  it  runs  through  unin- 
closcd  lands,  fither  timbered  or  from  which 
the  timber  'ins  been  renjoved;  and  this  is  so 
though  it  runs  through  a  narrow  strip  of 
unincloscd  lands,  with  adjoining  inclosed 
lands  on  either  side  of  the  strip.  Walton 
v.  St.  Louis,  I.  Af.  &»  S.  R.  Co.,  67  Mo.  56.— 
Distinguishing  and  criticising  Roi> 
inson  i>.  Chicago  &  A.  R.  C.>.,  57  Mo.  494. — 
DiSTlNGUisHKP  IN  Morris  v.  Hannibal  * 
St.  J.  R.  Co..  19  Am.  &  Eng.  R.  Cas.  666,  79 
Mo.  367.  Followed  in  Schable  v.  Han- 
nibal &  St.  J.  R.  Co.,  69  Mo.  91.  Quoted 
IN  Jenkins  7/.  Chicago  &  A.  R.  Co.,  27  Mo. 
App.  578.  Reconcilkd  in  Rutledge  v. 
Hannibal  &  St.  ].  R.  Co.,  78  Mo.  286.  Re- 
viewed IN  Roberts  T/.  Quincy,  O.  &  K.  C. 
R.  Co.,  43  Mo.  App.  287. 

Uninclosed  lands  which  have  been  cleared 
of  timber  are  not  "prairie-lands,"  within 
the  meaning  of  Wagn.  Mo.  St.  p.  310,  §  43, 
providing  for  double  damages  for  stock 
killed;  and  a  railroad  company  is  not  liable 
in  double  damages  for  cattle  killed  on  such 
lands.  Schable  v.  Hannibal^  St.  J.  R.  Co., 
69  Afo.  91.— Following  Walton  v.  St. 
Louis,  I.  M.  k  S.  R.  Co..  67  Mo.  56. 

Only  persons  whose  lands  adjoin  a  rail- 
road track  can  recover  the  double  damages 
for  stock  killed, under  the  Missouri  statute; 
and  a  person  whose  cattle  strayed  from  his 
grounds,  which  do  not  adjoin  the  track, 
to  other  grounds  which  do  adjoin,  and 
thence  to  the  track,  cannot  recover  double 
damages  by  reason  of  the  company  failing 
to  erect  and  maintain  proper  fences.  Ells 
V.  Pacific  R.  Co.,  55  Mo.  278. 

Where  it  appears  that  plaintiff's  lands  do 


not  border  a  railroad,  and  that  his  horse 
went  from  his  grounds  through  thu  fields  of 
an  adjoining  (jwnerand  thence  on  the  track, 
he  cannot  recover  the  double  damages  pro- 
vided by  statute  for  killing  the  horse,  unless 
he  prove  that  lie  was  in  the  adjoining  pro- 
prietor's field  by  permission,  or  that  the 
field  was  inclosed  by  a  lawful  fence.  John- 
son v.  Missouri  Pac.  R.  Co.,  23  Atn.  &*  Eng.  R. 
Cas.  180,  80  Afo.  620.— Quoting  and  Fol- 
lowing Harrington  v.  Chicago,  R.  I.  &  V. 
R.  Co.,  71  Mo.  384— Applied  in  Branden- 
burg V.  St.  Louis  &  S.  F.  R.  Co.,  44  Mo. 
App.  224. 

Where  it  appeared  that  one  of  its  trains 
was  wrecked  where  the  track  ran  through 
plaintiff's  fielo ;  that  there  was  no  fence 
along  the  track ;  rh^t  the  hogs  and  cattle  in 
the  train  were  necessarily  turned  into  the 
field  in  the  attemp*  to  extricate  them  froiii 
the  wreck  ;  that  they  were  collected  to- 
gether and  driven  away  ;  and  that  while  in 
the  fields  they  damaged  the  crops:  and 
there  was  no  allegation  that  the  daniiigc 
was  caused  by  the  fi  ilure  of  the  railroad  to 
construct  or  maintai;  1  fences  or  cattle-guaids 
as  rcquiref*.  by  law — held,  that  the  statute 
(Wagn.  Mo.  St.  310-11,?  43)  did  not  con 
template  the  allowance  of  double  damages. 
Grau  V.  St.  Louis,  K.  C.  &*  N.  R.  Co.,  54  Afo. 
240,  1 2  Am.  Ry.  Rep.  376. 

When  the  evidence  is  to  the  effect  merely 
that  an  animal  was  not  killed  at  a  public 
or  private  road,  and  does  not  show  the  char- 
acter of  the  land  where  the  animal  got 
upon  the  track  or  where  it  was  killed,  it 
will  not  warrant  a  recovery  against  a  rail- 
road company  for  double  damages  for  the 
killing  of  stock.  Sayer  v.  Kansas  City,  P't 
S.  6-  M.  R.  Co.,  43  Mo.  App.  360.— Follow- 
ing Kinion  v.  Kansas  City,  Ft.  S.  &  M.  R. 
Co.,  39  Mo.  App.  382. 

Only  thp  adjoining  owner  or  persons 
claimin)^  under  him  can  recover,  under 
Mo.  Rev.  St.  §  809,  double  damages  for  in- 
jury to  cattle  which  go  upon  the  railroad 
track  because  of  the  insufficiency  of  the  rail- 
road fence  Smith  v.  St.  Louis,  I.  Af.  &*  S.  R. 
Co.,  25  Mo.  App.  ii3.~FoLLOWiNO  Car- 
penter V.  St.  Louis,  I.  M.  &  S.  R.  Co..  25 
Mo.  App.  no. 

\Q.  Procedure  in  Justices'  Courts. 

005.  Genernlly.— Before  the  enactment 
of  the  Georgia  statute  of  1843,  amending  the 
act  of  1840,  defining  liability  of  railroads  for 
stock  killed  or  wounded  and   to  regulate 


f^.l 


ANIMALS,  INJURIES   TO,  UOU,  U07. 


355 


11 


the  procedure  in  sucli  cases,  the  justices' 
courts  had  no  jurisdiction  in  any  case 
souiidin;^  in  damages  for  any  trespass  on  tiie 
person  or  property.  Girlman  v.  Central  R. 
&^  B.  Co.,  I  Ga.  173. 

The  statute  (N.  C.  Rev.  St.  ch.  17,  g  7) 
•^iviii^  jurisdiction  to  a  magistrate  in  cases 
of  stocic  killed  on  a  railroad  does  not  alter 
the  rules  of  the  common  law  in  relation 
to  such  injuries.  Gar r is  v.  Portsmouth  &* 
R.  R.  Co.,  2  hid.  (X.  Car.)  324. 

<(0(l.  Jiiri»>-4li<*tioii  must  aflirnia- 
tivHjr  nppoar.  -  In  an  action  hefbre  a 
justice  for  d  >uble  damages  for  killing  stock, 
the  fact  that  <hc  killing  occurred  in  the 
township  where  th  ;  suit  was  brought  or  in 
an  adjoining  township  is  a  jurisdictional 
one.  It  \-2  not  suflicient  that  such  jurisdic- 
ti  >nnl  fact  be  averred  in  the  statement ;  it 
mu;t  also  be  shown  by  the  evidence.  Back- 
jnstoe  V.  Wabasf't.  St.  L.  &*  P.  K.  Co.,  86 
.\fo.  40-;  affirming  23  Mo.  App.  148. — FoL- 
i.owiNCi  Mitchell  v.  Missouri  Pac.  R.  Co.,  82 
Mo.  106.  QuorrNO  Nail  %>.  St.  Louis,  K.  C. 
&  N.  R.  Co.,  59  Mo.  112.— Di.sTiNc.uiSHED 
IN  Emmerson  v.  St.  Louis  &  H.  R.  Co.,  35 
Mo.  App.  621.  Followed  in  Roberts  v. 
Missouri  Pac.  R.  Co.,  19  Mo.  App.  649; 
Palmer  v,  Missouri  Pac.  R.  Co.,  21  Mo. 
App.  437- 

Where  suit  is  commenced  before  a  justice 
t)  recover  for  stock  killed,  and  the  state- 
ment filed  by  plaintiff  before  the  justice 
sliows  that  the  injury  occurred  in  the  same 
township  where  suit  was  brought,  and  it  ap- 
peared by  evidence  at  what  point  it  oc- 
curred, the  justice  obtains  jurisdiction,  and 
a  judgment  on  appeal  will  not  be  reversed 
because  the  circuit  court,  in  a  trial  there, 
refused  to  instruct  that  proof  of  venue  must 
jiirirmatively  appear  to  entitle  plainiifT  to  a 
verdict.  Nail  v.  St.  Louis,  K.  C.  &»  N.  A\ 
Co.,  59  Mo.  1 12,  8  ..///.  Ry.  Rep.  447.— CRiTt- 
(  isEU  IN  Backenstoe  7/.  Wabash,  St.  L.  A  P. 
R.  Co.,  23  Mo.  App.  148.  Quoted  in 
Backenstoe  v.  Wabash,  St.  L.  &  P.  R.  Co., 
86  Mo.  492. 

Under  Mo.  Rev.  St.  §  3060,  statements 
lilefl  in  actions  hefore  justices  of  the  peace 
may  be  amended  in  the  circuit  court  so  as 

10  supply  any  deficiency  or  omission. 
Where  suit  is  brought  before  a  justice  to  re- 
I over  for  stock  killed,  a  defect  in  such  state- 
ment, ill  failing  to  show  that  the  justice  has 
i  tr '^diction,  may  be  cured  by  amendment  in 

11  I  ircnit  court  under  the  above  statute. 


Vaug/in  V.  Missouri  Pac,  R.  Co.,  17  Mo. 
App.  4. 

Evidence  dehors  the  record  of  facts  which 
the  law  does  not  require  to  appear  of  record 
may  be  received  in  aid  of  a  justice's  juris- 
diction ;  hence,  although  a  justice's  tran- 
script fails  to  show  the  venue  in  a  local  ac- 
tion, as  in  an  action  for  damages  for  stock 
killed  by  a  railway  train,  it  may  be  proved 
in  the  circuit  court  on  appeal.  St.  Louis,  L 
M.  &»  S.  R.  Co.  V.  Lindsay,  55  Ark.  281, 18 
.V.  W.  Rep.  59. 

007.  Jurisdiction  hh  dependent 
upon  amount.'"— In  Indiana  a  justice  of 
the  peace  has  no  jurisdiction  in  an  action 
for  killing  a  horse  where  the  sum  demanded 
is  over  one  hundred  dollars.  Evansville  &* 
C.  R.  Co.  V.  R'arjfus,  10  Jnd.  182. 

Query,  whether  the  rule  that  justices 
have  no  jurisdiction  in  actions  of  tort 
where  the  damages  claimed  exceed  fifty 
dollars,  is  inapplicable  in  a  case  of  stock 
killed  or  injured  by  a  railroad  ;  and  whctii.tr 
§  171 1,  Ala.  Code  of  1876,  is  constitutional. 
Alabama  G.  S.  R.  Co.  v.  Christian,  82  Ala. 
307,  I  So.  Rep.  121. 

In  Georgia  tliecivil  jurisdiction  of  justices 
of  the  peace,  under  the  constitution  and 
laws,  extends  to  $100,  which  is  held  to  in- 
clude actions  against  railroad  companies  for 
killing  stock.  The  remedy  provided  by  Ga. 
Code,  §  3043,  is  merely  riiinulative,  and 
does  not  oust  general  jurisdiction  under  the 
constitution  and  statutes.  Western  &*  A. 
R.  Co.  V.  Broivn,  58  G(>.  534. 

In  Missouri  justices  of  the  peace  have 
jurisdiction  over  suits  against  railroads  for 
killing,  maiiiiing,  etc.,  cattle,  etc.,  in  their 
respective  townships,  without  regard  to  the 
value  of  the  animals  or  the  amount  of  dam- 
ages claimed.  Hudson  v.  .SV,  Louis,  K.  C.  &* 
N.  R.  Co.,  53  .1A».  525. -Followed  in 
Parish  v.  Missouri,  K.  &  T.  R.  Co.,  63  Mo. 
284. — Manuel  v.  Missouri  Pac.  R.  Co.,  19 
Mo.  App.  631. 

The  provision  of  Mo.  Rev.  St.  1879,  §  2835, 
conferring  jurisdiction  upon  justices  ii;  ac- 
tions for  killingstock,  without  regard  to  the 
value  of  the  animal  killed  or  the  amount 
claimed,  is  constitutional.  Steele  v.  Mi.i- 
souri  Pac.  R.  Co.,  84  Mo.  57. — Following 
Humes  V.  Missouri  Pac.  R.  Co.,  82  Mo.  221. 
—Dent  V.  St.  Louis.  L  M.  &'  .?.  R.  Co.,  83 


*  See  ante.  293. 


m- 


'4 


356 


ANIMALS,  INJURIES  TO,  «08. 


il/t;.  496.— Reviewing  Fitterling  v.  Missouri 
Pac.  R.  Co..  79  Mo.  504. 

Under  Missouri  act  of  1861,  entitled  "  An 
act  to  extend  the  jurisdiction  of  justices  of 
the  peace,"  giving  them  concurrent  jurisdic- 
tion with  the  circuit  courts  in  actions  for 
stock  killed  or  injured  by  railroads,  but  limit- 
ing the  action  to  some  justice  of  the  township 
where  the  injury  was  committed,  the  fact 
that  the  suit  is  under  said  statute  must  ap- 
pear on  the  face  of  the  papers  in  order  to 
confer  jurisdictiofi.  Hansberger  v.  Ptuific 
R.  Co.,  43  Mo  196.  — DiSTINGUISHKD  IN 
Minter  v.  Hannibal  &  St.  J.  R.  Co.,  82  Mo. 
128.  FoLi.owKi)  IN  Roberts  v.  Missouri 
Pac.  R.  Co.,  19  Mo.  App.  649;  Backenstoe 
V.  Wabash.  St.  L.  k  P.  R.  Co.,  23  Mo.  App. 
148.  yt'OTKn  IN  Rohland  v.  St.  Louis  &  S. 
F.  R.  Co.,  89  Mo.  180.  Reviewed  in  Pol- 
hans  V.  Atchison,  T.  &  S.  F.  R.  Co.,  45  Mo. 

App.  153- 

The  third  subdivision  of  §  3  of  the  act 
concerning  the  jurisdiction  of  justices  of 
the  peace  (Wagn.  Mo.  St.  808)  provides 
that  justices  shall  have  concurrent  jurisdic- 
tion with  the  circuit  courts  in  all  actions 
for  injuries  to  persons  or  to  perso.al  or 
real  property  where  the  damages  shall  ex- 
ceed $20  and  not  exceed  $jo.  The  fifth 
subdivision  provides  that  the  jurisdiction 
shall  be  concurrent  in  all  actions  a^Es^inst 
any  railroad  company  to  recover  damages 
for  the  killing  or  injuring  of  live  stock, 
without  regard  to  the  value  of  such  animals 
or  the  amount  of  damages  claimed.  Held, 
that  an  action  to  recover  a  combined  claim 
for  killing  a  horse  and  injuries  to  the  har- 
ness must  be  under  said  subdivision  3,  and 
judgment  must  be  limited  to  (50;  and  that 
the  claim  for  killing  the  horse  cannot  be 
made  undn.'r  subdivision  5,  and  the  claim  for 
damages  to  the  harness  under  subdivision 
3.  Dillardv.  St.  Louis,  K.  C.  &*  N.  A'.  Co., 
1%  Mo.  69.-— DisTiNdUisnED  IN  Fenton  v. 
St.   Louis,  K.  C.  &  N.  R.  Co.,  72  Mo.    259. 

008.  Jurisdiction  aH  (lepciidciit 
upon  townHhIp  Huoh.— (i)  Justices  07vn 
township.  -K  justice  ol  the  peace  hns  no 
juiisdiniitn  outside  of  his  own  township, 
and  there  can  be  no  recovery  in  an  action 
(or  killing  lock,  unless  the  proofs  show 
that  the  animals  wrnt  upon  the  track  or 
were  injured  in  the  township  where  suit  is 
brought.  Geltz  v.  St.  Louis  &^  S.  F  R.  Co., 
38  Mo.  App.  579. 

An  action  before  a  ju«ii<i'.  under  Mo. 
Rev.  St.  §  809,  to  recover  <loiil)le  damages 


for  stock  t<illpd,  must  be  before  a  justice  of 
the  township  in  which  the  injury  occurred  ; 
and  as  it  is  a  jurisdictional  fact  it  must 
allirmatively  appear  of  record,  and  must  be 
supported  by  proof.  Backenstoe  v.  Wabash, 
St.  L.  <S-  P.  Ji.  Co.,  23  Mo.  App.  148; 
affirmed  in  86  Mo.  492,  1  West.  Rep.  743.— 
Criticising  Nail  v.  St.  Louis,  K.  C.  &  \i. 
R.  Co.,  59  Mo.  112.  Following  Hans- 
berger v.  Pacific  R.  Co.,  43  Mo.  196.  Re- 
viewing Mitchell  V.  Missouri  Pac.  R.  Co., 
82  Mo.  106.— Roberts  v.  Missouri  Pac.  R. 
Co.,  19  Mo.  App.  649.— Following  Hans- 
berger V.  Pacific  R.  Co.,  43  Mo.  196 ;  Hag- 
gard V.  Atlantic  &  P.  R.  Co.,  63  Mo.  302 ; 
Matson  v.  Hannibal  &  St.  J.  R.  Co.,  80  Mo. 
229;  Backenstoe  v.  Wabash,  St.  L.  &  F*.  R. 
Co.,  86  Mo.  492.  Revikwinc;  Mitchell  v. 
Missouri  Pac.  R.  Co.,  82  Mo.  106. 

A  judgment  in  an  action  for  killing  stock 
will  be  reversed  on  appeal  wlure  the  record 
does  not  affirmatively  show  that  the  kiilintr 
was  in  the  justice's  township.  Matson  v. 
Hannibal  &*  St.  J.  R.  Co.,  80  Mo.  229. 

Under  the  Missouri  statutes,  the  jurisdic- 
tion of  justices  of  the  peace  in  actions  to 
recover  for  stock  killed  is  confined  to  cases 
where  the  cause  of  action  arises  in  their 
respective  townships:  and  if  a  record  on 
appeal  fails  to  show  this  fact  the  <ip|)cal 
will  be  dismissed.  Iba  v.  Hann.'al  i"^  .St. 
J.  R.  C».,  45  Mo.  469. — Followed  in 
Vaughn  v.  Mlcouri  Pac.  R.  Co.,  17  Mo. 
App.  4.  Quoted  and  Followed  in 
Fields  V.  Wabash,  St.  L.  &  P.  R.  Co.,  80 
Mo.  ■•03.  Reviewed  in  Vaughn  v.  Mis- 
louri  Pac.  R.  Co.,  17  Mo.  App.  4;  Polhans 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  45  Mo.  App. 

'53. 

In  determining  the  question  whether  suit 
was  brought  betorc  a  justice  of  the  peace  of 
thv^  township  where  stock  were  killed,  as  rc- 
qui-ed  by  statute,  the  supreme  court  is  not 
limited  to  an  examination  of  the  statement 
hied  by  plaintiff,  but  will  examine  also  the 
tratiscri|)t  of  the  justice  of  the  peace. 
Fields  V.  Wabash,  St.  L.  <S-  P.  R.  Co.,  80 
Mo.  203.— Following  Barnett  v.  Atlantic 
■4  P.  R.  Co.,  68  Mo.  56.  Quo;in(;  and 
Following  Iba  v.  Hannibal  &  St  J.  R. 
("0.,  45  Mo.  469. 

Where  the  statement  and  transcript  sent 
up  from  a  justice  of  the  peace  to  the  circuit 
court,  in  an  action  for  killing  stock,  show 
a  failure  to  fence,  and  that  the  killing  oc- 
curred in  the  township  where  the  action 
was  prosecuted  to  judgment  before  the  jus- 


ANIMALS,  INJURIES   TO,  OOtMlll. 


:J57 


ticc,  llie  statutory  requirements  requiring 
suit  in  sucli  cases  to  l)e  in  the  township 
where  the  injury  occurs,  are  met.  Emmer- 
son  V.  St.  Louis &*  H.  R.  Co.,  3$  Mo.  App.  621. 
— Distinguishing  Backenstoe  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  86  Mo.  492,  23  Mo.  App. 
148. 

(2)  Adjoining  township. — Under  the  Mis- 
souri stature  a  justice  of  the  peace  has  juris- 
diction of  an  action  to  recover  for  stock 
killed  where  he  presides  in  one  township 
and  tlie  killing  is  in  an  adjoining  township. 
Fitter  ling  v.  Missouri  Pac.  R.  Co. ,  20  Am. 
&*  Jintf.  A'.  Ctis.  4S4, 79  Mo.  504.— Reviewkd 
IN  Dent  V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  83 
Mo.  496.— CZ/rtwcy  V.  It^ahis/i,  St.  L.  <5-  P.  R. 
Co.,  18  Mo.  App.  661.  Roberts  v.  Missouri 
I'ltc.  R.  Co.,  19  Mo.  App.  649. 

Not  only  must  the  action  be  brought  in 
the  township  wherein  the  injury  occurred, 
or  in  an  adjoining  one,  but  the  transcript  on 
appeal  must  show  this,  or  the  justice  will 
be  held  to  have  been  without  jurisdiction. 
Ro/iland  V.  St.  Louis  &>  S.  F.  R.  Co.,  89  Mo. 
180,  I  S.  W.  Rep,  147.— Quoting  Hans- 
bcrger  v.  Pacific  R.  Co.,  43  Mo.  196. — f^ing 
V.  Chicago,  R.  /.  &»  P.  R.  Co.,  90  Mo.  520,  3 
.v.  /C.  Rep.  217.  Mitchell  v.  Missouri  Pac. 
R.  Co.  82  Mo.  106.— Followed  in  Backen- 
stoe V.  Wabash,  St.  L.  &  P.  R.  Co.,  86  Mo. 
\<)2.  Reviewed  in  Roberts  v.  Missouri 
I'ac.  R.  Co.,  19  Mo.  App.  649;  Backenstoe 
V.  Wabash.  St.  L.  &  P,  R.Co.,  23  Mo.  App. 
\\i.-lVhitesides  v.  St.  Louis,  K.  &*  N.  IV. 
R.  Co.,  49  Mo.  App.  250.  Palmer  v.  Mis- 
souri Pac.  R.  Co.,  21  Mo.  App.  437.— Fol- 
lowing Backenstoe  v.  Wabash,  St.  L.  &  P. 
R,  Co.,  23  Mo.  App.  148.  —  Wright  v. 
Hannibal  &>  St.  J.  R.  Co.,  25  Mo.  App. 
236. 

in  construing  Mo.  Rev.  St.  $  2835,  and 
the  fifth  subdivision  of  §  2839  the  court 
held  :  That,  taking  the  two  sections  together, 
the  jurisdiction  of  justices  of  the  peace  in 
actions  against  railroad  companies  to  re- 
cover damages  for  killing  or  injuring  horses 
*  •  *  or  other  animals  is  still  local,  with  the 
locality  in  which  the  jurisdiction  is  exercised 
extended  so  as  to  include  any  township  ad- 
joinii^  tiie  f  /nship  in  which  the  horses, 
etc.,  may  be  injured,  etc.,  and  no  further; 
that  this  jurisdiction,  as  thus  extended,  is 
still  purely  and  entirely  local,  "without  re- 
gard to  the  value  of  such  animals  or  the 
amount  claimed  for  killing  or  injuring  the 
Slime."  Creason  v.  Wabash,  St.  L.  <S>»  P.  R.  Co., 
\T  Mo.  App.  III. -Following  Iba  ?'.  Han- 


nibal &  St.  j.  R.  Co.,  45  Mo.  469,  Haggard 
V.  Atlantic  &  P.  R.  Co.,  63  Mo.  303. 

Mo.  Rev.  St.  §  2839,  provides  that  "  any 
action  against  a  railroad  company  for  kill- 
ing or  injuring  horses,  mules,  cattle,  or  other 
animals,  shall  be  brought  before  a  justice  of 
the  peace  of  the  township  in  which  the  in- 
jury happened,  or  in  an  adjoining  township." 
Held,  that  the  words  "or  in  an  adjoining 
township"  must  be  construed  to  mean  an 
adjoining  township  in  the  same  county  only. 
Creason  v.  Wabash,  St.  L.  &*  P.  R.  Co.,  17 
Mo.  App.  III. 

A  justice  of  a  city  formed  from  territory 
lying  wholly  within  a  township  has  jurisdic- 
tion of  a  suit  against  a  defendant  who  re- 
sides in  a  township  adjoining  said  first- 
named  township.  Jebb  v.  Chicago  6-  G.  T. 
R.  Co.,  31  Am.  (S-  Fng.  R.  Cas.  532, 67  Mich. 
160,  10  West.  Rep.  905.  34  A'.  W.  Rep.  538. 

<tOn.  JiiriHdictioii  aM  dcpt'iideiit 
upon  county  lines.*— In  Indiana,  an  ac- 
tion may  be  brought  before  any  justice  of 
the  peace  in  the  county  where  the  animal 
is  killed.  Cincinnati,  /.,  St.  L.  «S-  C.  R.  Co. 
v.  Parker,  109  Ind.  235,  9  A'.  F.  Rep.  787. 

010.  ProccHs.f — A  summons  issued  by 
a  justice  of  the  peace,  in  an  action  under 
Wagn.  Mo.  St.  ch.  82,  §  16,  allowing  double 
damages  for  stock  killed  or  injured,  need 
not  state  the  nature  of  the  suit  and  the  sum 
demanded ;  but  such  statement  is  now 
necessary  under  Rev.  St.  1879,  §  2858.  An- 
thony v.  St.  Louis,  /.  M.  &*  S.  R.  Co.,  76 
Mo.  18. 

In  an  action  before  a  justice  to  recover 
damages  for  killing  stock,  it  is  not  essential, 
in  order  to  confer  jurisdiction  upon  the 
justice,  that  the  return  of  the  constable  (the 
writ  having  been  served  upon  a  conductor 
of  the  company)  shall  show  that  he  made 
the  service  within  his  own  county.  Where 
the  person  or  individual  served  resides 
within  the  county,  or,  like  conductors  of 
radways,  are  constantly  passing  through  it, 
the  presumption  will  be  entertained,  in  the 
absence  of  a  showing  to  the  contrary,  that 
the  officer  did  not  depart  from  the  limits  of. 
his  jurisdiction.  lialtimore  &*  O.  R.  Co.  v. 
Brant,  132  Ind.  37,  31  A'.  E.  Rep.  464.— 
Following  Cincinnati,  H.  &  I.  R.  Co.  v. 
McDougall,  108  Ind.  179. 

611.  Effect  of  appearance.— Where, 
on  an  appeal  from  a  justice,  the  transcript 


*  See  ante,  200. 
t  See  ante,  296. 


358 


ANIMALS,  INJURIHS   TO,  012  <I15. 


S 


shows  that  the  Justin-  luqiiircrt  jurisdiction 
overtlicMlefciidunt.  it  Ii.ivuijj;  filed  its  motion 
to  set  uside  the  judgment  by  default,  a  mo- 
tion in  tliu  circuit  court  to  dismiss  the  suit 
because  of  service  of  summons  in  the  wrong 
township  should  not  be  sustained.  Kelly  v. 
Uuiiixo,  a:  /.  &*  /'.  A'.  Co  .  86  A/o.  681.  ' 

012.  ]>Ofkvt  eiitricM. — In  an  action 
to  recover  tiie  value  of  cattle  killed  by  a 
railroad  company,  which  is  begun  before  a 
justice  and  is  taken  on  appeal  to  the  circuit 
court,  the  action  should  not  be  dismissed 
because  the  justice  had  not  copied  the 
cause  of  action  upon  his  docket.  Judian- 
apolis  &*  C.  A'.  Co.  v.  '/oon,  20  /ml.  230. — 
Followed  in  Indiana|K)lis  &  C.  R.  Co.  v. 
Smither,  20  Ind.  228. 

tttii.  Wlinii  qiieHtioii  ofjiirisdictioii 
iiiiiHt  be  raiMMl.— If  an  action  to  recover 
damages  for  killing  a  cow  of  value  more 
than  $50  is  brought  against  a  railroad  com* 
pany  in  a  justice's  court,  objection  to  his 
want  of  jurisdiction  must  be  made  before 
him,  and  cannot  be  raised  for  the  first  time 
in  the  appellate  court.  IVestern  K.  Co.  v. 
Lasarus,  88  Ala.  453.  6  So.  Rep.  877. 

U14.  Discretion  of  Justice.— In  an 
action  for  the  value  of  a  cow  killed  by  one 
of  the  defendant's  engines,  the  plaintiff, 
after  he  had  rested  his  case  and  the  defend- 
ant had  introduced  part  of  its  testimony, 
applied  to  the  justice  for  leave  to  with- 
draw his  rest  for  the  purpose  of  proving 
the  value  of  the  cow,  which  request  was 
granted — hild,  not  an  abuse  of  discretion. 
Chicago,  B.  <S-  Q.  R.  Co.  v.  Goracke,  32  Neb. 
90,  48  A'.  W.Rep.%lf). 

015.  General  requisites  of  the 
complaint  or  statement.* — An  oral 
statement  embodying  the  substance  of 
plaintiff's  claim,  in  an  action  before  a  jus- 
tice to  recover  double  damages  for  stock 
killed,  under  the  Iowa  statute,  is  sufficient, 
and  no  written  complaint  is  necessary. 
Finch  V.  Central  A'.  Co.,  42  /o7t>a  304. 

In  civil  actions  originating  before  a  jus- 
tice, the  complaint  is  sufficient  on  demur- 
rer if  it  states  enough  facts  to  inform  the 
defendant  of  the  nature  of  the  plaintiff's 
action,  and  is  so  explicit  that  a  judgment 
thereon  will  constitute  a  bar  to  another 
action  for  the  same  cause.  Louiyville,  N. 
A.  6-  C.  R.  Co.  V.  Zink,  92  Ind.  406.— FoL- 


•  See  ante,  326-370. 

Pltading    in    action    before    justice    of    the 
pca(  e,  see  note,  19  Am.  ft  Eno.  R.  Cas.  605. 


i.uwF.n  IN  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Zink,  93  Ind.  602. 

A  complaint  before  a  justice  against  a 
company  averring  that  on,  etc.,  at,  etc.,  the 
defendant's  servants  wilfully  and  negli- 
gently, and  without  any  fault  of  the  plain- 
titr,  ran  its  cars  upon  plaintifT's  mare, 
whereby,  etc.,  is  sufficient  after  verdict. 
Pennsylvania  Co.  v.  Rusie,  95  Ind.  236. 

A  complaint  before  a  justice  for  killing 
stock  alleged  "that  the  defendant,  on  or 
about,"  etc.,  "at  and  in  siiid  county  of," 
etc.,  "and  state  of  Indiana,  by  its  loco- 
motive and  train  of  cars  then  running 
on  its  railroad,  at  a  point  on  its  said  road  in 
said  county  where  its  railroad  track  was  not 
securely  fenced,  ran  over  and  killed  two 
hogs  of  the  plaintiff  of  the  value  of  fifty 
dollars;  whereof,"  -etc.  Held,  that  the 
complaint  stated  sufficient  facts.  Belle/on- 
taine  R.  Co.  v.  Reed,  33  Ind.  ^76. 

The  Kansas  stock  law  of  1874  makes  pro- 
vision for  the  recovery  of  a  reasonable  at- 
torney's fee  for  the  prosecution  of  a  suit  for 
damages  for  injuring  or  killing  stock  in  the 
operation  of  railroads;  therefore  there  is 
less  reason  for  favoring  insufhcieiit  and  de- 
fective complaints  in  those  actions  than  in 
the  ordinary  cases  commenced  in  justices' 
courts.  St.  Louis  &•  S.  F.  R.  Co.  v.  Byron, 
24  Kan.  350. 

A  statement  setting  forth  the  ownership 
of  a  steer,  the  fact  that  it  was  killed  by  the 
negligence  of  defendant's  servants,  and  the 
amount  of  the  damage — held,  to  set  forth  a 
good  cause  of  action  for  the  negligent  kill- 
ing of  the  steer  by  a  company.  Kendig  v. 
Chicago,  R.  I.  <S-  P.  R.  Co.,  i^  Am.  &*  Eng. 
R.  Cas.  493,  79  Mo.  207.— A 1  PLIED  IN  Hill 
V.  Missouri  Pac.  R.  Co.,  49  Mo.  App.  520. 

Where  a  company  is  sued  in  a  justice's 
court  to  recover  for  stock  killed,  a  state- 
ment is  sufficient  which  shows  that  the  in- 
jury complained  off  occurred  in  the  town- 
ship where  suit  is  brought,  and  was  caused 
by  reason  of  the  company's  failure  to  erect 
and  maintain  a  fence  as  required  by  law,  and 
that  by  reason  of  such  failure  the  stock  went 
upon  the  track  and  were  killed.  Razor  v.  St. 
Louis.  I.  M.  <S-  S.  R.  Co..  7  Am.  6-  Eng.  R. 
Cas.  562,  73  Mo.  471. 

In  actions  under  Missouri  Gen.  St,  1865, 
ch.  63,  §  43,  to  recover  for  stock  killed,  it 
should  appear  that  they  went  o"  the  track 
by  reason  of  the  absence  of  propci  fences 
or  cattle  guards  ;  but  where  the  acti>i  is  be- 
fore a  justice,  a  statement  which  advises  the 


ANIMALS,  INJURIKS   TO,  (»1U,<(17. 


:)5!l 


defendant  o(  the  nature  of  plaintiff's  claim, 
and  wliicli  is  specific  enough  to  make  a 
judgment  a  bar  to  a  subsequent  action,  is 
sufficient.  Norton  v.  Hannibal  &*  St.  J.  A'. 
Co.,  48  Mo.  387. 

Ill  an  action  before  a  justice  to  recover 
double  damages  for  stuck  killed,  a  state- 
ment filed  by  pluintifl  showing  that  the 
animals  "strayed  upon  the  track  of  said 
railroad  on  or  near  a  farm  crossing,  at  a 
point  in  the  line  of  said  railroad  where  it 
was  not  fenced,  and  where  the  crossing  and 
cattle-guards  were  not  made  as  the  law  re- 
quires, and  that  defendant  so  carelessly  and 
negligently  ran  and  managed  its  cars  and 
locomotives  that  they  ran  against  and  over 
tlie  animals  and  killed  them,"  is  sufficient. 
lieUher  v.  Missouri  Pac.  R.  Co.,  75  Mo.  514. 
—Distinguishing  Sloan  v.  Missouri  Pac. 
R.  Co.,  74  Mo.  47.  Following  Edwards 
V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  74 
Mo.  117.— Followed  in  Campbell  7/.  Mis- 
souri Pac.  R.  Co.,  78  Mo.  639;  Blakely  z/. 
Hannibal  &  St.  J.  R.  Co..  79  Mo.  388. 
Quoted  in  Vail  v.  Kansas  City,  C.  &  S.  R. 
Co.,  28  Mo.  App.  372.  Reviewed  in  Jack- 
son V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  80  Mo. 

'47- 

016.  Must  charge   negligence.— A 

complaint  or  statement  filed  on  appeal  from 
a  justice's  court,  in  an  action  to  recover 
damages  from  a  railroad  for  killing  stock, 
which  fails  to  aver  that  the  killing  was  neg- 
ligent or  the  result  of  negligence  on  the 
part  of  the  company,  its  servants  or  agents, 
does  not  contain  a  substat,tial  cause  of  ac- 
tion. Mobile  &*  O.  R.  Co.  v.  Williams,  53 
Ala.  595,  13  Am.  Ry.  Rep.  153.— Quoted  in 
Soutli  &  N.  Ala.  R.  Co.  v.  Hagood,  53  Ala. 
647. 

017.  Laying  the  venue*— County  or 
township.— (I)  CV««/y.— The  complaint  in 
an  action  before  a  justice,  to  recover  for 
stock  killed,  should  aver  that  they  were 
killed  in  the  county,  and  such  averment 
must  be  supported  by  pro-jf.  Indianapolis, 
Sf  C.  R.  Co.  V.  Wilsey,  20  Ind.  229. — Criti- 
cised in  Indianapolis  &  M.  R.  Co.  v.  Solo- 
mon, 23  Ind.  534.  Followed  in  Indian- 
apolis &  C.  R.  Co.  7/.  Smither,  20  Ind.  228; 
Indianapolis  &  C.  R.  Co.  v.  Toon,  20  Ind. 
230;  Indianapolis  &  C.  R.  Co.  v.  Brinkman, 
30  Ind.  230. 

A  statement  or  complaint  filed  in  a  suit 
l>efore  a  justice  against  a  railroad  company 

»  See  ante,  329. 


for  killing  stock,  stating  that  "  a  locomotive 
owned  and  used  by  the  defendant  on  its 
road  in  the  county  of  F. '"  ♦  ♦  killed  one  hog 
of  the  plaintifT,  and  that  at  the  time  and 
place  of  the  killing  the  road  was  not  fenced," 
is  sufficient  to  show  that  the  animal  was 
killed  in  F.  county  by  the  defendant. 
White  Water  Valley  R.  Co.  v.  Quick,  30  Ind. 

384- 

(2)  Justice's  own  township. — Where  the 
jurisdiction  of  justices  in  actions  to  recover 
for  stock  killed  is  confined  to  cases  where 
the  killing  occurs  in  their  township,  a  state- 
ment filed  with  the  justice  must  show  in 
which  town.ship  the  killing  took  place. 
And  this  cannot  be  established  by  reference 
to  a  writ  which  only  shows  where  the  de- 
fendant is  served  and  the  township  where 
the  justice  presides.  Haggard  v.  Atlantic 
6-  P.  R.  Co.,  63  Mo.  302. — Followed  in 
Creason  v.  Wabash,  St.  L.  &  P.  R.  Co.,  17 
Mo.  App.  Ill  ;  Roberts  7'.  Missouri  Pac.  R. 
Co.,  19  Mo.  App.  649. 

Where  suit  is  brought  under  Mo.  Rev. 
St.  1879,  §  809,  to  recover  for  stock  killed,  it 
should  be  averred  that  the  killing  was  in  the 
township  where  suit  was  brought ;  but  where 
there  is  no  specific  allegation  of  this  fact, 
and  the  defendant  appears  and  goes  to  trial, 
and  the  record  shows  that  the  killing  was  in 
such  township,  the  defect  in  the  pleadings 
will  be  considered  cured  on  appeal.  Kron- 
ski  V.  Missouri  Pac.  R.  Co.,  77  Mo.  362. 

Where  an  action  is  commenced  before  a 
justice  to  recover  under  the  statute  double 
damages  for  stock  killed,  a  statement  filed  by 
plaintid  with  the  justice  must  show  that  the 
stock  were  killed  in  the  township  where  suit 
is  brought.  Cummings  v.  St.  Louis,  I.  M.  &* 
S.  R.  Co. ,70  Mo.  570.— Followed  in  Hines 
V.  Missouri  Pac.  R.  Co.,  86  Mo.  629. 

Where  a  suit  is  under  the  Missouri  Rail- 
way act,  §  43,  before  a  justice  to  recover 
damages  for  stock  killed,  it  must  appear 
either  from  his  transcript  or  a  statement 
filed  with  him  that  the  killing  occurred  in 
the  township  in  which  suit  is  brought  in 
order  to  give  him  juri.sdiction,and  if  it  does 
not,  the  question  of  jurisdiction  may  be 
raised  for  the  first  time  on  appeal.  Barnett 
v.  Atlantic  &*  P.  R.  Co.,  68  Mo.  56.— Fol- 
lowed IN  Thomason  v.  St.  Louis.  I.  M.  & 
S.  R.  Co.,  74  Mo.  560;  Fields  7/.  Wabash.  St. 
L.  &  P.  R.  Co.,  80  Mo.  203. 

(3)  Adjoining  township. — In  a  suit  before 
a  justice,  under  the  Missouri  statute,  for  the 
killing  of  the  plaintiff's  cow  in  a  township 


W\ 


V 


4 
t 


I 


800 


ANIMALS,    INJUKIi'S   TO.  UIH.HIU. 


•  ii 


other  than  that  in  which  the  suit  is  broiifjht, 
the  fact  tliat  the  twt)  townships  adjoin  each 
other  is  jurisdictionui,  and  must  be  both 
averred  and  proved.  ll'iseiitan  v.  St.  Louis, 
A.  &*  T.  N.  Co.,  30  Mo.  App.  516.  Kinion  v. 
Kansas  City,  H.  &•  A/.  A'.  Co.,  30  A/o.  App. 
573.  Jones  V.  CMicaf^o,  B.  &*  A'.  C.  A'.  Co.,  52 
Afo.  App,  381. 

Under  section  2838,  Missouri  Kcv.  St. 
1879,  fixing  the  jurisdiction  of  justices' 
courts  in  actions  against  railroads  fur  Icilliiig 
stock  in  the  township  where  the  injury  hap- 
pened, or  in  any  adjoining  township,  where 
the  action  is  brouj^ht  in  an  adjoining  town- 
ship, plaintifl  must  allege  and  prove  the 
township  in  which  the  injury  happened,  and 
that  the  township  in  wliich  the  action  is 
brought  adjoins  the  township  in  which  the 
Injury  happened ;  and  where  the  records 
show  no  evidence  of  such  facts  the  court 
must  hold  that  there  was  no  jurisdiction  in 
the  court  below,  and  reverse  and  remand  the 
cause.  Jeivett  v.  Kansas  City,  C.  Sh  S.  R,  Co., 
38  Mo.  App.  48.  Briggs  v.  St.  Louis  <S-  S.  l'\ 
R.  Co.,  Ill  Mo.  168,  20  S,  IV.  Rep.  32. 
Vaughn  v.  Alissouri  Pac.  R.  Co.,  17  A/o.  App. 
4.—  Following  Iba  v.  Hannibal  &  St.  J.  R. 
Co.,  45  Mo.  475.  Reviewing  Iba  v.  Han- 
nibal &  St.  J.  R.  Co.,  45  Mo.  469,  475. 

And  the  statement  itself,  or  the  transcript 
of  the  justice,  must  show  affirmatively  in 
such  actions  that  the  animal  was  killed  in 
the  township  of  the  justice,  or  in  the  adjoin- 
ing township.  Manuel  v,  Missouri  Pac.  R. 
Co.,  19  A/o.  App.  631. 

618.  Alleging  ttino  of  injury.— 
Where  a  statement  of  plaintiff  did  not 
show  when  the  injury  was  done,  but  the 
statute  of  limitaiion  was  not  interposed,  the 
statement  was  sufficient.  Revelle  v.  St.  Louis, 
I.  M.  6-  S.  R.  Co.,  74  AIo.  438.— Followed 
IN  Cooksey  v.  Kansas  City,  St.  J.  &  C.  B. 
R.  Co.,  17  Mo.  App.  ij2. 

010.  Stating  place  of  entry  on 
track.— (i)  Sufficient. — In  an  action  under 
Missouri  Rev.  St.  §  809,  for  killing  stock,  a 
statement  is  sufficient  which  alleges  facts 
showing  that  the  animal  got  upon  the  track 
at  a  point  where  the  company  is  required  to 
fence  its  road,  and  it  is  not  necessary  to 
state  that  it  did  not  get  upon  the  track  at 
the  crossing  of  a  highway.  Mayfield  v.  St. 
Louis  «S-  S.  F.  R.  Co.,  91  Mo.  296,  3  S.  W. 
Rep.  201. 

A  statement  which  alleges  that  the  cow 
was  killed  at  a  point  where  there  was  no 
fence  and  where  by  law  the  company  wa.s 

9 


bound  to  fence,  and  that  by  reason  of  such 
failure  to  fence  the  cow  strayed  upon  the 
track  and  was  killed,  is  sufTicient,  as  showing 
that  the  place  where  animal  entered  was  not 
fenced  as  it  should  have  been.  Atoore  v. 
IVabash,  St.  L.  &*  P.  R.  Co.,  81  Ato.  499. 

In  an  action  under  the  statute  for  double 
damages  for  killing  stock,  the  statement  is 
sufficient  after  verdict  in  that  regard  if 
enough  is  contained  therein  from  which  it 
may  be  reasonably  inferred  that  the  animal 
escaped  upon  the  right  of  way  where  the 
road  had  neglected  to  fence.  Bushy  v.  St. 
Louis,  K.  C.  &*  N.  R.  Co.,  22  Am.  &>  Eng. 
R.  Cas.  589,  81  A/o.  43.— Distinguishing 
Jackson?/.  Rutland  &  B.  R.  Co.,  25  Vt.  150; 
Dayton  H  M.  R.  Co.  v.  Miami  County  In- 
firmary, 32  Ohio  St.  566.  Following 
Nance  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  79 
Mo.  196;  Jackson  v.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  80  Mo.  147.  Quoting  Edwards  v.  Kan- 
sas City,  St.  J.  &  C.  B.  R.  Co.,  74  Mo.  123. 

The  statement  in  an  action  for  statutory 
damages  for  the  killing  of  stock  by  a  railway 
company  must  allege  that  the  stock  came 
upon  the  railroad  track  at  a  place  where 
the  company  was  under  a  legal  obligation 
to  erect  and  maintain  fences,  and  was  in- 
jured owing  to  the  company's  failure  to 
observe  this  obligation.  But  where  this 
appears  from  the  statement  by  reasonable 
inference,  a  judgment  again 't  the  company 
will  be  upheld,  /ones  v.  St.  Louis,  I.  M.  &* 
S.R.  Co.,  44  A/o.  App.  15. 

Where  the  statement  under  §  809,  Rev. 
St.  does  not  in  clear  and  explicit  terms 
charge  that  the  animal  killed  came  upon 
the  right  of  way  at  a  place  where  it  was  the 
defendant's  duty  to  fence,  but  contains  that 
averment  by  fair  intendment  sufficient  to 
make  it  good  after  verdict,  and  no  objec- 
tion of  insufficiency  was  offered  at  the  trial, 
an  objection  to  the  statement  on  that  ac- 
count cannot  be  sustained  on  appeal,  //en- 
son  v.  St.  Louis,  I.  A/.  &*  S.  R.  Co.,  34  A/o. 
App.  636. 

(2)  Insufficient. — A  statement  before  a 
justice  in  an  action  under  Mo.  Rev.  St.  $809, 
for  double  damages  for  killing  stock,  is  in- 
sufficient which  fails  to  allege  that  the  stock 
entered  upon  the  track  at  a  point  where  the 
same  passes  through,  along,  or  adjoining 
inclosed  or  cultivated  fields  or  uninclosed 
lands  where,  by  law,  the  railroad  is  required 
to  fence.  Ward  v.  St.  Louis,  /.  M.  6*  S.  R. 
Co.,  91  Mo.  168.— FoLLowKD  in  Wood  i>. 
Kansas  City,  Ft.  S.  &  M.  R.  Co.,  39  Mo. 


ANIMALS,  INJURIiiS   TO,  020.02I. 


Ml 


A  pp.  6y—MaHM  v.  St.  Louis,  I.  A/.  tS-  .V.  A'. 
Co.,  87  A/o.  J78. 

A  statement  under  the  fifth  section  of  the 
damage  act  (Mo.  Rev.  St.  $  2134)  for  killing 
stock  is  iiisullicient  which  does  not  allege 
that  the  injury  occurred  at  a  place  where 
the  railroad  track  might  have  been  inclosed 
by  a  lawful  fence.  Ctarkson  v.  H'ahash,  St. 
L.  6-  /'.  /i'.  Co.,  84  Mo.  583.— guoiiNG 
Tiarks  r.  St.  Louis  &  I.  M.  R,  Co.,  58  Mo. 

45- 
Where  action  is  brought  to  recover  single 

damages  for  killing  plaintiff's  cow,  and  by 
tlie  statement  it  is  not  averred  that  the 
place  where  the  cow  went  upon  tlie  railroad 
track  was  where  defendant  might  have  in- 
closed the  road  with  a  lawful  fence,  but  it  is 
only  averred  that  the  road  "  was  not  inclosed 
with  a  lawful  fence,"  this  is  not  sufficient. 
lioyli  V,  Missouri  Fac.  R,  Co.,  21  Mo,  App. 
416. 

020.  and  tliat  mieli  place  waH 

not  a  pnhlic  croHMini;  or  within  a 
city  or  town.* — A  statement  in  an  action 
before  a  justice  under  Missouri  railroad  law, 
D  43,  to  recover  for  stock  killed,  must  aver 
that  the  killing  was  not  within  the  limits  of 
an  incorporated  town.  Schulle  v.  St.  Louis, 
I.  M.  &*  S.  A\  Co..  76  Mo.  324.— Following 
Rowland  v.  St.  Louis,  L  M.  &  S.  R.  Co., 
73  Mo.  619.— DiSTiNGUtsHKD  IN  Campbell 
z>.  Missouri  Pac.  R.  Co.,  78  Mo.  639; 
Williams  V.  Hannibal  &  St.  J.  R.  Co.,  80 
Mo.  597.  Followed  in  Holland  7'.  West 
End  N.  G.  R.Co.,  16  Mo.  App.  172. 

In  an  action  under  Mo.  Rev.  St.  §  809,  for 
double  damages  for  killing  stock,  it  is  not 
necessary  that  the  stat(>ment  should  contain 
an  expressaverment  that  the  point  at  which 
the  animal  entered  upon  the  track  was  not 
within  the  corporate  limits  of  an  incorpo- 
rated city  or  town.  It  is  sufficient  if  that 
fact  appears  by  necessary  implication  from 
the  other  facts  stated.  Ringo  v.  St,  Louis,  I, 
M.  <S-  S.  R.  Co.,  91  Mo.  667,  10  West.  Rep. 
268,  4  S.  W.  Rep.  396. 

A  statement  under  Mo.  Rev.  St.  §  809, 
for  double  damages  for  killing  plaintiff's 
cow,  which  alleges  that  she  strayed  upon 
the  track  at  a  point  "  one  mile  eastwardly 
from  Harlem  depot,  where  the  road  passes 
through  and  along  uninclosed  lands,  where 
there  were  no  fences  on  the  sides  of  the 
road  as  required  by  law,  and  where  sr.id  de- 
fendant has  not  erected  or  maintained  law- 

*  See  ante,  35.*). 


ful  fences  nn  the  sides  of  said  railroad, "and 
was  there  killed,  reasonably  excludes  the 
inference  that  she  came  on  the  track  at  a 
public  crossing  or  in  an  incorporated  town 
or  city,  and  sufficiently  alleges  that  she  was 
killed  by  reason  of  the  failure  to  fence. 
Jiintzen  v.  Wabash,  St.  L.  &-  P.  R.  Co.,  83 
Mo.  171.—  Followed  in  Duke  v.  Kansas 
City,  Ft.  S.  &  M.  R.  Co.,  39  Mo.  App.  105. 
yuoTED  IN  McGuire  v.  Missouri  Pac.  R. 
Co.,  23  Mo.  App.  325. 

A  statement  for  double  damages  for  kill- 
ing plaintiff's  hogs,  which  alleges  that  they 
strayed  upon  defendant's  road  at  a  place 
where  it  is  required  by  law  to  erect  and 
maintain  lawful  fences  on  the  sides  of  its 
road,  which  it  failed  to  do,  by  reason  of 
which  said  hogs  were  run  over  and  killed 
by  defendant's  cars,  although  defective  in 
not  averring  that  the  point  was  not  at  a 
public  or  private  crossing,  nor  within  the 
limits  of  an  incorporated  town  or  city,  is 
sufficient  after  verdict,  when  the  deficiency 
has  been  supplied  by  the  evidence.  Stanley 
V.  Missouri  Pac.  R.  Co. ,  29  Am.  &*  L'ng.  R, 
Cas.  250,  84  Mo.  625.— Following  Ed- 
wards V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co., 
74  Mo.  117;  Kronski  v.  Missouri  Pac.  R. 
Co.,  77  Mo.  362  ;  Perriquez  v.  Missouri  Pac. 
R.  Co.,  78  Mo.  91  ;  Asher  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  79  Mo.  432— Reviewed 
IN  Vail  V.  Kansas  City,  C.  &  S.  R.  Co.,  28 
Mo.  App.  372. 

021.  Averment  that  road  waH  not 
fenced,  or  waH  not  Hecurely  fenced.*— 
(I)  /ntiiami.—A  complaint  before  a  justice 
in  an  action  for  killing  stock  need  not, 
under  the  Indiana  statute,  allege  that  the 
railroad  was  not  securely  fenced  where  the 
animals  entered  upon  it.  Indianapolis  &» 
V.  R.  Co.  v.  Sims,  92  Ind.  496,— Distin- 
guishing Jeffersonville,  M.  &  I.  R.  Co.  7/. 
Lyon,  72  Ind.  107 ;  Toledo,  W.  &  W.  R.  Co. 
V.  Stevens,  63  Ind.  337;  Ohio  &  M.  R.  Co. 
V.  Miller,  46  Ind.  215. 

Upon  such  a  complaint,  charging  a  single 
transaction  by  which  several  animals  were 
killed,  it  is  error  to  admit  evidence  of  more 
than  one  occurrence.  Indianapolis  &*  V.  R, 
Co.  v.  Sims,  92  Ind.  496. 

In  an  action  under  the  Indiana  statute  be- 
fore a  justice  against  a  company  for  killing 
stock,  a  complaint  is  not  bad  for  failure  to 
allege  that  the  road  was  not  fenced  where 
the  animal  entered  upon  the  track,  nor  for 

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ANIMALS,  INJURIES  TO,  621. 


failure  to  show  by  direct  averment  that  the 
plaintiff  was  (ianiaged,  or  that  the  damages 
are  due  and  unpaid,  where  the  value  of  the 
stock  killed  is  alleged.  Lou/sv//U,  JV.  A.  &* 
C.  R.  Co.  V.  Argenbright,  t9  Am.  &*  Eng.  R. 
Cas.  604,  98  Ind.  254. 

A  complaint  before  a  justice  againijt  a 
company  for  killing  a  cow  belonging  to  the 
plaintiff  charged  that  the  animal  was  killed 
by  a  locomotive  of  the  defendant  at  a  point 
where  the  railroad  was  by  '9w  required  to 
be  fenced,  and  where  th.'  same  was  not 
fenced.  Held,  that  the  ct  plaint  was  suffi- 
cient. It  was  not  necessary  to  aver  that  the 
animal  went  upon  the  track  ;..  s  iluce  where 
the  road  was  not  fenced,  the  r.  t.s<'  'able  in- 
ference from  the  averments  &f  :-.)pIaint 
being  that  the  road  was  not  st.  v'y  fenced 
at  the  place  where  it  went  upon  *.i!e  track 
and  was  killed.  Ohio  &•  M.  R.  Co.  v.  Miller, 
46  Ind.  215,  7  Am,  Ry.  Rep.  240.— Distin- 
guished IN  Indianapolis  i  V.  R.  Co.  v. 
Sims,  92  Ind.  496. 

A  complaint  under  Indiana  Rev.  St.  i88i, 
§  4025,  before  a  justice  of  the  peace,  to  re- 
:ovcr  for  a  mare  killed,  which  avers,  with 
other  necessary  allegations,  that  "where 
said  mare  entered  upon  said  defendant's 
railway  and  was  killed,  said  railway  was  not 
fenced  at  all,"  is  good  on  demurrer.  Louis- 
ville, N.  A.Qr'  C.  R.  Co.  V.  Detrick,  91  Ind. 
519.— Distinguishing  Bellefontaine  R.  Co. 
V.  Suman,  29  Ind.  40;  Toledo,  W.  &  W.  R. 
Co.  V.  Stevens,  63  Ind.  337. 

In  an  action  under  the  statute  before  the 
mayor  of  a  city  for  killing  stock,  the  com- 
plaint alleged  that  "  on,"  etc.,  "  at  a  point  in 
said  county  of  *  ♦  ♦  where  said  railway 
track  was  not  securely  fenced,  and  not  at  a 
public  crossing  nor  within  the  limits  of  an 
incorporated  town  or  city,  said  defendant, 
by  her  agents,  *  *  *  ran  a  train  of  cars 
over  and  against  "  the  stock  of  the  plaintiff, 
which  was  of  a  certain  value,  and  l;illed  it. 
Held,  on  an  assignment  of  error  in  the  su- 
preme court,  questioning  for  the  first  time 
the  sufficiency  of  the  complaint,  that  it  was 
good  after  verdict,  in  an  action  commenced 
before  a  mayor  or  justice  of  the  peace, 
though  it  did  not  allege  that  the  stock  had 
entered  upon  the  railroad  at  a  point  where 
it  was  not  securely  fenced.  Toledo,  W.  &* 
W.  R.  Co.  V.  Stevens,  63  Ind.  337.—  Distin- 
guished IN  Louisville,  N.  A.  &  C.  R.  Co.t/. 
Detrick,  91  Ind.  519;  Indianapolis  &  V.  R. 
Co.  V.  Sims,  92  Ind.  496. 
Yet  a  complaint  in  an  action  commenced 


before  a  justice  against  a  company,  to  re- 
cover the  value  of  an  animal  killed  by  a  train 
of  cars,  which  does  not  allege  that  the  rail- 
road was  not  fenced,  and  does  not  allege 
negligence  on  the  part  of  the  defendant,  is 
insufficient.  Toledo,  IV.  &>  W.  R.  Co.  v.  Eid- 
son,  51  Ind.  67. 

(2)  Michigan.  —  A  declaration  which 
charges  that  defendant  is  a  corporation 
owning  a  railroad  in  a  given  township, 
which  it  has  been  operating  for  over  a  year 
last  past,  and  has  not  fenced  its  road  at  any 
place  through  the  township,  and  that  on  a 
given  date  the  plaintiff  was  the  owner  of  a 
colt  of  the  value  of  $100,  which  was  lawfully 
in  said  township,  and  which  went  onto  the 
track  of  said  railroad  and  was  there  killed 
through  the  negligence  of  the  defendant, 
and  because  its  track  was  not  fenced,  sets 
out  a  cause  of  action,  and  is  as  full  as  is 
usual  or  necessary  in  a  justice's  court.  Talbot 
v.  Minneapolis,  St.  P.  &*  S.  St.  M.  R.  Co., 
82  Mich.  66,  45  N.  W.  Rep.  11 13. 

(3)  Missouri. — A  statement  in  an  action 
before  a  justice  of  the  peace  against  a  rail- 
road for  single  damages  for  killing  stock, 
based  upon  Mo.  Rev.  St.  §  2124,  should 
allege  that  the  defendant  might  have  in- 
closed with  a  lawful  fence  that  portion  of 
the  road  on  which  the  accident  occurred. 
Russell V.  Hannibal'&'  St.  J.  R.  Co.,  83  Mo. 
507. 

But  the  statement  under  Mo.  Rev.  St. 
§  2124,  is  not  defective  in  failing  to  allege 
that  the  animal  was  injured  in  consequence 
of  the  failure  of  the  road  to  erect  fences. 
Radcliffe  v.  St.  Louis,  I.  M.  6*  S.  R.  Co.,  90 
Mo.  127,  2  S.  IV.  Rep.  277. 

Where  the  statement  alleges  facts  which 
show  that  the  defendant  might  have  fenced 
its  road  at  the  point  where  the  mare  en- 
tered upon  the  track,  it  is  sufficient.  Rad- 
cliffe v.  St.  Louis,  I.  M.  &•  S.  R.  Co.,  90  Mo. 
127,  2  5.  W.  Rep.  277. 

Where  suit  is  instituted  under  Mo.  Rev.  St. 
§  809,  to  recover  for  stock  killed,  the  com- 
plaint must  allege  that  the  killing  was  occa- 
sioned by  reason  of  a  fnilure  of  the  com- 
pany to  erect  and  maintain  such  fences  as 
are  required  by  the  statute.  Rowland  v.  St. 
Louis,  I.  M.  6-  S.  R.  Co.,  7  Am.  Gr-Eng.  R. 
Cas.  566,  73  Mo.  619. — Distinguished  in 
Perriquez  v.  Missouri  Pac.  R.  Co.,  78  M(\ 
91  ;  Campbell  v.  Missouri  Pac.  R.  Co.,  78 
Mo.  639.  Followed  in  Schultc  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  76  Mo.  324;  Wade 
V.    Missouri    Pac.    R.    Co.,    78    Mo.    362. 


I'-'im 


ANIMALS,  INJURIES   TO,  «22. 


363 


Quoted  in  Holland  7'.  West  End  N.  G.  R. 
Co.,  i6  Mo.  App.  172.  RiiviicwEU  in  Will- 
iams?^. Hannibal  &  St.  J.  K.  Co.,  80  Mo.  597. 
— Cunningham  v.  Hannibal  Sf  St.  J.  R.  Co. , 
70  Mo.  202.— Following  Luckie  v.  Chi- 
cago &  A.  R.  Co.,  67  Mo.  245;  Cecil  7\ 
Pacific  R.  Co.,  47  Mo.  246. — Approved  in 
Hudgens  v.  Hannibal  &  St.  J.  R.  Co.,  79 
Mo.  418.  Distinguished  in  Edwards  v. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  74  Mo. 
117;  Williams  v.  Missouri  Pac.  R.  Co.,  74 
Mo.  453. 

In  a  suit  under  Mo.  Rev.  St.  1879,  §  809, 
before  a  justice  and  against  a  railroad  com- 
pany for  killing  stock,  the  statement  must 
allege,  by  direct  averment  or  necessary  im- 
plication, that  the  stock  got  upon  the  track 
at  a  point  where  by  law  the  defendant  was 
bound  to  erect  and  maintain  fences.  A/c- 
Intosh  V.  Hannibal  &^  St.  J.  R.  Co.,  26  Mo. 
App.  377- 

Where  a  suit  is  brought  in  a  justice's 
court  against  a  company  for  killing  stock, 
and  a  statement  is  filed  showing  that  the 
animal  got  on  the  track  where  the  company 
is  required  to  fence,  it  is  not  necessary  to 
refer  to  Mo.  Rev.  St.  §  809,  making  the  com- 
pany liable.  Jenkins  v.  Chicago  <S>»  A.  R. 
Co.,  32  Mo.  App.  552. 

Where  suit  is  commenced  before  a  justice 
to  recover  for  stock  killed,  a  complaint  or 
statement  filed  by  the  plaintiff  alleging 
that  defendant,  where  its  road  passed 
"along  and  adjoining  inclosed  and  unin- 
closed  lands,  and  not  at  a  private  or  public 
crossing  of  said  road,  by  its  agents,  ran  the 
same  upon  and  over  plaintiff's  horse,  of  the 
value  of  $75,  thereby  killing  said  horse  ;  and 
that  defendant  failed  and  neglected  to  erect 
or  maintain  good  or  sufficient  fences  where 
said  horse  got  upon  the  track  and  was 
killed ;"  and  recites  the  statute  and  claims 
double  damages  thereunder,  is  sufficient. 
Johnson  v.  Missouri  Pac.  R.  Co.,  23  Am.  &* 
Eng.  R,  Cas.  180,  80  Mo.  620.— Quoting 
AND  following  Jackson  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  80  Mo.  147. 

A  complaint  before  a  justice  against  a 
company  to  recover  for  stock  killed  alleged 
"  that  the  defendant  had  failed  and  neg- 
lected to  erect  or  maintain  good  or  suffi- 
cient fences  on  the  sides  of  its  road  at  the 
point  where  said  cow  got  on  the  track  and 
was  killed,"  with  a  further  charge  that  the 
injury  occurred  at  a  point  on  the  road 
where  the  defendant  was  bound  to  fence. 


Ht'lii,  that  after  verdict  this  was  a  suflicient 
allegation  that  the  injury  was  occasioned 
by  a  failure  to  erect  and  maintain  fences. 
Kronski  v.  Missouri  Pac.  R.  Co.,  77  Mo.  362. 
—Followed  in  Campbell  v.  Missouri  Pac. 
R.  Co.,  78  Mo.  639;  Stanley  v.  Missouri 
Pac.  R.  Co.,  84  Mo.  625. 

In  an  action  for  injury  to  stock  it  is  suffi- 
cient if  the  statement  contain  such  facts  as 
reasonably  justify  the  inference  of  the  ab- 
sence of  a  fence,  and  such  as  negative  the 
existence  of  a  public  road,  or  that  it  was 
inside  the  town  limits,  or  that  it  was  at  a 
place  where  the  company  could  fence  if  it 
so  desired,  especially  after  verdict.  And  if 
the  road  was  not  fenced  at  such  point  it  is 
not  incumbent  upon  the  plaintiff  to  prove 
actual  negligence  in  running  and  managing 
the  cars.  Vail  v.  Kansas  City,  C.  &*  S.  R. 
Co.,  28  Mo.  App.  372.— Quoting  Thomas 
V.  Haimibal  &  St.  J.  R.  Co.,  82  Mo.  538; 
Belcher  v.  Missouri  Pac.  R.  Co.,  75  Mo. 
514.  Reviewing  Stanley  v.  Missouri  Pac. 
R.  Co.,  84  Mo.  625. 

In  an  action  brought  under  §  43,  Wagn. 
Mo.  St.  p.  310,  for  killing  cattle — held,  that 
a  statement  charging  merely  that,  where  the 
accident  occurred,  the  defendant's  road 
was  "unfenced,"  stated  no  facts  consti- 
tuting a  cause  of  action  under  said  section, 
and  that  the  section  applies  only  to  those 
localities  where  the  law  requires  the  railroad 
to  be  fenced.  Davis  v.  Missouri,  K.  6-  T.  R. 
Co.,  65  Mo.  441. 

A  complaint  before  a  justice  for  killing 
stock  by  reason  of  an  insufficient  cattle- 
guard  should  allege,  first,  that  there  was  a 
certain  crossing  over  defendant's  railway  in 
a  certain  township;  second,  that  adjacent 
thereto  defendant  had  failed  to  erect  and 
maintain  proper  cattle  guards,  etc. ;  third, 
that  by  reason  thereof  plaintiff's  mare  passed 
from  the  crossing  to  the  track,  etc.  Jones  v. 
Chicago,  B.  &*  K.  C.R.  Co..  52  Mo.  App.  381. 

022.  Averment  that  no  signals 
were  g  .en. —  The  statement  did  not 
state  a  jause  of  action  at  common  law  or 
under  the  statute  where  it  attempted  to 
state  a  cause  of  action  under  §  806,  Mo. 
Rev.  St.,  but  failed,  because  it  averred  that 
the  failure  of  defendant  "  to  ring  the  bell  or 
blow  the  whistle  "  did  not  occur  at  a  public 
crossing.  Cletnings  v.  Chicago,  R,  I,  &■»  P. 
R.  Co.,  21  Mo.  App.  606.— Disapproved  in 
Polhans  v.  Atchison,  T.  &  S.  F.  R.  Co.,  45 
Mo.  App.  1 53. 


4 

¥ 


a* 


364 


ANIMALS,  INJURIES   TO,  «a«-627. 


623.  Allegation  of  owiit'rNliip  of 
adjoining  land.*— A  statement  tiled  be- 
fore a  justice  under  Mo.  Rev.  St.  §  809,  is 
not  defective  or  insufficient  because  it  fails 
to  allege  that  the  plaintiff  is  the  owner  of 
land  adjoining  the  railway,  from  which  the 
ox  strayed  upon  the  track  by  reason  of  the 
defendant's  failure  to  fence  as  required  by 
law.  It  is  only  where  the  animal  strays 
upon  the  track  from  an  inclosed  field  that 
the  allegation  of  ownership  must  appear, 
and  there  is  nothing  here  inconsistent  with 
the  conclusion  that  the  railway  passed 
through  uninclosed  lands.  Board  v.  St. 
Louis,  I.  M.  &*  S.  /?.  Co.,  36  Mo.  App.  151. 

G24.  Negativing  contributory  neg- 
ligence.f — In  a  common-law  action  com- 
menced before  a  justice  for  negligence  in 
killing  the  plaintiff's  mule,  the  complaint 
will  be  held  defective  when  attacked  by  a 
motion  in  arrest  of  judgment,  when  it  con- 
tains no  averment  that  the  killing  com- 
plained of  was  without  the  contributory 
fault  or  negligence  of  the  plaintiff.  While 
the  same  strictness  of  pleading  is  not  re- 
quired in  cases  originating  before  a  justice 
of  the  peace  as  in  those  commenced  in  the 
circuit  court,  still,  where  there  is  a  failure 
in  an  action  instituted  before  a  justice  to 
plead  some  independent  fact  essential  to  a 
recovery,  the  omission  is  fatal,  even  on  a 
motion  in  arrest  of  judgment.  Cincinnati, 
W.  <S-  M.  R.  Co.  v.  Stanley,  4  Ind.  App.  364, 
30 N.  E.  Rep.  1 103.— Following  Baltimore, 
P.  &  C.  R.  Co.  V.  Anderson,  58  Ind.  413.— 
Distinguished  in  Bostwickt/.  Minneapolis 
&  P.  R.  Co.,  2  N.  Dak.  440. 

025.  Prayer  for  damages.— In  a  suit 
before  a  justice,  the  statements  filed  stated 
the  cause  of  action  and  claimed  $50  dam- 
ages, and  afterward  asked  double  damages, 
"  in  accordance  with  the  statute  in  such 
cases  made  and  provided."  Held,  that  the 
request  for  double  damages  might  be  disre- 
garded as  surplusage,  and  that  the  justice 
had  jurisdiction  of  the  »-duse.  Grau  v.  St. 
Louis,  K.  C.  &-  N.  R.  Co.,  54  Mo.  240,  12 
Am.  Ry.  Rep.  376. 

626.  BillN  of  particulars— Gener- 
ally.— An  allegation  of  gross  negligence  on 
the  part  of  the  defendant  is  unnecessary  in 
a  bill  of  particulars  which  discloses  no  neg- 
ligence on  the  part  of  the  plaintiff,  filed  in 
an   action   to    recover  damages    for  stock 

*See/»«/^  340. 
t  See  ante,  364. 


killed  by  a  railroad  train.  Central  Branch 
R.  Co.  V.  Phillipi,  20  Kan.  9,  19  Am.  Ry. 
Rep.  99. 

In  an  action  commenced  before  a  justice 
under  the  railroad  stock  law  of  i874(Comp. 
Laws  1879,  pp.  784,  785),  where  the  only 
allegation  in  the  plaintiff's  bill  of  particu- 
lars with  regard  to  the  want  of  a  sufficient 
fence  is  as  follows :  "  That  the  said  railway 
of  defendant  was  not,  at  the  time  of  said 
killing,  and  is  not  now,  inclosed  with  a  good 
and  lawful  fence,  to  prevent  said  animals  or 
any  other  animals  from  being  on  said  rail- 
way," and  the  question  is  raised  for  the 
first  time  in  the  supreme  court  that  this 
allegation  was  not  sufficient — held,  that  un- 
iei  the  circumstances  it  must  be  considered 
sufficient.  Kansas  City,  L.  &*  S.  R.  Co.  v. 
Neville,  25  Kan.  632. 

In  an  action  commenced  before  a  justice 
for  killing  a  cow,  where  the  plaintiff's  bill 
of  particulars  does  not  state  or  show  that 
the  company  was  either  guilty  of  negli- 
gence or  that  its  road  was  not  fenced — 
held,  that  the  bill  of  particulars  is  defective 
and  insufficient.  St.  Louis  &*  S.  F.  R.  Co. 
v.  McReynolds,  24  Kan.  368. — Followed 
IN  St.  Louis  &  S.  F.  R.  Co.  v.  Ellis,  25  Kan. 
108;  Kansas  City,  L.  &  S.  W.  R.  Co.  v. 
Richolson,  31  Kan.  28. 

627.  Demand  for  attorney's  fees 
in  bill  ot  particulars.* — Where  a  statute 
provides  that  defendant  shall  pay  plaintiff's 
attorney's  fees,  he  may  fairly  insist  upon 
legal  accuracy  in  the  plaintiff's  pleadings 
and  proceedings,  even  before  a  justice  of 
the  peace ;  and  where  the  bill  of  particulars 
alleges  that "  twenty-five  dollars  is  a  reason- 
able sum  for  the  prosecution  of  this  action," 
and  contains  no  other  allegation  as  to  the 
value  or  necessity  of  attorney  fees,  no  judg- 
ment should,  in  the  absence  of  defendant, 
be  entered  for  a  larger  amount,  though  on 
appeal  and  in  the  district  court;  and  this, 
notwithstanding  the  bill  prays  for  twenty- 
five  dollars  attorney's  fee  in  a  justice's  court, 
and  "  twenty  dollars  as  a  reasonable  fee  for 
trial  thereof  in  the  district  court."  St.  Louis 
&•  S.  F.  R.  Co.  v.  Armstrong,  25  Kan.  561. 

An  action  was  brought  before  a  justice, 
under  chapter  94  of  the  Kansas  laws  of  1874, 
to  recover  from  a  railroad  company  the  value 
of  certain  stock  killed  by  one  of  its  trains. 
The  company  recovered  judgment  before 
the  justice.    On  appeal  the  plaintiff  recov- 

*  See  ante,  363. 


^m 


ANIMALS,  INJURIES   TO,  628,  629. 


365 


tticA 
Ry. 


V, 


ered  judgment,  and  the  district  court  in- 
cluded ttie  fees  of  the  plaintiff's  attorney  on 
the  trial  before  the  justice.  Held,  no  error. 
Missouri  River,  Ft.  S.  &*  G.  R.  Co.  v.  SAir- 
/ey,  20  A'an.  66o. 

M.  commenced  an  action  in  a  justice's 
court  against  a  company,  under  the  "act 
relating  to  killing  or  wounding  stock  by 
railroads,"  and  set  forth  in  his  bill  of  par- 
ticulars a  good  cause  of  action  for  $35  dam- 
ages for  killing  his  cow,  and  then  alleged 
"  that  $10  is  a  reasonable  attorney  fee  for 
the  prosecution  of  this  suit,"  and  "  prayed 
for  judgment  against  the  said  defendant  for 
the  said  sum  of  $35,  his  damages  sustained 
as  aforesaid,  and  $10  attorney  fee  for  the 
prosecution  of  this  suit,  and  costs."  In  the 
district  court,  to  which  the  case  was  after- 
ward taken  on  appeal,  the  jury  found  from 
the  evidence  for  the  plaintiff,  and  assessed 
his  damages  at  "thirty-five  dollars,  and  ten 
dollars  attorney  fee,"  and  judgment  was 
rendered  accordingly,  and  it  appeared  from 
the  record  that  the  plaintiff  was  assisted  by 
an  attorney.  HeM,  that  the  judgment  for 
the  attorney  fee  will  nc  be  reversed  where 
no  reason  for  such  reversal  can  be  given  ex- 
cept that  the  said  bill  of  particulars  does 
not  state  facts  sufficient  to  authorize  such  a 
judgment.  S/.  Louis,  L.  &*  IV.  R.  Co.  v. 
Miller,  1%  Kan.  212,  15  Am.  Ry.Rep.  215, 

In  an  action  in  a  justice's  court  under  ch. 
94  of  the  laws  of  1874,  for  killing  plaintiff's 
cow,  where  plaintiff  does  not  allege  in  his 
bill  of  particulars  that  the  company's  road 
was  not  fenced,  and  says  nothing  abo'.t 
attorney  fees  except  in  the  prayer  for  judg- 
ment, and  the  only  prayer  for  judgment  is 
"  for  said  sum  of  $30,  together  with  costs  of 
suit,  and  a  reasonable  attorney  fee  for  the 
prosecution  of  this  suit,"  and  the  case  is 
tried  both  in  the  justice's  court  and  in  the 
district  court  upon  this  bill  of  particulars, 
without  any  objection  being  made  as  to  its 
sufficiency,  and  the  district  court  finds 
specially,  among  other  things,  that  the  road 
was  not  fenced,  that  the  cow  was  worth  $30, 
that  a  reasonable  attorney  fee  for  prosecut- 
ing the  suit  in  the  justice's  court  was  $10, 
and  in  the  district  court  $25,  for  which 
sums  judgment  is  rendered  against  the 
defendant,  with  costs,  and  the  defendant 
then  brings  the  case  to  the  supreme  court, 
and  assigas  for  error  merely  that  "  the  de- 
cision of  said  judge  was  contrary  to  law," 
and  the  question  of  the  sufficiency  of  the 
plaintiff's  bill  of  particulars  is  raised  for  the 


first  time  in  the  supreme  court,  and  then  by 
brief  only — held,  that  the  judgment  of  the 
district  court  will  not  be  disturbed  merely 
because  of  any  supposed  insufficiency  in  the 
plaintiff's  bill  of  particulars,  nor  will  ii  lie 
disturbed  because  of  any  supposed  insuffi- 
ciency in  the  findings  of  the  court  below 
with  respect  to  attorney  fee.  Kansas  Pac. 
R.  Co.  v.  Yanz,  16  Kan.  583. — Followed  in 
Missouri  River,  Ft.  S.  &  G.  R.  Co.  v. 
Duckeit,  20  Kan.  623. 

628.  Joinder  of  claims.*- -Georgia 
Code,  §§  3038,  3040,  makes  railroad  com- 
panies liable  in  damages  to  double  the 
value  of  stock  killed  by  them  if  certain 
specified  officers  of  the  company  fail  to 
report  the  killing.  Section  3045  allows  a 
justice  to  summarily  assess  damages,  not  to 
exceed  $30,  against  railroads  for  killing 
stock.  Held,  that  a  claim  for  killing  stock 
and  one  failing  to  report  the  same  under 
the  above  sections  cannot  be  united  in  the 
same  proceeding  before  a  justice.  Jones  v. 
Americus,  P.  &•  L.  R.  Co.,  80  Ga.  803,  7  5.  E. 
Rep.  117. 

629.  Amendme  <>f  complaint  or 
statement.! — Where  o  claim  is  made  for 
attorney's  fees,  as  allowed  by  statute  in  an 
action  for  killing  stock,  before  a  justice,  on 
removal  of  tlie  case  to  court,  it  is  proper  to 
allow  an  amendment  so  as  to  include  a  de- 
mand for  such  fees.  Chicago  &^  A.  R.  Co.v. 
Henry,  17  ///.  App.  521. 

A  statement  before  the  justice,  under 
Mo.  Rev.  St.  §  809,  which  is  held  insuffi- 
cient by  the  supreme  court,  may,  upon  the 
cause  being  remanded  to  the  circuit  court,  be 
there  amended,  if  warranted  by  the  facts. 
Manz  v.  St.  Louis,  I.  M.  &*  S.  R.  Co.,  87  Mo. 
278. 

Upon  appeal  from  a  justice  of  the  peace 
to  the  court  of  common  pleas  or  the  circuit 
court,  in  an  action  for  damages  for  killing 
stock,  the  plaintiff  may,  under  Mo.  Rev.  St. 
§  3060,  be  allowed  to  amend  his  complaint 
so  as  to  show  that  the  township  in  which 
the  original  action  was  brought  adjoined 
the  one  in  which  the  injury  occurred. 
Mitchell  V.  Missouri  Pac.  R.  Co.,  82  Mo.  106. 
—Followed  in  Kitchen  v.  Missouri  Pac. 
R.  Co.,  82  Mo.  686. — Kitchen  v.  Missouri 
Pac.  R.  Co.,  82  Mo.  686.  —  Following 
Mitchell  V.  Missouri  Pac.  R.  Co.,  82  Mo, 
106. 


*  See  ante,  .335-336. 
t  See  au/e,  366. 


■*■• 


3G6 


ANIMALS,  INJURIES  TO,  «30. 


Under  Missouri  Rev.  St.  1879,  §  3060,  pro- 
viding that,  on  appeal  from  a  judgment  of 
ci  justice  of  tlie  peace,  the  statement  may  be 
amended  so  as  to  supply  any  deficiency 
therein,  provided  no  new  cause  of  action  be 
introduced,  a  statement  filed  before  a  justice 
of  tiie  peace,  in  an  action  for  killing  stock, 
which  shows  enough  to  make  it  appear  that 
it  is  intended  to  be  under  §43  of  Missouri 
railroad  act,  but  which  omits  certain  essen- 
tial facts,  may  be  amended  in  the  circuit 
court.  King  v.  Chicago,  R.  I.  fi^  P.  R.  Co., 
79  Mo.  328. — FoLLOWKU  IN  Dryden  v. 
Smith,  79  Mo.  525. 

Where  the  statement  filed  before  a  justice 
is  in  the  form  of  a  bill  for  damages  "  for 
killing  stock,"  etc.,  it  may,  under  Missouri 
Rev.  St.  §  3060,  be  so  amended  on  appeal 
to  the  circuit  court  as  to  allege  the  failure 
of  the  defendant  company  to  fence  its  track 
as  the  cause  of  the  injury ;  but  the  effect  of 
such  amendment  would  be  to  limit  the  proof 
solely  to  the  absence  of  the  fence  as  a 
ground  of  recovery.  Minter  v.  Hannibal  &* 
St.J.R.  Co.,  82  Mo.  128. 

Where  suit  against  a  railroad  company 
for  killing  stock  is  commenced  before  a 
justice  and  is  removed  to  the  circuit  court, 
it  is  proper  for  that  court  to  permit  an 
amendment  where  it  is  inferentially  evident 
that  the  action  is  brought  under  Missouri 
railroad  act,  §  43.  Rowland  v.  St.  Louis,  I.  M. 
&•  S.  R.  Co.,  7  Am.  6-  Eng.  R.  Cas.  566,  73 
Mo.  619., 

In  an  action  for  injury  to  live  stock,  the 
statement  originally  filed  alleged  that  the 
injury  was  caused  by  failure  of  the  company 
to  erect  and  maintain  cattle-guards,  as  re- 
quired by  §43  of  the  Missouri  railroad  law. 
An  amended  statement  was  afterward  per- 
mitted to  be  filed  charging  the  same  injury, 
but  alleging  that  it  occurred  in  consequence 
of  the  failure  of  the  company  to  construct 
a  crossing  where  its  road  crossed  a  public 
highway,  as  required  by  the  act  of  1875, 
amending  §39  of  the  railroad  law  (Sess. 
acts  1875,  p.  ^30).  Held,  that  there  was  no 
error  in  permitting  the  amendment,  both 
counts  referring  to  the  same  injury.  Lincoln 
V.  SI.  Louis,  /.  M.  &•  S.  R.  Co.,  75  Mo.  27.— 
Distinguishing  Luckie  7/.  Chicago  &  A.  R. 
Co.,  67  Mo.  245 ;  Cary  v.  St.  Louis,  K.  C.  & 
N.  R.  Co.,  60  Mo.  209;  Wood  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.  58  Mo.  109;  Crutchfield 
V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  64  Mo.  255 ; 
Hansberger  V.  Pacific  R.  Co.,  43  Mo.  196. — 


Followed  in  Straub  v.  Eddy,  47  Mo.  App. 
189. 

030.  Evidence  under  the  plead- 
iiifj^H.* — In  an  action  commenced  before  a 
justice  to  recover  for  live  stock  alleged 
to  have  been  killed  or  injured  by  the  de- 
fendant's cars,  on  the  defendant's  road, 
where  the  same  was  not  but  ought  lawfully 
to  have  been  securely  fenced,  the  defendant 
may  prove,  without  plea,  in  bar  of  the 
action,  that  such  road  was  at  the  time  of 
such  killing  or  injury  owned  by  another 
railroad  company,  but  was  being  run  by  the 
defendant,  as  lessee,  in  her  own  name. 
Pittsburgh,  C.  &*  St.  L.  A'.  Co.  v.  Rolner,  57 
Ind.  572,  18  Am.  Ry.  Rep.  450. 

A  complaint  in  an  action  before  a  justice 
to  recover  for  a  cow  killc'  was  for  "one 
cow  killed  by  your  locom'  /e,"  stating  the 
state,  county,  and  townsnip.  Held,  that 
under  such  statement  it  was  not  competent 
tc  prove  that  the  company's  track  was  not 
fe.iced.  Toledo  &•  W.  R.  Co.  v.  Reed,  23  Ind. 
loi. — Following  Indianapolis  &  C.  R.  Co. 
V.  Clark,  21  Ind.  150. 

In  an  action  before  a  justice  to  recover 
damages  for  cattle  killed  on  the  railroad 
(under  Iowa  laws  1862,  ch.  169,  §6)  it  is  not 
necessary  to  plead  the  notice  and  affidavit 
required  in  such  case,  in  order  to  make 
them  admissible  in  evidence.  Brandt  v. 
Chicago,  R.  I.  <S-  P.  R.  Co.,  26  Io7va  1 14. 

When  the  statement  filed  before  a  justice 
is  in  the  shape  of  a  bill  for  damages  "  for 
killing  hogs,"  etc.,  the  plaintiff  is  not  limited 
to  the  proof  of  any  particular  character  of 
negligence,  but  may  show  the  failure  of  the 
company  to  fence  its  track  as  a  basis  of  re- 
covery under  Mo.  Rev.  St.  §  2124.  Minter 
V.  Hannibal  &^  St.  J.  R.  Co.,  82  Mo.  1 28.— 
Distinguishing  Hansberger  v.  Pacific  R. 
Co.,  43  Mo.  196. — Followed  in  Boone  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  20  Mo.  App. 
232. 

The  plaintiff's  statement  charged  the 
defendant  with  negligently  and  carelessly 
running  over  and  killing  plaintiff's  c  w,  by 
failing  to  ring  the  bell  or  sound  the  whistle 
at  a  public  crossing,  "and  by  otherwise 
negligently  and  carelessly  operating  its 
locomotive  and  cars."  Held,  that  evidence 
of  other  acts  of  negligence  besides  failure 
to  ring  the  bell  and  sound  the  whistle  was 
properly  admitted    under   this   statement. 


*  See  «»/<•,  381-384. 


t^s*!' 


w 


ANIMALS,  INJURIES  TO,  631-637. 


867 


Edwards  v.  Chicago,  A\  /.  6-  P.  A\  Co.,  76 
Mo.  399. — Following  Mapes  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  76  Mo.  367.— Approved 
IN  Keim  v.  Union  R.  &  T.  Co.,  90  Mo.  314. 

631.  SnflBciency  of  evidence  to 
show  killint;  iu  township.— Proof  of 
the  fact  of  killing  the  animal  must  be  made, 
and  proof  of  killing  in  a  city,  not  proved 
to  be  in  a  certain  township,  will  not  justify 
the  inference  of  killing  in  that  town- 
ship. Manuel  v.  Missouri  Pac.  R.  Co.,  19 
Mo.  App.  631. — Following  Backenstoe  v. 
Wabash.  St.  L.  &  P.  R.  Co.  86  Mo.  492. 

Where  the  statement  in  an  action  be- 
fore a  justice  for  double  damages  for  kill- 
ing stock  alleges  that  the  killing  occurred 
in  a  township  other  than  the  one  in  which 
the  action  is  brought,  and  does  not  aver  that 
the  two  townships  adjoin,  and  the  evidence 
also  fails  to  show  that  they  adjoin,  a  de- 
murrer to  the  evidence  should  be  sustained. 
Ellis  V.  Missouri  Pac.  R.  Co.,  83  Mo.  372. 

632.  Appeal  from  justice's  court, 
generally. — By  appeali"  ~  a  case  against  a 
railroad  for  killing  stoch  from  a  justice's 
court,  the  defendant  waives  defects  in  the 
summons ;  so,  also,  by  appearing  generally 
in  the  justice's  court  and  moving  to  set  aside 
a  default.  Boulware  v.  Chicago  &*  A.  R.  Co., 
79  Mo.  494.— Followed  in  Gant  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.,  79  Mo.  502. 

The  attorney's  fee  is  properly  in  issue  in 
the  circuit  court  on  an  appeal  by  the  com- 
pany from  the  judgment  of  a  justice  of  the 
peace  wherein  such  fee  was  allowed  and 
taxed  as  costs.  Briggs  v.  St.  Louis  &*  S.  F. 
R.  Co.,  \  11  Mo.  168,  20  S.  IV.  Rep.  32. 

633.  Cause  of  action  remains  the 
same. — Where  a  company  is  sued  at  com- 
mon law  before  a  justice  for  negligently  kill- 
ing stock,  it  is  error,  on  appeal  to  the  cir- 
cuit court,  to  allow  an  amended  statement 
to  be  filed  setting  up  a  cause  of  action  un- 
der the  statute  for  a  failure  to  fence.  Hans- 
berger  v.  Pacific  R.  Co.,  43  Mo.  196.— Dis- 
tinguished in  Lincoln  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  75  Mo.  27. 

On  appeal  from  a  justice  the  trial  is  de 
novo,  yet  the  cause  of  action  must  remain  the 
same ;  therefore  where  an  action  against  a 
railroad  before  a  justice  was  trespass  for 
killing  a  horse,  and  on  appeal  it  was  changed 
to  assumpsit  for  breach  of  a  contract  to 
erect  and  maintain  a  fence,  it  was  not  error 
to  enter  judgment  of  compulsory  nonsuit. 
Reitze  v.  Meadville  <S-  £.  R.  Co.,  126  Pa.  St. 
437.  «7  Atl.  Rep.  663. 


634.  Transcript  and  its  sufficiency. 

— On  an  appeal  from  a  justice,  in  an  action 
for  the  killing  of  stock,  the  transcript  must 
show  affirmatively  that  the  justice  had  juris- 
diction. Where  the  transcript  does  not  show 
that  the  animal  was  killed  in  his  township, 
or  the  statement  itself  does  not  appear  in 
the  record,  the  judgment  cannot  be  sus- 
tained. Matson  v.  Hannibal &*  St.  J.  R.  Co., 
80  Mo.  229.— Followed  in  Roberts  v.  Mis- 
souri Pac.  R.  Co.,  19  Mo.  App.  649. 

The  Missouri  statute  does  not  require  a 
justice  in  sending  up  a  transcript  to  the  cir- 
cuit court  on  appeal  to  state  therein  the  evi- 
dence taken  before  him,  and  the  justice's  fail- 
ure to  state  in  his  transcript  that  there  was 
evidence  before  him  that  the  animals  were 
killed  in  the  township  where  he  resided,  is 
no  ground  to  sustain  an  objection  to  the 
introduction  of  any  testimony  in  the  circuit 
court.  Emmerson  v.  St.  Louis  &^  H.  R.  Co., 
35  Mo.  App.  621. 

635.  Kffect  of  recitals  in  tran- 
script.— The  official  character  of  the  jus- 
tice of  the  peace  before  whom  an  action  for 
the  killing  of  stock  has  been  instituted,  is 
established  prima  facie  by  a  recital  thereof 
in  the  transcript  on  appeal.  Burger  v.  St, 
Louis,  K.  6-  N.  W.  R.  Co,,  52  Mo.  App.  119. 

636.  Amendment  of  the  tran- 
script.— In  an  action  before  a  justice  under 
Mo.  Rev.  St.  §  809,  to  recover  for  stock 
killed,  the  record  on  appeal  must  show  that 
the  justice  was  an  officer  of  the  township  in 
which  the  animal  was  killed  or  of  an  adjoin- 
ing township,  and  if  this  does  not  appear  a 
judgment  will  be  reversed.  If  the  facts 
warrant  it,  however,  the  defect  may  be  rem- 
edied by  amendment  when  the  case  goes 
back  to  the  circuit  court.  Lindsay  v.  Kan- 
sas City,  Ft.  S.  &>  M.  R.  Co.,  36  Mo.  App.  51. 

637.  Affirmance  for  want  of  pros- 
ecutibn.  —  Where  an  appeal  is  allowed 
from  a  justice  on  a  day  subsequent  to  that 
of  the  judgment,  in  an  action  against  a  rail- 
road for  killing  stock,  and  appellant  fails  to 
give  the  ten  days'  notice  of  his  appeal  re- 
quired by  the  statute  (2  Wagn.  Mo.  St.  850, 
§  21),  before  the  second  ensuing  term  of  the 
circuit  court,  the  appellee  may  appear  simply 
for  the  purpose  of  having  the  judgment  af- 
firmed, and  will  be  entitled  to  such  affirm- 
ance, by  reason  of  the  continued  failure  of 
appellee  to  give  such  notice.  But  judgment 
of  affirmance  for  want  of  p/osecution  can- 
not be  taken  at  the  return  term  of  the  ap- 
peal unless  appellee  enter  his  appearance 


% 


l\ 


368 


ANIMALS,  INJURIES   TO,  638-fJ43. 


on  or  before  the  second  day  of  the  term. 
AVy  V.  Hannibal^ St.  J.  R.Co  ,l\  Mo.  575. 
—Followed  in  Transiert/.  St.  Louis,  K  C. 
&  N.  R.  Co..  54  Mo.  189 ;  Dooley  v.  Mis- 
souri Pac.  R.  Co.,  83  Mo.  103.  Reviewed 
IN  Priest  V.  Missouri  Pac.  R.  Co.,  85  Mo. 
521. 

038.  Ucniandin^  to  Justice  for 
new  trial.— In  an  action  against  a  railroad, 
in  a  justice's  court,  for  i<illing  a  cow,  the 
undisputed  evidence  showed  that  the  cow 
was  killed  on  a  rainy,  foggy,  dark  night, 
making  it  impossible  to  see  her  more  than 
sixty  feet  away ;  that  after  she  was  seen  every 
effort  was  made  to  stop  the  train,  but  with- 
out success ;  and  that  the  train  hands  were 
free  from  negligence.  Upon  this  evidence 
plaintiff  obtained  judgment.  Held,  on  cer- 
tiorari to  the  superior  court,  that  the  court 
might  in  its  discretion,  under  the  Georgia 
practice,  give  judgment  for  the  company 
or  remand  the  case  for  a  new  trial.  Rome 
R.  Co.  v.  Ransom,  78  Ga.  705,  3  5.  E.  Rep. 
626. 

639.  Double  damages."' — Wagn.  Mo. 
St.  809,  §  3,  giving  justices  of  the  peace  juris- 
diction of  actions  for  killing  stock  concur- 
rent with  the  circuit  courts,  gives  them 
jurisdiction  to  render  judgment  for  the 
double  damages  allowed  by  the  statute,  re- 
gardless of  the  amount  of  such  judgment. 
Parish  v.  Missouri,  K.  &-  T.  R.  Co.,  63  Mo. 
284,  20  Am.  Ry.  Rep.  417.  —  FOLLOWING 
Hudson  V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  53 
Mo.  525. — Reviewed  IN  Barnettw.  Atlantic 
&  P.  R.  Co.,  68  Mo.  56. 

640.  Iiistrnctioiis.f — The  refusal  of 
a  trial  justice,  in  an  action  to  recover  for 
stock  killed,  to  give  an  instruction  to  the 
effect  that,  "  if  the  stock  were  killed  acci- 
dentally and  not  by  reason  of  negligence  on 
the  part  of  the  defendant,  then  plaintiff  can- 
not recover,"  is  reversible  error  whfcre  no 
explanation  is  given  of  such  refusal,  although 
the  trial  justice  gave  other  instructions 
intended  to  embody  the  one  refused,  but 
it  was  doubtful  whether  the  jury  could 
have  understood  that  such  was  his  intent. 
Davis  V.  Richmond  &*  D.  R.  Co.,  30  So.  Car, 
613,  9  5.  £■.  Rep.  105. 

641.  Enforcement  of  Judgment.— 
Where  a  claim  against  a  company  for  killing 
stock  has  been  reduced  to  judgment  before 
a  justice  of  the  peace,  and  a  proceeding  is 

*S^tante,  695-604. 
\  Set  ante,  560-578. 


instituted  under  Indiana  Rev.  St.  1881 ,?  4030, 
to  enforce  the  judgment,  an  averment  that 
"  the  judgment  was  upon  a  compliant  for 
stock  killed  by  the  railway  company,"  is 
good  on  demurrer.  Chicago  &•  A.  R.  Co.  v. 
Summers,  113  Ittd.  10,  12  West.  Rep.  205,  14 
A^.  E.  Rep.  733.— Followed  in  Indianapolis. 
D.  &  W.  R.  Co.  V.  Crockett.  2  Ind.  App.  136. 
Where,  upon  an  appeal  from  a  justice  of 
the  peace,  a  party  has  obtained  a  judgment 
in  the  circuit  court  against  a  company  for 
damages  for  the  killing  or  injury  of  his 
stock,  under  the  provisions  of  the  act  of 
March  4,  1863,  i  Indiana  Rev.  St.  1876, 
p.  751,  providing  compensation  to  the  own- 
ers of  stock  killed  or  injured  on  a  railroad 
not  securely  fenced  in,  the  judgment-plain- 
tiff, although  his  case  is  not  within  the  letter 
of  the  statute,  may  enforce  the  collection  of 
his  judgment  in  the  manner  provided  in  the 
5th  section  of  said  act.  Ft.  Wayne,  M.  &* 
C.  R.  Co.  V.  Clark,  59  Ind.  191. 

VI.  EFFECT  OF  OFEBATION  OF  ROAD  BT  AS- 
SIGNEES, LESSEES,  BECEIYERS,  ETC. 

642.  Generally. — A  corporation  which 
has  the  possesion,  control,  and  management, 
and  is  engaged  in  the  business  of  running 
and  operating  a  railroad  in  Illinois,  is  a 
"  railroad  corporation,"  within  chapter  94  of 
the  laws  of  1874,  although  it  is  so  engaged 
in  the  execution  and  discharge  of  a  trust  for 
the  benefit  of  the  bond  and  stockholders  of 
the  corporation  which  built  and  owned  the 
road,  and  is  not  itself  the  absolute  owner 
thereof.  Union  Trust  Co.  v.  Kendall,  20 
Kan.  515,  20  Am.  Ry.  Rep.  294.— FOLLOW- 
ING Central  Branch  R.  Co.  v.  Ingram,  20 
Kan.  66. 

Under  the  Indiana  statute,  the  company 
owning  a  railroad  is  liable  for  stock  killed 
by  a  train  on  the  road,  without  reference  to 
the  company  or  persons  who  may  have  been 
running  the  locomotive  or  cars  that  caused 
the  injury;  and  such  company  may  be  sued 
alone.  Ft.  Wayne,  M.  &»  C.  R.  Co.  v.  Hine- 
baugh,  t^^Ind.  354. — Following  Indianap- 
olis &  M.  R.  Co.  V.  Solomon,  23  Ind.  534. 

643.  Independent  contractor's  li- 
ability.— The  statute  of  March  4,  1863  (3 
Ind.  St.  4.13),  makes  the  company  owning 
the  railroad  jointly  and  severally  liable  with 
the  "  lessees,  assignees,  receivers,  and  other 
persons  running  or  controlling  any  rail- 
road," etc.,  for  stock  killed  or  injured. 
Held,  that  contractors  were  embraced  in  the 
phrase  "  other  persons,"  used  in  the  statute. 


rrrvT 


m 


ANIMALS,  INJURIES  TO,  044,  U45. 


36'J 


20 


J/uey  V.  Indianapolis  &*  V.  R,  Co.,  45  Ind. 
320. 

It  is  no  defense  for  a  railroad  company  in 
an  action  to  recover  for  stock  killed  by  a 
train  of  cars  run  on  its  railway  track,  that 
the  injury  was  done  by  the  train  of  another 
company,  which  was  in  the  exclusive  use 
and  possession  of  contractors  for  the  con- 
struction of  defendant's  line  of  road,  who 
had  not  finished  the  same,  or  delivered  to 
tlie  defendant  the  completed  portion  of 
said  road.  Htiey  v.  Indianapolis  &•  V.  R. 
Co.,  45  Ind.  320. 

Under  the  Texas  statute  a  railroad  com- 
pany is  not  liable  for  stock  killed  where  the 
road  and  cars  are  in  the  possession  of,  and 
managed  by,  independent  contractors  in  the 
construction  of  the  road.  Houston  &*  G.  N. 
K.  Co.  V.  Van  Bay  less,  i  Tex.  App.  (Civ.  Cas.) 
247. 

044.  Lessor's  liability.— Where  a 
railroad  company  has  leased  its  road  and 
rolling  stock  to  another  company,  it  remains 
liable,  under  the  law  of  California,  for  cattle 
killed  by  the  trains  of  the  lessee,  on  the 
uiifenced  portions  of  the  lessor's  railroad. 
Fontaine  v.  Southern  Pac.  R.  Co.,  i  Am.  &* 
Eng.  R.  Cas.  159,  54  Cal.  645.— Quoting 
Illinois  C.  R.  Co.  v.  Kanouse,  39  111.  272 ; 
Toledo,  P.  &  W.  R.  Co.  v.  Rumbold,  40  111. 
143. — Followed  in  Dolanr/.  Newburgh,  D. 
&  C.  R.  Co.,  42  Am.  &  Eng.  R.  Cas.  6m, 
120  N.  Y.  S7I.  24  N.  E.  Rep.  824,  31  N.  Y. 
S.  R.  852. 

The  owner  of  a  railroad  leased  to  another 
company  is  liable  in  Illinois  for  live  stock 
when  killed  by  reason  of  a  failure  to  fence 
the  track  as  required  by  statute.  East  St. 
Louis  6-  C.  R.  Co.  v.  Gerder.  82  ///.  632. 
Illinois  C  R.  Co.  v.  Kanouse,  39  ///.  272. — 
Disapproving  Whitney  v.  Atlantic  &  St. 
L.  R.  Co.,  44  Me.  362 ;  Wyman  v.  Penob- 
scot &  K.  R.  Co.,  46  Me.  162. 

Under  Ind.  Rev.  St.  1881,  §  4025,  a  rail- 
road corporation  is  liable  for  stock  killed 
on  its  line  at  a  point  where  it  has  failed  to 
securely  fence  its  track,  whether  the  railroad 
is  operated  by  the  company  owning  the  line, 
or  by  another.  Cincinnati,  H.  &*  I.  R.  Co. 
v.  McDougcll,  108  Ind.  179,  8  N.  E.  Rep.  571. 

Under  the  Indiana  statute  the  company 
owning  a  track  is  liable  for  stock  killed  by 
the  trains  of  another  company  that  operates 
its  trains  in  its  own  name  over  such  track. 
India,..ipolis  &*  M.  R.  Co.  v.  Solomon,  23 
Ind.  534.— Distinguished  in  Cincinnati, 
H.  &  D.  R.  Co.  V.  Leviston,  19  Am.  &  Eng. 
I  D.  R,  D.— 24. 


R.  Cas.  633,  97  Ind.  488 ;  Cincinnati  &  M.  R. 
Co.  V.  Paskms,  36  Ind.  380.  Followed  in 
Ft.  Wayne,  M.  "i  C.  R.  Co.  v.  Hinebaugh, 
43  Ind.  354. 

In  Iowa  the  rule  is  that  neither  the  owner 
nor  the  lessee  of  a  railroad  is  liable  for  stock 
killed  by  the  trains  of  the  other  by  reason 
of  the  track  being  left  unfenced  where 
fences  are  required  by  law.  Stephens  v. 
Davenport  &»  St.  P.  R.  Co.,  36  Iowa  327. 

But  each  is  liabie  for  the  stock  killed  or 
injured  by  its  own  trains;  and  this  rule  is 
not  clianged  by  the  fact  that  the  lessor  was 
bound  to  keep  up  the  fences  and  had  the 
right  to  fix  the  time-tables  of  the  lessee's 
trains.  Clary  v.  Iowa  Midland  R.  Co.,  37 
Iowa  344. 

The  purpose  of  the  Oregon  statute  is  to 
make  the  company  owning  the  road  and  the 
company  operating  the  road  liable,  so  that 
either  may  be  sued,  as  the  plaintiff  may 
elect,  who  has  sustained  injury  to  his  live 
stock  by  a  moving  train  upon  its  unfenced 
track.  Eaton  v.  Oregon  R.  &•  N.  Co.,  43 
Am.  &•  Eng.  R.  Cas.  57,  24  Pac.  Rep.  415, 19 
Oreg.  391. — Following  Hindman  v.  Oregon 
R.  &  N.  Co.,  17  Oreg.  619. 

A  company  leasing  its  road,  under  a  power 
contained  in  its  charter,  is  still  liable  for 
stock  killed  by  the  negligence  of  the  lessees- 
Harmon  v.  Columbia  (&>•  G.  R.  Co.,  28  So.  C*r. 
401,  13  Am.  St.  Rep.  686,  5  S.  E.  Rep.  835.— 
Reviewing  Washington  A.  &  G.  R.  Co.  v. 
Brown,  17  Wall.  (U.  S.)  450;  National  Bank 
V.  Atlanta  &  C.  A.  L.  R.  Co.,  25  So.  Car. 
222. — Disapproved  in  Arrowsmithv.  Nash- 
ville &  D.  R.  Co.,  57  Fed.  Rep.  165. 

A  railroad  company  is  liable  for  killing 
live  stock,  unless  its  track  is  fenced,  whether 
it  owns  or  operates  the  railroad  ;  and  it  is 
liable  as  owner,  although  it  may  have  pre- 
viously leased  the  road  to  some  other  com- 
pany or  corporation.  Oregon  R.  &>  N.  Co, 
V.  Dacres,  i  Wash.  195,  23  Pac.  Rep.  415. — 
Explained  in  Oregon  R.  &  N.  Co.  v.  Smal- 
ley,  I  Wash.  206. 

645.  Lessee's  liability. — (i)  Gener- 
ally.— Where  a  company  leases  a  road  for 
fifty  years,  with  the  "  exclusive  right  to  run, 
operate,  and  control  it,"  and  has  fenced  the 
same,  it  is  liable  for  stock  injured  or  killed 
by  reason  of  defects  in  the  fence.  Tracy  v. 
Tr<y  Sf  B.  R.  Co.,  55  Barb.  (JV.  V.)  529; 
affirmed  in  38  A^.  Y.  433. 

A  railroad  company  leasing  lands  for  the 
purposes  of  a  grain  elevator  is  not  liable  for 
stock  killed  that  may  be  attracted  by  grain 


I 


m 


}  • 


y;o 


ANIMALS,  INJURIES  TO,  645. 


iC^ 

£ 


It. 


dropped  in  loading  curs  from  the  elevator. 
GiUilami  v.  Chicago  iS-  A.  R.  Co.,  ig  Mo. 
App.  411. — Reviewed  in  Burger  v.  St. 
Louis,  K.  &  N.  W.  R.  Co.,  52  Mo.  App. 
119. 

A  lessee  of  a  railroad  in  possession  incurs 
the  same  liability  as  the  company  for  dam- 
ages to  live  stock  by  reason  of  a  failure  to 
fence.  He  takes  the  road  subject  to  the 
duty  imposed  on  the  company  for  the  bene- 
fit and  protection  of  the  public.  McCall  v. 
Chamberlain,  13  Wis.  637. 

Where  two  railroad  companies  run  and 
operate  a  road  jointly,  the  one  as  owner  and 
the  other  as  lessee,  each  agreeing  to  pay  for 
all  stock  killed  by  its  own  trains,  the  fact 
that  the  lease  provided  that  the  officers  of 
one  of  the  companies  should  prescribe  the 
rules  for  and  direct  the  running  of  all  trains 
cannot  in  any  way  change  the  character  or 
effect  of  the  contract.  Wabash  R.  Co.  v. 
Williamson,  3  Ind.  App.  1 90,  29  N.  E.  Rep. 

455- 

(2)  Illinois  statute. — The  lessee  of  an 
unfenced  railroad  in  Illinois  is  liable  for 
stock  killed  when  the  statute  requires  the 
company  to  fence.  East  St.  Louis  &•  C.  R. 
Co.  V.  Gerber,  82  ///.  632.— Followed  in 
Dolan  V.  Newburgh,  D.  &  C.  R.  Co.,  42  Am. 
&  Eng.  R.  Cas.  611,  120  N.  Y.  571,  24  N.  E. 
Rep.  824,  31  N.  Y,  S.  R.  852. 

Where  two  companies  have  the  right  to 
use  the  same  track,  one  as  owner  and  the 
other  as  lessee  of  a  joint  use,  both  com- 
panies are  liable  for  stock  killed  by  the  train 
of  the  lessees  by  reason  of  the  track  not 
being  fenced,  as  required  by  the  Illinois 
statute.  Ilk'nois  C.  R.  Co.  v.  Kanouse,  39 
///.  272. — Disapproving  Whitney  v.  Atlan- 
tic &  St.  L.  R.  Co.,  44  Me.  362 ;  Wyman  v. 
Penobscot  &  K.  R.  Co.,  46  Me.  162.— Dis- 
tinguished in  West  V.  St.  Louis,  V.  &  T. 
H.  R.  Co.,  63  111.  545.  Followed  in  Tole- 
do, P.  &  W.  R.  Co.  V.  Rumbold,  40  111.  143; 
Lake  Erie  &  W.  R.  Co.  v.  Cruzen.  29  111. 
App.  212;  Dolan  v.  Newburgh,  D.  &  C.  R. 
Co.,  42  Am.  &  Eng.  R.  Cas.  611,  120  N.  Y. 
571,  24  N.  E.  Rep.  824,  31  N.  Y.  S.  R.  852. 
Quoted  in  Fontaine  v.  Soutliern  Pac.  R. 
Co.,  I  Am.  &  Eng.  R.  Cas.  1 59.  54  Cal.  645. 
Reviewed  in  Indianapolis  &  St.  L.  R.  Co. 
V.  People,  32  111.  App.  286. 

(3)  Indiana  statute. — A  railroad  company 
running  and  operating  a  railroad  under  a 
lease  is  not  liable,  either  at  common  law  or 
under  the  Indiana  statute,  for  stock  killed 
prior  to  the  execution  of  the  lease.    Pitts- 


burgh,  C.  &»  St.  L.  R.  Co.  v.  Kain,  35  Ind, 
291,  5  Am,  Ry.  Rep.  574. 

In  a  joint  action,  under  the  Indiana  stat- 
ute, against  one  railroad  company  as  the 
owner  and  another  as  the  lessee  of  a  cer- 
tain railroad,  to  recover  for  stock  alleged  Xo 
have  been  killed  by  the  car  of  the  latter 
whilst  running  such  railroad,  the  complaint 
must,  to  be  sufficient  as  to  the  lessee,  allege 
that  the  lessee  was  running  such  railroad  in 
the  name  of  the  owner,  Jeffersonville,  M, 
«S-  /.  R.  Co.  V.  Downey,  6i  Ind.  287. — DIS- 
TINGUISHING Indianapolis,  C.  &  L.  R.  Co. 
V,  Warner,  35  Ind.  515. 

Prior  to  the  Indiana  act  of  1877,  p.  61,  the 
owner  of  stock  killed  on  a  railroad  run  and 
operated  by  a  lessee  in  its  own  name  had  no 
remedy  under  the  statute.  Pittsburgh,  C. 
«S-  Si.  L.  R.  Co.  V.  Currant,  61  Ind.  38. 
Cincinnati,  H,  &*  D,  R.  Co,  v.  Nor r is,  61 
Ind.  285. 

Under  a  statute  providing  that  "  lessees, 
assignees,  receivers,  and  other  persons  run- 
ning or  controlling  any  railroad  in  the  cor- 
porate name  of  such  company "  shall  be 
liable  for  stock  killed,  a  company  is  not 
liable  where  it  is  operating  a  road,  not  in 
the  name  of  the  other  company,  but  in  its 
own  name.  Cincinnati,  H.  &•  D.  R.  Co.  v. 
Bunnell,  61  Ind.  183.  Pittsburgh,  C.  <S-  St. 
L.  R.  Co.  V.  Hannon,  60  Ind.  417. 

Under  the  Indiana  act  of  March  4,  1863, 
§  1,  where  a  leased  railroad  is  run  or  con- 
trolled by  the  lessee  in  the  corporate  name 
of  the  owner  and  not  otherwise,  the  lessee 
is  liable,  jointly  or  severally  with  the  owner, 
for  stock  killed  or  injured  where  the  track 
is  not  properly  fenced ;  but  a  road  run  or 
operated  by  a  lessee  in  its  own  name  is  not 
liable,  under  the  statute,  for  stock  killed  or 
injured.  Pittsburgh,  C.  &*  St.  L.  R.  Co.  v. 
Bolner,  57  Ind.  572,  18  Am.  Ry.  Rep.  450.— 
Followed  in  Pittsburgh,  C.  &  St.  L.  R. 
Co.  V.  Gadsbury,  57  Ind.  327 ;  Pittsburgh, 
C.  &  St.  L.  R.  Co.  V.  Miller,  58  Ind.  596; 
Pittsburgh,  C.  &  St.  L.  R.  Co.  v.  Green,  58 
Ind.  598. 

(4)  Ifftva. — Where  two  companies  operate 
trains  on  the  same  track,  one  as  lessee  and 
the  other  as  owner,  neither  is  liable  for 
stock  ki'Ied  by  the  trains  of  the  other  by 
leason  of  the  track  not  being  fenced  as  re- 
quired by  the  laws  of  Iowa.  Stephens  v. 
Davenport  <S-  St.  P.  R.  Co.,  36  Iowa  327.— 
Quoted  in  Brockert  v.  Central  Iowa  R. 
Co. ,  82  Iowa  369. 

Where  one  company  owns  a  track  and 


ANIMALS,  INJURIES  TO,  U40  (148. 


371 


another  has  the  privilege  of  using  it,  and 
l)i)th  operate  ti  lins  thereon,  each  is  liable 
for  stock  icilleci  :jy  its  own  trains  through  a 
failure  to  fence,  under  Iowa  act  1863,  ch.  169. 
Clary  v.  Iowa  Midland  R.  Co.,  37  Iowa  344. 
—Following  Stephens  v.  Davenport  &  St. 
I'.  R.  Co.,  36  Iowa  327. 

And  this  rule  is  not  affected  by  the  fact 
tliai  the  lessor  was  bound  to  keep  up  fences 
and  had  a  right  to  fix  time  tables  under 
which  the  lessee's  trains  were  operated. 
Cliifj  V.  fou'a  Midland  K.  Co.,  37  Iowa  344. 

But  where  a  company  leases  a  road  for 
fifty  years,  and  operates  and  controls  it  as 
its  own,  and  is  charged  with  the  duty  of 
fencing,  it  is  liable  for  stock  killed  through 
a  failure  to  fence,  under  the  Iowa  act  of 
1862,  ch.  169,  §  6.  Stewart  v.  Chicago^*  N. 
W.  R.  Co..  27  Iowa  282.— Distinguishing 
Liddle  v.  Keokuk,  Mt.  P.  &  M.  R.  Co.,  23 
Iowa  378.— Reviewed  in  Lee  v.  Minne- 
apolis &  St.  L.  R.  Co..  66  Iowa  131. 

The  Iowa  act  of  1862,  ch.  159,  §  6,  making 
railroad  companies  liable  for  stock  killed 
by  reason  of  a  failure  to  fence,  does  not  ex- 
tend to  lessees  of  railroads;  but  such  les- 
sees are  liable  for  killing  stock  through  the 
negligent  operation  of  trains.  Liddle  v. 
Keokuk,  Mt.  P.  &'  M.  R.  Co.,  23  Iowa 
378. 

«4G.  Sublessee's  liability.— Defend- 
ant, a  sublessee  of  a  railway  company  un- 
der the  Railway  Act,  Consol.  Stat.  C.  ch.  66, 
was  not  liable  for  neglect  to  maintain  fences 
by  reason  ((f  which  the  plaintiff's  cattle  had 
been  killed.     Bennett  v.  Covert,  24  [/.  C.  Q. 

/?.  38- 

047.  Company  having  running 
privileges    over    another's    line.— A 

company  having  running  privileges  over 
the  track  of  another  company  is  not  liable 
for  killed  stock,  which  is  the  result  of  de- 
fects in  a  fence  which  the  company  own- 
ing the  track  is  required  to  maintain.  Par- 
ker V. Rensselaer &^ S.  R.  Co.,\6  Barb.  {N.  Y.) 
315.— Applied  in  McGrath  v.  New  York 
C.  &  H.  R.  R.  Co.,  I  T.  &  C.  (N.  Y.)  243. 

The  train  was  running  over  a  road  not 
owned  by  the  defendant  company.  At  the 
crossing  in  question  the  company  who 
owned  the  road  usually  kept  a  flagman,  but 
there  was  no  flagman  there  at  the  time  of 
the  accident.  Held,  that  it  was  not  negli- 
gence on  the  part  of  the  defendant  to  run 
the-r  train  across  the  street  when  a  flagman 
was  not  there.  McGrath  v.  Neiv  York  C. 
d-  H.  R.  R.  Co.,  I  T.&^  C.  {N.  Y.)  243,— AP- 


PLYING Parker  v.  Rensselaer  &  S.  R.  Co.,  16 
Barb.  315. 

Where  a  company,  by  license  or  permis- 
sion of  another  company,  i-uns  trains  over 
the  road  of  tlie  latter  company  without  be- 
ing assignee  or  lessee,  the  company  own- 
ing the  road  is  liable,  under  the  Kansas 
statute,  for  stock  killed  by  the  trains  of  tlic 
company  having  the  running  privilege, 
where  the  injury  is  the  result  of  a  failure 
to  maintain  proper  fences.  Kansas  City,  Ft. 
S,  &*  G.  R.  Co.  V.  Ewinjr,  23  A'an.  273. 

A  company  having  running  privileges 
over  part  of  the  track  of  another  company 
is  liable  in  double  damages,  under  the  Mis- 
souri statute,  for  stock  killed  where  the 
killing  is  the  result  of  a  failure  to  maintain 
proper  fences.  Farley  v.  St.  Louis,  K.  C. 
6-  N.  R.  Co.,  72  Mo.  338. 

Where  two  railroad  companies  operate 
trains  on  the  same  road,  each  is  liable  under 
the  Iowa  law  only  for  stock  injured  or 
killed  by  its  trains  by  reason  of  the  road 
being  unfenced,  and  not  for  that  injured  or 
killed  by  the  trains  of  the  other.  Step/tens 
V.  Davenport  &*  St.  P.  R.  Co.,  36  Iowa  327. 

648.  Receiver's  liability.*  -  An 
action  under  the  Indiana  act  of  March 
4,  1863,  will  lie  against  a  company 
for  the  value  of  an  animal  killed  by  a  pass- 
ing train,  the  road  not  being  fenced, 
although  at  the  time  of  the  killing  the  rail- 
road was  controlled  and  run  by  a  receiver 
in  bankruptcy.  Indianapolis,  C.  6-  L.  R. 
Co.  V.  Ray,  51  Ind.  269.  Mc Kinney  v.  Ohio 
6- J/.  R.  Co.,  22  Ind.  99. — Distinguished 
IN  Ohio  &  M.  R.  Co.  V.  Davis,  23  Ind.  553  ; 
Heath  v.  Missouri.  K.  &  T.  R.  Co.,  83  Mo. 
617. 

Where  a  railroad  company,  in  answer  to 
an  action  to  recover  the  value  of  animals 
killed  by  its  machinery,  desires  to  set  up 
the  fact  that  its  road  is  in  the  possession  of 
and  being  operated  by  a  receiver  appointed 
by  a  federal  court,  the  answer  should  be 
accompanied  by  the  original  or  a  copy  of 
the  order  of  the  latter  court  for  the  appoint- 
ment of  the  receiver.  Ohio  &■»  M.  R.  Co.  v. 
Fitch,  20  Ittd.  498. 

The  mere  appointment  of  a  receiver,  with 
the  powers  usually  given  to  a  receiver  in 

*  Liability  of  receivers  for  killing  stock  under 
statute,  see  note,  13  Am.  &  E».'g.  R.  Cas.  554. 

Effect  of  placing  road  in  hands  of  receiver 
where  company  is  made  absolutely  liable  by 
statute,  as  for  killing  stock,  etc.,  see  note,  5  Am. 
St.  Rep.  314. 


! 


372 


ANIMALS,  INJURIES   TO,  U40-052. 


s 

s 


chancery, docs  not  relieve  tlic  railroad  com- 
pany from  liability  to  suit  (or  live  stock  in- 
jured or  killed.  The  receiver  operates  the 
road  subject  to  that  liability.  Ohio  &*  M. 
K.  Co.  V.  Fitch,  20  Ind.  498. 

A  company  is  liable  to  an  action,  under 
the  statute,  for  killing  stock  while  the  road 
is  being  run,  operated,  and  controlled  by  a 
receiver  appointed  by  the  circuit  court  of 
the  United  States,  and  service  of  process  in 
such  case  upon  a  conductor  of  a  train  pasr- 
ing  through  the  county  where  the  animal 
was  killed  is  sufficient,  thou),'h  the  conduc- 
tor be  employed  and  controlled  by  such  re- 
ceiver. Louisville,  N.  A.  &*  C.  A'.  Co.  v. 
CaubU.  46  Ind.  277,  6  Am.  Ry.  K,-p.  349.— 
DiSTiNOUisHED  IN  Heath  v.  Missouri,  K.  & 
T.  R.  Co.,  83  Mo.  617. 

Where  a  railroad  is  being  operated  by  a 
receiver,  the  receiver  and  not  the  railroad 
company  is  liable,  under  §  1289  of  the  Code 
of  Iowa,  for  the  value  of  stock  injured  on 
the  railroad  company's  unfenced  right  of 
way  through  the  negligence  of  he  railroad 
employes.  Whether  in  an  action  to  recover 
damages  under  such  statute  the  railway 
company  is  a  proper  or  necessary  party, 
guare.  Brockert  v.  Central  Iowa  R.  Co.,  82 
Iowa  369,  47  A^.  W.  Rep.  1026.— QUOTING 
Ohio  &  M.  R.  Co.  V.  Davis,  23  Ind.  553; 
Stephens  v.  Davenport  &  St.  P.  R.  Co.,  36 
Iowa  327. 

Under  the  K.insas  act  of  1874,  making 
railroad  companies  liable  for  stock  killed  by 
reason  of  a  failure  to  fence  their  tracks,  a 
company  may  be  sued  for  stock  killed  while 
the  road  is  in  the  hands  of  a  receiver  after 
he  is  discharged,  where  the  company  might 
have  fenced  but  failed  to  do  so.  before  the 
receiver  was  appointed.  Kansas  Pac.  R.  Co. 
V.  Wood,  24  Kan.  619. 

649.  Road  operated  by  private 
persons. — A  company  is  liable  for  a  horse 
killed  by  reason  of  its  not  maintaining  a 
proper  fence,  as  required  by  statute,  where 
the  road  is  operated  by  individuals,  at  their 
own  expense  and  for  their  own  benefit,  but 
where,  under  a  provision  of  the  lease,  the 
trains  run  under  the  direction  and  control 
of  the  company.  Wyman  v.  Penobscot  &* 
K.  R.  Co.,  46  Me.  162.— Disapproved  in 
Illinois  C.  R.  Co.  v.  Kanouse,  39  111.  272. 
Distinguished  in  Eaton  v.  European  & 
N.  A.  R.  Co.,  59  Me.  520. 

A  railroad  company  is  not  liable  under  the 
Missouri  damage  act,  §  5.  for  stock  killed 
by  a  locomotive  which  is  being  run  by  an 


employ^  without  authority  and  outside  of 
the  purpose  of  his  employment,  and  fur 
matters  pertaining  to  his  own  business. 
Cousins  V.  Hannibal  &*  St.  J.  R,  Co.,  66  Mo. 
572. 

050.  lload  operated  by  pur  cliuscrH 
atter  sale.— A  railroad  comp  ny  is  nut 
liable  for  stock  killed  after  its  road  has  bci-n 
sold  and  is  in  the  possession  uf  and  oper- 
ated by  the  purchasers.  Western  R.  Co.  v. 
Huss,  70  Ala.  565.— FoLLOV/iNO  Western 
R.  Co.  V.  Davis,  66  Ala.  IJH.— Western  R. 
Co.  V.  Davis,  66  Ala.  578,— !'oi,i,oWKi)  in 
Western  R.  Co.  v.  Huss,  70  Ala.  565. 

oai.  TriiHtcc  under  a  niortgaKe.-- 
A  trustee  under  a  mortgage,  in  pos.scssion 
of  a  road  and  operating  it,  is  liable  for  stock 
killed,  the  same  as  the  corporation  would 
be.  Farrell  v.  Union  Trust  Co.,  13  Am.  &* 
Eng.  R.  Cas.  552,  77  Mo.  475. 

<t52.  Manager  of  Troy  and  Orecii- 
fleld  II.  Co.— Under  the  various  Massa- 
chusetts statutes  from  1875  to  1880,  provid- 
ing for  the  appointment  of  a  manager  of 
the  Troy  &  Greenfield  Railroad  and  the 
Hoosac  Tunnel,  on  behalf  of  the  common- 
wealth, an  action  may  be  maintained  against 
the  manager  to  recover  for  injuries  to  a 
horse  caused  by  the  defective  construction 
of  the  roadbed,  though  the  defective  con- 
struction was  the  work  of  a  former  man- 
ager. Amstein  v.  Gardner,  16  Am.  &*  £nif. 
R.  Cas.  585,  134  Mass.  4. 


ANIMUS  BEVERTENDI. 

See  Citizenship,  etc.,  5. 


ANNOUNCEMENT. 

Of  itationi  to  give  passengers  warning  to 
alight,  see  Carriage  of  Passengers,  II, 
3  ;  III.  5  (f). 


ANOTHER  ACTION. 

At  ground  of  abatement,  see  Abatem'  nt,  2. 

Payment  of  judgment  in,  when  a  defense  to 
garnishee,  see  Attachment,  54. 

When  pendency  of,  deprives  court  of  jurisdic- 
tion, see  Attachment,  4. 


ANSWER. 

Form  and  sufficiency  of,  see  PtEAniNC,  I,  3. 
In  condemnation  proceedings,  see  Eminent 
Domain,  X,  9. 


~ 


AI'I'|;AI,    AM)    I'KKOU,   1. 


:J73 


Of  garniihee,   sufflciency  and  cfTect   cf,   mi 

Attaciimknt,  5(l«nt>. 
To  luitt  for  injury  to  animals,  see  Animals, 


ANTE-MORTEM  DECLARATIONS. 

Admisiibility  of,  at  part  of  tho  res  geste, 

see  EVIDKNCE,  VI. 


ANTICIPATED  PROFITS. 

When  allowed  as  d»'nages,  see  Damages, 
1,6. 


APPAREL. 
What  may  be  carried  as  baggage,  see  Bag- 

GAGE,  29. 


APPEAL  AND  ERROR. 

Froiw  awards,  see  Arbitration  and  Award, 
2i>. 

—  justice  courts,  see  Justice  of  thk  Peace, 

II. 
In  actions  for  injury  to  live  stock,  see  Ani- 
mals, Injuries  to,  U32-041. 

—  condemnation   proceedings,  see   Eminent 

Domain,  XII,  XV,  6. 

—  injunction  cases,  see  Injunction,  lO. 

—  mortgage  foreclosures,  see  Mortuacies,  VI, 

12. 

—  proceedings  to  build   branch   roads,  see 

Hkancii  and  Lateral  Roads,  10. 
Review  of  attachment  proceedings  by  writ 
of  error,  see  Attachment,  70. 

—  of  municipal  subscriptions  by,  see  Muni- 

cipal AND  Local  Aid,  XIV. 

I.  WHO  KAT  APPEAL  AND   WHAT  lo 

BEVIEWABLE 373 

1 .  /«  Genera/. 373 

2.  IV/iat  is  Appealable 375 

3.  Matters  of  Discretion  in  Court 

Below 381 

II.  HOW  APPELLATE  JUBISDICTIOK  IS 

XXEBOISED 384 

1.  The   Presumption    of    Regular- 

ity   384 

2.  What    Errors  are  Ground  for 

Reversal 386 

3.  What  Errors  and  Irregularities 

may  be  Disregarded 397 

4.  Objections    not    Properly    Taken 

Below 414 

5.  Matters    not    Apparent    on   the 

Record. 421 

6.  Reviewing  the  Evidence  or  the 

Facts 423 

7.  Reviewing  the  Amount  Award- 

ed   434 


III.  TAXING  AND  PERFECTING  AN  AP- 
PEAL  438 

17.  PBOCEDUHE  IN  APPELLATE  COUBT..  443 

I.  WHO   MAT  APPEAL    AND  WHAT  IS   BB- 
VIEWABLX. 

I.  In  general. 

1.  Tlio    ri|;lit   to   appeal.— When    a 

right  of  appeal  exists  only  by  virtue  of  an 
act,  only  tliose  embraced  within  the  descrip- 
tion of  persons  i.  liom  the  right  is  given 
can  appeal.  Mtlniyre  \.  East  on  &*  A.  R. 
Co.,  26  N.J.  Eq..\2i 

A  party  w'"  not  b"  deprived  'if  the  right 
to  appeal  I  ,>  an  agreement  .lot  to  appeal, 
unless  such  agreenunt  be  based  on  a  consid- 
eration, or  the  facts  re  such  as  to  work  an 
estoppel.  OgdiHsburgh  &*  L,  C,  R.  Co.  v. 
Vermont  &^  C.  R.  Co.,  6^  N.  V.  176;  not 
dismissing  appeal  from  4  Hun  'J\2,(i  T.  &> 
C.  488,  which  are  affirmed  in  16  Abb.  Pr.  N. 
S.  249.— DisTiNOUiSHEU  IN  Wheclock  v. 
Lee,  74  N.  Y.  495. 

Where  two  companies  arc  sued  jointly 
for  negligently  injuring  plaintiff,  and  each 
answers  separately,  denying  negligence,  and 
a  trial  results  in  a  verdict  against  one  of 
the  companies  only,  saying  nothing  about 
the  other,  the  company  against  whom  there 
is  no  verdict  cannot  appeal  from  an  order 
granting  a  new  trial  as  to  the  other  com- 
pany. Rankin  v.  Central  Pac.  R.  Co.  73 
Cal.  96,  1 5  Pac.  Rep.  57. 

An  affidavit  made  for  the  purpose  of  ob- 
taining an  appeal  from  a  board  of  county 
commissioners  issuing  bonds  in  aid  of  a 
railroad,  must  show  the  nature  of  appel- 
lant's interest,  as  where  the  appeal  is  by  a 
taxpayer,  that  he  is  a  resident  taxpayer. 
Fordyce  v.  Board  of  Com'rs,  28  Ind.  454. 

A  separate  appeal  to  the  municipal  court 
of  the  city  of  St.  Paul  may  be  taken  by 
a  garnishee  from  a  judgment  against  him 
rendered  by  one  of  the  city  justices;  and 
such  right  of  appeal  is  not  dependent  upon 
the  removal  by  appeal  of  the  judgment  in 
the  principal  action.  Albachten  v.  Chicago, 
St.  P.  &*  K.  C  R.  Co.,  40  Minn.  378 ;  42  JV. 
W.  Rep.  86.— Followed  in  Richter  v. 
Trash,  40  Minn.  379,  n. 

The  right  of  appeal  is  secured,  and  not 
only  to  all  parties  in  the  suit,  but  to  third 
persons,  when  they  are  aggrieved  by  the 
judgment,  if  the  amount  involved  is  suffi- 
cient to  give  the  appellate  court  jurisdic- 
tion.   (La.   C.  P.   571.)     When,  therefore, 


I    t^i 


374 


APPEAL    AND    ERROR,  2. 


£ 


the  state  auditor  and  slate  treasurer  are 
made  parties-defendants  in  a  suit,  to  compel 
them  to  register  bonds  of  the  state  which 
have  been  authorized  by  law  in  favor  of  a 
railroad  company,  which  registry  by  these 
offictrs  is  required  by  law  as  a  prerequisite 
to  their  delivery  to  the  company,  and  the 
judgment  of  the  court  requires  them  to 
make  such  a  registry,  then  and  in  such  case 
they  or  either  of  them  have  the  right  of  ap- 
peal from  such  judgment  secured  to  them, 
if  the  bonds  sought  tu  be  registered  are  suf- 
ficient in  amount  to  give  the  appellate  court 
jurisdiction,  and  a  mandamus  will  issue,  on 
application  of  the  auditor  and  treasurer,  or 
eitiier  of  them,  from  the  supreme  court, 
directing  the  judge  a  quo  to  grant  the  ap- 
peal.    State  V.  Judge,  23  La.  Ann.  595. 

After  a  decree  of  foreclosure  was  entered, 
but  at  the  same  time,  in  a  suit  by  a  railroad 
mortgage  trustee  to  foreclose,  certain  bond- 
holders were  made  parties  for  the  purpose 
of  appealing.  Held,  that  an  appeal  taken 
thereunder  was  good  as  to  the  interest  of 
such  bondholders.  Sage  v.  Central  R.  Co., 
93  U.  S.  412. 

In  an  action  for  damages,  the  defense  was 
(i)  That  the  action  should  have  been  against 
the  township,  inasmuch  as  the  accident  oc- 
curred within  tlie  lines  of  a  public  highway, 
and  (2)  that  plaintiff's  contributory  negli- 
gence was  a  bar  to  his  recovery.  The  court 
submitted  the  second  question  to  the  jury 
and  reversed  the  first.  The  jury  rendered 
a  verdict  for  plaintiff,  but  the  court  entered 
judgment  for  defendant  non  obstante  vere- 
dicto. Upon  appeal  by  plaintiff  the  judg- 
ment was  reversed  and  judgment  was  entered 
upon  the  verdict.  Subsequently  defendant 
appealed,  assigning  as  error  the  submission 
of  the  question  of  plaintiff's  contributory 
negligence  to  the  jury.  Held,  that  defendant 
was  entitled  to  an  appeal.  There  is  nothing 
in  the  Pennsylvania  acts  of  May  9, 1889  (P. 
L.  158),  and  May  20, 1891  (P.  L.  loi),  to  pre- 
vent such  appeal.  Gates  v.  Pennsylvania 
R.  Co.,  154  Pa.  St.  566,  26  Atl.  Rep.  598. 

2.  as    dependent    upon    the 

amount  in  controversy.— (i)  Illinois. — 
Where  an  action  is  brought  to  recover  dam- 
ages to  real  estate  by  the  construction  of 
tracks  in  a  street  in  close  proximity  to  plain- 
tiff's lots,  and  by  depressing  the  grade  of  the 
street,  and  the  declaration  charges  damages 
exceeding  j^iooo,  and  the  evidence  tends  to 
prove  them  in  excess  of  that  sum,  an  appeal 
may  be  allowed  to  the  supreme  court,  from 


the  final  judgment  of  the  court  affirming  a 
judgment  in  favor  of  defendant.  Baber  v. 
Pittsburgh,  C.  &•  St.  L.  R.  Co.,  93  ///.  342. 

In  an  action  against  a  railroad  for  negli- 
gently killing  stock,  the  damages,  being  sus- 
ceptible of  direct  proof,  must  exceed  the  sum 
of  $1000,  in  order  to  give  the  supreme  court 
jurisdiction  on  appeal  from  the  appellate 
court.  It  is  not  enough  that  the  damages 
amount  to  $1000  and  no  more.  Hankhis 
V.  Chicago  6-  A'.   W.  R.  Co.,  100  ///.  466. 

Where  a  judgment  for  the  defendant,  in 
an  action  on  the  case  to  recover  damages 
for  a  personal  injury  claimed  to  have  been 
caused  by  the  negligence  of  the  defendant's 
servants,  is  affirmed  by  the  appellate  court, 
the  judgment  being  for  "less  than  $1000, 
exclusive  of  costs,"  no  appeal  or  writ  of  er- 
ror lies  to  review  the  judgment  of  the  ap- 
pellate court,  unless  a  majority  of  the  judges 
of  that  court  shall  certify  the  case  under 
the  statute.  Baxtrom  v.  Chicago  &"  N.  IV. 
R.  Co.,  117  III.  150,  7  N.  E.  Rep.  268. 

(2)  Iowa. — Under  the  Code,  §  3173,  in 
cases  where  the  amount  in  controversy  does 
not  exceed  $100  the  supreme  court  has  no 
jurisdiction  on  appeal,  except  as  to  questions 
of  law.  Where  the  question  certified  was 
where  the  evidence,  in  a  suit  against  a  rail- 
road to  recover  for  injuries  to  a  horse,  showed 
rontributory  negligence  on  the  part  of  the 
plaintiff,  as  held  by  the  trial  judge,  upon 
which  he  directed  a  verdict  for  the  defend- 
ant, there  is  no  question  of  law  raised,  and 
the  supreme  court  has  no  jurisdiction  except 
to  dismiss  the  case.  Chilton  v.  Chicago,  R. 
I.  &*  P.  R.  Co.,  72  loTva  689,  34  A^.  IV.  Rep. 

473- 

(3)  Kentucky.— The  act  of  April  22,  1882, 
giving  the  superior  courts  exclusive  appel- 
late jurisdiction,  except,  inter  alia,  over 
"judgments  for  money  or  personal  property, 
if  the  value  in  controversy  be  greater  than 
$3000,"  confers  upon  such  courts  jurisdic- 
tion of  an  appeal  by  a  railroad  company 
from  a  judgment  against  it  for  $1600,  in  an 
action  for  a  personal  injury,  where  plaintiff 
sued  for  $5000.  Louisville  <S-  A';  R.  Co.  v. 
IVade,  (Ry.)  12  S.  IV.  Rep.  279. 

(4)  New  York. — If  an  appeal  be  taken  by 
the  defendant,  the  amount  in  controversy  is 
the  amount  of  the  judgment,  regardless  of 
the  amount  demanded  in  the  complaint,  or 
the  manner  in  which  the  referee  made  up 
the  aggregate  of  damages ;  and  if  the  amount 
of  the  judgment  is  $500  or  more,  the  court 
of   appeals  has    jurisdiction.     Graville  v. 


litiiii 


f 


APPEAL   AND    ERROR,  3-6. 


375 


ling  a 
\ber  V. 

342. 

negli- 
ig  Sus- 
ie sum 

court 
pellate 
maycs 
ankiiis 
66. 


New  York  C.  &>  H.  K.  R.  Co.,  i  Silv.  App. 
331,  5  A^.  Y.  S.  R.^^\•,  affirming  34  Hun 
224. 

(5)  Texas. — The  supreme  court  of  Texas 
cannot  review  on  appeal  a  judgment  of  the 
court  of  civil  appeals,  affirming  and  render- 
ing a  final  judgment  for  $283.03,  for  freight, 
brought  up  from  the  district  court  of  Trin- 
ity county,  which  by  statute  exercises  the 
same  jurisdiction  as  county  courts.  Mis- 
souri, K.  &*  T.  R.  Co.  V.  Trinity  County 
Lumber  Co.,  85  Tex.  405,  21  5.  W.  Rep.  539. 

Under  Tex.  Rev.  St.  art.  1068,  provid- 
ing that  the  court  of  appeals  shall  have  ju- 
risdiction of  cases  on  appeal  where  "the 
judgment  rendered  or  the  amount  in  con- 
troversy shall  exceed  $100,  exclusive  of  in- 
terest and  costs,"  the  court  has  no  juris- 
diction unless  the  judgment  exceeds  $100; 
and  it  does  not  have  jurisdiction  of  a  case 
commenced  against  a  railroad  company  to 
recover  $92.25  damages  where  a  judgment 
is  rendered  for  $47.50  and  $79.89  costs. 
Houston  <S>»  T.  C.  R.  Co.  v.  Pressley,  2  Tex. 
App.  {Civ.  Cas.)  451. 

A  builder  sued  a  railroad  company  for 
$<i8o  special  damages,  being  for  wages  paid 
to  workmen  while  kept  idle  by  reason  of 
the  company  failing  to  promptly  carry  build- 
ing material,  and  $18,  the  amount  paid  out 
for  telegraphing  in  trying  to  find  the  ma- 
terial. It  was  adjudged  that  he  was  not 
entitled  to  recover  the  $480.  Held,  that 
tlie  amount  as  to  the  $18  did  not  give  the 
county  court  jurisdiction,  and  it  could  not 
be  adjudged  on  appeal.  Ligon  v.  Missouri 
Pac.  R.  Co.,  3  Tex.  App.  (Civ.  CaJ.)  17. 

(6)  Virginia.  —  Where  the  right  of  a 
county  to  levy  taxes  is  invoked,  the  su- 
preme court  has  jurisdiction,  under  Va. 
Const.,  art.  6,  §  2,  of  an  appeal  in  an  ac- 
tion to  recover  a  tax  of  less  than  $500  ille- 
gally collected.  Prince  George  County  v. 
Atlantic,  M.  d'  O.  R.  Co.,  87  Va.  283,  12  S. 
E.  Rep.  667, 

(7)  Washington. — The  supreme  court  can 
acquire  no  jurisdiction  by  appeal  over  an 
action  begun  in  a  justice's  court,  where  the 
amount  in  controversy  as  determined  by  the 
pleadings  is  $75,  although  the  just  e  may 
have  erroneously  sustained  a  demurrtr  to  a 
counterclaim  for  damages  in  the  sum  of 
$500,  as  certiorari  is  the  proper  remedy  for 
reviewing  the  ruling  of  the  justice  upon  the 
defense  interposed.  Gabriel  v.  Seattle  &* 
M.  R.  Co.,  7  IVasA.  515,  35  Pac.  Rep.  410. 

(8)  IVest  Virginia. — The  supreme  court 


has  no  jurisdiction  to  review  an  order  of  the 
circuit  court  refusing  to  award  a  writ  of 
certiorari  to  the  judgment  of  a  justice 
rendered  on  a  verdict  of  a  jury,  when  the 
amount  of  such  judgment  is  less  than  $100, 
and  the  matter  in  controversy  is  merely  pe- 
cuniary. Farnsworth  v.  Baltimore  &>  O.  R. 
Co.,  28  fV.  Va.  815. 

3. effect  of  remittitur  of  part  of 

amount  recovered.* — A  remittitur  en-  . 
tered  after  verdict  rendered  in  a  case  in 
which  the  matter  in  dispute  exceeds  $2000, 
does  not  cut  off  defendant's  right  to  appeal 
from  a  judgment  against  him.  Gayden  v. 
Louisville,  N.  O.  &*  T.  R.  Co.,  39  La.  Ann. 
269,  I  So.  Rep.  792. 

Where  a  verdict  in  a  personal  injury  case 
is  for  $5500  plaintiff  should  not  be  permitted 
to  remit  $750,  so  as  to  deprive  the  supreme 
court  of  jurisdiction,  though  the  trial  judge 
be  of  opinion  that  the  defendant  would  not 
be  successful  on  appeal.  Smith  v.  Mem- 
phis iS-  L.  R.  R.  Co.,  iSPed.  Rep.  304.— FOL- 
LOWING Thompson  v.  Butler,  95  U.  S.  694. 

4.  Appeals  to  intermediate  appel- 
late court. — A  bill  filed  to  test  the  au- 
thority of  a  railroad  company  to  use  a  public 
street  in  front  of  complainant's  residence 
for  the  use  of  its  railroad  track  does  not  in- 
volve the  right,  title,  or  va'  ^ity  of  a  fran- 
chise, and  an  appeal  in  such  case  is  properly 
taken  to  the  appellate  court  in  the  first  in- 
stance. Mills  v.  Parlin,  14  Am.  &*  Eng.  R. 
Cas.  147,  106  ///.  60. 

An  action  of  debt,  brought  by  the  state 
attorney  in  the  circuit  court,  against  a  rail- 
road company,  for  the  recovery  of  penalties 
for  alleged  extortion  and  unjust  discrimina- 
tion, which  is  dismissed  by  the  court,  not 
being  a  criminal  case  above  the  grade  of  a 
misdemeanor,  and  not  involving  a  franchise 
or  freehold,  or  the  validity  of  a  statute,  or 
construction  of  the  constitution,  and  not  re- 
lating to  the  revenue,  and  the  state  not  be- 
ing interested  in  it,  as  a  party  or  otherwise, 
when  the  only  question  involved  is  the  right 
of  the  state's  attorney  to  bring  the  suit,  no 
appeal  lies  directly  to  the  supreme  court. 
In  such  case  the  appeal  should  be  to  the 
appellate  court.  People  v.  St.  Louis  &*  C.  R. 
Co.,  106///.  412. 

2.  What  is  Appealable. 

5.  What  is  appealable,  grenerally.— 

Power  in  a  railroad  company  to  exercise  the 

•See  also /M/,  126. 


lli 


376 


APPHAL   AND    ERROR,  «,  7. 


)(# 


right  of  eminent  domain  in  a  city  is  a  "  fran- 
chise," within  the  meaning  of  the  constitu- 
tion, defining  what  cases  must  be  taken  to 
the  superior  court  by  appeal  or  writ  of  error. 
Chicago  &*  IV.  I.  R.  Co.  v.  Dunbar,  i  An,. 
&*Eng.  R.  Cas.  214,95///.  571.— Reviewing 
Chicago  City  R.  Co.  v.  People,  73  111.  541  ; 
Board  of  Trade  v.  People,  91  111.  80;  Bank 
of  Augusta  V.  Earle,  13  Pet.  (U.  S.)  519; 
Bridgeport  v.  New  \ork  &  N.  H.  R.  Co.,  36 
Conn.  255. 

Although  the  direct  object  of  a  bill  in 
chancery  be  not  to  oust  a  railroad  company 
from  the  possession  of  a  franchise,  but  to 
enjoin  it  from  condemning  property  within 
a  city,  and  a  decree  is  rendered  granting  the 
relief  sought  on  the  assumed  ground  that 
the  company  has  no  such  right,  thus  depriv- 
ing the  company  of  the  right  claimed,  an 
appeal  will  lie  from  such  decree  to  the  su- 
preme court.  Chicago  &>  IV.  I.  R.  Co.  v. 
Dunbar,  i  Am.  &•  Eng.  R.  Cas.  214,  95  ///. 
571. — Distinguished  in  Highway  Com'rs 
V.  Chicago  &  N.  W.  R.  Co.,  34  111.  App.  32. 

Where  a  question  is  whether  the  board  of 
railway  commissioners  can  maintain  an  ac- 
tion in  equity  to  enforce  an  order  which 
they  have  made,  and  the  demurrer  denies 
their  right  to  the  relief  which  they  demand, 
and  questions  their  riglit  to  maintain  the 
action,  the  filing  of  the  demurrer  questions 
their  right  to  maintain  an  action,  and  is  re- 
viewable on  appeal.  Smith  v.  Chicago,  M. 
&».  St.  P.  R.  Co.,  86  Iowa  :.02,  53  A^.  W.  Rep. 
128. 

Though  a  chancery  court  that  has  ap- 
pointed a  receiver  of  a  railroad  has  not  juris- 
diction of  an  action  against  the  receiver  to 
recover  for  personal  inju.les  caused  by  the 
negligence  of  persons  operating  trains  under 
him,  such  party  being  entitled  to  a  trial  by 
jury  in  an  action  at  law,  yet  where  such  pro- 
ceeding is  instituted  in  chancery,  and  an 
order  refusing  the  right  of  trial  by  jury  is 
not  appealed  from,  and  both  parties  submit 
to  trial  before  the  vice-chancellor,  his  de- 
cision is  reviewable  on  the  merits  on  appeal. 
Palys  V.  Jewett,  32  A^  /.  Eq.  302 ;  reversing, 
on  another  point,  30  A'^.  /.  Eq.  604. 

6.  What  is  not.  — Under  Ala.  Rev. 
Code,  §  2759,  a  voluntary  nonsuit  taken  in 
consequence  of  the  courts  sustaining  a  de- 
murrer to  the  complaint  is  not  reviewable  on 
appeal.  Amerson  v.  Montgomery  &*  M.  R. 
Co.,  so  Ata.^gy, 

Where  a  judgment,  recovered  at  a  special 
term  of  the  superior  court  by  a  plaintiff  for 


an  injury  to  his  person,  is  reversed  at  a  gen- 
eral term  of  said  court,  and  remanded  to 
special  term  for  a  new  trial,  and  thereafter 
the  plaintiff  dies,  no  appeal  lies  from  such 
reversal  to  the  supreme  court  in  favor  of 
the  administrator  of  the  deceased.  Stout  v. 
Indianapolis  &*  St.  L.  R.  Co.,  41  Ind.  149. 

There  is  no  appeal  to  the  court  of  ap- 
peals to  review  questions  of  fact  passed 
upon  by  commissioners,  after  personally  in- 
specting the  premises  and  hearing  proofs,  in 
a  proceeding  under  the  New  York  general 
railroad  act,  laws  of  1850,  ch.  140,  §  22,  by 
an  aggrieved  landowner  who  petitions  for 
a  change  in  the  proposed  route  of  a  railroad. 
In  re  New  York,  !.£.&•  IV.  R.  Co.,  99  N. 
y.  388,  2  A'.  E.  Rep.  35  ;  dismissing  appeal 
from  zt  Hun  673.— Followed  in  Niagara 
Falls,  H.  P.  &  M.  Co.  v.  Niagara  Falls  &  L. 
R.  Co.,  51  N.  Y.  S.  R.  887. 

Under  the  constitution  of  West  Virginia 
the  supreme  court  of  appeals  can  only  re- 
view proceedings  of  the  circuit  courts  which 
are  of  a  judicial  nature ;  and  since  a  pro- 
ceeding in  a  circuit  court,  supervising  the 
decision  of  the  board  of  public  works  in  as- 
sessing railway  property  for  taxation,  is  ad- 
ministrative only,  it  follows  that  no  appeal 
lies  in  such  case.  Pittsburg,  C.  &^  St.  L.  R. 
Co.  V.  Board  of  Public  Works,  28  W.  Va.  264. 

A  special  case  stated  by  the  railway  com- 
missioners under  the  Regulation  of  Railways 
Act  1873,  §  26,  cannot  be  appealed  from  a 
divisional  court  to  the  court  of  appeal.  Hall 
V.  London,  B.  &>  S.  C.  R.  Co.,  17  Q.  B.  D. 
230,  5  Ry.  &*  C.  T.  Cas.  28. 

The  college  of  Ste.  Therese  having  peti- 
tioned for  an  order  for  payment  to  them  of 
a  sum  of  %ifioo,  deposited  by  the  appellants 
as  security  for  land  taken  for  railway  pur- 
poses, a  judge  of  the  superior  court  in 
chambers,  after  formal  answer  and  hearing 
of  the  parties,  granted  the  order  under  the 
railway  act,  R.  S.  C.  ch.  109,  §  8,  sub-sec. 
31.  Held,  that  the  order  in  question  having 
been  made  by  a  judge  sitting  in  chambers 
and  further  acting  under  the  statute  as  a 
persona  designata,  the  proceedings  had  not 
originated  in  a  superior  court  within  the 
meaning  of  §  28  of  the  supreme  and  ex- 
chequer courts  2SX,  and  the  case  was  there- 
fore not  appealable.  Canadian  Pac.  R.  Co. 
v.  Little  Seminary  of  Ste.  Therese,  16  Can, 
Sup.  Ct.  606. 

7.  What  Judgments  or  decrees  are 
final.— A  judgment  is  final  which  dis- 
poses  of   all    matters    in    controversy    as 


AlMMi AL   AND   ERROR,  8. 


377 


to  all  the  parties  to  a  suit;  iience,  a  judg- 
ment dissolving  an  injunction  wliich  was 
once  issued  to  restrain  a  railway  company 
from  constructing  and  operating  its  road, 
when  to  secure  such  restraint  was  the  ob- 
ject of  the  suit,  is  a  final  judgment.  From 
such  a  judgment  an  appeal  may  be  taken 
which  will  give  jurisdiction  to  the  supreme 
court  over  the  case ;  and  this  though  the 
case  may  have  been  dismissed  by  the  court 
below,  on  the  plaintiff's  request  after  the 
entry  of  the  order  dissolving  the  injunction. 
Gulf,  C.  <S-  S.  F.  K.  Co.  v.  Ft.  Worth  &^ 
N.  O.  A'.  Co.,  68  7>.r.  98.  2  S.  W.  Rep.  199, 
3  5.  W.  Rep.  564. 

In  a  suit  growing  out  of  an  assignment 
of  a  railroad,  a  perpetual  injunction  re- 
straining the  assignor  violating  the  terms 
and  purposes  of  the  assignment  is  a  final 
decree  for  the  purposes  of  an  appeal.  French 
V.  Shoemaker,  12    Wall  (£/.  5.)  86. 

A  decree  in  a  suit  to  foreclose  a  railroad 
mortgage  which  ascertains  the  amount  of 
the  debt  and  directs  that  the  property  be 
sold  at  public  auction,  unless  the  amount, 
with  interest  and  costs,  be  paid  by  a  given 
time,  is  a  final  decree  for  the  purposes  of  an 
appeal,  and  the  time  fixed  in  which  an  ap- 
peal can  be  taken  begins  to  run  from  the 
date  of  the  decree.  Bronson  v.  La  Crosse 
&>  M.R.  Co.,  2  Black  {U.  5.)  528. 

In  a  suit  to  compel  a  transfer  of  certain 
shares  of  railroad  stock,  a  decree  denying 
appellant  relief,  and  dismissing  the  bill  as 
to  him,  but  retaining  it  as  to  a  matter  in 
which  he  was  not  interested,  is  a  final  de- 
cree within  the  law  relating  to  appeals,  and 
matters  adjudicated  therein  cannot  be  re- 
viewed in  an  appeal  from  a  subsequent 
decree.  Hill  v.  Chicago  <S>»  E.  R.  Co.,  140 
U.  S.  52,  1 1  Sup.  Ct.  Rep.  690.— Reviewed 
IN  Grant  v.  East  &  W.  R.  Co.,  50  Fed.  Rep. 
795,  2  U.  S.  App.  182,  I  C.  C.  A.  681. 

Where  an  auxiliary  bill  is  filed  in  a  rail- 
road foreclosure  suit,  which  charges  that 
certain  bonds  are  involved,  and  seeks  to  ex- 
clude them  from  benefit  under  the  mortgage, 
a  decree  dismissing  the  auxiliary  bill,  but 
retaining  the  suit,  and  referring  it  to  a  mas- 
ter, is  a  final  decree  as  to  the  auxiliary  bill, 
and  therefore  appealable.  Grant  v.  East  &* 
W.  R.  Co..  50  Fed.  Rep.  795. 2  17.  S.  App.  182, 
I  C.  C.  A.  681.— Reviewing  Hill  v.  Chicago 
&  E.  R.  Co..  140  U.  S.  52,  II  Sup.  Ct.  Rep. 
690.— Approved  ik  Pennsylvania  Co.  v, 
Jacksonville.  T.  &  K.  W.  R.  Co..  55  Fed. 
Rep.  131. 


A  decree  establishing  liens  on  railroad 
property  and  directing  a  sale  thereof  is  a 
final  decree  and  appealable,  and  the  right  to 
appeal  therefrom  is  not  affected  by  a  subse- 
quent decree  consolidating  the  suit  with 
other  causes  and  directing  a  sale,  but  pro- 
viding that  the  proceeds  of  sale  shall  be 
paid  into  court  until  the  priorities  of  the 
various  liens  are  ascertained.  Texas,  S.  F. 
&•  N.  R.  Co.  V.  Ortnan,  3  A^.  Mex.  308,  9  Pac. 
Rep.  253. 

A  proceeding  by  motion  under  §  4029, 
Rev.  St.  Ind.  1881,  to  enforce  the  payment 
of  a  judgment  against  a  railroad  company 
for  stock  killed,  is  a  new  and  original  suit, 
a  civil  action,  and  the  decision  of  the  court 
upon  a  hearing  is  not  interlocutory,  but  is  a 
final  order  and  judgment  from  which  an 
appeal  will  lie.  Indianapolis,  D.  &•  IV.  R, 
Co.  V.  Crockett,  2  Ind.  App.  136,  28  A^.  E.  Rep. 
222.— Following  Chicago  &  A.  R.  Co.  v. 
Summers,  113  Ind.  10. 

A  court  in  Louisiana,  on  the  ex  parte  ap- 
plication of  a  holder  of  railroad  bonds, 
granted  an  order  in  the  nature  of  a  fore- 
closure. Afterward  the  railroad  company 
appealed  and  filed  a  petition  seeking  to  sus- 
pend the  order  to  seize  and  sell  the  r, 

until  a  final  hearing,  and,  among  other 
things,  denying  the  power  to  make  the 
order  without  notice  to  the  company.  The 
court  dismissed  the  company's  petition  with 
costs.  Held,  to  be  a  final  judgment  for  the 
purposes  of  an  appeal.  New  Orleans,  O.  S* 
G.  W.  R.  Co.  v.  Af organ,  10  Wall.  (U.  S.) 
256. 

An  express  company  filed  a  bill  against  a 
railroad  to  enjoin  any  interference  with  the 
facilities  it  enjoyed  over  the  railroad.  After 
a  preliminary  injunction  a  decree  was  en- 
tered which  required  the  road  to  carry  the 
express  goods,  fixed  the  compensation,  ad- 
judged costs,  and  awarded  an  execution. 
Held,  to  be  a  final  decree  for  the  purposes  of 
an  appeal,  although  leave  was  given  the 
parties  to  apply  for  a  modification  of  rates. 
St.  Louis,  I.  M.  &*  S.  R.  Co.  v.  Southern 
Exp.  Co.,  16  Am.  &>  Eng.  R.  Cas.  95,  108  U. 
S.  24,  2  Sup.  Ct.  Rep.  6.— See  10  Fed.  Rep. 
869.— Followed  in  Missouri.  K.  &  T.  R. 
Co.  V.  Dinsmore,  108  U.  S.  30,  2  Sup.  Ct. 
Rep.  9. 

8.  What  judgments  or  decrees  are 
not  final. — There  must  be  a  degree  of 
finality  about  every  judgment  taken  up  to 
be  reviewed  by  appellate  courts.  Judgment 
appointing  commissioners  to  fix  a  just  com- 


iU:^ 


:J78 


AI'PICAL   AND    liKROR,  9,  to. 


r 


pensation  for  land  proposed  to  hv  taken  in 
condemnation  proceedings  is  not  final  anfl 
appealable.  Ludlow  v.  Norfolk,  87  Va.  319, 
12  S.  E.  Rep.  612.— Followed  in  Postal 
Tel.  Cable  Co.  v.  Norfolk  &  W.  R.  Co.,  87 
Va.  y^().— Postal  Td.  Cable.  Co.  v.  Norfolk  i5- 
W.  R.  Co.,  87  !'a.  349,  12  S.  E.  Rep.  613.— 
FoLLOWiNc;  Ludlow  v.  Norfolk,  87  Va.  319. 

A  judgment,  in  a  suit  against  two  defend- 
ants, for  plaintiff,  against  one  defendant, 
without  showin;^^  any  disposition  of  the 
cause  as  to  the  other,  is  not  a  final  judg- 
ment, and  is  therefore  not  appealable.  Mis- 
souri Pac.  R.  Co.  V.  Seott,  78  Tex.  360,  14  S, 
IV.  Rep.  791. 

A  judgment  dissolving  a  temporary  in- 
junction and  awarding  costs,  but  not  other- 
wise disposing  of  the  subject-matter  of  the 
litigation,  is  not  a  final  judgment,  and  will 
not  support  an  appeal.  International  <S>»  G. 
N.  R.  Co.  V.  Smith  County,  58  Tex.  74. — Fol- 
lowing Herndon  v.  Bremond,  17  Tex.  432. 

Where  suit  is  instituted  against  a  railroad 
for  failing  to  provide  farm-crossings,  a  judg- 
ment reciting  that  a  plea  is  bad,  and  that 
plaintiff  is  entitled  to  damages,  but  staying 
judgment  therefor  until  the  damages  could 
be  ascertained,  is  not  final  so  as  to  be  appeal- 
able. Grand  Trunk  R.  Co.  v.  Amey,  20  U. 
C.  C.  P.  6. 

A  decree  directing  one  railroad  to  pay 
rent  to  another  for  rolling  stock  which  does 
not  settle  the  title  to  the  rolling  stock, 
which  is  the  real  matter  in  litigation,  is  not 
a  final  decree,  so  that  an  appeal  therefrom 
may  be  had.  Milwaukee  &•  St.  P.  R.  Co.  v. 
Sautter,  131  U.  S.  86,  app'x. 

A  decree  ii.  a  railroad  foreclosure  suit 
which  directs  a  sale,  but  which  leaves  the 
amount  of  the  debt  undetermined,  and  does 
not  ascertain  and  define  the  property  to  be 
sold,  is  not  a  final  decree  so  as  to  allow  an 
appeal  therefrom.  North  Carolina  R,  Co.  v. 
Swasey,  23  Wall.  {[/.  S)  405. 

A  decree  that  all  proceedings  on  a  judg- 
ment should  be  stayed,  and  that  no  writ  of 
habere  facias  possessionem  should  issue 
thereon  until  the  final  determination  of  a 
pending  proceeding  to  assess  damages  for 
taking  the  land  recovered,  subject  to  such 
further  order  of  the  court  as  the  justice  of 
the  case  may  require,  is  not  a  final  decree, 
and  a  writ  of  error  thereto  will  not  lie. 
O'Hara  v.  Pennsylvania  R.  Co.,  2  Grant's  Cas. 
{Pa.)  241. 

0.  What  orders  are  appealable, 
grenerally.— Under  the  Indiana   law,  an 


appeal  may  be  taken  from  an  order  of  the 
board  of  county  commissioners  donating 
money  to  aid  in  the  construction  of  a  rail- 
road.   Fordyce  v.  Board  of  Com'rs,  28  Ind. 

454. 

As  an  attorney-general  has  a  supervisory 
power  over  the  acts  of  district-attorneys  in 
matters  in  which  the  public  is  interested,  the 
attorney-general  may  demand  that  a  judg- 
ment be  set  aside  in  a  suit  to  recover  state 
and  county  taxes  against  a  railroad,  which, 
by  the  consent  of  the  district-attorney,  has 
been  entered  for  a  sum  less  than  that  sued 
for,  and  if  the  court  refuses  to  set  aside  such 
judgment,  an  appeal  will  lie.  Sacramento 
County  V.  Central  Pac.  R.  Co.,  61  Cal.  250. 

Certain  bonds  were  pledged  for  the  secur- 
ity and  protection  of  the  receiver  of  a  rail- 
road against  debts  and  liabilities  of  the 
corporation.  Held,  that  an  order  of  court 
for  the  sale  of  the  bonds,  or  granting  leave 
to  the  receiver  to  dispose  of  them,  made  on 
rule  to  show  cause  why  they  should  not  be 
disposed  of,  is  an  appealable  order.  Phila- 
delphia &»  R.  R.  Co.  v.  Little,  41  N.  J.  Eg. 
519,  7  Atl.  Rep.  356. 

10.  What  orders  are  not  appeal- 
able.— As  the  Indiana  statute  was  in  De- 
cember, 1872  (Rev.  St.  1 88 1,  §  5772),  an 
appeal  was  not  allowed  from  an  order  of 
a  board  of  county  commissioners,  selling 
railroad  stocks  belonging  to  the  county. 
0' Boyle  v.  Shannon,  80  Ind.  1 59. 

In  an  action  appointing  a  receiver  an 
appeal  will  not  lie  from  the  ruling  of  the 
court  overruling  a  motion  to  vacate  an  or- 
der appointing  a  receiver,  but  in  order  to 
secure  an  appeal  the  course  pointed  out  by 
:he  statute  must  be  followed.  Wabash  R. 
Co.  V.  Dykeman,  133  Ind.  56,  32  N.  E. 
Rep.    823. 

Prior  to  the  adoption  of  the  Iowa  Code 
of  1873,  §3165,  there  was  no  appeal  from 
an  order  of  a  judge  of  the  supreme  court 
dissolving  an  injunction  ;  and  said  section 
allowing  such  appeal  will  not  be  construed 
to  be  retroactive,  so  as  to  include  an  order 
of  such  judge,  dissolving  an  injunction,  re- 
straining a  railroad  company  from  laying 
its  track  in  a  city  street.  Davenport  v. 
Davenport  <S>»  St.  P.  R.  Co.,  37  Iowa  624. 

An  order  appointing  a  receiver  for  rail- 
road property  pending  litigation  to  foreclose 
a  trust,  is  not  appealable.  Maysville  &*  L. 
R.  Co  V.  Punnett,  15  B.  Mon.  (Ky.)  47.— 
Followed  in  Douglass  v.  Cline,  12  Bush 
(Ky.)6o8. 


APPEAL    AND    ERROR,   11,12, 


370 


An  order  of  tlie  supreme  court,  i^cncral 
term,  overruling  exceptions  in  that  court  in 
tiie  first  instance,  and  ordering  judgment 
on  the  verdict  is  not  appealable  to  the  court 
of  appeals  before  there  is  any  judgment 
entered  in  pursuance  of  the  order.  Del- 
aware, L.  &•  jr.  A'.  Co.  V.  Rurkhard,  15  A^ 
Y.  S.  A".  Sir- 
All  order  refusing  leave  to  individuals  to 
bring  an  action  against  a  railroad  company, 
in  the  name  of  the  state,  for  the  purpose 
of  avoiding  tlie  company's  charter,  is  not 
one  from  which  an  appeal  will  lie,  not  being 
an  order  In  "an  action  or  suit."  Oregon  v. 
Oregon  C.  /?.  Co.,  2  Or  eg.  256. 

Appeals  as  of  right  from  orders  of  the 
county  court  in  controversies  concerning 
roads  only  exist  where  the  controversy  is 
concerning  the  establishment  of  a  road, 
and  not  where  it  is  a  collateral  controversy 
concerning  the  damages  occasioned  by  a 
road  already  established.  Hancock  v.  Rich- 
mond &^  P.  R.  Co.,  3  Gratt.  (Va.)  313. 

Where  the  order  of  the  county  court  is 
interlocutory  and  not  final,  it  cannot  be  re- 
vised by  the  ciicuit  court  in  any  mode  of 
proceeding.  Hancock  v.  Richmond  &*  P.  R. 
Co.,  3  Gratt.  {Va.)  313. 

11.  Wliat  orders  are  Una!.— A  writ 
of  error  or  appeal  will  lie  to  the  refusal  of  a 
judge  to  vacate  a  commissioner's  certificate 
of  "ascertainment  and  assessment,"  in  a 
proceeding  to  condemn  land  for  a  railroad, 
such  being  a  final  determination.  Denver 
&"  N.  O.  R.  Co.  v.  Jackson,  6  Colo.  340. 

Though  the  property  of  a  railroad  be  sold 
under  a  decree  for  the  foreclosure  of  a  mort- 
gage, on  bill  taken  firo  con/esso,  stHl  the 
company  may  appeal  from  a  final  order 
directin-  a  distribution  of  the  proceeds  of 
sale,  and  adjudging  a  balance  still  due  the 
mortgage  creditors.  Ohio  C.  R.  Co.  v.  Cen- 
tral Trust  Co.,  133  U.  S.  83,  10  Sup.  Ct.  Rep. 

235- 

12.  What  orders  are  not  final. — The 

discharge  of  a  receiver  furnishes  no  ground 
of  appeal.  Nor  does  the  rescision  of  an 
interlocutory  order  of  sale,  which  deter- 
mined no  right.  Washington  City  &»  P.  L. 
R.  Co.  V.  Southern  Md.  R.  Co.,  55  Md.  153. 

An  order  of  reference  in  proceedings  by 
certiorari  under  the  act  of  1880  (chap.  269, 
Laws  of  1880),  to  review  and  correct  an  al- 
leged illegal,  erroneous,  or  unequal  assess- 
ment, or  an  order  refusing  to  set  aside  such 
an  order  of  reference,  is  not  reviewable  in 
the  court  of  appeals ;  neither  order  is  final. 


nur  does  it  affect  a  substantial  right  within 
the  meaningof  the  Code  of  Civil  Procedure, 
section  190.  People  ex  rel.  v.  Smith,  Si,  N.  Y, 
628  ;  dismissing  appeal  from  24  Hun.  66. 

In  controversies  concerning  roads  no  ap- 
peal or  supersedeas  lies  to  an  interlocutory 
order  of  the  county  court.  Treziilian  v. 
Louisa  R.  Co.,^  Gratt.  (Va.)  312. 

Where  a  common  carrier  is  sued  for  an 
overcharge  on  freights,  an  order  requiring 
the  company  to  produce  its  books  to  show 
that  other  shippers  had  been  allowed  re- 
bates, is  not  a  final  order,  and  is  therefore 
not  appealable  under  the  Iowa  Code,  §  3164. 
Cook  v.  Chicago,  R.  I.  &-  P.  R.  Co.,  75  Iowa 
169,  39  N.  W.  Rep.  253. 

Under  §§  426,  429,  Code  Proc.  when  an  ar- 
bitration of  the  differences  between  parties 
has  failed  for  any  reason,  the  superior  court 
is  clothed  with  full  jurisdiction  to  proceed 
to  a  final  determination  of  the  controversy, 
and  an  order  of  such  court  setting  aside  the 
award  of  the  arbitrators  is  not  such  a  final 
order  as  will  sustain  an  appeal.  Tacoma  R. 
&•  M.  Co.  V.  Cummings,  5  Wash.  206, 31  Pac. 
Rep.  747,  33  Pac.  Rep.  507. 

Where  in  an  action  against  a  railroad  com- 
pany the  jury  returned  a  verdict  against  the 
company,  and  also  made  certain  special  find- 
ings of  fact,  and  the  company  made  a  mo- 
tion for  judgment  upon  those  findings,  the 
verdict  to  the  contrary  notwithstanding, 
which  motion  was  overruled  by  the  court, 
and  thereafter  the  company  made  a  motion 
to  set  aside  the  verdict  and  judgment  and 
for  a  new  trial,  which  motion  was  sustained 
— held,  that  as  no  judgment  had  been  ren- 
dered against  the  company  and  no  final  or- 
der made  against  it.  no  petition  in  error 
would  lie  in  this  court  to  review  the  action 
of  the  district  court  in  refusing  a  judgment 
upon  the  special  findings  in  favor  of  the  com- 
pany. Atchison,  T.  &^  S.  F.  R.  Co.  v.  Brown, 
6  Am.  &*  Eng.  R.  Cas.  228,  26  Kan.  443 — 
Further  Appeals,  Brown  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  15  Am.  &  Eng.  R.  Cas.  271, 
31  Kan.  I. 

The  following  orders  have  been  held  not  to 
be  "final  orders,"  and  hence  not  to  be  review- 
able on  appeal  or  error  : 

An  order  made  in  a  railroad  foreclosure 
suit  before  judgment,  making  certain  in- 
debtedness of  the  receiver  of  the  road  a  first 
lien,  and  ordering  its  payment  out  of  the 
proceeds  of  sale.  Illinois  T.  <&*  S.  Bank  v. 
Pacific  R.  Co.,  ggCal  407,  ^^Pac.  Rep.  1132. 

An  order  overruling  a  motion  to  set  aside 


rpl 


II 


380 


APl'EAL  AND   ERROR,  J.'J,  14. 


1  -M 


t 


a  sale  of  a  railroad,  previously  ordered.  Ra- 
cine 6"*  M,  li.  Co.  V.  Farmer's  L.  &»  T.  Co.,  Jo 
III.  249. 

An  order  in  an  equitable  action  against 
an  elevated  railway,  to  the  effect  that  plain- 
lifT  was  not  entitled  to  an  injunction  to  re- 
strain the  operation  of  the  road,  and  pro- 
viding that  the  complaint  shall  be  dismissed 
unless  plaintiff,  within  a  designated  time, 
give  notice  that  he  elects  to  try  the  case  on 
the  law  side  of  the  court.  Kich  v.  Manhat- 
tan R.  Co.,  S3  A^.  Y.  S.  R.  346,  138  A^.  V. 
668,  mem.,  34  N.  E.  Rep.  402;  dismissing 
appeal  from  ig  N.  Y.  Sitpp.  543. 

An  order  appointing  a  receiver  to  receive 
the  revenues,  etc.,  of  a  railroad,  and  bring 
the  same  into  court,  subject  to  its  order, 
etc.,  and  without  any  application  of  its 
funds  except  to  certain  costs  accrued.  Ea- 
ton v.  H.  R.  Co.  V.  Varnum,  10  OAio  St.  622. 
—Distinguished  in  Cincinnati,  S.  &C.  R. 
Co.  V.  Sloan,  31  Ohio  St.  1. 

An  order  in  condemnation  proceedings 
directing  a  writ  of  inquiry  as  to  damages. 
Camp  V.  Coal  Creek  &*  W.G.  R.  Co.,\\  Am. 
6-  Eng.  R.  Cas.  372,  11  Lea  {Tenn.) 
705. 

13.  Orders  affecting  a  substantial 
right.— An  order  of  the  circuit  court  con- 
demning land  for  the  use  of  a  railroad  com- 
pany is  a  final  order,  affecting  a  substantial 
right  in  a  special  proceeding,  and  is  appeal- 
able. Wisconsin  C.  R.  Co.  v.  Cornell 
University,  49    IVis.    162,    5  N.    W.   Rep. 

33'- 

An  order  made  in  a  special  proceeding, 
pursuant  to  Wis.  Act  of  1859;  ch.  211,  direct- 
ing the  election  of  directors  of  a  railroad,  is 
an  order  "affecting  a  substantial  right," 
within  the  meaning  of  the  act  of  i860,  ch. 
264,  §10,  and  is  therefore  appealable.  In  re 
Fleming's  Petition,  16  Wis.  70. 

14.  Matters  conclusively  settled  in 
court  below.— The  supreme  court  will  not 
review  the  conclusion  of  the  court  below,  as 
to  the  existence  of  negligence,  unless  it  can 
see  from  the  record  that  in  drawing  its  in- 
ference the  trier  imposed  some  duty  upon 
the  parties  which  the  law  did  not  impose, 
or  absolved  them  from  some  duty  which  the 
law  required  of  them  in  the  circumstances, 
or  in  some  other  respect  violated  some  rule 
or  principle  of  law.  Farrell  v.  Waterbttry 
Horse  R.  Co.,  46  Am.  &*  Eng.  R.  Cas.  207, 
60  Conn.  239,  21  Atl.  Rep.  675,  22  Atl  Rep. 
544. — Applied  in  Fritts  v.  New  York  &  N. 
E.  R.  Co.,  62  Conn.  503.    Followed  in 


Andrews  v.  New  York  &  N.  E.  R.  Co.,  60 
Conn.  293. 

In  an  action  to  recover  for  a  personal  injury, 
the  question  of  negligence  of  the  defendant, 
and  also  that  of  the  plaintiff,  are  questions 
of  fact,  and  the  judgment  of  the  appellate 
court  affirming  that  of  the  trial  court  is  con- 
clusive upon  this  court  on  appeal  or  error. 
Toledo,  St.  L.  Sf  K.  C.  R.  Co.  v.  Clark,  147 
///.  171,  35iV.  E.  Rep.  167. 

All  controverted  questions  of  fact,  such  as 
whether  the  verdict  is  sustained  by  the  evi- 
dence and  whether  the  damages  found  are 
excessivo  or  not,  are  conclusively  settled  by 
the  finding  of  the  appellate  courts,  and  are 
not  subject  to  review  in  the  Illinois  supreme 
court.  Chicago,  B.  &*  Q.  k.  Co.  v.  Sullivan, 
(III.)  17  A^.  E.  Rep.  460. 

Where  a  trial  court  has  not  misstated  he 
rule  for  ascertaining  damages  or  otherwise 
misdirected  the  jury  to  the  hurt  of  the  de- 
fendant, judgment  of  the  appellate  court 
sustaining  the  findings  of  the  trial  court  as 
to  the  damages  sustained  will  be  regarded 
as  conclusive  in  the  supreme  court.  Chi- 
cago, B.  &>  Q.  R.  Co.  v.  Sullivan,  {III.)  17  N. 
E.  Rep.  460. 

Issues  of  fact  arising  in  the  trial  term  are 
properly  for  the  exclusive  determination  of 
that  term,  and,  consequently,  when  they  are 
heard  and  decided  there  the  decision  will 
not  be  revised  here.  To  support  a  bill  of 
exceptions,  some  legal  error  must  be  alleged 
and  shown.  Mooney  v.  Boston  &*  M.  R.  Co., 
65  A^.  H.  670,  19  Atl.  Rep.  571. 

The  court  referred  a  proceeding  by  con- 
tractors against  a  receiver  of  a  railway  £■-. 
recoveV  payment  for  certain  work  done,  tl  * 
order  of  reference  directing  the  master  i'; 
ascertain  the  amount  "justly  and  equitably 
due  as  the  true  value  of  the  work  done 
and  materials  furnished."  The  master 
found  the  work  was  done  and  the  ma- 
terials furnished  under  a  contract,  and 
reported  the  contract  price  as  the  amount 
due,  and  refused  to  hear  evidence  as  to 
their  value,  which  report  was  confirmed 
by  the  court  and  judgment  thereon  en- 
tered. Held,  that  the  trial  court  having 
confirmed  the  report,  an  appellate  court 
would  not  reverse  the  finding,  though  the 
language  of  the  reference  might  seem  to  be 
open  to  a  broader  construction  as  to  the 
true  value  of  the  work  than  was  given  it  by 
the  master  and  court.  Girard  Life  Ins.,  A. 
&*  T.  Co.  V.  Cooper,  51  Fed.  Rep.  332,  4  U. 
S.  App.  631,  2  C.  C.  A.  245. 


APPEAL   AND   ERROR,  15-21. 


881 


3.  Matters  of  Discretion  in  Court  Below. 

15.  In  general.— Where  a  charge  to  a 
jury  lays  down  no  erroneous  rule  of  law,  but 
contains  statements  which  may  have  im- 
properly influenced  the  jury,  the  court  be- 
low, in  its  discretion,  may  set  aside  the  ver- 
dict, but  the  charge  is  not  reviewable  in  the 
court  of  appeals.     Conners  v.  Walsh,  131  A''. 

K.  590,  30  A^  E.  Rep.  59,  42  A^  Y.  S.  R. 
868. 

It  is  generally  in  the  discretion  of  the 
court,  when  it  finds  error  in  part  of  a  judg- 
ment requiring  a  reversal  of  that  part,  to 
reverse  the  whole  judgment,  and  such  dis- 
cretion will  not,  except  under  peculiar  cir- 
cumstances, be  interfered  with  upon  appeal 
to  the  court  of  appeals.  Gray  v.  Manhattan 
R.  Co.,  128  A^.  v.  499,  28  A^.  E.  Rep.  498,  40 
N.  V.  S.  R.  478 ;  affirming  35  A^,  Y.  S.  R. 
32,  12  ^V.  Y.  Siipp.  542. 

The  court  of  appeals  will  review  upon  ap- 
peal the  determination  of  the  courts  below> 
even  upon  a  discreti  .nary  order,  where  it 
appears  that  the  discretion  was  based  on  the 
ground  of  a  want  of  power  to  grant  the  ap- 
plication. So  held,  in  reviewing  the  order 
of  the  general  term,  denying  a  motion  to 
compel  a  plaintiff  to  give  security  for  costs 
in  an  action  against  a  railroad.  Tolman  v. 
Syracuse,  B.  6-  N.  Y.  R.  Co.,  92  A^.  Y.  353; 
reversing  29  Hun  143. 

16.  Admitting  evidence  founded 
on  experiment. — Experiments  and  dem- 
onstrations used  in  evidence  should  be 
made  under  conditions  similar  to  those  at- 
tending the  fact  to  be  illustrated ;  and  when 
this  rule  is  observed,  the  discretion  of  the 
trial  court  in  allowing  the  result  of  such  ex- 
periments to  go  to  the  jury  will  not  be  re- 
viewed in  the  absence  of  abuse  thereof. 
Leonard  v.  Southern  Pac.  R.  Co.,  21  Oreg. 
5  55,  28  Pac.  Rep.  887. 

17.  Amendment  of  pleadings.— Suit 
was  brought  against  a  company  to  recover  a 
strip  of  land  used  for  a  right  of  way,  plain- 
tiff admitting  that  he  had  conveyed  a  right 
of  way,  but  not  the  land  where  the  road  was 
built;  and  without  denying  these  allega- 
tions, the  company  proceeded  to  trial ;  but 
after  it  had  begun,  asked  to  file  a  denial, 
which  the  court  refused.  Held,  that  such 
matter  rested  in  the  discretion  of  the  trial 
court,  and  such  refusal  was  not  an  abuse  of 
that  discretion.  Owensboro,  F.  R.  &*  G.  R. 
Co.  v.  Harrison,  (A>.)  22  .V.  IV.  Rep. 
545- 


18.  Denial  of  requests  to  charge.*— 

Where  a  railroad  company  is  sued  for 
killing  stock,  a  refusal  to  instruct  the  jury 
to  make  a  separate  finding  as  to  each  ani- 
mal killed  is  within  the  discretionary  power 
of  the  court.  Gulf,  C.  &>  S.  F.  R.  Co.  v. 
Washington,  49  Fed.  Rep.  347, 4  U.  S.  App. 
121,  I  C.  C.A.  286. 

In  an  action  against  a  railroad  for  killing 
stock,  the  company's  attorney  asked  the 
court  to  instruct  the  jury  that  a  failure  to 
produce  as  witnesses  the  company's  em- 
ployes who  operated  the  train  doing  the 
killing  should  not  be  considered  in  deter- 
mining how  the  injury  was  inflicted,  but 
which  the  court  refused  to  give.  Held,  that 
the  refusal  to  so  instruct  was  a  matter  dis- 
cretionary with  the  trial  court.  Taylor  v. 
Chicago,  St.  P.  &•  A'.  C.R.  Co.,  76  fowa  753, 
40  N.  W.  Rep,  84. 

10.  Granting  or  refusing  continu- 
ances.—The  granting  or  refusing  of  a  con- 
tinuance is  largely  within  the  discretion  of 
the  trial  court,  and,  unless  it  appears  that 
such  discretion  has  been  abused,  its  ruling 
will  be  sustained.  St.  Louis,  W.  &»  W.  R. 
Co.  V.  Ransom,  29  Kan.  298. 

20.  Granting  or  refusing  man- 
damus.—An  action  was  commenced  by  the 
people  to  vacate  the  charter  of  a  railroad 
corporation  which  had  applied  for  a  writ  of 
mandamus  to  compel  the  issuing  of  a  per- 
mit to  enter  upon  the  streets  along  its  route 
for  the  purpose  of  commencing  the  con- 
struction of  its  road ;  an  alternative  writ 
was  granted  and  a  return  made  thereto. 
The  court  denied  a  motion  by  the  people 
for  an  injunction  to  stay  such  proceeding 
by  mandamus,  upon  the  relator's  stipulating 
that  no  permit  should  issue  until  the  deter- 
mination of  said  action.  Before  such  de- 
termination, the  relator,  after  a  trial  of  the 
issues  presented  by  the  motion,  moved  for  a 
peremptory  mandamus,  which  motion  was 
denied.  Held,  that  the  granting  of  the  mo- 
tion was  at  least  discretionary,  and  so  the 
decision  was  not  reviewable  in  the  court  of 
appeals.  People  v.  Newton,  126  N.  Y.  656, 
27  A^.  E.  Rep.  370,  37  A'.  Y.  S.  /?.  391,  dis- 
missing appeal  from  26  /.  <S-  S.  439,  34  A'. 
V.  S.  R.   584,  II  A^.  K  Supp.  782.  19  Civ. 

Pro.  Rep.  416. 

21.  Granting  or  refusing  order  for 
<liscovery.— The  granting  or  withholding 
an  order  for  a  discovery  is  a  matter  of  dis- 

♦  See  also /w/,  53,  83. 


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APPEAL   AND   ERROR,  22, 23. 


5^ 


cretion  of  the  court  at  special  term,  and 
will  not  be  reviewed  by  the  general  term, 
unless  it  clearly  appears  that  the  special 
term  has  erroneously  exercised  its  discre- 
tion. So  held,  on  a  motion  to  compel  a  rail- 
road to  produce  its  books  for  the  purpose  of 
a  discovery.  Hart  v.  Ogdensburg  <S«  L.  C. 
A'.  Co.,  6^ Hun  {N.  Y.)  497.  S2  N.  Y.  S.  R. 
834.  23  A^.  Y.Sitpp.yiy 

22.  Liinitiiijy;  number  of  witnesses. 
—At  the  trial  of  an  action  against  a  railroad 
company  for  destroying  property  by  fire, 
the  court  made  an  order  limiting  ihe  num- 
ber of  witnesses  on  each  side.  Held,  that 
such  matters  rest  largely  in  the  discretion 
of  the  trial  court,  and  its  action  will  not  be 
disturbed,  unless  there  is  an  abuse  of  such 
discretion.  Kesee  v.  Chicago  &•  N.  IV.  R. 
Co.,  30  fowa  78.— Followed  in  Everett  v. 
Union  Pac.  R.  Co.,  10  Am.  &  Eng.  R.  Cas. 
203,  59  Iowa  243. 

23.  New  trials— Granting.— (I)  Gen- 
eral rules.— 'Y\\q  rule  laid  down  and  fol- 
lowed in  numerous  decisions  is  that  an  or- 
der granting  a  new  trial  on  the  ground  that 
the  verdict  was  not  justified  by  tiie  evidence 
is  within  the  discretion  of  the  trial  court, 
and  should  not  be  disturbed  on  appeal. 
Crosby  v.  Si.  Paul  City  R.  Co.,  34  Minn. 
413,  26  A'.  W.  Rep.  225.— Followed  in 
Congdon  v.  Bailey,  39  Minn.  22. 

The  granting  of  a  new  trial  by  the  trial 
court  will  not  be  reversed,  unless  the  evi- 
dence was  manifestly  and  palpably  in  favor 
of  the  verdict.  Smith  v.  St.  Paul  Gf  D.  R. 
Co.  44  Minn.  17,  46  N.  IV.  Rep.  149. 

An  order  of  the  general  term,  granting  a 
new  trial  in  a  case  tried  by  a  jury,  is  not  ap- 
pealable to  the  court  of  appeals  where  a 
material  and  controverted  question  of  fact 
was  involved,  upon  which  the  general  term 
might  have  granted  the  new  trial ;  and, 
although  both  parties  desire  it,  such  an  ap- 
peal will  not  be  entertained.  Bronk  v.  New 
York&'N.H.  R.  Co.,  95  N.  Y.  656.— Fol- 
lowed IN  Solomon  v.  Manhattan  R.  Co., 
95  N.  Y.  672. 

An  order  granting  a  new  trial  will  not  be 
reviewed  on  appeal  in  a  suit  for  negligently 
causing  death,  where  no  appeal  is  taken 
after  final  judgment.  Louisville  &*  N.  R. 
Co   V.  Conley,  \o  Lea  {Tenn.)  531. 

In  a  case  where  the  evidence  is  such  that 
opposite  conclusions  might  reasonably  be 
drawn  from  it  by  different  persons,  the 
granting  of  a  new  trial,  on  the  usual  terms, 
upon  the  ground  that  the  verdict  is  against 


the  weight  of  evidence,  is  not  an  abuse  of  dis- 
cretion. Kittner  v.  Milwaukee  &•  N.  R.  Co., 
77  Wis.  1,45  N.  W.  Rep.  815.— Distin- 
guishing Bushnell  v.  Scott,  21  Wis.  451; 
Jones  V.  Evans,  28  Wis.  168;  Duffy  v.  Chi- 
cago &  N.  W.  R.  Co.,  34  Wis.  188. 

Where  there  is  no  error  of  law  in  the 
action  of  a  county  judge  in  granting  a  new 
trial,  in  an  action  for  loss  or  injury  to  live 
stock  while  being  carried,  no  appeal  will  lie 
from  his  order  granting  sucii  new  trial,  on 
the  gtound  that  the  verdict  is  contrary  to 
the  weight  of  evidence.  How  v.  London 
&'N.  lY.  R.  Co.  [1892],  I  Q.  B.  391.- Ap- 
plying Metropolitan  R.  Co,  v.  Wright,  1 1 
App.  Cas.  1 52. 

(2;  Illustrations. — Where  a  watchman  was 
injured  by  a  passing  engine  through  the 
negligence  of  the  engineer  suddenly  open- 
ing the  cylinder-cocks,  and  obtained  a  ver- 
dict for  $6000  damages,  which  was  set  aside 
and  a  new  trial  granted  below,  to  reverse  the 
order  for  a  new  trial  it  must  affiimatively 
appear  that  the  court  erred  in  granting  the 
same.  Vickery  v.  Central  R.  &*  B.  Co.,  89  Ga. 
365,  15  5".  £".  Rep.  464.  Hardenbergh  v.  St. 
Paul,M.  &»  M.  R.  Co.,  \i  Minn.  200,  42 
N.  W.  Rep  933. 

In  a  suit  to  recover  back  an  overcharge 
on  freights,  a  new  trial  was  granted  on  the 
ground  of  misconduct  on  the  part  of  plain- 
tiff's attorney  in  presenting  his  case  to  the 
jury.  Held,  that  the  granting  of  new  trials  in 
cases  rests  largely  in  the  discretion  of  the 
trial  court,  and  its  acts  will  not  be  disturbed 
on  appeal,  unless  there  is  a  clear  abuse  of 
discretion.  Boardtnan  v.  Chicago  &*  N.  IV. 
R.  Co.,  32  Io7ua,  391,  10  Am.  Ry.  Rep.  41. 

In  a  personal  injury  suit  the  court  set 
aside  the  verdict  and  granted  a  new  trial  on 
the  ground  of  error  in  submitting  to  the 
jury  questions  not  supported  by  evidence. 
Held,  that  the  order  came  within  the  discre- 
tionary powers  of  the  court,  and  such  dis- 
cretion w'li  not  be  reviewed  on  appeal,  un- 
less it  be  shown  that  there  was  an  abuse  of 
discretion.  Stutz  v.  Chicago  &*  N.  IV.  R. 
Co.,  69  IVis.  312,  34  N.  W.  Rep.  147. 

Plaintiffs  sued  as  sub-contractors  to  en- 
force an  alleged  lien  for  the  construction  of 
a  railroad  bridge,  and  obtained  judgment, 
which  the  supreme  court  reversed  on  the 
ground  that  the  law  gave  no  such  lien;  but 
the  clerk  made  an  entry  that  the  judgment 
was  reversed  and  the  cause,  remanded  for  a 
venire  facias  de  novo.  Held,  on  appeal  from 
1  second  trial,  that  the  decision  of  the  su- 


^ 


APPEAL   AND    ERROR,  24-26. 


888 


preme  court  on  the  first  appeal  was  final,  and 
it  was  error  to  grant  a  second  trial,  yan- 
derpool  v.  La  Crosse  6-  M.  R.  Co.,  44  Wis.  652. 
24.  New  trials— Refusal  to  grant. 
—(\)General  rules.  In  actions  for  damages, 
an  order  of  the  trial  court,  refusing  a  new 
trial  on  the  ground  that  the  damages  are  ex- 
cessive, is  not  reviewable  on  appeal.  Petrie 
V.  Columbia  6-  G.  R.  Co.,  35  Am.&'Eng.  R. 
Cas.  430,  29  So.  Car.  303,  7  S.  E.  Rep.  5 1 5. 

Where  a  motion  for  a  new  trial,  upon  the 
grounds  that  the  verdict  is  contrary  to  the 
legal  preponderance  of  the  testimony  and 
that  the  damages  are  excessive,  is  refused 
by  the  circuit  judge,  his  decision  is  final  and 
cannot  be  reviewed.  Steele  v.  Charlotte,  C. 
&*A.  R.  Co.,  II  So.  Car.  589.— Applied  in 
Bowen  v.  Atlantic  &  F.  B.  V.  R.  Co.,  14 
Am.  &  Eng.  R.  Cas.  332,  17  So.  Car.  574. 

The  action  of  the  trial  court  in  refusing 
to  set  aside  a  verdict  on  the  ground  of  mis- 
conduct on  the  part  of  a  juror,  will  not  be 
disturbed  where,  upon  a  review  of  the  evi- 
dence, there  is  nothing  to  show  improper 
influence.  Brookhaven,  L.  &*  M.  Co.  v.  Illi- 
nois C.  R.  Co.,  68  Miss.  432,  10  So.  Rep.  66. 

In  an  action  by  a  servant  to  recover  for 
personal  injuries  there  can  be  no  reversal 
for  the  refusal  to  grant  a  new  trial  when  the 
case  turned  upon  the  credibility  of  the  wit- 
nesses, there  being  no  abuse  of  discretion. 
Richmond  <&*  D.  R.  Co.  v.  Wright,  88  Ga. 
19,  13  5.  .£.  Rep.  820. 

(2)  Illustrations. — A  verdict  for  defend- 
ant on  the  ground  of  contributory  negli- 
gence of  plaintiff  (a  boy  of  eleven  years),  in 
jumping  from  the  pilot  of  a  moving  engine, 
was  sustained  by  the  trial  court  on  motion 
for  new  trial.  Held,  that  the  appellate  court 
would  not  interfere.  Branham  v.  Central 
R.  Co.,  78  Ga.  35,  i  S.  E.  Rep.  274. 

Where  it  was  shown  that  a  horse  was 
killed  by  a  train,  a  presumption  of  negli- 
gence arose,  and  although  the  engineer  tes- 
tified that  he  was  in  the  use  of  all  ordinary 
and  reasonable  diligence,  yet  where  there 
was  some  evidence  tending  to  contradict  his 
account  of  the  occurrence,  and  to  sustain 
the  presumption  of  negligence,  and  where 
two  juries  have  found  in  favor  of  the  plain- 
tiff, and  the  court  has  refused  a  second  new 
trial,  this  court  will  not  interfere.  Georgia 
R.  &*  B.  Co.  V.  Phillips,  78  Ga.  619,  3  5.  £". 
Rep.  449. 

Where  it  was  impossible  to  tell  whether 
plaintiff's  cranberry  marsh  was  burned  by 
the  fire  set  out  by  defendant's  locomotive. 


or  by  some  other  fire,  the  origin  of  which 
the  defendant  had  no  co.mection  with,  and 
for  the  consequence  of  which  it  was  not  re- 
sponsible, it  was  error  to  refuse  to  grant  a 
new  trial.  Marvin  v.  Chicai'o,  M  6-  St.  P. 
R.  Co.,  45  Am.  &^  Eng.  R.  Cat  c  ,0,  79  Wis, 
140,47  A'.  W.  Rep.  1 123. —Quoting  Kellogg 
V.  Chicago  &  N.  W.  R.  Co.,  26  Wis.  223. 

In  an  action  against  a  street  railroad  com* 
pany  for  personal  injuries  alleged  to  have 
been  caused  by  the  negligence  of  the  driver 
of  a  horse-car,  plaintiff  testified  that  while 
riding  on  horseback  his  horse  fell  and  he 
fell  under  the  horse,  about  150  feet  ahead 
of  the  car,  and  while  he  was  lying  there  the 
wiieel  of  the  car  ran  over  his  arm.  His  tes- 
timony as  to  the  place  where  the  horse  fell 
was  not  corroborated,  but  four  disinterested 
witnesses  who  were  riding  on  the  car  in  a 
position  to  see  the  accident,  testified  th?». 
the  horse  fell  by  the  side  of  the  car.  Held, 
that  it  was  an  abuse  of  discretion  not  to  set 
aside  a  verdict  in  favor  of  plaintiff  as  being 
contrary  to  the  weight  of  evidence.  McCoy 
V.  Milwaukee  St.  R.  Co.,  82  Wis.  215,  52  A^. 
W.  Rep.  93. 

In  such  case,  the  answer  having  alleged 
contributory  negligence,  that  question 
should  have  been  submitted  to  the  jury, 
even  on  plaintiff's  theory  of  the  facts,  and 
it  was  error  to  charge  the  jury  to  the  effect 
that  there  was  no  claim  on  the  part  of  de- 
fendant that  plaintiff  was  guilty  of  con- 
tributory negligence,  so  that  if  they  came  to 
the  conclusion  that  plaintiff's  version  was 
correct,  the  only  thing  for  them  to  inquire 
after  was  whether  the  driver  was  guilty /)f 
negligence.  McCoy  v.  Milwaukee  St.  R.  Co., 
82  Wis.  215,  52  A^.  IV.  Rep.  93. 

25.  liefusal  of  time  to  prepare  in- 
structions.— Where,  in  an  action  for  per- 
sonal injuries,  the  only  doubtful  question  is 
as  to  the  amount  thai  the  plaintiff  ought  to 
recover,  and  there  are  no  intricate  or  diffi- 
cult questions  of  law  involved,  and  the  de- 
fendant, who  was  represented  by  two  coun- 
sel, at  the  close  of  the  testimony  presents 
to  the  judge  four  instructions  in  writing, 
and  requests  time  to  prepare  further  instruc- 
tions in  writing,  and  where  the  amount  of 
tiie  verdict  is  not  grossly  excessive,  the 
judgment  will  not  be  reversed  because  the 
court  refused  to  grant  further  time.  Atchi- 
son, T.  &•  S.  F.  R.  Co.  v.  Frazicr,  8  Am,  &> 
Eng.  R.  Cas.  72,  27  Kan.  463. 

20.  ICefiisal  to  rt'opeii  case. — In  an 
action  for  personal  injuries  the  refusal  to 


fii'iifc 


384 


APPEAL   AND   ERROR,  27-20. 


£ 


h 


permit  plaintiff,  after  the  close  of  defend- 
ant's testimony,  tu  show  by  mortality  tables 
the  probable  length  of  her  life,  was  within 
the  sound  discretion  of  '.he  court.  McDer- 
molt  V.  Chicago  6-  N.  IV.  R.  Co.,  85  IVis. 
102,  55 /V.  W.Rep.  179.- Applying  Berrin- 
kott  V.  Trapiiagen,  39  Wis.  219. 

Defendant  company  owned  a  railroad 
bridge  across  the  Missouri  river,  between  the 
states  of  Iowa  and  Nebraslca,  and  contracted 
witii  plaintifT  company  for  the  joint  use  of 
it.  Suit  was  brought  to  enforce  this  con- 
tract,  and  at  the  final  argument,  and  after 
the  evidence  had  closed,  defendant  offered 
evidence  to  show  that  plaintiff  had  never 
complied  with  a  Nebraska  statute  prescrib- 
ing the  conditions  upon  which  it  might  en- 
ter that  state,  and  that  the  contract  was  not, 
therefore,  mutually  enforceable.  Held,  that 
the  refusal  of  such  evidence  was  within  the 
discretion  of  the  trial  judge.  Union  Pac.  R. 
Co.  V.  Chicago,  R.  I.  &*P.  R.  Co.,  51  Am.  &> 
Eng.  R.  Cas.  162.  51  Fed.  Rep.  309,  2  C.  C. 
A.  174;  affirming  ^7  Fed.  Rep.  15,  47  Am. 
6-  Eng.  R.  Cas.  340.— Following  Joy  v. 
St.  Louis,  138  U.  S.  I,  II  Sup.  Ct.  Rep.  243. 

27>  Ilestraiiiiiit;  counsel  in  their 
artriiineiits.'*'— It  is  in  the  sound  discre- 
tion of  the  trial  court  to  determine  the  effect 
upon  the  jury  of  improper  remarks  and 
statements  made  by  counsel  when  trying  a 
case,  and  whether  such  remarks  and  state- 
ments were  prejudicial  to  the  defeated  party. 
Mykleby  v.  Chicago,  St.  P.,  M.  &>  O.  R.  Co., 
49  Minn.  457,  52  N.  W.  Rep.  213.— Fol- 
lowing Loucks  V.  Chicago,  M.  &  St.  P.  R. 
Co.,  31  Minn.  526. 

In  a  suit  against  a  company  for  causing 
the  death  of  an  employe,  where  the  evi- 
dence is  not  conflicting,  and  the  issues 
under  the  instructions  are  direct  and  simple, 
it  is  not  an  abuse  of  the  discretion  of  the 
trial  court  to  limit  the  arguments  of  counsel 
to  25  minutes.  Louisville  <S>»  A'^,  R.  Co.  v. 
Earl,  (Ky.)  22  S.  IV.  Rep.  607. 

28.  Billings  upon  evidence.— Rul- 
ings on  the  admission  of  testimony  will  not 
be  reviewed  on  appeal  to  the  supreme  court 
unless  they  have  done  substantial  injustice. 
Port  Huron  &*  S.  W.  R.  Co.  v.  Voorheis,  14 
Am.  &*  Eng.  R.  Cas.  227,  50  Mich.  506,  1 5 
N.  IV.  Rep.  882. 

It  is  so  largely  a  matter  of  discretion  in 
the  trial  judge  as  to  whether  a  witness  in  a 
condemnation  proceeding  shows  sufficient 

•  See  also  post,  3»,  69,  97. 


knowledge  as  to  the  value  of  land  in  the 
neighborhood  of  the  land  taken,  to  ren- 
der him  competent  to  testify  as  to  the  dam- 
ages, that  his  ruling  thereon  will  not  be 
disturbed  on  appeal  unless  there  is  a  mani- 
fest abuse  of  such  discretion.  Smalley  v. 
loiva  Pac.  R.  Co.,  36  lazva  571. 

In  an  action  upon  a  contract  promising 
to  pay  a  specified  amount  upon  the  comple- 
tion of  a  certain  railroad,  where  the  declara- 
tion avers  the  contract  tu  have  been  made 
for  a  valuable  consideration,  and  the  ante- 
cedent negotiations  out  of  which  the  con- 
tract grew  are  relied  upon  as  constituting 
such  consideration,  it  is  not  error  to  allow 
such  preliminary  negotiations  to  be  very 
fully  disclosed,  and  a  wide  discretion  in 
that  regard  must  be  left  with  the  trial  judge. 
Tower  v.  Detroit,  L.  &*  L.  M,  R.  Co.,  34 
Mich.  328. 

The  question  of  permitting  the  introduc- 
tion of  records  to  prove  the  title  of  the 
plaintiff,  in  an  action  for  injury  to  crops  and 
to  the  land  itself,  instead  of  requiring  the 
production  of  the  original  evidence  of  title, 
rests,  to  a  great  extent,  in  the  discretion  of 
the  trial  court,  and  unless  there  is  n  clear 
abuse  of  that  discretion  error  will  not  lie. 
Fremont,  E.  &*  M.  V.  R.  Co.  v.  Mar  ley,  25 
Neb.  138,40  A':  W.  Rep.  948. 

U.  HOW      APPELLATE     JDBI8DI0II0N      18 
EXEBCISED. 

I.  The  presumption  of  regularity, 
29.  In  general — Where  the  court 
makes  out  the  bill  of  exceptions  and  states 
that  there  is  a  disagreement  of  counsel,  it 
must  b^  conclusively  presumed  that  this 
statement  is  true,  and  no  facts  outside  of 
the  record  will  be  considered  to  show  the 
contrary.  Sabine  &*  E.  T.  R.  Co.  v.  Joach- 
imi,  58  Tex.  452. 

Where  a  clerk  executes  a  release  from  li- 
ability for  damages  to  the  goods  of  a  firm 
employing  him,  it  will  be  presumed  that  the 
trial  court  acted  correctly,  where  the  evi- 
dence contained  in  the  record  does  not 
show  the  extent  of  his  authority,  McCann 
V.  Baltimore  &*  O.  R.  Co.,  20  Md.  202. 

Where  the  consideration  for  a  release  of 
damages  for  personal  injuries  was  ordered 
K)  be  deposited  with  the  clerk  and  the  can- 
cellation of  the  release  decreed,  it  will  be 
presumed  on  an  appeal  from  a  judgment  in 
an  action  at  law  for  the  damages,  the  rec- 
ord being  silent  on  the  subject,  that  the  re- 


■w 


APPKAL   AND    liRROR,  :iO-;i;i. 


385 


(juired  deposit  was  made.  B/nir  v.  Chica- 
_ifO  &'  A.  A\  Co.,  89  Afo.  383,  I  .S".  IV.  Rtp. 
350. 

Where  a  petition  avers  that  a  great  rail- 
way company  leased  the  roadbed  and  side- 
tracks of  another  railway  company,  it  will 
tx!  presumed  after  judgment  in  favor  of 
plaintiff,  when  the  evidence  admitted  on 
the  trial  is  not  brought  to  tiiis  court,  that 
tlu;  roadbed  leased  is  an  extension  and  con- 
tinuation of  the  railroad  of  the  lessee.  At- 
chison, T.  &*  S.  F.  R.  Co.  v.  English,  38 
Kas.  1 10,  16  Pac.  Rep.  82. 

Where  a  railroad  in  the  hands  of  a  re- 
ceiver consists  of  two  or  more  divisions, 
which  are  sold  under  foreclosure  separately 
and  at  different  times  to  different  purchas- 
ers, it  will  be  presumed,  in  the  absence  of 
any  evidence  to  the  contrary,  that  the  court 
below  correctly  distributed  charges  for  sup- 
plies furnished  among  the  different  divi- 
sions to  which  they  properly  belonged. 
Kneeland  v.  Bass  Foundry  &*  Mack.  IVor/ts, 
48  Am.  Gr'  Eng.  R.  Cas.  675,  140  I/.  S.  592, 
1 1  Sup.  a.  Rep.  857. 

An  appeal  was  taken  from  a  decree  allow- 
ing a  judgment  in  a  railroad  foreclosure 
suit,  and  directing  payment  out  of  the  pro- 
ceeds of  sale,  the  decree  reciting  that  the 
judgment  was  one  of  a  class  already  ad- 
judged to  be  of  a  preferential  character,  but 
the  record  did  not  show  the  nature  of  the 
demand  on  which  the  judgment  was  re- 
covered. Held,  that  an  appellate  court  must 
presume  that  the  finding  of  the  lower  court 
was  correct  as  to  the  nature  of  the  claim. 
St.  Louis  S.  W.  R.  Co.  v.  Graham,  56  Fed. 
Rep.  258.— Following  St.  Louis  S.  W.  R. 
Co.  V.  Stark,  55  Fed.  Rep  758. 

30.  As  to  a((eot'  person  li^jiired.— 
Where  a  child  is  injured  at  a  crossing,  and 
there  is  no  evidence  of  her  exact  age,  but 
the  witnesses  refer  to  her  as  "  a  little  child," 
the  court  will  presume  that  she  was  too 
young  to  be  guilty  of  contributory  negli- 
gence.    Wiley  V.  Long  Island  R.  Co.,  27  N. 

Y.  Supp.  722,  76  Hun  29. 

31.  As  to  the  pleadings.— In  consid- 
ering and  determining  an  appeal  from  an 
order  of  a  judge  of  a  circuit  court  allowing 
an  injunction,  the  bill  being  properly  veri- 
fied by  the  affidavit  of  the  plaintiff,  and  the 
proceeding  being  altogether  ex  parte,  the 
appelate  court  must  take  and  consider  the 
allegations  of  the  bill  as  being /rma  facie 
true.  Fresh:  -xter  W.Pittsburgh,  W.&^K. 
R.  Co.,  6  W.  Va.  503. 

1  D.  R.  D  — 25. 


32.  As  to  evidence.— Where  judgment 
for  plaintiff  in  un  action  for  the  death  of 
plaintiff's  intestate  is  affirmed  by  the  a|)pcl- 
late  court,  it  will  be  assumed  that  whatever 
the  evidence  tended  to  prove  was  found  in 
favor  of  plaintiff,  and  such  finding  is  con- 
clusive upon  the  supreme  court.  Missouri 
Furnace  Co.  v.  Abend,  107  ///.  44;  affirming 
9  ///.  App.y^. 

In  suit  for  injuries  from  negligence,  where 
the  specific  acts  constituting  such  negligence 
are  averred  in  the  complaint,  it  must  be 
presumed  on  appeal,  in  the  absence  of  any- 
thing in  the  record  to  the  contrary,  that  the 
evidence  of  negligence  was  confined  to  those 
acts,  even  where  there  is  a  general  verdict 
for  plaintiff.  Kelley  v.  Chicago,  M.  <S-  St.  P. 
R.  Co.,  S  Am.  &•  Eng.  R.  Cas.  469,  53  Wis. 
74,  9  N.  W.  Rep.  Si6. 

The  material  charge  in  a  complaint 
against  the  defendant  being  that  the  de- 
fendant, with  notice  of  the  negligence  and 
carelessness  of  its  engineer,  carelessly  and 
negligently  retained  him  in  its  service,  it 
will  be  presumed,  in  the  absence  of  a  find- 
ing by  the  jury  of  the  existence  of  this  fact, 
that  it  was  not  proven  on  the  trial.  Laie 
Shore  6-  Af.  S.  R.  Co.  v.  Stupak,  41  Am.&^ 
Eng.  R.  Cas.  382,  123  Ind.  210, 23  N.  E.  Rep. 
246. 

The  bill  of  exceptions  in  an  action  for 
killing  stock  did  not  show  where  the  killing 
was  done,  but  it  did  not  appear  that  the 
evidence  was  all  certified.  Held,  that  the 
appellate  court  would  presume  that  there 
was  evidence  at  the  trial  to  show  that  it 
was  in  the  township  alleged  in  the  com- 
plaint. Wade  V.  Missouri  Pac.  R.  Co.,  19 
Am.  &*  Eng.  R.  Cas.  586,  78  Mo.  362. 

33.  As  to  instructions.— In  cases  so 
near  the  borderline  between  fact  and  law 
that  nice  disci  imiiiation  is  re^quired  to  de- 
termine to  which  side  it  belongs,  where  the 
verdict  of  the  jury  has  been  sustained  by 
the  general  term,  this  court  will  presume 
in  favor  of  the  judgment  that  the  questions 
were  properly  submitted  to  the  jury,  and 
will  require  the  party  alleging  error  to  show 
it  with  reasonable  certainty.  Hackfordv. 
New  York  C.  6-  H.  R.  R.  Co.,  53  A^.  Y. 
654 ;  affirming  13  Abb.  Pr.  N.  S.  18,  43  How. 
Pr.  222,6  Lans.  381. 

Where  the  evidence,  as  certified  in  an 
action  for  killing  a  colt,  does  not  show  the 
circumstances  of  the  killing,  the  appellate 
court  will  presume  that  the  trial  court  in- 
structed according  to  the  facts  in  telling  the 


Ifl 


AI'PIiAL   AND    ERROR,  34-36. 


£ 


jury  that  tlie  defendant  is  liable  if  the  colt 
was  killed  "under  the  circumstances"  testi- 
fied to  hy  plaintiff.  South  &*  N.  Ala.  A'. 
Co.  V.  Brown,  53  A/a.  651,  13  Ami.  Ky.  AV/. 
166. 

Where  it  does  not  appear  whether  the  in- 
terruption of  the  flow  of  surface  water  com- 
plained of  consisted  m  preventing  its  flow 
from  the  land  of  an  adjacent  owner  upon 
premises  of  respondent,  or  in  prcventinK  its 
flow  from  one  part  of  defendant's  farm  to 
another  part,  it  will  be  presumed  that  the 
court  below  was  correct,  under  the  facts  of 
the  case,  in  instructing  the  jury  that  if  tlic 
construction  of  the  railroad  interfered  with 
the  flow  of  surface  water  in  such  away.is  to 
depreciate  the  value  of  the  farm,  they  had  a 
right  to  take  it  into  consideration.  Pfleger 
V.  HastiHf;;s  Sr»  D.  R.  Co.,  5  Am.  (S^*  Eni;.  R. 
Cas.  85.  28  Minn.  510,  11  N.  IV.  Rep.  72. 

34.  As  to  verdict,  (laiiint^cH,  etc.— 
Two  causes  of  action  against  a  railroad  com- 
pany, one  for  a  trespass  to  land,  and  the 
other  for  a  failure  to  construct  a  crossing 
over  a  track  and  a  drain  underneath  it,  ac- 
cording to  the  provisions  of  a  deed  convey- 
ing to  the  company  a  right  of  way,  were,  by 
agreement,  consolidated,  and  upon  a  trial 
the  jury  rendered  a  verdict  in  favor  of  the 
plainiifl  for  $20  for  the  trespass,  and  for  $28 
ffir  tf'e  breach  of  covenant.  An  application 
for  a  new  trial  was  refused  on  condition 
that  plaintiff  remit  $20  from  the  verdict 
generally;  whereupon  the  defendant  moved 
for  judgment  for  costs,  on  the  ground  that 
the  record  did  not  show  a  recovery  of  $5 
for  the  trespass,  which  was  necessary  under 
the  statute  to  entitle  plaintiff  to  costs,  which 
motion  was  refused.  Held,  that  the  appel- 
late court  would  presume  that  sufficient 
damages  were  retained  in  the  verdict  in  the 
action  of  trespass  to  entitle  plaintiff  to  his 
costs,  and  the  action  of  the  court  in  refus- 
ing defendant's  motion  would  not  be  re- 
versed. Baltimore,  O.  &*  C.  R.  Co.  v.  Criss- 
man,  1 1  Am.&'Eng.  R,  Cas.  410,  83  Ind.  167. 
Where  the  jury,  being  instructed  that 
plaintiff,  if  he  recovered,  was  entitled  to 
interest,  found  his  damages  at  a  certain 
s\xm,—Held,  that  it  must  be  presumed  that 
this  included  the  interest;  and  a  judgment 
taken  for  a  larger  sum,  including  interest  on 
that  named  in  the  verdict,  was  reversed, 
with  directions  to  grant  a  new  trial  unless 
plaintiff  remitted  the  excess.  Diedrich  v. 
Northwestern  R.  Co.,  ^7  Wis.  662,  3  N.  K'. 
Rep.  749. 


35.  Trying  chha  upon  theory  adopt- 
ed below. —  Where  the  case  was  tried  be- 
low upoji  the  theory  that  the  cause  of 
action  was  the  negligence  of  the  appellant, 
that  theory  must  jirevail  upon  the  appeal ; 
and  the  action  will  not  be  treated  as  one 
for  a  breach  of  contract.  Lonisiu'lle,  N.  A, 
&*  C.  R.  Co.  V.  Thompson,  27  Ant.  &*  Eng, 
R.  Cas.  329,  107  Ind.  442,  9  A'.  E.  Rep.  357. 

When  it  is  manifest  from  the  record  tliat 
both  parties,  without  objection,  have  tried 
an  action  for  personal  injuries  to  its  coiv 
elusion,  as  if  on  issue  joined  upon  the  plea 
of  contributory  negligence,  although  the 
record  shows  no  other  plea  than  the  general 
issue,  the  appellate  court  will  review  the 
rulings  of  the  trial  court  as  if  such  defence 
had  been  specially  pleaded.  Richmond  6»» 
D.  R.  Co.  v.  Farmer,  ^7  Ala.  141.  Kansas 
City,  M.  <S>»  B.  R.  Co.  v.  Burton,  97  Ala.  240. 
Louisville  iS-  A'.  R.  Co.  v.  Mothershed,  97 
Ala.  261, 

But  if  no  plea  of  contributory  negligence 
is  interposed,  and  the  cause  is  not  conducted 
in  such  manner  as  if  it  had  been  interposed, 
the  appelliite  court  will  not  review  the  rul- 
ings of  the  lower  court  with  respect  to  mat- 
ters falling  within  that  iisue.  Tennessee  C, 
I.  &*R.  Co.  V,  Hayes,  97  Ala.  201,  12  So.  Rep. 
98. 

An  action  was  brought  by  a  lot  owner  to 
recover  damages  from  a  railroad  company 
for  obstructing  the  alley  at  the  rear  of  his 
lot  and  preventing  passage  to  and  from  the 
same.  It  was  tried  by  the  parties  and  the 
court  below  upon  the  theory  that  the  occu- 
pancy and  obstruction  were  permanent  and 
enduring.  Held,  that  it  will  be  so  considered 
and  treated  in  the  supreme  court.  Leaven- 
worth, N.  <S-  5".  R.  Co.  v.  Curtan,  56  Am.  &^ 
Eng,  R.  Cas.  636,  5 1  fCan.  432,  33  Pac.  Rep. 
297.— Quoting  Central  Branch  U.  P.  R. 
Co.  V.  Andrews,  26  Kan.  702. 

2.   What  errors  are  ground  for  reversal. 

36.  In  gfeneral.— Where  an  action  for 
personal  injuries  received  at  a  highway 
crossing  from  collision  with  a  train  of  cars 
without  an  engine,  was  tried  upon  the  theory 
that  the  action  was  based  upon  the  negligent 
omission  of  the  statutory  signalsalone,  which 
the  defendant  was  not  required  to  give,  it 
cannot  be  concluded  that  the  jury  found  for 
the  plaintiff  on  the  ground  that  the  defend- 
ant was  chargeable  with  some  other  negli- 
gen''o  and  a  verdict  in  his  favor  must  be  set 


APIM'AL   AND    ERROR,  .'17. 


387 


aside.     Ohio  *»  Af.   K.  Co.   v.  McDantld,  j 
hui.  App.  108.  31  A'.  E.  Rep.  836. 

I\>nrlin(;  an  appeal  from  an  order  nppoint- 
iiiK  a  receiver  for  a  railroad,  the  parties  filed 
an  a(;reement  dismissing  the  case,  and  the 
( iiurt  entered  an  order  that  each  party  should 
l>;iy  half  the  costs  of  the  appeal,  but  neither 
should  recover  costs  otherwise.  Afterward 
ili(!  receiver  moved  in  the  court  below  (or 
iui  allowance  for  his  services,  which  was  al- 
lowed and  ordered  to  be  taxed  as  costs,  de* 
fcndant  to  pay  one  half.  An  appeal  was 
taken  from  this  order.  Held,  that  it  was  in 
conflict  with  the  order  of  the  appellate  court 
and  should  be  reversed.  Morsev.  Hannibal 
&*  Sf.J.  a:  Co.,  72  Mo.  585. 

In  a  suit  on  a  verbal  contract  made  with 
its  chief  engineer  for  erecting  depot  build- 
ing.s,  whose  authority  was  denied  by  defend- 
ant, the  plaintiff  and  his  witnesses  were  al- 
lowed to  refer  repeatedly  to  the  defendant, 
"as  the  party  dealing  or  dealt  with,"  against 
objection.  Held,  that  the  objection  should 
have  been  regarded,  and  that  the  court,  by 
allowing  witnesses  to  persist  in  such  refer- 
ences, placed  the  jury  in  a  position  where 
they  were  not  only  liable  to  be  misled,  but 
to  overlook  the  necessity  of  proof  of  the  en- 
gineer's authority  to  make  the  contract. 
Jiond  v.  Pontiac,  O.  G^  P.  A.  A'.  Co.,  26  /l/n. 
ci-  Efig.  A*.  Cas.  57 1 ,  62  A/ic/i.  643,  29  A^.  IV. 
Rep.  482. 

\Yl,  ErroiieoiiH  admlHHioii  of  evi- 
d«Mice.*— ( I )  General  rules.— It  is  reversible 
error  to  admit  parol  evidence  of  a  written 
subscription  to  stock,  without  any  excuse 
for  the  absence  of  the  original ;  and  without 
any  attempt  to  produce  a  certified  copy  from 
the  books  of  the  corporation.  Cincinnati, 
P.  (5-  C.  R.  Co.  v.  Coc/tran,  17  Ind.  516.— 
FiK.LOWED  IN  Cincinnati,  P.  &  C.  R.  Co. 
7'.  Emrick,  19  Ind.  289. 

Where  a  street-car  company  is  sued  for 
negligently  causing  a  personal  injury  in  the 
operation  of  its  cars,  evidence  that  fails  to 
show  that  the  driver  who  was  on  the  car  at 
the  time  was  employed  by  the  defendant,  or 
whether  the  defendant  owned  or  controlled 
the  cars  doing  the  injury,  fails  to  show  that 
the  company  was  negligent,  and  therefore  a 
judgment  for  plaintiff  should  be  reversed. 
Cords  w.  Third  Ave.  R.  Co  ,2^J.&^S.{N.  Y.) 
570,  4  A^.   V.  Snpp.  713.  23  A'.  Y.  S.  R.  201. 

In  an  action  for  killing  plaintiff's  intes- 
tate, it  is  error  to  allow  a  witness  to  testify 

*  See  a!so/oj/,  01-07. 


to  what  he  heard  the  engineer  in  charge 
say  after  the  killing  occurred ;  nor  is  such 
error  cured  by  the  subsequent  admissi<m  of 
the  engineer  upon  his  examination  at  the 
trial  that  he  had  said  what  the  witness  had 
testified  to.  Sctherland  v.  IViliningfon  &* 
W.  R.  Co.,  106  A'.  Car.  100,  11  .V.  E.  Rep, 
189. 

Where  a  company  is  sued  for  an  injury  at 
a  crossing,  and  the  negligence  averred  con- 
sists in  running  a  train  at  an  excessive  rate 
of  speed,  and  failing  to  give  the  statutory 
signals,  it  is  reversible  error  to  allow  proof 
of  other  acts  of  negligence  not  averred,  such 
as  that  the  company  had  no  light  at  the 
crossing.  Missouri  Pac'R.  Co.  \.  Hennessey, 
/^2  Am.  &*Eng.  R.  Cas,  225,  75  Te.v.  155,  12 
S.  IV.  Rep.  608. 

Error  in  the  admission  of  incompetent 
testimony  received  under  objection  and  ex- 
ception, and  which  may  have  affected  the 
the  verdict,  is  not  cured  by  directing  the 
stenographer  to  strike  it  out  and  admonish- 
ing the  jury  to  disregard  it.  lYersebe  v. 
liroad^vay  6-  S.  A.  R.  Co. ,  1  Misc.  (N.  Y.) 
472,  49  A'.  Y.  S.  A'.  619,  21  N.  Y.  Supp.tyj. 

(2)  Hlustralions. — Where,  in  an  action  for 
personal  injuries,  a  rule  of  the  company 
prohibiting  running  switches  was  permitted 
to  be  introduced,  and  the  evidence  showed 
that  the  injury  was  not  caused  by  an  at- 
tempt to  make  a  running  switch — held,  tlint, 
under  the  circumstances,  the  introduction 
of  the  rule  constituted  prejudicial  error. 
Jeffrey  \.  Keokuk  &*  D.M.  R.  Co.,  51  Iffwa 
439.— Followed  in  George  v.  Keokuk  & 
D.  M.  R.  Co.,  53  Iowa  503. 

In  an  action  for  killing  a  person,  where 
the  declarations  of  S.,  an  employe  of  the 
company,  were  purely  hearsay  as  offered,  and 
not  part  of  the  res  gesta,  and  therefore  in- 
admissible as  affirmative  proof  for  the  plain- 
tiff, the  fact  that  S.  was  afterwards  called  by 
the  defendant,  and  the  jury  had  the  benefit 
of  his  denial  of  any  such  statement,  does  not 
deprive  the  defendant  of  the  right  to  avail 
himself  of  such  error  on  appeal.  Baltimore 
iS-  O.  R.  Co.  V.  State,  75  Md.  526.  24  Atl. 
Rep.  14.— DiSTiNGULSHiNG  Wyeth  z/.Walzl, 
43  Md.  426. 

In  an  action  against  a  street-car  company 
for  unlawfully  expelling  a  passenger,  a  wit- 
ness for  plaintiff  on  cross-examination  was 
asked  whether  the  plaintiff  told  htm  the 
cause  of  his  expulsion  on  the  same  night  of 
the  occurrence,  and  answered  "  No,  not  for 
two  days  after."    The  company's  counsel 


I 


1^' 


388 


APPEAL   AND   ERROR,  38,  39. 


.1!! 


W 


then  said,  "  Oh,  it  was  two  days  after  he  told 
you,  then,"  and  the  witness  answered  in  the 
affirmative.  Plaintitl  was  then  allowed  to 
ask  what  the  statement  made  to  him  was, 
and  the  witness  stated  that  the  plaintiff 
told  him  that  he  gave  the  conductor  money 
to  pay  his  fare,  and  in  making  the  change 
the  conductor  gave  him  back  50  cents  less 
than  belonged  to  him.  The  jury  found 
that  the  expulsion  was  jiistiiiable,  but  that 
unnecessary  force  was  used.  I/eM,\\vAt  the 
admission  of  the  evidence  was  ground  for 
reversal.  Perhnutter  v.  Highland  St.  R.  Co., 
121  Mass.  497. 

38.  Erroiieuiis  exclusion  of  evi- 
dence.*— In  a  case  where  plaintiff's  evi- 
dence is  competent,  and  in  some  fairly  ap- 
preciable degree  tends  to  show,  on  the  part 
of  the  railroad  company,  a  want  of  ordinary 
care  in  keeping  a  reasonable  look-out  ahead 
for  persons  and  animals,  and  other  obstruc- 
tions on  the  track,  in  front  of  the  moving 
train,  which  runs  over  and  kills  a  child  be- 
tween four  and  five  years  old  seated  on  the 
track  in  plain  view,  recognizable  as  a  child 
by  any  one  using  ordinary  care  and  precau- 
tion to  discover  it,  and  for  a  distance  not 
less  than  twice  that  within  which  a  train  can 
be  stopped,  it  is  error  to  withdraw  the  case 
from  the  jury  by  the  method  of  striking  out 
all  the  plaintiff's  evidence.  Gunn  v.  Ohio 
River  R.  Co.,  54  Am.  &>  Eng.  R.  Cas.  167, 
36  IV.  Va.  165,  14  S.  E.  Rep.  465.— FOL- 
LOWED  IN  Gunn  v.  Ohio  River  R.  Co.,  37 
W.  Va.  421. 

Where  a  passenger  sues  for  an  injury  and 
the  company  claims  that  it  was  the  result  of 
his  own  act  in  goini^  upon  the  platform,  and 
the  conductor  testifies  that  he  and  plaintiff 
went  to  the  platform  together,  and,  after 
giving  an  order  about  setting  the  brakes,  he 
returned  into  the  car  and  sat  down,  while 
plainJH  remained  on  the  platform,  all  of 
which  is  denied  by  plaintiff,  it  is  reversible 
error  to  refuse  a  question  put  by  the  defend- 
ant to  a  passenger  on  the  train  tending  to 
corroborate  the  conductor  as  to  whether  he 
returned  to  the  car  and  sat  down  before  the 
accident  occurred.  Mitchell  v.  Southern 
Pac.  R.  Co.,  87  Cal.  62,  25  Pac.  Rep.  245. 

■t  is  error  to  refuse  to  permit  one  who 
was  in  a  buggy  behind  that  in  which  plain- 
tiff was  travelling  to  testify  that  he,  at  a 
p'lint  one  hundred  feet  from  the  crossing, 
Inokofl  alontr  the  railroad  in  the  direction  of 


the  approaching  train,  and  could  not  see  the 
train,  as  this  testimony  tended  to  show  that 
when  the  buggy  in  which  plaintiff  was  trav- 
elling was  within  about  seventy  feet  of  the 
crossing,  the  train,  not  yet  in  sight,must  have 
been  more  than  twelve  hundred  feet  away, 
that  being  the  distance  at  which  a  train 
could  be  seen,  and  tlierefore,  if  running  at 
the  usual  speed,  would  probably  not  have 
struck  the  buggy.  Cahill  v.  Cincinnati,  H. 
O.  &>  T.  P.  R.  Co.,  49  Am.  &•  Eng.  R.  Cas. 
390,  92  Rj/.  345,  18  S.  JV.  Rep.  2. 

A  witness  was  asked,  "  How  much  rent 
more,  in  your  opinion,  was  it  worth  (mean- 
ing plaintiff's  premises)  on  account  of  the 
road  being  there  ?"  This  was  excluded  as 
immaterial.  Neltl,  that  while  the  question 
vas  objectionable  on  grounds  not  taken  on 
the  trial,  it  was  error  to  exclude  it  as  imma- 
terial, as  evidence  of  benefits  is  always  ma- 
terial and  admissible.  Odell  v.  Metropolitan 
El.  R.  Co.,  3  Misc.  {^N.  Y.)  335,  52  N.  Y.  S. 
R.  7. 

Plaintiff  alleged  that  he  was  wrongfully 
ejected  from  a  train  and  robbed  by  defend- 
ant's employes.  The  evidence  was  conflict- 
ing as  to  whether  it  was  plaintiff  or  his  son 
who  was  ejected  from  the  train,  and  as  to 
the  car  from  which  he  was  ejected.  Held, 
that  it  wa^  error  to  strike  out  the  testimony 
of  plaintiff  that  he  never  made  any  com- 
plaint to  defendant  about  the  ejection  or 
robbery  until  the  action  was  commenced, 
two  years  afterwards.  Washburn  v.  Chi- 
cago, St.  P.,  M.  (S-  O.  R.  Co..  84  IVis.  251, 
54  N.  IV.  Rep.  504. 

Upon  the  question  as  to  the  identity  of 
the  person  ejected,  a  wide  range  of  inquiry 
should  have  been  allowed  ;  and  it  was  error 
to  refuse  to  allow  defendant  to  cross-examine 
the  son  as  to  whether  he  had  trouble  with 
the  conductor  of  the  train,  what  he  said  to 
the  conductor  or  brakeman,  whether  he  was 
put  off  from  the  train  by  the  conductor  or 
trainmen,  and  whether,  for  several  minutes 
prior  thereto,  he  had  not  been  engaged  in  a 
conversation  or  wrangle  with  the  conductor. 
Washburn  v.  Chicago,  St.  P.,  M.  &*  O.  R. 
Co.,  84  Wis.  251,  54  A^.  W.  Rep.  504. 

30.  Improper  remarks  by  counsel.* 
—  (i)  General  rules. — In  suits  for  personal 
injuries,  it  is  reversible  error  to  allow  plain- 
tiff's attorney  to  read  to  the  jury  reported 
cases  from  the  supreme  court,  where  large 
damages  have  been  given,  and  the  cases  af- 


*  See,  ;ilsi),  fost,  08. 


*  See,  also,  ante,  27  ;  post,  60,  97. 


f 


APPEAL   AND    ERROR,  40. 


389 


;ethe 

that 

trav- 

f  the 

liave 

way, 

train 

ng  at 

liave 

C/,  H. 

Cas. 


tirnicd.  Calvcston,  //.  &>  S.  A.  R.  Co.  v. 
ll'csc'i.  85  yV.r.  593,  22  S.  IV.  Rep.  957. 

1  lie  aiguinent  of  counsel  in  addressing  a 
jury  should  be  confined  to  a  discussion  of 
facts  in  evidence,  and  when  language  is  used 
relating  to  matters  not  in  evidence,  and  of  a 
character  calculated  to  inflame  and  prejudice 
the  minds  of  the  jurors  against  the  adverse 
party,  the  judgment  will  be  reversed,  espe- 
cially in  a  case  where  the  verdict  seems  ex- 
cessive. Galveston,  H.  &•  H.  R.  Co.  v. 
Cooper,  70  Tex.  67,  «  5.  W.  Rep.  68. 

Sta»  foments  by  counsel  for  plaintiff,  in  an 
action  against  a  railroad,  to  the  effect  that 
"railroad  companies  never  do  justice  to  any 
one  unless  compelled  to  do  so ;  they  will  take 
any  advantage,  no  matter  how  just  the  cause 
again-'l  them,"  and  that  he  hopes  the  jury 
will  make  the  defendant  company  pay  "  the 
last  cent  they  can,"  are  good  grounds  for 
reversal,  though  the  court  instructed  the 
jury  not  to  be  influenced  by  such  remarks, 
where  it  appears,  nevertheless,  from  the 
amount  of  the  verdict,  that  the  jury  did  at- 
tempt to  make  the  company  pay  the  "  last 
cent "  that  they  could.  Galveston,  H.  &*  S. 
A.' R.  Co.  v.  Kutac,  72  Tex.  643,  11  5.  W. 
Rep.  127. 

(2)  Illustrations. — In  an  action  for  killing 
a  boy,  counsel  for  plaintiff,  in  his  closing  ad- 
dress to  the  jury,used  the  following  language: 
"  Tliey  talk  about  the  co..  ration;  what  is 
the  corporation  ?  Go  to  New  York  City  and 
there  view  Huntington  in  his  princely  man- 
sion, surrounded  by  all  that  wealth  can  give 
— there  is  the  corporation.  What  does  he 
care  for  the  lives  of  these  boys  ?  There  is 
only  one  thing  to  make  him  care,  and  that 
is,  12  men  of  his  country."  The  verdict  was 
in  favor  of  the  plaintiff  for  $7000  damages. 
Held,  as  it  could  not  be  made  to  appear  that 
the  jury  was  not  influenced  by  the  improper 
language  of  counsel,  that  it  was  ground  for 
reversal.  Dillingham  v.  Scales,  78  Tex.  205, 
14  5.  W.Rep.  566. 

In  an  action  by  a  husband  to  recover  for 
personal  injuries  to  his  wife,  the  court  made 
an  order  for  a  physical  examination  of  her 
injuries  by  a  board  of  physicians,  who  made 
the  examination  a  id  testified  as  to  the  re- 
sult. No  objection  was  made  to  the  order 
directing  the  examination,  but  in  his  closing 
add. ess  to  the  jury,  plaintiff's  attorney  de- 
nounced the  order  for  the  examination  as 
an  outrage  upon  the  wife,  etc.  No  attempt 
was  made  by  the  court  to  control  the  attor- 
ney or  to  suppress  his  language.    Held,  that 


the  language  of  the  attorney,  together  with 
the  silence  of  the  court,  may  have  misled  the 
jury,  and  is  ground  for  reversing  a  judg- 
ment in  favor  of  the  plaintiff  for  large  dam- 
ages. Gulf,  C.  (^  S.  F.  R.  Co.  V.  Butcher, 
52  Afn.  &•  Eng.  R.  Cas.  615,  83  Tex.  309. 18 
S.  IV.  Rep.  583. 

In  an  action  by  a  passenger  for  damages 
received  in  an  accident  alleged  10  have  been 
occasioned  by  the  company's  wanton  dis- 
regard of  its  legal  obligations,  and  by  its 
gross  negligence  in  running  its  train,  and  in 
permitting  its  bed  and  track  to  become 
grossly  defective  and  unfit  for  use,  wherein 
the  plaintiff  recovered  $2000  for  actual  dam- 
ages and  I8000  for  exemplary  damages,  the 
court  trying  the  cause  permitted  the  coun- 
sel for  the  plaintiff,  in  his  closing  argument, 
over  the  objection  of  the  defendant,  to  read 
to  the  jury,  as  was  read  by  plaintiff's  coun- 
sel in  the  opening  argument,  the  following 
quotation  from  Redfield  on  Carriers, 
coupled  with  the  statement  that  the  author 
was  counsel  for  railway  companies  where  he 
lived,  viz. :  "  Section  539.  The  truth  is  that 
common  juries,  with  the  highest  instincts  of 
justice,  have  always  in  our  country  been  ac- 
customed to  view  the  matter  of  railway  re- 
sponsibility for  passenger  transportation  in 
the  light  of  higher  and  fuller  responsibility 
than  either  the  courts  or  the  profession." 
Held,  error  sufficient  to  entitle  defendant  to 
a  new  trial.  Houston  6r>  T.  C.  R.  Co.  v. 
Nichols,  ( Tex.)  9  Am.  (Sr-  £ng.  R.  Cas.  361. 

Judgment  reversed  because  of  the  refer- 
ence by  plaintiffs'  counsel  in  his  argument 
10  the  jury,  without  provocation,  to  the  de- 
fendant, as  "  the  unfortunate  city  railway, 
whether  driven  through  the  streets  by  the 
mob  or  driving  along  in  its  usual  course,'' 
in  view  of  the  great  excitement  and  anger 
of  the  populace,  which  culminated  in  mob 
violence  against  the  defendant  but  a  few 
weeks  before  the  trial,  and  of  which  the 
court  cannot  fail  to  take  judicial  knowledge 
as  a  matter  of  current  history.  Geist  v.  De- 
troit City  R.  Co.,  91  Mich.  446,  51  N.  \V. 
Rep.  1 1 12. 

40.  Erroneous  instructious,  gen- 
erally.*— There  may  be  cases  where  the 
proof  is  so  strong  as  to  justify  the  court  in 
instructing  the  jury  as  a  matter  of  law  that 
certain  acts  constitute  negligence,  but  de- 
murrers to  evidence  and  peremptory  in- 
structions are  not  favored  under  the  Texas 

*  See,  also,  post,  70-83. 


;t. 


:{90 


APPEAL   AND    KRROR,  41, 


practice;  and  wliere  siicli  instructions  arc 
complained  of,  tlie  judgment  will  not  be  sup- 
ported, unless  it  clearly  appears  that  the 
complaining  party  was  not  injured  thereby. 
Texas  &>  P.  R.  Co.  v.  Murphy,  46  Tex. 
356,  13  Am.  Ry.  Rep.  319. 

Where  an  employe  is  injured  while  on  a 
construction  train  by  being  run  into  by  a 
rear  passenger  train,  questions  whether  the 
accident  was  due  to  the  negligence  of  fel- 
low servants,  or  whether  the  injury  was  pro- 
duced by  causes  incid  nt  to  the  service,  are 
essential  to  a  recovery  by  the  plaintiff,  and 
the  action  of  the  court  below  in  ignoring 
such  questions  is  ground  for  reversal.  Wa- 
bash, St.  L.^r-  P.  R.  Co.  V.  Gordon,  17  ///. 
App.  63. 

Where  an  employe  sues  the  company  for 
a  personal  injury  caused  by  the  negligence 
of  another  employe,  an  instruction  which 
tells  the  jury  that  defendant  is  liable,  if  the 
one  causing  the  injury  was  a  vice-principal, 
is  ground  for  reversal  where  there  is  a  gen- 
eral verdict  for  plaintiff,  and  the  appellate 
court  decides  that  the  one  causing  the  in- 
jury was  a  fellow-servant  and  not  a  vice- 
principal.  What  Cheer  Coal  Co.  \.  Johnson, 
56  Fed.  Rep.  810. 

Where  the  evidence  is  conflicting  as  to 
the  fact  whether  a  railway  company,  on  the 
approach  of  one  of  its  trains  to  a  public 
road  crossing,  gave  the  statutory  signals,  it 
is  error  to  instruct  that  if  the  defendant 
failed  to  give  such  signals  as  to  enable  the 
person  injured  or  killed  to  ascertain  its  ap- 
proach and  avoid  injury,  the  company  is  lia- 
ble. Chicago.  B.  &>  Q.  R.  Co.  v.  Dougherty, 
ig  Am  &*  Eng.  R.  Cas.  292,  no  ///.  521 ; 
reversing  14  ///.  App.  ig6;  further  appeal, 
125  ///.  127. 

It  was  error  on  the  part  of  the  court  be- 
iow  to  authorize  a  finding  because  the  com- 
pany failed  to  ring  its  bell  or  blow  its  whistle 
continuously  until  the  train  passed  the  cross- 
ing at  which  the  plaintiff  was  injured  by  a 
passing  train.  Paducah  &*  M.  R.  Co.  v. 
Hoehl,  12  Bush  {h'y.)  41,  18  Am.  Ry.  Rep. 
338. 

In  an  action  for  personal  injuries  counsel 
for  plaintiff  asked  th*;  court  to  charge  "  that 
if  defendants  here  failed  to  produce  wit- 
nesses that  they  could  have  done,  who  were 
in  the  employ  of  the  contractors  at  the  time 
of  the  accident,  and  who  were  present  at  the 
time  of  the  accident,  that  fact  the  jury  shall 
take  into  consideration  in  coming  to  a  con- 
clusion."   The  court  said  :  "  That  is  a  ques- 


tion the  jury  will  consider  for  themselves." 
Held,  reversible  error.  Flynn  v.  Nenu  York- 
El.  R.  Co.,  iS/.&'S.  (N.   V.)  375. 

The  case  did  not  disclose  that  the  wit- 
nesses were  under  the  control  of  defendants 
more  than  of  plaintiff,  or  more  in  theii-  in- 
terest, or  more  easily  reached  by  subpoena. 
Neither  side  had  called  them.  So  fai-  as  tlie 
contingencies  of  the  request  are  regarded, 
the  fact  of  not  calling  them  bore  against 
one  party  as  much  as  against  the  other. 
Flynn  v.  New  York  El  R.  Co.,  18  /.  &•  S. 
(N.  Y.)  375. 

Arbitrators  having  awarded  compensation 
to  the  plaintiff  for  injuriously  affecting  his 
land,  to  an  action  on  the  award  defendants 
pleaded  that  the  sum  awarded  was  exces- 
sively and  fraudulently  exorbitant,  and  that 
the  award  was  made  by  the  fraud  of  the 
plaintiff  and  the  arbitrators.  The  jury  were 
directed  that  if  the  plaintiff  contended  be- 
fore the  arbitrators  that  by  law  and  under 
his  deed  he  had  such  an  exclusive  right  to 
the  water  in  front  of  his  land  as  would  en- 
title him  to  damages,  when  he  had  not,  this 
was  I  vidence  of  fraud  under  the  plea,  //eld, 
that  this  was  a  misdirection.  Wi'dder  v. 
Buffalo  &*  L.  //.  R.  Co.,  27  U.  C.  Q.  B.  425. 

41.  Instructions  outside  of,  or 
broader  than  the  issue. — It  is  reversibie 
error  to  submit  a  case  on  instructions  which 
are  broader  than  thecase  made  by  the  plead- 
ings, //ouston  &*  T.  C.  R.  Co.  v.  Terry,  42 
Tex.  4SI. 

Where  a  complaint  charges  negligence  in 
running  trains  over  a  track  that  had  been 
rendered  unsafe  by  recent  floods,  an  in- 
struction is  erroneous  which  permits  the 
jury  to  find  the  company  negligent  as  to  its 
roadbed,  or  as  to  the  ties  or  other  materials 
used.  Ely  v.  St.  Louis,  K.  C.  Or'  N.  R.  Co., 
16  Ant.  &*  Eng.  R.  Cas.  342,  77  Mo.  34. 

It  is  error  to  instruct  that  if  there  was  a 
city  ordinance  requiring  the  defendant  to 
keep  a  flagman  at  a  crossing,  "  then  the  de- 
fend int  could  not  fail  or  neglect  to  comply 
with  its  requirements,  without  being  guilty 
of  negligence,"  if  such  negligence  be  not  con- 
nected with  the  alleged  injury.  Pennsyl- 
vania Co.  V.  //ensil,  6  Am.  &»  Eng.  R.  Cas. 
79,  70  /nd.  569,  36 /Jw.  Rep.  188. 

Where  suit  is  brought  to  recover  for  per- 
sonal injuries,  and  the  issue  is  made  as  to 
whether  plaintiff  was  a  passenger  at  the 
time  or  not,  an  instruction  which  permits 
the  jury  t<»  f.nd  for  plaintiff,  though  they 
might  believe  that  such  relation  did  not 


APPKAL   AND    ERROR,  42-44. 


891 


Ives. 
Vori- 

wit- 
dants 
ir  in- 
)oena. 
IS  the 
rded, 
gainst 
)ther. 
<5-  S. 


exist,  is  error,  justifying  a  reversal.  C//i- 
cago,  B.  &•  Q.  A'.  Co.  v.  Melilsack,  44  ///. 
App.  124. — Distinguishing  Chicago  &  A. 
R.  Co.  %>.  Wilson,  63  111.  167.  Quoting 
Chicago,  B.  &  Q.  R.  Co.  v.  Mehlsack,  131 
111.61. 

In  an  action  for  personal  injuries  where 
the  plaintiff  specifically  alleged  that  the  in- 
jury was  caused  by  the  negligence  of  his  co- 
employe,  the  engineer  of  the  train,  and  no 
other  basis  of  recovery  was  stated,  it  was 
error  for  the  court  to  present  to  the  jury  a 
question  not  made  by  the  pleadings,  by  in- 
structing them  that  the  plaintiff  might  re- 
cover if  the  injury  was  caused  by  the  negli- 
gence of  the  fireman.  Atchison,  T.  &*  S.  F.  R. 
Co.  V.  Irwin,  35  Kan.  286,  10  Pac.  Rep.  820. 

42.  lustriictious  on  the  weight  of 
evidence. — It  was  prejudicial  to  defendant 
for  the  court  to  tell  the  jury  that  he  knew 
of  no  direct  testimony  tending  to  show 
plaintiff's  knowledge  of  the  character  of 
machinery  used  by  which  he  was  injured, 
and  of  his  consent  to  its  use,  when  plaintiff 
was  present  and  saw  the  pole  used,  and  the 
manner  of  its  use ;  and  the  error  was  not 
cured  by  leaving  it  to  the  jury  to  say  what 
were  the  facts,  after  having  called  their  at- 
tention to  the  contention  of  the  defendant's 
counsel  in  regard  to  these  facts.  Young  v. 
Virginia  &*  N.  C.  Const.  Co.,  109  iV.  Car.  618, 
14  S.  E.  Rep.  58. 

Plaintiff's  icehouses  were  destroyed  by  a 
fire  which  started  a  few  minutes  after  de- 
fendant's engine  had  passed  along  a  side- 
track near  them.  Defendant's  evidence 
tended  to  show  that  the  engine  had  the 
most  approved  appliances  to  prevent  the 
escape  of  fire,  that  these  appliances  were  all 
in  good  condition,  the  dampers  properly 
closed,  and  the  ash-pan  properly  cleaned  at 
the  time,  and  that  under  such  circumstances 
coal  or  cinders  could  not  escape  from  the 
ash-pan.  There  was  no  positive  evidence  of 
any  defect  in  the  engine,  and  no  evidence  as 
to  the  size  of  the  coal  or  spark  that  started 
the  fire ;  but  the  evidence  tended  to  show 
that  the  fire  started  between  the  rails  of  the 
track,  and  that  a  strong  wind  was  blowing 
at  the  time.  Held,  that  from  this  evidence 
it  might  be  inferred  that  the  fire  was  not 
started  by  a  cinder  from  the  smoke-stack, 
which  would  probably  have  been  blown  to 
some  distance  from  the  track,  but  by  cin- 
ders escaping  from  the  ash-pan,  and  that,  in 
fact,  the  ash-pan  was  not  properly  con- 
structed or  was  out  of  repair,  or  not  prop- 


erly cleaned  or  managed.  It  was  error, 
therefore,  for  the  trial  court  to  rule  that  there 
was  no  evidence  tending  to  show  negligence 
of  the  defendant  in  that  respect,  and  to  take 
that  question  from  the  jury.  Kurtz  &*  H. 
Ice  Co.  V.  Milwaukee  &•  N.  R.  Co.,  84  IVis. 
171,  S3  ^-  ^^-  K«P-  850. — Distinguishing 
Spaulding  v.  Chicago  &  N.  W.  R.  Co.,  30 
Wis.  no. 

43.  Instructions  assuming  disputed 
facts. — In  an  action  for  personal  injuries 
by  an  employe,  alleged  to  have  resulted 
from  a  defective  hand-car,  it  was  a  disputed 
fact  under  the  evidence  as  to  whether  notice 
had  been  given  to  the  company  of  the  de- 
fect. Held,  that  it  was  error  for  the  court 
to  assume  as  a  fact  that  such  notice  had 
been  given,  and  so  charge  the  jury.  Texas 
Of  P.  R.  Co:  V.  Kane,  2  Tex.  App.  {Civ.  Cas.) 
24. 

Suit  was  brought  for  a  breach  of  contract 
to  sell  railroad  bonds.  Plaintiff  claimed 
that  the  number  sold  was  600,  while  de- 
fendant claimed  it  was  but  500.  The  evi- 
dence was  conflicting  and  would  have 
supported  a  verdict  for  either  party.  The 
contract  was  oral,  and  the  amount  of  each 
bond  was  not  shown.  Five  days  after  the 
contract  was  made  defendant  gave  plaintiff 
a  written  order  for  60  bonds,  which  closed  : 
"  You  may  also  deliver  him  any  other  of 
said  bonds,  not  exceeding  $600,000  in  all,  he 
may  take  at  same  time."  In  instructing  the 
jury,  the  court  assumed  that  this  meant 
600  bonds  at  $1000  each,  which  would  make 
the  total  amount  mentioned  in  the  order, 
and  told  the  jury  that  it  plainly  fixed  the 
term;  and  the  number  of  bonds  at  600. 
Held,  that,  while  it  might  tend  to  prove  that 
number  of  bonds,  it  was  a  question  for  the 
jury,  and  such  instruction  was  reversible 
error.  Goodwin  v.  Burke,  10  N.  V.  Supp, 
628. 

44.  Instructions  unsupported  by 
evidence. — It  may  be  reversible  even  to 
charge  a  sound  proposition  of  law  upon  a 
supposed  state  of  facts  which  there  is  no 
evidence  to  support.  Texas  Pac.  R,  Co,  v, 
tVisenor,  66  Tex.  674,  2  5.  IV.  Rep.  667. 

In  an  action  against  a  railroad  to  recover 
damages  for  a  personal  injury  to  a  passen- 
ger, it  is  error  to  instruct  the  jury  that 
plaintiff  can  recover  for  loss  of  time,  where 
there  is  no  evidence  to  show  the  value  of 
the  time  lost.  International  S^  G.  N.  R.  Co. 
V.  Lock,  (Tex.  Civ.  App.)  20  S.  IV.  Rep.  855, 

Where  an  instruction  told   the  jury,  in 


81)2 


APPEAL   AND    ERROR,  46. 


estimating  plaintifT's  damages,  to  allow  any 
expense  incurred  for  drugs  or  treatment  by 
ohysiirians,  and  there  was  no  evidence  of  any 
such  expense,  it  was  reversible  error.  Cul- 
berson V.  Chicago,  M.  &-  Sf.  P.  R.  Co.,  50  Mo. 

App.  556. 

In  an  action  for  personal  injuries,  in  which 
it  was  alleged  that  the  plaintiff,  while  at- 
tempting to  enter  one  of  defendant's  "  down- 
cars,'  and  actually  being  on  one  of  the  steps 
of  its  platform,  was  thrown  from  it  upon  the 
street,  and  in  consequence  of  the  negligence 
of  defendant's  servants,  in  both  the  "  down- 
car  "  and  a  passing  "  up-car,"  was  severely 
injured  by  collision  with  the  "  up-car,"  a 
judgment  for  the  plaintiff  will  be  reversed 
if  the  trial  judge,  while  instructing  the  jury 
correctly  as  to  the  negligence  of  defendant's 
servants  upon  the  "down-car,"  instructs 
them  to  take  into  consideration  the  conduct 
of  the  driver  of  the  "  up-car,"  and  there  is 
no  testimony  of  any  negligence  upon  his 
part,  and  it  does  not  appear  from  the  ver- 
dict upon  which  charge  the  jury  passed 
their  findings.  Black  v.  Brooklyn  City  R.  Co., 
34  Am.  &•  Eng.  R.  Cas.  526,  108  A".  K.  640,  i 
Silv.  App.  580,  15  N.E.  Rep.  389,  13  A^.  Y. 
S.  R.  645. 

Where  a  suit  is  brought  to  recover  against 
a  railroad  company  for  various  items  of 
damage  to  land,  among  which  is  one  for 
throwing  dirt  and  rocks  upon  plaintiff's 
land  while  a  railroad  is  being  constructed, 
it  is  reversible  error  for  the  court  to  in- 
struct the  jury  that  they  are  authorized  to 
find  damages  for  such  cause,  where  there  is 
no  evidence  showing  that  any  dirt  or  rocks 
were  thrown  upon  the  land,  and  where 
plaintiff,  at  the  trial,  has  expressly  aban- 
doned this  item  of  damage.  Missouri  Pac. 
R.  Co.  v.  Cox,  2  Tex.  App.  (Civ.  Cas)  217. 

Plaintiff,  who  was  employed  as  a  sweeper, 
wa."?  injured  by  stepping  into  a  hole  in  the 
round-house.  There  was  no  evidence  that 
plaintiff  had  ever  been  employed  about  the 
round-house  before.  The  court  neverthe- 
less instructed  the  jury  that  if  plaintiff  had 
been  employed  about  the  round-house  be- 
I  fore,  and  knew  of  the  excavation,  he  could 
.  not  recover.  Held,  that  as  the  instruction 
was  based  upon  facts  of  which  there  was  no 
proof,  it  was  erroneous.  Manning  v.  Bur- 
lington,  C.  R.  &*  N.  R.  Co.  {Iowa)  15  Am.  &* 
Eng.  R.  Cas.  171,  17  N.  IV.  Rep.  669. 

45.  Instructions  invading  province 
of  jury.— A  charge  which  takes  from  the 
consideration  of  the  jury  the  question  of 


whether  jumping  from  a  moving  train  was 
an  act  of  negligence  or  not  is  erroneous. 
Covington  v.  Western  <S-  A.  R.  Co.,  34  Am, 
<S-  Eng.  R.  Cas.  469,  81  Ga  273,  6  S.  E.  Rep. 

593- 

It  is  error  to  instruct  a  jury  that  they 
may  presume  that  a  party  did  that  whicli 
was  necessary  to  self-preservation,  when  the 
facts  and  circumstances  are  so  proved  that 
the  jury  are  able  themselves  to  pass  upon  a 
party's  conduct.  It  is  only  where  there  is 
an  absence  of  evidence  to  the  contrary,  or 
where  there  is  a  rational  doubt  upon  the 
evidence  as  to  the  acts  and  conduct  of  the 
parties,  that  such  presumption  can  be  prop- 
erly invoked.  Philadelphia,  IV.  <S>»  B.  R. 
Co.  V.  Sledding,  19  Am.  &*  Eng.  R.  Cas.  36, 
62  Md.  504. — Applied  in  Elliot  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  38  Am.  &  Eng.  R.  Cas. 
62,  5  Dak.  523,  3  I,.  R.  A.  363,  41  N.  W.  Rep. 

758. 

Where  a  boy  is  riding  a  horse  near  a 
track,  and  the  horse  takes  fright  and  runs 
on  the  track,  where  it  is  killed,  and  the  boy 
injured,  the  liability  of  the  company  de- 
pends upon  whether  the  track  was  properly 
fenced,  if  at  a  place  where  it  should  have 
been,  and  as  to  whether  the  boy  was  guilty 
of  contributory  negligence,  which  are  ques- 
tions for  the  jury ;  and  an  instruction  which 
takes  from  the  jury  the  question  whether 
the  boy  exercised  due  care,  considering  his 
age  and  all  the  circumstances  of  the  case,  is 
such  error  as  to  be  ground  for  reversal. 
Hynes  v.  San  Francisco  &•  N.  P.  R.  Co.,  20 
Am.  &*  Eng.  R.  Cas.  486,  65  Cal.  316,  4  Pac. 
Rep.  28. 

Where  a  passenger  sues  for  damages,  and 
it  clearly  appears  from  his  own  evidence 
that  the  relation  of  carrier  and  passenger 
did  not  exist,  it  is  not  reversible  error,  as 
an  invasion  of  the  province  of  the  jury,  for 
the  court  to  instruct  that  the  evidence  justi- 
fies a  verdict  for  the  company;  but  where  it 
becomes  important  to  determine  whether 
the  statements  of  the  agent  who  sold  the 
ticket  formed  part  of  the  contract,  and 
whether  he  had  authority  to  bind  the  com- 
pany by  a  special  stipulation  in  reference  to 
the  right  to  stop  over  on  a  connecting  road, 
the  question  should  be  left  to  the  jury,  and 
a  failure  to  do  so  is  ground  for  reversal. 
Robinson  V.  Louisville  &>  N.  R.  Co.,  2  Lea 
{Tenn.)  594. 

Where  a  company  is  sued  for  an  injury  at 
a  crossing,  the  question  of  the  company's 
negligence  should  be  left  to  the  jury,  where 


I  '►»« 


APPEAL   AND   ERROR,  40, 47. 


393 


there  is  evidence  upon  wliicli  tlie  jury  might 
have  found  that  no  whistle  was  sounded  or 
bell  rung,  and  a  failure  to  so  submit  the  case 
to  the  jury  is  error.  Duffy  v.  Chicago  Sr*  N. 
IF.  ^.  Co.,  32  iVts.  269. 

To  instruct  the  jury  that  "  plaintiff's  tes- 
timony shows  that  deceased  was  familiarly 
acquainted  with  the  crossing  and  the  time 
of  the  passing  of  trains,  and  it  was  his  duty 
to  have  avoided  bemg  run  against  by  de- 
fendant's train  by  keeping  off  the  track  at 
crossing-titne,  and  if  lie  failed  so  to  avoid 
the  train  and  placed  himself  so  close  to  the 
train  as  to  put  it  out  of  the  power  of  the 
defendant's  employes  to  avoid  injuring  him, 
then  the  law  is  for  the  defendant  "  is  error, 
inasmuch  as  it  interferes  with  the  province 
of  the  jury.  It  requires  that  an  care  and 
caution  be  used  by  the  deceased  and  none 
by  the  railroad  company.  Louisville,  C.  &• 
L.  R.  Co.  V.  Goetz,  14  A»t.  &'  Eng.  Ji.  Cas. 
627,  79  A>.  442,  42  Am.  Rep.  zrj. 

In  an  action  for  damages  for  injuries 
caused  by  the  alleged  negligence  of  de 
fendant,  the  trial  justice  charged  the  jury 
as  follows :  "  You  have  a  right  to  believe 
or  disbelieve  the  plaintiff  entirely,  unless  he 
is  corroborated  ;  if  he  is  corroborated,  you 
have  no  right  to  disbelieve  him."  Held, 
that  as  the  charge  of  the  court  took  from 
the  jury  the  right  to  determine  as  to  whether 
plaintiff's  con<iuct  was  such  as  to  bring  him 
within  the  rule  that  the  jury  were  at  liberty 
to  accept  or  reject  the  testimony  of  an  inter- 
ested witness,  a  judgment  for  plaintiff  should 
be  reversed.  Duygan  v.  Thir,.'  Ave.  R.  Co., 
6  Misc.  {N.  V.)  66,  26  A^.  V.  Supp.  79,  55 
A^.  Y.  S.  R.  777. 

40.  Instructions  on  duty  of  carrier 
of  passengers.— An  instruction  that  "the 
defendant,  as  a  carrier  of  passengers  for 
hire,  was  bound,  as  far  as  human  foresight 
and  care  would  enable  it,  to  carry  the  plain- 
tiff with  safety,  and  that  its  obligation  to 
the  plaintiff  did  not  cease  until  she  had 
alighted  and  freed  herself  from  defendant';: 
car,  or  until  she  had  alighted  and  had  rea- 
sonable time  to  free  herself,"  etc.,  etc.,  is 
erroneous.  Louisville  City  R.  Co.  v.  Weants, 
80  Ky.  420. 

It  was  error  to  charge  the  jury  in  a  suit 
for  injuries  to  a  passenger  on  defendant's 
hand-car,  that  it  was  the  duty  of  the  defend- 
ant "  to  employ  a  greater  degree  of  care  for 
the  protection  of  plaintiff  in  proportion  to 
the  greater  degree  of  danger"  arising  from 
that  method  of   transportation  ;  when  the 


•hand-car  had  been  furnished  for  the  convey- 
ance of  the  plaintiff,  and  was  manned  by  a 
crew  who  used  it  alone  for  themselves,  and 
had  not  been  accustomed,  in  operating  it,  to 
look  after  the  safety  of  passengers  travelling 
on  it.  International &•  G.  N.  R.  Co.  v.  Cock, 
68  Tex.  713.  5  ^.  U'.  Rep.  635. 

Where  a  person  sues  to  recover  for  in- 
juries done  to  him  as  a  passenger,  and  there 
is  evidence  tending  to  show  that  the  relation 
of  carrier  and  passenger  had  ceased  before 
the  injury  was  received,  an  instruction  to 
the  jury  that  the  company  is  liable  if  the  in- 
jury was  caused  by  negligence,  and  without 
contributory  negligence,  is  reversible  error, 
though  a  subsequent  charge  be  given,  to  the 
effect  that  if  a  reasonable  time  had  elapsed 
for  the  plaintiff  to  get  out  of  the  cars, 
the  relation  of  common  carrier  had  ceased, 
and  the  company  could  not  be  held  liable  as 
a  common  carrier.  Imhoff  v.  Chicago  &-  M. 
R.  Co.,  20  Wis.  344.— Approved  in  Yarnell 
V.  Kansas  City,  F.  S.  &  M.  R.  Co.,  iij  Mo. 
570. 

In  the  absence  of  any  law  requiring  rail- 
road companies  to  have  an  agent  at  stations, 
whose  special  duty  it  is  to  warn  passengers 
not  to  go  on  board  till  cars  stop,  and  to 
inform  them  in  which  cars  to  enter,  it  is 
error  to  instruct  the  jury,  in  an  action  by  a 
passenger  for  injuries  received  by  the  sud- 
den starting  of  the  train  when  he  is  about 
to  enter  it,  that  the  company  is  liable  for 
failing  to  have  such  agent,  if  having  him 
would  have  prevented  the  injury.  Detroit 
&•  M.  R.  Co.  V.  Curtis,  23  Wis.  152. 

47.  Instructions  ignoring  doctrine 
of  contributory  negligence.  —  In  an 
action  for  a  personal  injury  resulting  from 
negligence,  an  instruction  for  the  plaintiff 
which  omits  to  state,  as  a  condition  prece- 
dent to  the  right  of  recovery,  that  the  plain- 
tiff, at  the  time  of  the  injury,  was  in  the 
exercise  of  ordinary  care,  is  such  an  error 
as  to  require  a  reversal,  unless  th«  defect  is 
supplied  in  other  instructions,  or  it  appears 
that  the  defendant  was  not  injured  thereby. 
Lake  Erie  &*  W.  R,  Co.  v.  Morain,  140  ///. 
1 17,  29  A''.  E.  Rep.  869 ;  affirming  36  III.  App. 
632. 

The  jury  were  directed,  that  if  they  were 
satisfied  the  accident  would  not  have  hap- 
pened if  the  defendants  had  erected  proper 
fences,  they  should  find  for  the  plaintiff. 
Held,  a  misdirection,  for  that  if  the  driver, 
by  his  negligence,  contributed  to  the  acci- 
dent, so  that  but  for  his  want  of  reasonable 


394 


APPEAL   AND    ERROR,  48-50. 


care  it  would  not  have  happened,  the  plain-' 
tiff  could  not  succeed.  Rastrick  v.  Great 
Western  R.  Co.,  27  U.  C.  Q.  B.  396. 

48.  Iiistriictious  as  to  elements  of, 
or  measure  of,  damages.* — In  an  action 
for  trespass  in  constructing  a  railroad  upon 
plaintiff's  land,  it  was  error  to  give  instruc- 
tions implying  that  the  plaintiff  was  enti- 
tled to  recover  the  difference  between  the 
value  of  the  use  of  the  premises  with  the 
railroad  constructed,  and  used  as  it  was, 
with  all  its  Inconveniences;  and  the  value 
of  such  use  as  it  would  have  been  with  the 
railroad  where  it  was,  but  without  such  in- 
conveniences. Blesch  V.  Chicago  &*  N.  IV. 
R.  Co.,  43  IVt's.  183.— Reviewed  in  Uline 
V.  New  York  C.  &  H.  R.  R.  Co.,  23  Am. 
&  Er,g.  R.  Cas.  3,  loi  N.  Y.  98,  4  N.  E. 
Rep.  536;  reversing  31  Hun  85. 

In  an  action  by  an  adjoining  property 
owner  against  an  elevated  railway  for  dam- 
ages caused  by  the  construction  and  opera- 
tion of  the  road,  an  instruction  which  limits 
the  consideration  of  the  jury  to  the  use  of 
the  premises  to  what  they  were  then  used 
for  is  reversible  error,  and  such  error  is  not 
cured  by  the  consent  of  the  opposite  party 
that  this  part  of  the  charge  may  be  with- 
drawn, where  the  jury  is  not  instructed 
to  disregard  it.  Scott  v.  Manhattan  R.  Co., 
42  N.  Y.  S.  R.  697,  17  A^.  Y.  Supp.  364. 

In  an  action  to  recover  for  personal  in- 
juries caused  by  the  negligence  of  one  of 
defendant's  servants  while  driving  one  of 
defendant's  cars,  the  court  charged  that,  as 
matter  of  law,  $5000  would  not  be  an  exor- 
bitant amount  of  damages.  Held,  error 
for  which  a  judgment  in  plaintiff's  favor 
would  be  reversed.  Wersebe  v.  Broadway 
&»  S.  A.  R.  Co.,  I  Misc.  (,N.  K.)  472,  49  A''. 
"       A-.  619,  2!  iV.  r.  Supp.  637. 

'.'  =  Tr  striictions  as  to  punitive 
dai .':  ".f — It  is  error  to  leave  the  ques- 
x.on  ;i  p'.iJitive  or  exemplary  damages  to 
\>.i  n-  hen  there  is  no  testimony  to 
.tfiuiH  :'  ,  verdict  for  such  damages.  Atchi- 
son, T.  Sf  S.  F.  R.  Co.  V.  McGinnis,  46  Kan, 
109,  26  Pac.  Rep.  453. — Following  Kansas 
City,  Ft.  S.  &  G.  R.  Co.  v.  Kier,4i  Kan.  671. 

An  error  in  authorizing  the  jury  to  give 
punitive  damages  in  a  case  in  which  they 
are  not  recoverable  will  work  a  reversal 
where  it  cannot  be  determined  from  the 
verdict  whether  or  not  it    includes  such 


•  See  iA%o  post,  81. 
f  See  also  post,  82. 


damages.  Patry  v.  Chicago,  St.  P.,  M.  &* 
O.  R.  Co.,  77  IVis.  218.  46  A'.  IV.  Rep.  56. 

A  charge  is  erroneous  which  merely  in- 
structs the  jury  that  they  may  allow  vin- 
dictive damages  if  they  find  that  the  de- 
fendant's act  was  characterized  by  "gross 
negligence,"  without  explaining  that  "gross 
negligence  "  in  this  connection  implies  such 
entire  want  of  care  or  recklessness  of  con- 
duct as  is  the  equivalent  of  "  positive  mis- 
conduct," or  evinces  "a  conscious  indiffer- 
ence to  consequences."  East  Tenn.,  V.&^G. 
R.  Co.  V.  Lee,  90  Tenn.  570,  18  5".  W.  Rep. 
268. 

It  was  error  to  instruct  the  jury  that  if 
the  defendant  was  guilty  of  wilful  neglect 
they  ought  to  award  punitive  damages. 
Nor  was  the  error  cured  by  telling  them  in 
another  instruction  that  they  "  could  "  find 
any  sum  as  punitive  damages  not  exceeding 
the  amount  claimed  in  the  petition.  Ken- 
tucky C.  R.  Co.  V.  Gastineau,  83  Ky.  1 19. 

It  is  error  to  charge  that  a  corporation 
master  is  liable  in  punitive  damages  for  the 
wilful  tort  of  its  servant,  in  the  absence  of 
evidence  that  the  master  authorized  or  rati- 
fied the  tort,  or  was  guilty  of  misconduct  in 
the  employment  or  retetition  of  the  servant. 
Donivan  v.  Manhattan  R.  Co.,  i  Misc.  {N. 
Y.)  368,  49  A^.  Y.  S.  R.  722,  21  A^.  Y.  Supf>. 
457-— Quoting  Cleghom  v.  New  York  C. 
&  H.  R.  R.  Co.,  56  N.  Y.  44 ;  Fisher  v.  Met- 
ropolitan EI.  R.  Co.,  34  Hun  433. 

It  is  error  to  charge  that  a  corporation 
master  is  responsible  in  punitive  damages 
for  an  inexcusable  assault  and  battery  by  its 
servant,  when  the  evidence  authorizes  the 
inference  that  the  servant  acted  from  an 
innocent  motive,  and  in  the  supposed  dis- 
charge of  his  duty.  Donivan  v.  Manhattan 
R.  Co.,  I  Misc.  {N.  Y.)  368,  49  A^.  Y.  S.  R. 
722,  21  A':  Y.  Supp.  457. 

60.  Misleading  instructions.*— An 
instruction  that  "  where  a  plaintiff  was  com- 
pelled to  act  at  once  in  the  presence  of  im- 
mediate imminent  danger,  he  cannot  be 
held  guilty  of  contributory  negligence  as  a 
matter  of  law  merHy  because  he  did  not 
choose  the  best  means  of  escape,"  was  im- 
proper, since,  as  applied  to  the  facts,  It  left 
the  jury  to  conclude  that  if  plaintiff  chose 
the  best  means  of  escape  which  occurred  to 
him,  this  fact  might  relieve  him  from  the 
consequences  of  the  contributory  negli- 
gence, if  any,  by  which  he  was  brought  into 

*  See  also  post,  74. 


APPEAL   AND    liRKOK,  r.l  T.JJ. 


395 


the  dangerous  condiiioii.  luiltzcr  v.  Chi- 
aigo,  M.  <S-  iV.  A'.  Co.,  83  Wis.  459,  53  A'. 
W.  Rep.  885.— QUOTINU  Lockwood  v.  Chi- 
cago &  N.  W.  R.  Co.,  55  Wis.  50. 

Plaintiff  sued  Tor  an  assault  and  battery 
committed  while  being  expelled  from  a  car, 
which,  it  appeared,  he  had  unlawfully  en- 
tered. The  defendant  contended  that  the 
force  which  its  servants  used  was  necessary 
to  overcome  force  used  by  plaintiff  in  re- 
sisting the  expulsion,  while  plaintiff  claimed 
tiiat  the  force  which  he  used  was  necessary 
to  repel  the  blows  of  such  employes.  The 
defendant  asked  the  court  to  instruct,  that 
in  resisting  the  blows  the  plaintiff  would 
have  no  right  to  resist  being  expelled  from 
the  car,  to  which  the  court  replied  "  that 
tills  was  so  if  the  jury  could  make  the  dis- 
tinction upon  the  evidence,"  but  left  the  jury 
to  infer  that  the  burden  was  upon  defend- 
ant to  establish  it.  Held,  error  and  ground 
for  reversal.  Coleman  v.  New  York  <S-  A^. 
H.  R.  Co.,  106  Mass.  160, 6  Am.  Ry.  Rep.  306. 
— Quoted  in  Atchison,  T.  &  S.  F.  R.  Co. 
V.  Gants,  34  Am.  &  Eng.  R.  Cas.  290,  38 
Kan. 608.  Reviewed  in  Giilettv.  Missouri 
Valley  R.  Co.,  55  Mo.  315. 

51.  Incunsisteiit  or  conflictiug:  in- 
structions.—A  judgment  in  an  action  for 
negligence  will  be  reversed  where  the  in- 
structions are  conflicting  as  to  the  degree  of 
care  required  of  defendant.  Fath  v.  Toiver 
Grove  &*  L.  R.  Co.,  50  Am.  <&*  Eng.  R.  Cas. 
426,  105  Mo.  537,  16  S.  W.  Rep.  913. 

Inconsistent  charges,  one  given  at  the 
instance  of  the  plaintiff  and  the  other  of 
the  defendant,  may  be  grounds  for  reversal, 
as  where  a  passenger  sues  for  having  to  pay 
extra  compensation,  and  the  court  charges 
for  the  plaintiff,  that  if,  having  paid  his  fare, 
he  was  obliged,  without  any  fault  on  his 
part,  and  under  threats  of  expulsion,  to  pay 
extra  compensation,  then  he  is  entitled  to  re- 
cover; and  charges  at  the  instance  of  the 
company,  that  if  the  plaintiff  only  had  a 
ticket  covering  part  of  his  desired  journey; 
then  the  conductor  had  a  right  to  require 
him  to  pay  regular  fare  for  the  portion  not 
covered  by  the  ticket,  or  to  compel  him  to 
leave  the  cars,  and  might  use  such  force  as 
was  necessary  to  make  him  so  do.  Balti- 
more 6-  O.  R.  Co.  v.  Blocker,  27  Md.  277. 

An  instruction  to  find  for  plaintiff  upon 
finding  certain  enumerated  facts,  ignoring 
a  fact  necessary  to  be  found  in  order  to 
justify  a  verdict  for  plaintiff,  is  not  cured 
by  another  instruction  from  which  the  jury 


might  infer  the  necessity  of  the  ignored 
fact ;  nor  even  by  an  instruction  which 
makes  the  finding  of  that  fact  necessary; 
for  then  the  instructions  are  in  conflict,  and 
it  cannot  be  known  which  one  the  jury  fol- 
lowed. Neville  v.  Chicago  &•  N.  IV.  R.  Co., 
79  /owa  232,  44  A^.  W.  Re/).  367. 

62.  Urging  Jury  to  aijree.— After  the 
jury  had  been  out  several  hours  they  came 
into  court  and  were  discharged  until  the 
next  day,  with  an  admonition  by  the  court 
to  come  back  the  next  morning  "  with  a 
determination  to  compromise."  On  the 
following  morning  thecouit  reminded  them 
again  of  the  great  importance  of  agreeing 
upon  a  verdict,  saying  that  "  many  things 
juries  were  authorized  to  compromise,  such 
as  amounts;  very  seldom  twelve  men  went 
into  the  jury  rooms  with  the  same  notions 
as  to  amounts,  and  compromises  were  neces- 
sary." //eld,  reversible  error.  Edens  v. 
//annibal&'  St.  J.  R.  Co.,  5  Am.  6-  Eng.  R. 
Cas.  459,  72  Mo.  212. 

53.  Refusal  to  correctly  instruct.* 
— It  is  generally  error  for  the  trial  court  to 
refuse  to  submit  to  the  jury  questions  of 
fact  material  to  the  case  and  based  upon  the 
evidence.  Atchison,  T.  &•  S.  F.  R.  Co.  v. 
Plunkett,  2  Am.&*  Eng.  R.  Cis.  127,  25  /^an. 
188. 

Where  there  has  been  evidence  as  to  con- 
tributory negligence,  in  a  suit  for  causing 
death,  it  is  error  to  refuse  an  instruction  as 
to  the  law  touching  such  subject ;  and  such 
error  is  not  cured  by  a  charge  that  defend- 
ant is  entitled  to  a  verdict  unless  the  acci- 
dent is  caused  solely  by  its  negligence. 
Philadelphia,  IV.  <S-  B.  R.  Co.  v.  State,  66 
Md.  501,  8  Atl.  Rep.  272. 

It  is  the  duly  of  one  about  to  cross  the 
track  to  look  in  the  direction  in  which  a 
train  just  due  would  come,  and  a  failure  to 
do  so  is  such  negligence  as  will  preclude  a 
recovery,  and  a  refusal  of  the  court  to  so 
charge  is  ground  for  reversal.  Gonzales  v. 
.Yeiv  York  <S-  H.  R.  Co.,  38  A'.  Y.  440;  re- 
versing 39  //ow.  Pr.  407,  6  Robt.  93,  297 ; 
affirming  i  Sweeney  506. — Quoted  in  Arm- 
strong V,  New  York  C.  &  H.  R.  R.  Co.,  66 
Barb.  (N.  Y.)  437- 

Where  a  cable  railway  is  sued  for  injur- 
ing a  child  through  the  alleged  negligence 
of  a  gripman,  refusing  to  instruct  the  jury 
as  to  its  duty  in  case  the  company's  servants 
did  all  that  could  have  been  done  after  thev 

*See  also  ante,  18  ;  post,  83. 


■v-x'^m. 


m. 


m. 


m 


;j(t6 


APPEAL   AND    ERROR,  54-50. 


3 


^ 
^ 


saw,  or  could  have  seen,  tlie  tlireatcning 
danger,  is  error.  IVes/  Chicago  St.  R.  Co. 
V.  Camp,  46  ///.  Apfi.  503. 

m  an  action  by  an  employ6  to  recover  for 
personal  injuries,  a  refusal  to  give  the  fol- 
lowing charge  is  reversible  error :  "  That  if 
the  jury  find  from  the  evidence  that  the 
accident  by  which  plaintiff  sustained  the 
injuries  complained  uf  was  tho  result  of  fast 
running  of  the  train,  and  that  the  train  was 
so  run  against  the  orders  of  defendant's 
superior  officers,  and  against  regulations 
made  in  that  respect  by  defendant,  then 
plaintiff  will  not  be  entitled  to  recover  more 
than  his  actual  damages  in  this  suit." 
Texas  Trunk  A'.  Co.  v.  Johnston,  41  Am.  &* 
ling.  K.  Cas.  122,  75  Tex.  158,  12  S.  IV.  Rep. 
48?. 

54.  Erroneous  direction  of  verdict. 
— Where  a  street  car  company  is  sued  for 
an  assault  by  one  of  its  drivers,  and  the 
evidence  as  to  the  assault  is  contradictory, 
the  case  should  be  submitted  to  the  jury. 
An  order  directing  a  verdict  for  the  defend- 
ant is  reversible  error.  Bush  v.  Christopher 
&'  T.  S.  R.  Co.,  41  .V.  y.  S.  R.  92,  16  A^.  y. 
Supp.  212. 

Where  in  an  action  for  personal  injuries 
alleged  to  have  been  sustained  by  reason  of 
the  want  of  repair  of  the  machinery  of  a 
power  grain-shovel  which  the  plaintiff  was 
operating,  the  evidence  tended  to  show  that 
the  injuries  were  caused  by  a  defect  in  such 
machinery  which  had  existed  for  a  sufficient 
length  of  time  for  the  defendant  to  have 
known  of  it,  and  did  not  show  that  the 
plaintiff  was  guilty  of  contributory  negli- 
gence, it  was  error  to  direct  a  verdict  for 
tiie  defendant.  Radmann  v.  Chicago,  M.  &» 
St.  P.  R.  Co.,  78  Wis.  22,  47  A^.  W.   Rep. 

97- 

In  an  action  by  a  brakeman  for  injuries 
received  while  coupling  cars  upon  which 
the  draught-irons  were  at  different  heights, 
where  there  was  no  evidence  tending  to 
show  that  such  difference  in  any  way  con- 
tributed to  the  accident,  there  was  no  ques- 
tion for  the  jury  as  to  defendant's  negli- 
f;ence  in  that  respect.  But,  there  being 
evidence  tending  to  prove  that  just  as 
plaintiff  was  about  to  couple  the  cars,  with- 
out any  signal  the  train  suddenly  came 
back  with  increased  speed,  and  thereby 
crushed  his  hand  between  the  bumpers,  it 
was  error  to  direct  a  verdict  for  defendant. 
For  negligence  of  the  engineer  in  such  a 
case  defendant  is  liable  under  ch.  438,  laws 


of  18S9.  KrHsc  \.  Chicago,  M.  <S-  St.  P.  R. 
Co..  82   Wis.  568,  52  X.  W.  Rep.  755. 

Upon  evidence  in  an  action  for  injuries 
sustained  in  a  collision  between  defendant's 
electric  car  and  plaintiff's  wagon,  tending  to 
show,  among  other  things,  that  whi|e  plain- 
tiff was  driving  on  defendant's  track  with 
his  heavily  loaded  wagon  he  saw  the  car 
approaching  and  tried  to  turn  out,  but,  ow- 
ing to  the  slipperiness  of  the  rails  his  team 
was  unable  to  pull  the  wagon  from  the 
track,  and  that  the  motorman  of  the  car 
saw  the  plaintiff  trying  to  get  off  the  track, 
and  his  difficulty  in  doing  so,  in  ample  time 
to  have  stopped  the  car,  it  was  error  to  di- 
rect a  verdict  in  favor  of  the  defendant. 
Wi/i  V.  West  Side  R.  Co.,  84  Wis.  42,  54  N. 
W.  Rep.  30. 

65.  Erroneous  verdict. — Though  an 
instruction  be  erroneous,  yet,  if  the  verdict 
upon  the  undisputed  evidence  is  in  conflict 
therewith,  the  judgment  must  be  reversed. 
Dutton  V.  Wafiash,  St.  L.  &*  P.  R.  Co.,  66 
Iowa  352,  23  N.  W.  Rep.  739. 

A  verdict  which  is  the  result  of  mere  con- 
jecture, and  is  not  founded  upon  evidence, 
cannot  be  sustained.  Hickeyw.  Chicago,  M. 
<S-  St.  P.  R.  Co.,  64  Wis.  649.  26  A-.  W.  Rep. 
112. 

Where  the  verdict  is  abnormal,  and  cir- 
cumstances occurred  at  the  trial  which 
might  have  unduly  influenced  the  action  of 
the  jury,  the  court  will  not  hesitate  to  set  it 
aside.  Central  Texas  &•  N.  W.  R.  Co.  v. 
Hancock,  {Tex.)  27  Am.  <S-  Eng.  R.  Cas.  325. 

In  an  action  to  recover  damages  for  in- 
juries caused  by  a  collision  at  a  highway 
crossing,  where  the  evidence  showed  that 
the  collision  was  caused  by  plaintiff's  gross 
negligence,  a  judgment  for  plaintiff  will  be 
reversed.  Ohio  &•  M.  R.  Co.  v.  Maisch,  29 
///.  App.  640. 

A  judgment  will  be  reversed  where  there 
is  a  general  verdict  upon  a  petition  stating 
distinct  causes  of  action,  and  the  question 
has  been  brought  to  the  attention  of  thf 
trial  court.  Sturgeon  v.  S/.  Louis,  K.  C.  <&>•  N. 
R.  Co.,  65  Mo.  569. 

5G.  Prejudice,  vrhen  presumed.— 
If  there  be  error  at  the  trial  a  presumption 
of  prejudice  arises  therefrom,  and  it  will  be 
disregarded  only  when  the  record  shows 
there  was  no  prejudice  in  fact.  Potter  v. 
Chicago,  R.  I.  iS-  P.  R.  Co.,  46  loava  399. 
16  Am.  Ry.  Rep.  57.— QUOTED  IN  Hall  v. 
Chicago,  R.  I.  &  P.  R.  Co..  84  Iowa  311. 

The  reception  of  illegal  evidence  is  pre- 


w 


APPEAL   AND   ERROR,  57-59. 


80? 


sutnptivcly  injurious  to  tiic  party  objecting 
to  its  admission.  Any  illegal  evidence  that 
has  a  tendency  to  excite  the  passions,  arouse 
the  prejudices,  awaken  the  sympathies,  or 
warp  or  influence  the  judgment  of  jurors  in 
any  degree  cannot  be  considered  harmless. 
Evidence  cannot  be  said  to  be  entirely 
harmless  where  the  party  objecting  to  it  is 
obliged  to  call  a  witness  to  explain  or  con- 
tradict it.  Anderson  v.  Koine,  H\  &*  O.  A*. 
C'<^,54A'.  r.  334. 

Unless  it  is  made  to  appear  that  an 
erroneous  charge,  which  was  calculated  tu 
mislead  the  jury,  did  not  have  this  effect, 
the  judgment  will  be  reversed.  The  burden 
(if  showing  that  no  injury  resulted  is,  in  such 
case,  on  the  appellee.  Gu//,  C.  &*  S,  F.  R. 
Co.  v.  Greenlee,  23  Am.  &*  Enj^.  A'.  Cas,  322, 
62  Tex.  344. 

Where  the  evidence  is  conflicting  upon 
the  question  of  negligence,  a  judgment  will 
be  reversed  unless  it  appears  that  the  in- 
structions on  behalf  of  the  successful  party 
stated  the  law  correctly  and  were  free  from 
errors  calculated  to  mislead  the  jury.  Lai'e 
Shore  6-  M.  S.  R.  Co.  v.  Elson,  15  ///.  App. 
80. 

3.    What  errors  and  irregularities  may  be 
disregarded. 

67.  In  {jeueral.— A  railroad  company 
was  sued  for  the  loss  of  baggage.  The 
proof  was  conflicting  as  to  whether  the 
baggage  was  delivered  on  the  loth  or  the 
i6th  of  a  certam  month.  The  owner  of  the 
baggage  recovered,  and  the  court  allowed 
interest  on  its  value  from  the  loth  of  the 
month.  Held,  that  the  error,  if  any,  was 
too  small  to  be  ground  of  reversal,  whether 
the  baggage  was  delivered  on  the  loth  or 
the  i6th.  Missouri  Pac.  R.  Co.  v.  Colquitt, 
{Tex.)  gS.  IV.  Rep.  6oy 

Plaintiff's  awning  was  set  on  fire  by  a 
coal  of  fire  almost  as  large  as  a  walnut, 
emitted  from  one  of  defendant's  engines. 
Defendant's  evidence  showed  v^hat  the  ap- 
paratus of  the  engines  for  preventing  the 
escape  of  fire  were  of  the  most  approved 
pattern,  and  that  orders  were  issued  for 
frequent  examination  and  reparation,  which 
were  habitually  carried  out;  but  no  evi- 
dence was  given  as  to  this  particuler  engine. 
The  evidence  showed  that  the  engines  fre- 
quently emitted  large  sparks  and  that  the 
ash-pans  had  openings  m  the  side  through 
which  the  coals  might  fall.  Held,  that  the 
conclusion  of   the  court  that  defendant's 


negligence  caused  the  fire  was  not  such 
crrur  as  to  call  for  reversal.  Sugarinan  v. 
Manhattan  El.  R.  Co.,  42  A'.  )'.  S.  R.  30,  16 
N.   V.  Supp.  533. 

58.  Errors  I'avuriiblo  to  uppclluiit 
— When  the  measure  of  damages  given  hy 
the  court  lo  the  jury  is  more  favorable  to 
the  pliiintitr  than  the  one  prescribed  by  law, 
the  plaintilT  has  no  cause  to  be  dissatisfied 
therewith.  Wilson  v.  Atlanta  <S»  C.  R.  Co., 
40  Am.  &>  Eng.  R.  Cas.  25,  82  Ga.  386,  10  N. 
E.  Rep.  1076. 

The  fact  that  the  court  treated  the  de- 
ceased, in  an  action  for  his  death  by  reason 
of  defendant's  negligence,  as  a  trespasser  on 
the  company's  track,  being  error  in  defend- 
ant's favor,  affords  no  ground  for  a  reversal 
of  the  judgment.  Lynch  v.  St.  Joseph  (&>»  /. 
R.  Co.,  Ill  Mo.  601,  19  S.  W.  Rep.  11 14. 

59.  Nou-prejndivial  errors,  t^eiier- 
ally,  — In  an  action  for  personal  injuries, 
the  plaintilT  having  recovered  a  judgment 
on  the  verdict,  and  reserved  exceptions  to 
several  rulings  of  the  court  on  the  trial, 
the  supreme  court,  on  appeal  by  him,  will 
not  consider  any  ruling  adverse  to  him 
which  does  not  affect  the  question  of  the 
measure  or  amount  of  damages,  since,  if 
erroneous,  it  could  not  have  injured  him. 
Carrington  v.  Louisville  &>  N.  R.  Co.,  41 
Am.  &*  Eng.  R.  Cas.  543.  88  Ala.  472,  6  So. 
Rep.  910. — Following  Donovan  v.  South 
&  N.  Ala.  R.  Co.,  79  Ala.  429. 

Where,  in  a  suit  for  the  value  of  stock 
killed  by  a  railway  company,  testimony  was 
received  on  both  sides  tending  to  show  the 
value  of  the  animals  killed  and  the  damage 
to  those  injured,  and  the  jury  were  per- 
mitted to  take  to  the  jury-room  a  state- 
ment made  by  the  plaintiff's  counsel  show- 
ing the  highest  amounts  given  by  any 
witness  of  such  value  and  damage,  and  th'e 
jury  rendered  a  verdict  for  less  than  the 
average  of  such  amounts,  with  interest,  the 
use  by  the  jury  of  such  statement  was  error 
without  prejudice.  Harroun  v.  Chicago  <S» 
W.  M.  R.  Co.,  68  Mich.  208,  12  West.  Rep. 
556,  35  N.  W.  Rep.  914. 

A  railroad  company  brought  ejectment 
to  recover  lands  claimed  under  certain 
grants.  Defendant  failed  to  show  that  her 
right  attached  prior  to  the  location  of  the 
land  by  the  company  and  its  withdrawal  by 
the  government  from  entry,  as  was  essential 
to  do  in  order  to  hold  the  land.  Held,  that 
errors  in  the  reception  or  rejection  of  evi- 
dence  touching  other   questions  was  not 


398 


APPEAL   AND    KKKOK,  «0,«I. 


reversible  error.  Link  v.  Union  Pac,  K,  Co., 
3  Wyom.  680,  29  Pac,  Rep.  741. 

00.  KrrorN  and  irrcKiiluritlcM  r«- 
HpeetiiiK  tliu  pleatliiiKM.— In  an  action 
a>,'ainsi  a  company  to  recover  for  a  loss  re- 
sulting from  fire  negligently  escaping  from 
a  locomotive,  the  plaintifT  should  aver  as 
definitely  as  he  can  the  train  from  which 
and  the  time  when  the  tire  escaped  ;  but  the 
failure  of  tiic  court  to  require  such  definite 
statement  is  not  ground  for  reversal  where 
it  appears  that  the  company  was  not  preju- 
diced thereby.  Missouri  Pac.  K.  Co.  v.  Mer' 
rill,  40  Kan.  404,  19  Pac.  Kep.  793. 

Where  a  passenger  sues  for  being  ejected 
from  a  train,  and  charges  that  he  was 
"forced  o(T,"  and  the  company  in  its  atiswer 
denies  committing  any  violence  toward  him, 
a  judgment  for  pluintilT  will  not  be  reversed 
on  the  ground  that  there  was  no  claim  made 
for  punitive  damages.  Kno^vles  v.  Norfolk 
S.  R.  Co.,  102  N.  Car.  59,  9  S.  E.  Rep.  7. 

Although  it  may,  strictly  speaking,  be 
irregular  for  the  court,  after  an  improper 
plea  has  been  filed,  and  thereby  become  a 
part  of  the  record,  to  entertain  and  grant  a 
motion  to  reject  the  same,  still,  if  the  court 
does  so,  it  must,  in  substance  and  effect, 
be  regarded  as  setting  aside  the  plea,  and 
though  it  is  done  irregularly  the  pro- 
ceedings will  not  be  reversed  for  such  ir- 
regularity. In  such  case  the  court,  having 
done  right  substantially,  its  proceedings  will 
not  be  reversed  because  of  mere  informality 
in  the  mode  of  doing  it.  Hart  v.  Baltimore 
&*  O.  R.  Co.,  6  W.  Va.  336. 

The  injury  to  plaintiff  was  caused  by  the 
negligence  of  the  C.  &  D.  R.  Co.  Subse- 
quently the  said  railway  was  sold  to  the  D. 
k  S.  C.  R.  Co.,  under  a  contract  whereby 
the  latter  company  assumed  all  the  debts 
and  liabilities  of  the  former,  and  the  plain- 
tiff sought  to  recover  the  amount  of  his 
damages  b)'  virtue  of  said  contract  of  the 
said  D.  &  S.  C.  R.  Co.,  but  alleged  in  his 
petition  that  such  agreement  was  made  by 
the  S.  C.  &  D.  R.  Co.,  instead  of  by  the 
railway  named.  Held,  that  as  there  was  no 
room  to  doubt  that  it  was  intended  to 
charge  the  D.  &  S.  C.  R.  Co.  with  such  lia- 
bility, the  error  was  without  prejudice. 
Knott  w.  Dubuque  &>  S.  C.  R.  Co.,  84  Imva  462, 
51  A^.  W.Rep.yj. 

ALout  60  days  after  a  railroad  had  been 
sold  and  the  receiver  discharged,  suit  was 
brought  against  the  receiver  for  services 
rendered,  and  an  order  was  pcnulttcd  strik- 


ing out  the  name  of  the  receiver  as  defend- 
ant  and  substituting  that  of  the  purchasers. 
Under  the  terms  of  sale  the  purchasers 
became  liable  for  all  the  debts  of  the  com- 
pany. Held,  that  it  was  not  .lUcli  error  as 
would  allow  the  purchasers  to  prosecute  un 
appeal,  where  they  had  been  served  with 
process  and  allowed  the  statutory  time  in 
which  to  answer.  Abbott  v.  Ne^v  York,  L. 
E.  &*  IV.  R.  Co.,  120  A',  y.  652,  24  .V.  /-:. 
Rep.  810,  31  A^.  y.  S.  R.  649.  2  .SV/7/.  App. 
599 ;  affirming  46  Hun  6S0,  1 2  A^.  1 '.  S.  R. 

565. 

Ul.  Non-prejudieial  or  liariiilcss 
evidence. — Mere  abstract  error  is  not 
enough  to  justify  a  reversal ;  it  must  be  error 
with  reference  to  the  issues,  and  where  the 
bill  of  exceptions  does  not  show  whether  the 
evidence  could  have  prejudiced  the  com- 
plaining party,  its  admission  is  not  grouiui 
for  reversal.  Missouri  Pac.  R.  Co.  v. 
Edwards,    75     Tex.    334,  12    i".     W.    Rep. 

853. 

The  putting  of  an  improper  question  to  a 
witness  can  afford  no  ground  for  the  re- 
versal of  a  judgment  when,  from  the  nature 
of  the  answer,  it  is  manifest  that  it  did  not 
affect  injuriously  tlie  rights  of  the  party 
complaining.  Hughes  v.  Galveston,  H.  &>  S. 
A.  R.  Co.,  34  Am.  <S-  Eng.  R.  Cas.  66,  67 
Tex.  595,  4  i".  IV.  Rep.  219. 

In  an  action  for  negligently  causing  the 
death  of  an  engineer,  if  it  was  not  compe- 
tent to  show  that  the  defendant's  manager 
was  the  first  on  the  ground  afier  the  acci- 
dent, it  was  not  prejudicial  on  the  ground 
that  it  might  be  argued  therefrom  that  evi- 
dence was  prepared  under  his  direction. 
IVorden  v.  Humeston  <S-  .S".  R.  Co. ,  76  Iowa 
310,  41  A';  IV.  Rep.  26. 

Where  the  negligence  of  defendant,  as 
charged,  consisted  of  a  defective  coupling, 
which  was  admitted,  and  it  was  charged 
that  the  accident  was  caused  thereby,  an 
error  in  admitting  evidence  that  tlie  rolling 
stock  also  was  in  bad  condition  is  harmless. 
Wells  v.  Denver  <S-  R.  G.  W.  R.  Co.,  7  Utah 
482,  27  Pac.  Rep  688. 

A  judgment  wi'l  not  be  reversed  for  error 
in  the  admission  of  testimony  when  the 
court  is  satisfied,  upon  an  examination  of 
the  whole  case,  thit  the  appellant  has  not 
been  prejudiced  thereby.  McGean  v.  Man- 
hattan R.  Co.,  117  A^.  K  219,  22  A^.  E.  Rep. 
957,  27  A';  Y.  S.  R.  337.— DiSTiNGUiSHEn 
IX  Bohlcn  V.  Metropolitan  El.  R.  Co.,  39  N 
\.  S.    R.   151.— A'flr7«'/r/<   &>    IV.  R.   Co.  v. 


T 


APPEAL   AND   ERROR,  62-64. 


399 


IVorcesttr,  36  Aw,  &*  Eng.  R.  Cas.  447,  147 
Mass.  518,  18  A'.  L.  AV/.  409. 

Errors  in  the  admission  of  evidence  as  to 
the  rate  of  speed  at  which  a  train  was  running 
at  the  time  of  the  collision  is  not  reversible 
error  where  it  appears  that  the  engineer 
only  saw  the  other  train  when  100  feet  away, 
iind  that  he  was  running  at  a  rate  of  speed 
making  it  impossible  to  stop  in  that  dis- 
tance. Kansas  City,  Ft.  S,  &•  At,  R.  Co,  v. 
atoner,  52  Am.  &*  Eng,  R.  Cas.  462,  51  /•></. 
Rep.  649,  4  (/.  S.  App,   109,  2  C.  C.  A.  437. 

A  company  was  sued  for  injuries  alleged 
to  have  been  caused  by  a  defective  or  mis- 
managed switch.  At  the  trial  a  switchman 
was  asked  if  he  recollected  a  prior  act  of 
negligence  on  his  part.  It  appeared  that 
the  question  was  asked  more  to  test  his 
memory  than  for  any  other  purpose,  and  it 
was  not  followed  up  by  other  evidence. 
Held,  harmless  error  and  not  ground  for 
reversal.  Stodder  v.  New  York,  L.  E,  &* 
IV.  R.  Co.,  2  N.  y.  Supp.  780. 

Plaintiff  sued  a  railroad  company  for  neg- 
ligently destroying  his  building  by  fire.  At 
the  trial  a  witness  for  plaintitl  was  permitted 
to  testify  that  the  company  had  paid  him 
for  certain  property  of  his  that  was  stored 
in  plaintiff's  building  at  the  time  of  the  fire, 
but  on  cross-examination  denied  that  the 
company  had  paid  him  for  the  property,  but 
said  they  had  made  him  a  present  of  some 
money  because  he  was  a  poor  man.  Held, 
that,  though  the  evidence  was  improperly 
admitted,  it  could  not  have  prejudiced  the 
company,  and  was  therefore  not  ground  for 
reversal.  Caswell  v.  Chicago  &*  N.  W.  R. 
Co.,  42  Wis.  193,  15  Am.  Ry.  Rep.  162. 

62.  Evidence  which  could  not  have 
misled  the  Jury.— In  a  suit  for  personal 
injuries,  a  witness  was  asked  to  describe 
the  extent  of  the  accident,  its  cause,  and  to 
describe  the  thing  that  caused  it.  The  wit- 
ness was  not  an  expiert  in  matters  relating 
to  machinery,  a  deiect  in  machinery  being 
the  alleged  cause  of  the  injury.  Held,  that 
while  the  question  was  objectionable  in  so 
far  as  it  sought  to  elicit  the  opinion  of  the 
witness  as  to  what  caused  the  accident,  yet 
as  he  stated  also  the  facts  on  which  he  based 
that  opinion,  the  failure  to  exclude  the 
answer  afforded  no  ground  for  reversal, 
since  the  jury  was  in  possession  of  the  evi- 
dence of  machinists  and  experts,  and  could 
not  have  been  misled  by  the  opinion  of  the 
witness.  Houston  &^  T.  C.  R.  Co.  v.  f.arkin, 
64  Tex.  454. 


63.  Improper  opinion  evidence.— 

It  is  a  general  rule  that  a  witness  must 
testify  to  facts,  and  not  to  his  opinions. 
But  when  the  witness  testifies  to  facts  show- 
ing that  his  opinion  was  the  only  conclusion 
that  could  be  drawn  from  the  facts,  the  error 
in  allowing  him  to  state  that  opinion  will 
be  harmless  and  will  allord  n>i  ground  of  re- 
versal. Central  R.  Co.  v.  ^llhnon,  1 47  III.  47 1 , 
35  A'.  E.  Rep.  725. 

Where  plaintiff  sues  for  personal  injuries, 
it  is  no  ground  for  reversal  that  he  was  per- 
mitted to  give  his  opinion  as  to  the  value 
of  his  services  while  he  was  disabled,  where 
the  value  of  the  services  is  not  definitely 
fixed,  and  where  he  gives  facts  upon  which 
his  opinion  is  based.  Hart  v.  Charlotte,  C. 
<S-  A,  R,  Co.,  33  So.  Car.  427,  12  S.  E. 
Rep.  9. 

A  question  propounded  to  a  witness  who 
is  not  an  expert,  calling  for  his  opinion, 
which  is  not  responded  to  by  said  witness 
expressing  his  opinion,  is  not  such  an  error 
as  would  prejudice  the  party  excepting  to 
said  question.  Bullington  v.  Newport  News 
&»  M,  V,  R.  Co.,  32  W.  Fa.  436. 9  S,  E.  Rep. 
876. 

64.  Admission  of  improper  evi- 
dence cured  hy  instructions.— Error 
in  admitting  in  evidence  a  void  city  ordi- 
nance regulating  the  blowing  of  locomotive 
whistles  may  be  fully  corrected  by  the 
court's  subsequently  instructing  the  jury 
that  it  was  void,  and  that  they  should  not 
consider  it,  but  should  treat  the  case  as  if 
no  ordinance  had  been  passed,  and  then  in- 
structing them  correctly  as  to  the  rules  of 
law  applicable  to  the  case.  Dugan  v.  St. 
Paul&*  D.  R.  Co.,  43  Minn.  414,  45  A^.  W. 
Rep.  851. 

Where  the  instructions  given  required  the 
driver  of  the  car  to  exercise  only  that  care 
which  the  common  law  imposed  upon  him, 
the  introduction  in  evidence  of  a  city  ordi- 
nance in  part  invalid,  because  requiring  an 
unreasonable  degree  of  care,  will  be  deemed 
harmless.  Senn  v.  Southern  R.  Co.,  108  Mo, 
142,  18  5.  W.  Rep.  1007. 

Under  an  instruction  that  the  plaintiff 
could  only  recover  as  damages  caused  by 
the  motor  line  the  actual  loss  of  rent,  the 
admission  of  evidence  showing  the  divert- 
ing of  travel  from  the  street  was  not  preju- 
dicial to  the  defendant.  Stange  v.  Dubuque, 
14  Am.  &*  Eng.  R.  Cas.  107,  62  Iowa  303,  17 
N.  W.  Rep.  518. 

Where  suit  is  brought  for  a  personal  in- 


400 


APPEAL   AND    ERROR,  Ofl. 


S 


M 


jury,  a  verdict  f(ir  $1500,  which  is  shown 
to  be  not  excessive  for  tlit;  actuai  injury 
sulTcred,  will  not  be  rcversefi  because  of  the 
improper  admission  of  evidence  as  to  a  lung 
trouble  a  year  later,  which  the  jury  were 
instructed  not  to  consider  as  an  element  of 
damages.  Po}>/<!  v.  Mttn/iattan  K.  Co.,  15 
Duly  {.y.  V.)  475,  8  A'.  V.  Supp.  324,  29  A'. 
1'.  .v.  A'.  316. 

Krror  in  allowing  liie  contents  of  medi- 
cal books  to  be  improperly  introduced  on 
the  examination  of  a  medical  witness,  and 
in  permitting  the  witness  to  testify  to  his 
treatment  of  various  cases,  is  cured  by  the 
court's  subsequently  withdrawing  the  evi- 
dence from  the  jury,  with  an  Instruction  to 
disregard  it,  where  in  view  of  all  the  evi- 
dence the  excepting  party  was  not  thereby 
prejudiced.  Watirmtnt  v.  Chicago  &^  A.  K. 
Co.,  52  Am.  &*  Eng.  R.  Cas.  592,  82  Wis. 
613,  52  A'.  \V.  Kep.  247,  1 136. 

A.  sued  a  carrier  for  breach  of  a  contract 
to  carry  goods  from  B.  to  C.  One  witness 
stated  the  value  of  part  of  the  goods  at  B., 
but  the  rest  of  the  evidence  was  confined 
to  their  value  at  C,  and  the  court  charged 
that  this  was  the  proper  basis  upon  which 
to  estimate  the  damages.  The  jury  found 
ior  the  plaintiff,  and  judgment  was  so  en- 
tered. Held,  that  defendant  had  suffered 
i\o  injury  from  the  evidence  as  to  the  value 
at  B.,  and  that  therefore  the  judgment 
would  not  be  reversed.  Evansville  &*  T.  H. 
R.  Co.  V.  Montgomery,  9  Am.  &»  Eng.  R.  Cas. 
195,  85  Ind.  494. 

In  an  action  to  recover  damages  for  a 
malicious  assault  committed  by  a  con- 
ductor upon  a  passenger,  the  court  ad- 
mitted testimony  to  the  effect  that  the  con- 
ductor had  stated  that  "  this"  (referring  to 
his  punch)  was  what  he  "had  done"  the 
plaintiff  up  with.  Upon  objection  being 
taken  the  court  directed  the  jury  not  to 
consider  this  testimony.  Held,  that  any 
error  in  admitting  such  testimony  was 
cured  by  the  instruction  to  disregard  it. 
Dillingham  v.  Russell,  37  Am.  &•  Eng.  R. 
Cas.  I,  73  Tex.  47,  3  /..  R.  A.  634,  11  5.  IV. 
Rep.  139. 

05.  or  by  further  evidence.— 

A  judgment  based  on  facts,  where  suffi- 
ciently proven  by  circumstances,  will  not 
be  reversed  because  such  circumstances  are 
corroborated  by  certain  evidence  admitted 
as  res  gesta,  but  not  strictly  admissible  as 
such.  Hogle  v.  New  York  C.  <S»»  H.  R.  R. 
Co.,  13  N.    Y.  S.  R.  415,  46  Hun  679.    Rar- 


sliall  V.  Minneapolis  <S-  Sf.  L,  R,  Co.,  35  Fed. 
Rep.  649. 

If  the  court  erred  in  permitting  an  ordi- 
nance regulating  speed  to  be  offered  in  evi- 
dence at  that  stage  of  the  trial,  such  error 
woulfl  furnish  no  ground  for  reversal  if  evi- 
dence subsequently  introduced  established 
the  fact  that  the  average  rate  of  speed  of 
the  car  was  more  than  the  prohibited  rate. 
Haltimore  C.  /'.  R.  Co.  v.  McDonnell,  43 
Md.  534,  14  Am.  Ry.  Rep.  272. 

In  an  action  by  a  passenger  for  a  per- 
sonal injury  after  alighting  from  a  car,  it 
appeared  that  in  order  to  reach  a  highway 
he  must  walk  up  the  track  some  distance 
or  go  across  private  property  by  a  private 
way.  field,  that  a  refusal  of  the  court  to 
strike  out  the  testimony  of  a  witness  as  to 
the  ownership  of  such  way  founded  on 
hearsay  was  harmless  error,  where  there  was 
other  evidence  showing  that  the  way,  in  fact, 
was  private.  Neither  is  the  admission  of 
hearsay  evidence  as  to  the  ownership  of  the 
way  reversible  error  where  there  is  other 
competent  evidence  proving  the  same 
thing.  Reid  v.  Neio  York,  N.  H.  &>  H.  R. 
Co.,  44  N.  Y.  S.  R.  688,  63  Hun  630,  17  A'. 
)'.  Supp.  801  ;  affirmed  136  A'.  K.  638,  mem.; 
32  A'^.  E.  Rep.  1014,49  A'-  ^'  ^-  ^'-  9'3.  mem. 

On  cross-examination,  a  plaintiff  who 
sued  for  a  personal  injury  received  by  walk- 
ing on  a  track  was  asked  whether  he  had 
at  any  time  climbed  on  the  cars  to  get  a 
ride.  An  objection  to  this  question  was 
sustained,  but  he  was  allowed  to  testify  that 
he  did  not  attempt  tf)  climb  upon  the  cars 
at  the  time  he  was  injured,  but  that  some- 
times when  cars  were  switching  about  the 
place  of  the  injury  he  did  get  on  freight 
cars  for  a  ride.  Held,  that  the  error  in  the 
ruling,  if  any,  was  cured.  Whalen  v.  Chicago 
6-  A^.  W.  R.  Co.,  41  Am.  6-  Eng.  R.  Cas.  558, 
75  Wis,  654. 44  N.  W.  Rep.  849. 

In  an  action  for  personal  injuries,  where 
one  of  the  principal  disputed  questions  is, 
whether  the  plaintiff  at  the  time  of  the  in- 
jury was  in  the  employ  of  the  company 
sued  or  of  a  contractor  constructing  the 
road,  it  is  error  for  the  court  to  permit  the 
general  question  to  be  asked  of  plaintiff: 
"  In  whose  employ  were  yon  at  the  time  of 
your  injury?"  But  where  the  witness  upon 
further  examination  narrates  in  detail  all 
th,^  facts  and  circumstances  connected  with 
his  employment— ^^A/,  the  error  is  not 
material.  Solomon  R.  Co.  v.  /ones,  34  A^an. 
443.  8  Pac.  Rep.  73°- 


APPEAL   AND    liRROR,  0«,  «7. 


401 


The  trial  court  permitted  a  witness,  who 
wax  present  at  th^-  origin  of  the  lire  out  of 
which  the  action  arose,  to  tesiiiv  that  he 
had  said  at  the  time,  "  that  if  there  were 
any  coals  under  tlic  plank  walk  wc  would 
have  a  blaze."  Held,  to  be  error,  but,  in 
view  of  other  testimony  in  the  cause  cor- 
roborating the  correctness  of  the  remark, 
error  without  injury.  JacksonvilU,T.  &*K. 
W.  A'.  Co.  V.  Pininsular  L.,  T.  &*  Af.  Co.,  49 
Am,  iS-  Eh£.  A'.  Cas.  603,  27  F/a.  i,  g  So. 
Kep.  661. 

In  an  action  against  an  elevated  railway 
to  recover  damanes  to  abutting  property,  a 
witness,  over  various  objections,  was  per- 
mitted to  testify  as  to  the  rental  value  of 
the  property  for  the  following  years,  both 
with  and  without  the  road.  In  the  further 
progress  of  the  trial  both  parties  gave  sim- 
ilar testimony  without  objection.  Held, 
that  the  error  was  no  ground,  under  the 
circumstances,  for  reversal.  Kernochan  v. 
New  York  El.  R.  Co.,  29  A^.  V.  S.  A'.  523. 

GH.  KcMiilt  not  aft'eoted  by  the  im- 
proper evidence.— Error  in  admitting 
evidence  upon  a  point  on  which  plaintilT 
failed  to  recover  is  no  ground  for  reversing 
the  cause  on  defendant's  appeal.  Keyser  v. 
Kansas  City,  St.  J.  &•  C.  R.  K.  Co.,  61  Iowa 
175,  16  A^.  IV.  AV/>.  68. 

Where  a  court  tries  a  case  without  the 
intervention  of  a  jury,  the  admission  of  im- 
proper, immaterial,  or  irrelevant  evidence  is 
no  ground  for  reversal  where  it  clearly  ap- 
pears that  it  did  not  influence  the  judg- 
ment. St.  Louis,  A.  dr-  T.  N.  Co.  v.  Turner, 
I  Tex.  Civ.  App.  625,  20  S.  IV.  Rep.  1008. 

Where  a  company  is  sued  for  an  injury 
alleged  to  have  been  caused  by  a  defective 
car,  the  admission  of  a  book  showing  that 
subsequent  to  the  injury  the  car  was  sent 
to  the  shops  and  repaired,  is  not  ground  for 
reversal  where  the  jury  find  that  the  car  was 
defective  in  the  particular  which  caused  the 
injury.  Belair  v.  Chicago  &*  N.  IV.  R.  Co., 
43  foivti  662. 

It  is  not  reversible  error  to  have  per- 
mitted the  plaintiff  to  testify  that  she  had 
an  infant  child  by  a  former  marriage,  where 
ihe  verdict  was  for  thirty-five  hundred 
dollars,  as  such  evidence  does  not  appear  to 
have  influenced  tiie  amount  of  damages. 
Soeder  v.  St,  Louis,  L  M.  &*  S.  R.  Co.,  100 
Mo.  673.  13  S.  W.  Rep.  714. 

The  admission  of  evidence  as  to  exem- 
plary damages  is  not  ground  for  reversal 
where  the  court  excludes  a  recovery  for  such 
I  D.  R.  n.  — 26. 


damages  and  where  the  verdict  rendered  is 
clearly  wiihin  the  amount  of  compensatory 
damages  which  plaiiitifT  was  shown  to  be  en- 
titled to.  A'eyesv.  A/innetipol/s  »5-  .SV.  L.  R. 
Co.,  id  Minn.  290.  30  ^V.  W.  Rep.  Soli 

In  an  action  to  restrain  the  operation  of 
an  elevated  railway,  and  for  damages,  the 
admission  of  evidence  under  questions  im- 
proper in  form  is  not  reversible  error,  where 
it  appears  that  the  judgment  of  the  court 
was  not  based  on  such  evidence.  Korn  v. 
New  York  El.  R.  Co.,  37  N.  Y.  S.  R.  630,  59 
Hun  625,  13  A'.  Y.  Supp.  514. 

In  un  action  for  personal  injuries  the  trial 
court  permitted  the  defendant  to  cross-ex- 
amine the  plaintiff  as  to  encumbrances  on 
his  property,  the  object  being  to  show  that 
he  was  financially  embarrassed,  and  was 
simulating  or  exaggerating  the  character 
and  extent  of  the  injuries.  The  jury  found 
that  there  was  no  actionable  negligence. 
Held,  that  the  error  in  permitting  the  cross- 
examination  could  not  have  prejudiced  the 
plaintiff.  Beery  v.  Chicago  &•  N.  IV.  R. 
Co.,  73  IVis.  197,  40  A'.  Hl  Rep.  687. 

The  admissior;  of  evidence  as  to  damages 
on  account  of  the  loss  of  hire  of  the  mules 
in  question,  if  error  at  all,  was  not  such 
error  as  would  give  the  plaintiff  in  error  a 
right  to  complain,  it  not  appearing  that  the 
jury  allowed  any  damages  for  such  loss  of 
hire,  and  the  amount  of  damages  found  be- 
ing fully  authorized  by  the  evidence  as  to 
the  injury  to  the  wagon  and  the  mules, 
which  damages  were  sufficiently  alleged  in 
the  declaration.  East  Tenn.,  V.  &»  G.  R.  Co. 
v.  War  mack,  86  (7a.  351,  12  5.  £•.  Rep.  813. 

67.  Waiver  of  objections  to  evl* 
dence.* — When  a  witness  for  a  landowner 
is  asked  and  testifies,  over  the  objection  of 
the  company,  that  his  farm  was  damaged  a 
certain  sum  per  acre,  naming  it,  by  the  tak- 
ing of  the  right  of  way  through  it,  this  is 
erroneous ;  yet  if  it  is  shown  that  the  objec- 
tion made  was  also  to  the  competency  of 
the  witness  to  testify  as  an  expert  who  wa« 
competent,  and  it  is  also  shown  that  objec- 
tions to  like  questions  asked  other  witnesses 
were  sustained,  and  also  that  in  the  course 
of  the  trial  like  evidence  had  been  given  to 
proper  questions  without  any  objection  of 
defendant,  and  the  defendant  also,  in  cross- 
examination,  repeatedly  asked  like  ques- 
tions, the  error  is  not  sufiicient  to  compel  a 
reversal  of  the  judgment.     Chicago,  K.  &* 


11 


*  See  also  ante,  37. 


403 


APPEAL   AND   ERROR,  68. 


IV.  a.  Co.  V.  Brunson,  43  Kan.  371,  23  Pac. 

In  an  action  for  the  killing  of  stock,  where 
both  plaintiff  and  defendant  introduced  tes- 
timony respecting  the  broken-down  condi- 
tion of  gates  at  the  place  of  the  accident, 
the  appellant  cannot  in  the  Supreme  Court 
object  that  the  evidence  was  introduced 
improperly.  McMaster  v.  Montana  Union 
R.  Co.,  49  Am.&'  Eng.  R.  Cas.  564,  12  Mont. 
163,  30  Pa.  Rep.  268. 

68.  Exclusion  of  evidence.*  —  (i) 
Generally. — A  judgment  will  not  be  reversed 
for  error  in  excluding  evidence  whicli  is 
merely  cumulative.  Gulf,  C.  Sf  S.  F.  R. 
Co.  V.  Shearer,  i  Tex.  Civ.  App.  343,  2i  S. 
W.Rep.  133. 

Where  a  company  is  sued  for  destroying 
property  by  fire  the  exclusion  of  the  report 
of  the  engineer  who  was  in  charge  of  the 
locomotive  starting  the  fire  is  not  ground 
for  reversal  where  the  engineer  himself  is  a 
witness,  and  states  everything  that  is  in  the 
report.  Chicago  &•  A.  R.  Co.  v.  Shenk,  30 
III.  App.  ^Zd;  reversed  on  another  point,  131 
///.  283. 

Where  the  boy  testified  that  he  knew  it 
was  wrong  to  ride  ^n  the  cars,  and  that  he 
had  often  been  driven  away  from  them,  the 
exclusion  of  evidence  by  the  father  that  he 
had  told  the  boy  to  keep  away  from  them 
is  harmless  error.  Brill  v.  Eddy,  1 1 5  Mo. 
596,  22  S.  W.  Rep.  488. 

Where  a  certain  rule  adopted  by  a  rail- 
road company  is  in  question,  and  the  court 
sanctions  it,  and  instructs  the  jury  that  it  is 
a  legal  and  valid  rule,  it  is  not  error  to  re- 
ject othe  vidence  tending  to  show  that 
the  rule  ib  -he  same  as  that  of  railroad  com- 
panies generally.  Tracy  v.  New  York  &*  H. 
R.  Co.,  ()Bosw.  {N.  v.)  396. 

(2)  Illustrations. — The  error,  if  any,  in 
excluding  a  question  put  to  defendant's 
superintendent  as  to  whether  there  was 
anything  in  the  appearance  of  the  broken 
rod  "from  which  a  person  could  tell 
whether  there  was  a  flaw  in  it  previous  to 
the  time  it  broke,  or  how  extensive  that 
flaw  was,"  was  cured  by  allowing  him  to  an- 
swer the  question,  "  Is  there  anything  in 
the  condition  of  that  iron  which  would  in- 
dicate to  you  what  its  condition  was  at  the 
time  it  broke?  "  Cowan  v.  Chicago,  M.  &» 
St.  P.  R.  Co.,  80  fVis.  284,  50  N.  W.  Rep. 
180. 

•  See  also  ante,  38. 


Where  the  trial  court  excluded  evidence 
of  a  rule  forbidding  employ6s  "jumping on 
or  off  trains  or  engines  in  motion,  and  get- 
ting between  cars  in  motion  to  uncouple 
them,"  but  the  testimony  for  defendant 
showed  a  practical  abandonment  of  the  rule 
by  employes  and  their  managing  superiors, 
the  exclusion  of  that  evidence  was  not  prej- 
udicial error.  Alcorn  v.  Chicago  &*  A.  R. 
Co.,  53  Am.  (S-  Eng.  R.  Cas.  87,  108  Mo.  81, 
18  S.  W.  Rep.  188.— Reviewing  Parker  v. 
Georgia  Pac.  R.  Co.,  83  Ga.  539 ;  Memphis 
&  C.  R.  Co.  V.  Askew,  90  Ala.  5,  7  So. 
Rep.  823 ;  Shenandoah  Valley  R.  Co.  v. 
Lucado,  86  Va.  422,  10  S.  E.  Rep.  422; 
Alexander  v.  Louisville  &  N.  R.,  83  Ky. 
589. 

In  a  trial  where  the  defense  consists  of 
proceedings  under  the  provisions  of  the 
statute  for  the  condemnation  of  certain  real 
estate  to  the  use  of  a  railroad  company, 
evidence  was  offered  tending  to  prove  that 
said  real  estate  was  necessary  to  said  com- 
pany for  the  purpose  of  its  business,  which 
evidence  was  excluded.  Evidence  tending 
to  prove  the  condemnation  of  the  real  estate 
by  the  railroad  company  was  offered  and 
received.  It  having  been  held  in  a  former 
opinion  of  this  court  in  the  same  case  that 
said  condemnation  proceedings  as  proved 
were  ineffectual  on  account  of  defects  in  the 
notices  and  other  material  matters  of  pro- 
cedure, without  considering  and  before 
arriving  at  the  point  as  to  whether  the  real 
estate  in  question  was  necessary  to  the  rail- 
road company  or  not— held,  that  the  fact 
of  said  real  estate  being  necessary  to  the 
said  company,  as  affecting  its  power  to  con- 
demn, is  ancillary  to  that  of  actual  legal 
condemnation,  and  that  actual  legal  condem- 
nation not  being  proved,  the  exclusion  of 
the  evidence  under  consideration  was  not 
reversible  error.  Chicago,  B.  &*  Q.  R.  Co.  v. 
Hull,  24  JVed.  740. 

On  the  trial  the  court  refused  to  allow  a 
witness  of  the  plaintiff  to  testify  as  to  an 
accident  other  than  that  in  question,  but 
subsequently  a  witness  of  the  defendant 
testified  that  another  accident  happened, 
the  plaintiff's  counsel  declaring  that  it  was 
the  same  he  sought  to  prove  by  the  plaintiff's 
witness.  It  was  not  questioned  that  the 
accident  occurred.  Held,  that  if  there  was 
error  in  rejecting  the  evidence  offered  by 
tlip  plaintiff,  the  same  was  harmless.  Grant 
v.  Raleigh  &*  G.  R.  Co.,  108  N.  Car.  462,  13 
.S".  E.  Rep.  209. 


APPEAL  AND   ERROR,  69. 


403 


69.  Improper  remarks  of  counsel.* 

—(I)  In  general. — The  practise  of  using 
language  in  an  argument  referable  to  facts 
not  in  evi('ence  and  calculated  to  rouse  the 
prejudices  of  the  jury  against  a  party  to  the 
cause,  should  not  be  permitted.  But  when 
such  language  is  used  in  response  to  similar 
lan<;uage  used  by  the  adverse  counsel,  and 
equally  unauthorized,  the  party  provoking 
such  a  course  of  argument  will  not  be  heard 
to  complain  on  appeal.  Texas  &*  P.  R.  Co. 
V.  Garcia,  2i  Am.  &*  Eng.  R.  Cas.  384,  62 
Tex.  285. 

Where  the  jury  appear  to  be  uninfluenced 
by  an  improper  appeal  made  by  counsel  in 
addressing  them  regarding  matter  outside 
of  the  record,  the  misconduct  is  immaterial. 
Gulf,  C.  &*S.  F.  R.  Co.  V.  Fox,  33  ( Tex.)  Am. 
&*  Eng.  R.  Cas.  543,  6  5.  W.  Rep.  569. 

It  is  not  reversible  error  Tor  an  attorney 
on  the  trial  of  a  cause  to  comment  in  his 
closing  argument  upon  the  absence  of  wit- 
nesses or  their  non-production,  when  they 
are  shown  to  be  cognizant  of  the  facts  in 
issue.  Missouri  Pac.  R.  Co.  v.  White,  48  Am. 
&>  Etig.  R.  Cas.  206,  80  Tex.  202,  1 5  5.  fT. 
Rep.  808. 

It  is  not  reversible  error  that  plaintiff's 
counsel,  in  the  closing  argument  to  the 
jury,  illustrated  the  force  of  a  relevant 
physical  fact  by  the  use  of  apparatus  not 
previously  exhibited  in  evidence,  and  that 
the  court,  in  the  charge  to  the  jury,  com- 
mented upon  the  conclusive  effect  of  the 
illustration.  Hoffman  v.  Bloomsburg  fi-  S. 
R.  Co.,  143  Pa.  S/.  503,  22  Ai/.  Rep. 
823. 

A  statement  by  plaintiff's  counsel  in  his 
argument  to  the  jury  that  "  we  know  that 
the  accident  occurred,  from  defendant's  own 
agent,"  although  not  warranted  by  the 
testimony,  is  not  prejudicial  error  where  the 
/act  of  the  occurrence  of  the  accident  is  not 
disputed.  Harris  v.  Detroit  City  R.  Co.,  76 
Mich.  :   /,^2N.IV.  Rep.  i  n  i . 

It  does  not  sufficiently  appear  that  a  jury, 
in  an  action  to  recover  for  damage  done  to 
cattle  while  being  carried,  weie  unduly  in- 
fluenced by  the  argument  of  plaintiff's  coun- 
sel expressing  a  regret  at  the  trial  in  court 
that  a  larger  sum  had  not  originally  been 
claimed,  it  appearing  that  the  case  had  been 
first  tried  before  a  justice,  and  that  the  jury 
in  court  renders  no  greater  verdict  than  had 
been  rendered  in  the  trial  before  the  justice. 


See  also  atife.  27,  .39 ;  fiosf,  97. 


Galveston,  H.  &>  S  A.  R.  Co.  \.  Johnson,  (Ky) 
195.   W.  Rep.  867. 

(2)  Illustrations. — The  plaintiff's  counsel, 
in  his  closing  argument  to  the  jury,  said : 
"  For  more  than  twenty  years  I  have  stood 
as  a  humble  advocate  of  the  people  against 
the  power  of  such  monopolies  as  this."  On 
objection  thereto,  the  court  observed  that 
"the  remark  was  very  objectionable  and 
must  not  be  repeated,  and  the  jury  should 
entirely  disregard  it."  Held,  that  the  re- 
mark was  culpably  out  of  place,  in  violation 
of  professional  duty,  and  should  meet  a 
court's  pointed  rebuke ;  but  the  court  de- 
clined to  reverse  for  that  alone.  Chicago  &» 
A.  R.  Co.  V.  Johnson,  116  ///.  206,  4  N.  E. 
Rep.  381. 

The  court  permitted  plaintiff's  counsel  in 
his  opening  statement  and  closing  argument 
to  refer  to  the  number  of  trials  that  had 
been  had  in  the  case  and  how  they  had 
resulted,  and  to  state  that  the  judgment  on 
the  first  hearing  had  been  reversed  by  a 
mere  technicality.  Held,  that  if  the  matter 
complained  of  was  improper,  it  was  not  of 
so  serious  a  character  as  to  justify  a  reversal 
of  a  judgment  in  favor  of  the  plaintiff. 
Chicago  &*  A.  R.  Co.  v.  Dillon,  32  Am.  dr* 
Eng.  R.  Cas.  i,  123  ///.  570,  1 5  A^.  £".  Rep.  181, 
1 3  IVest.  Rep,  286 ;  affirming  24  ///.  App. 
203. 

A  remark  of  counsel  to  an  expert  witness : 
"  Remembering  that  you  told  us  you  ex- 
pected your  extra  fee  in  this  case,  I  hope 
you  won'tcharge  the  poor  railroad  company 
anything  extra,"  is  not  objectionable  unless 
it  appears  that  great  injustice  has  been  done 
to  the  party  complaining  of  such  remark. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Sullivan,  {III)  17 
N.  E.  Rep.  460. 

It  appeared  that  the  attorney  for  the 
company  in  his  argument  to  the  jury  used 
improper  language,  which  provoked  plain- 
tiff's attorney  to  also  use  very  improper 
language,  which  was  assigned  as  error  by 
the  defendant.  Held,  that  the  court  would 
not  attempt  to  justify  a  wrong  by  the  second 
attorney  by  way  of  retaliation,  still  the 
judgment  will  not  be  reversed  on  that 
ground  where  there  is  nothing  in  the  verdict 
to  indicate  that  the  jury  were  misled  by 
such  remarks.  Gulf,  C.  &•  S.  F.  R.  Co.  v. 
IVifte,  68  Tejt.  295,  4  S.  IV.  Rep.  490. 

Plaintiff's  counsel  in  his  closing  argu- 
ments said  :  "  I  do  not  agree  with  my  co- 
counsel  that  $ro,ooo  is  enough.  Ten  thou- 
sand dollars  is  a  small  sum  compared  with 


m 
m 
m 


I 


404 


APPEAL  AND   ERROR,  70-72. 


£ 


the  injuries  my  client  has  received.  I  feel 
as  deep  an  interest  in  this  case  as  any  I  ever 
tried.  It  is  true  that  I  have  a  pecuniary 
interest  in  the  result  myself,  but  the  interest 
I  feel  on  this  account  is  insignificant  when 
compared  with  the  great  interest  I  feel  for 
my  client."  Held,  that  since  it  did  not 
appear  that  the  remarks  prejudiced  the  jury 
or  worked  injury  to  the  defendant,  a  verdict 
for  the  plaintiff  should  not  be  disturbed  on 
account  of  such  talk.  Missouri  Pac.  R.  Co. 
V.  White,  48  Am.  &*  Eng.  R.  Cas.  206,  80 
7V.tr.  202,  15  S.   W.  Rep.  808. 

A  female  passenger  sued  for  being  carried 
past  her  station  and  being  put  ofT  at  a  lonely 
place  unprotected  in  the  night-time.  In  his 
argument  to  the  jury  her  counsel  used, 
among  other  words,  tlie  following :  "  I  want 
you  to  understand,  gentlemen  of  the  jury, 
that  your  verdict  in  this  case  will  be  remem- 
bered as  an  evidence  of  the  estimate  of  tlie 
rights  of  women  of  the  country,  and  your 
families,  as  to  the  respect  and  protection 
due  them  at  the  hands  of  the  railroad,  and 
as  you  estimate  them  and  their  rights,  so 
find  by  your  verdict."  //^/((/,  conceding  that 
the  language  was  reprehensible,  yet  a  ver- 
dict will  not  be  set  aside  in  favor  of  the 
plaintiff  where  it  is  clearly  supported  by  the 
evidence.  Texas  &•  P.  R.  Co.  v.  Pollard,  2 
Tex.  App.  (Civ.  Cas:)  424. 

A  verdict  for  $30,000  had  been  set  aside. 
On  the  second  trial  counsel  for  the  plaintiff, 
in  an  argument  to  the  court  in  the  presence 
of  the  jury,  referred  to  the  former  verdict, 
claiming  that  in  view  of  additional  facts 
shown  the  damages  then  awarded  would  not 
now  be  excessive.  Held,  that  these  remarks 
were  not  so  outside  of  the  case  as  to  justify 
a  reversal  of  the  judgment,  especially  as  the 
second  verdict  was  for  only  $18,500.  Heddles 
V.  Chicago  6-  A^.  W.  R.  Co.,  77  Wis.  228,  46 
A^.   W.Rep.  115. 

Plaintiff's  counsel,  in  addressing  the  jury, 
said  that  "  the  defendant  can  bring  experts 
from  one  end  of  the  world  to  the  other  to 
defeat  [the  plaintiff).  They  have  money 
enough  to  do  if,"  but  in  the  closing  argu- 
ment for  plaintiff  this  remark  was  expressly 
discountenanced.  It  not  appearing  affirma- 
tively that  defendant  was  prejudiced,  an  ex- 
ception to  the  remark  was  overruled.  Dugan 
V.  Chicago,  St.  P.,  M.  <&*  O.  R.  Co.,  85  Wis. 
609,  55  V.  W.  Rep.  894. 

70.  Improper  instrnetioiiH,  k<'i>- 
ornlly.* — Where   the    instructions    given 

*  Sec  also  ante,  40-53. 


cover  the  law  of  a  case,  an  omission  to  par- 
ticularize more  fully  is  not  ground  for  re- 
versal, unless  the  trial  court  is  asked  to  give 
special  instructions.  Gulf,  C.  6f  S.  F.  R. 
Co.  V.  Shearer,  i  Tex.  Civ.  App.  343,  21  S. 
W.  Rep.  133. 

Where  the  negligence  of  the  defendant 
company,  if  any,  has  been  slight,  and  that 
of  the  plaintiff,  gross,  and  where,  had  the 
verdict  been  different,  the  court  must  have 
set  it  aside,  the  court  will  not  reverse  the 
judgment  and  remand  the  cause,  even 
though  there  are  errors  in  some  of  the 
instructions.  Foster  v.  Chicago  Sr*  A.  R. 
Co..  94  ///.  164,  16  Am.  Ry.  Rep.  452. 

Where  a  claim  for  damages  is  based  upon 
two  acts  of  negligence,  a  judgment  based 
upon  a  general  verdict  for  the  damages  sus- 
tained from  both  causes  will  not  be  reversed 
for  an  error  of'the  trial  court  in  instructing 
as  to  one  of  the  acts  of  negligence.  Cady  v, 
Chicago,  M.  &^  St.  P.  R.  Co.,  5  /><?/&.  97,  37 
A^.  W.  Rep.  221. 

71.  Instructions  favorable  to  ap- 
pellant.— In  an  action  by  an  infant  to  re- 
cover for  a  personal  injury  from  negligence, 
the  court,  on  behalf  of  the  plaintiff,  gave 
an  instruction  which  tacitly  assumed  that 
under  proper  circumstances  the  rule  of  im- 
puted negligence  might  apply,  which  ac- 
corded with  the  defendant's  contention. 
Held,  that  the  error  was  one  of  which  the 
defendant  could  not  complain.  Chicago 
City  R.  Co.  V.  Wilcox,  50  Am.  &^  Ertg.  K. 
Cas.  464,  138  ///.  370,  27  A^.  E.  Rep-.Sgg; 
affirming  33  ///.  App.  450. 

72.  Non-prejudicial  or  harmless 
instructions.— If  the  undisputed  facts 
establish  a  state  of  case  which  entitles  plain- 
tiff to  recover  for  the  defendant's  negli- 
gence, the  latter  cannot  complain  that  the 
court's  charge  imposed  a  higher  degree  of 
care  than  the  law  justifies.  Fordyce  v. 
Jackson,  56  Ark.  594,  20  5.  W.  Rep.  528,  597. 

While  the  trial  court  committed  error  in 
permitting  the  jury  to  construe  written  rules 
of  a  railroad  company,  yet  the  judgment 
will  not,  on  that  account,  be  reversed,  where 
such  instruction  did  the  company  no  harm. 
Smith  V.  Wabash,  St.  L.  6-  P.  R.  Co.,  31 
Am.  &*  Eng.  R.  Cas.  331,  92  Mo.  359,  4  S.  W. 
Rep.  129. 

It  is  not  proper  in  instructions  to  the  jury 
to  refer  them  to  the  sections  of  the  statute ; 
but  where  such  referen  ce  is  to  the  section 
on  which,  from  the  undisputed  facts,  the  ac- 
tion is  founded,  the  error  may  be  regarded 


|||n 


APPEAL   AND    KKROR,  73,74. 


405 


to  par- 
for  re- 

to  give 
F.  R. 

3.  21  S. 

endaiit 
id  that 
ad  the 
St  have 
rse  the 
even 
of  the 
A.  R. 


as  harmless.  Lane  v.  Chicago,  R.  I.&'P.  R. 
Co..  35  Mo.  App.  567. 

That  street  cars  are  easily  and  readily 
stopped  is  a  matter  of  common  knoAv  ledge 
which  a  jury  might  probably  consider  with- 
out evidence;  so  it  is  not  prejudicial  error 
for  a  court  to  declare  such  to  be  a  fact  in 
instructing  the  jury,  Swain  v.  Fourteenth 
St.  R.  Co.,  93  Cal.  179,  28  Pac.  Rep.  829. 

An  instruction  that  contracts  with  com- 
nio;i  carriers  are  generally  drawn  up  by 
tbiinselves,  and  should  therefore  be  con- 
strued most  strongly  against  them,  is  erro- 
neous, but  will  not  work  a  reversal  when 
the  proof  shows  that  the  plaintifT  was  en- 
titled to  the  general  affirmative  charge. 
Louisville  &•  N.  R.  Co.  v.  Touart,  97  Ala.  514. 

Where  a  statute  gives  conductors  the 
powers  of  a  "  constable "  as  to  preserving 
order  on  trains,  an  inadvertent  mistake  of 
the  trial  court  in  saying  that  they  have  the 
powers  of  "trial  justices"  in  instructing  a 
jury  is  not  ground  for  reversal  where  it  ap- 
pears that  it  did  no  harm.  Moore  v.  Colum- 
bia &*  G.  R.  Co.,  38  So.  Car.  i,  16  S.  E.  Rep. 
781. 

An  instruction  "  that  if  the  right  of  way 
was  not  clear  of  dry  weeds  and  combustible 
materials,  but  that  the  lire  took  on  said 
right  of  way  in  consequence  of  such  com- 
bustible material  being  there,  and  was  thus 
communicated  to  the  plaintiff's  property," 
then,  in  the  law,  the  defendant  would  be 
liable,  without  regard  to  the  engine,  should 
properly  have  used  the  word  ''dangerous" 
before  the  words  "  combustible  materials ; " 
but  as  the  only  combustible  materials  shown 
to  have  been  upon  the  right  of  way  were 
dead  grass  and  dry  weeds,  the  omission  of 
that  word  was  harmless  error.  Chicago  &• 
E.  I.  R.  Co.  V.  Goyette,  43  Am.  &*  Eng.  R. 
Cas.  36,  1 33  ///.  2 1 ,  24  A''.  E.  Rep.  549 ;  affirm- 
ing 32  ///.  Afp.  574. 

73.  in  actions  for  personal  in- 
juries.— It  is  unnecessary  to  charge  as  to 
coninion-law  negligence,  where  there  are  no 
facts  proved  to  which  such  charge  could  be 
applicable.  But  reversal  will  not  be  had 
upon  this  ground  unless  the  court  could  see 
that  the  jury  were  misled  thereby  and  an 
erroneous  result  reached.  Louisville  &*  N. 
R.  Co.  V.  Hojvard,  90  Tenn.  144,  195.  W. 
Rep.  116. 

An  instruction  that  if  neither  party  was 
guilty  of  negligence,  and  the  injury  was  the; 
result  of  an  accident,  no  recovery  can  be 
had,  cannot  be  to  the  defendant's  prejudice. 


ciulf,  C.  &•  S.  F.  R.  Co.  V.  Grxnlee,  35  Am. 
&>  Eng.  R.  Cas.  425,  70  Tex.  553,  8  i'.  li'. 
Rep.  129. 

An  instruction  which  does  not  injure  the 
complaining  party  is  not  ground  for  re- 
versal. So  /leld,  where  a  street-car  company 
was  sued  for  injuring  a  child  on  the  track,  and 
it  did  not  appear  that  the  child  was  seen  by 
the  driver,  but  the  court  instructed  as  to  the 
degree  of  care  required  where  a  person  is 
seen  on  the  track.  Giraldo  v.  Coney  Island 
6-  B.  R.  Co.,  16  N.  Y.  Supp.  774.  62  Hun 
620, 42  A^.  K  5.  .ff.  9 1 5 ;  affirmed »«  1 35  A^.  Y. 
648,  mem. ;  48  A^.  Y.  S.  /?.  931. 

A  railroad  company  being  bound  to  ex- 
ercise the  highest  degree  of  care  that  hu- 
man foresight  can  provide  in  carrying  pass- 
engers to  their  journey's  end,  an  instruction 
that  if  the  employes  of  the  company,  i.e., 
the  fireman  and  brakeman,  moved  or  "  per- 
mitted the  engine  to  be  moved,  without 
the  consent  of  the  engineer,  whether 
within  the  scope  of  their  employ- 
ment or  not,"  the  company  would 
be  liable  for  injuries  arising  there- 
from, will  not  be  a  ground  for  reversal,  if 
the  circumstances  are  such  that  the  com- 
pany would  be  liable  for  the  acts  of  the  fire- 
man and  brakeman  in  any  event.  Lakin  v. 
Oregon  Of  P.  R.  Co.,  34  Am.  &•  Eng.  R.  Cas. 
500,  15  Oreg.  220,  15  Pac.  Rep.  641. 

The  accident  in  which  the  plaintifT  was 
injured  having  been  caused  by  the  spread- 
ing of  the  rails,  the  defendant  asked  two 
instructions,  to  the  effect  that  the  fact  that 
the  switch  at  which  the  car  left  the  track 
was  not  locked  did  not  constitute  negligence, 
if  the  purpose  of  the  lock  was  not  to  pre- 
vent spreading  of  the  rails.  These  instruc- 
tions the  court  modified  by  adding  the 
words,  "  if  the  defendant  used  due  care  and 
diligence,  as  herein  expressed,  to  otherwise 
fasten  and  secure  the  switch."  Held,  that 
as  the  verdict  would  have  been  for  the  de- 
fendant if  the  jury  had  found  that  the  de- 
fendant had  used  due  care  to  fasten  and 
secure  the  switch,  the  modification  of  the 
instruction  was  without  prejudice  to  the 
defendant.  Flanagan  v.  Baltimore  &•  O.  R. 
Co.,  83  foTva  639,  50  A^.  IV.  Rep.  60. 

74.  Instructions  which  did  not 
mislead  the  jury.*— Where  the  court,  in 
charging  the  jury,  defines  the  different  de- 
grees of  negligence,  and  instructs  the  jury 
that  the  only  question  for  them  to  determine 

•See  also  ,int,;  rtO. 


.iii 


406 


APPEAL   AND   ERROR,  75-77. 


is  the  negligence  of  the  respective  parlies, 
and  that  if  they  find  from  the  evidence  that 
the  defendant  had  done  "wrong"  and  caused 
the  injury,  the  prima-facie  case  for  com- 
pensation was  made  out,  the  use  of  the  word 
"  wrong  "  instead  of  the  word  "  negligence  " 
is  not  so  misleading  as  to  be  cause  for  re- 
versal. Union  Pac.  R.  Co.  v.  Henry,  36  Kan. 
565, 14  Pac.  Rep.  I.— Quoting  Kansas  Pac. 
R.Co.  V.  Pointer,  14  Kan.  50. 

In  an  action  under  chapter  94  of  the 
Kansas  laws  of  1874,  to  recover  for  stock 
killed,  in  which  it  was  claimed  that  the  fence 
over  which  the  stock  passed  onto  the  rail- 
road track  was  defective  and  insufficient,  the 
court  quoted  in  its  instructions  §§  2561,  2562, 
and  2563,  Comp.  Laws  1879.  Held,  that  al- 
though some  parts  of  those  sections  may  not 
have  been  applicable  to  a  fence  of  the  kind 
and  materials  disclosed  by  the  testimony, 
there  can  be  no  reason  to  believe  that  the 
jury  were  misled  in  the  least  thereby.  Kan- 
sas City,  Ft.  S.  &*  G.  R.  Co.  v.  Hay,  13  Am. 
&•  Eng,  R.  Cas.  600,  31  Kan,  177,  i  Pac. 
Rep.  766. 

An  elevated  railway  was  sued  to  recover 
for  personal  injuries  received  by  plaintiff 
while  a  passenger  during  what  is  known  as 
the  great  New  York  blizzard  of  March  12, 
1 888.  After  the  court  had  charged  as  to  the 
liability  of  the  company  for  results  produced 
by  unexpected  and  unforeseen  storms,  that 
it  was  not  liable  for  injuries  resulting  from 
such  storms  as  could  not  be  guarded  against 
by  due  care,  and  that  the  company  was  not 
bound  to  anticipate  and  provide  against 
such  storms  as  had  never  been  known  within 
practical  experience  in  the  locality ;  it  then 
added  that  "the  railroad  and  its  servants 
and  agents  must  exercise  the  care  which  is 
necessary  under  those  circumstances  to  pre- 
vent accidents."  Held,  that  this  latter  qual- 
ification was  error,  but  as  it  appeared  from 
the  entire  charge  that  the  jury  could  not 
have  been  misled,  it  was  not  ground  for  re- 
versal. Connelly  v.  Manhattan  El.  R.  Co., 
52  N.   Y.  S.  R.  462. 

In  an  action  to  recover  damages  sustained 
by  falling  from  a  platform  while  boarding  a 
railroad  car,  the  charge  to  the  jury  called 
attention  to  the  height  of  the  platform  as 
an  element  of  danger,  although  the  evidence 
did  not  show  that  the  height  in  any  way 
contributed  to  the  accident.  Held,  not 
material,  as  the  jury  were  not  misled.  Gulf, 
C.  &*  S.  F.  R.  Co.  V.  Fo.v,  (Tex)  33  Am.  &» 
Eng.  R.  Cas.  543, 6  S.  fV.  Rep.  $69. 


75.  Repetition  of  abstract  princi- 
ples.— While  the  giving  of  undue  promi- 
nence in  a  charge  to  some  special  feature  of 
the  case  may  sometimes  be  so  calculated  to 
influence  a  verdict  as  to  afford  cause  for 
reversal,  the  mere  repetition  in  a  charge,  in 
a  suit  for  personal  injuries,  of  the  abstract 
principles  that  the  jury  might  consider  tlu; 
physical  and  mental  suffering  the  plaintitT 
had  endured,  in  estimating  damages,  cannot 
be  regarded  as  calculated  to  affect  a  jury  of 
ordinary  intelligence,  and  will  afford  no 
ground  for  reversal.  Houston  «S>»  T.  C.  R. 
Co.  V.  Larkin,  64  Tex.  454. 

The  court  in  its  charge  repeated  several 
times  that  a  great  degree  of  care  was  re- 
quired of  the  conductor  of  a  train  in  expel- 
ling an  insane  woman  from  a  car.  Held,  that 
the  repetition  of  the  statement  could  do  no 
harm  unless  it  induced  the  jury  to  believe 
that  the  court  thought  there  was  evidence 
showing  a  want  of  the  requisite  care.  The 
repetition  was  not  of  a  character  to  thus 
mislead  the  jury,  and  occurred  only  when  it 
was  necessary  to  qualify  the  principles  ap- 
plicable to  the  different  phases  of  the  case. 
International  &*  G.  N.  R.  Co.  v.  Leak,  64 
Tex.  654. 

76.  In.striictions  on  the  weig:lit  of 
evidence. — A  trial  judge  may  express  his 
opinion  freely  on  the  weight  and  value  of 
evidence,  and  when  he  does  so  without  mis- 
leading or  controlling  the  jury  in  the  dispo- 
sition of  the  facts  there  is  no  ground  for 
reversal.  Fredericks  v.  Nor t kern  C.  R.  Co., 
in  Pa. St.  103.— Quoting  Leibigv.  Steiner, 
94  Pa.  St.  466;  Spear  v.  Philadelphia,  W.  & 
B.  R.  Co.,  1 19  Pa.  St.  61 ;  Kilpatrickt/.  Com., 
31  Pa.  St.  216. 

A  charge  which,  taken  together,  means 
that  the  train  had  the  right  of  way,  but 
that  it  was  the  duty  of  the  trainmen  to  keep 
a  lookout  for  persons  on  the  track,  and  to 
take  steps  to  avoid  injuring  them  if  discov- 
ered, is  not  erroneous  as  being  upon  the 
weight  of  evidence.  McDonald  v.  Inter- 
national &*  G.  N.  R.  Co.,  (Tex.)  55  Am.  &* 
Eng.  R.  Cas.  280,  20  5.  W.  Rep.  847. 

77.  Instrnctions  as  to  expert  tes- 
timony.— Where  several  physicians  testi- 
fied as  experts  as  to  the  plaintiff's  physical 
condition,  the  nature  and  extent  of  her  in- 
juries, their  probable  consequences,  etc.,  and 
the  court  thereupon  instructed  the  jury,  ex 
mero  motu,  "that  the  opinion  of  expert  wit- 
nesses should  not  be  substituted  for  such 
opinion  as  the  jury  may  form  from  the 


APPEAL  AND   ERROR,  78,  7«. 


407 


iiei- 

omi- 
re  of 
id  to 
i  for 
e,  ill 
tract 

tin; 

ntifT 

mnot 

ry  of 

no 


whole  facts  and  whole  evidence  in  the  case ;  * 
"that  these  opinions  should  be  weighed 
along  with  all  the  other  facts  in  the  case ; " 
"  that  in  no  case  should  the  jury  accept  the 
opinion  of  an  expert  as  true,  unless  it  agrees 
with  their  conclusions  as  based  on  all  the 
facts  <n  the  case,  and  such  opinion  should 
be  considered  in  connection  with  all  the 
other  facts  in  making  up  their  conclusion 
upon  each  fact  it  bears  upon."  Held,  that 
these  several  expressions,  all  being  construed 
together,  involved  no  reversible  error.  Ala- 
bama  G.  S.  R.  Co.  v.  Htil,  93  Ala.  514,  9  So. 

Rep.  722. 

78.  lustructiuus  assuminur  facts  as 
proven. — An  assumption  in  the  charge 
that  there  was  a  collision,  where  the  fact  of 
the  collision  was  not  controverted,  was  not  a 
reversible  error.  Chicago,  St.  L.  &*  P.  R. 
Co.  V.  Spilker,  (Ind^  55  Am.  &•  Eng.  R. 
Cas.  200,  33  N.  E.  Rep.  280. 

Where  the  gravamen  of  the  complaint  is 
that  the  plaintiff  got  off  defendant's  east- 
bound  train  at  the  junction  crossing,  and 
attempted  to  cross  its  track  to  reach  the 
junction  sidewalk,  when  defendant  negli- 
gently caused  one  of  its  western-bound 
trains  to  reach  said  junct.on  and  crossing, 
before  plaintiff  had  crossed  over  said  track 
and  before  the  said  east-bound  train  had 
pulled  out  from  the  said  junction,  whereby 
plaintiff  was  injured,  etc.,  it  is  harmless 
error  that  an  instruction  assumes  that  the 
defendant  was  transporting  plaintiff  over  its 
line,  or  that  he  was  alighting  from  one  of 
its  cars  at  the  time  of  tlie  injury.  Burbridge 
V.  Kansas  City  Cable  R.  Co.,  36  Mo.  App. 
669. 

In  an  action  for  negligence  in  failing  to 
safely  carry  and  deliver  property,  all  the 
witnesses  testifying  to  some  loss,  and  the 
only  conflict  in  the  testimony  being  as  to 
the  amount  of  the  loss — held,  not  error  for 
the  court  to  assume  that  there  was  some 
damage  or  loss,  i.nd  to  instruct  the  jury  that 
the  only  question  upon  that  part  of  the  case 
was  as  to  the  amount  of  the  loss  sustained 
by  plaintiffs,  and  this  the  jury  were  to  find. 
Bush  :  Nor/hern  Pac.  R.  Co.,  18  Am.  «S-  Eng. 
R.  Cas.  559,  3  DaJt.  444,  22  N.  IV.  Rep.  508. 

A  brakeman  sued  for  a  personal  injury 
caused  by  having  his  foot  caught  in  a  de- 
fective frog.  In  instructing  the  jury  the 
court  assumed  that  the  maintaining  of  the 
frog  was  negligence  per  se.  Held,  that  such 
assumption  was  of  a  fact  which  might  have 
been  submitted  to  the  jury,  but  was  not 


ground  for  reversal  when  not  excepted  to 
by  the  defendant.  Union  Pac.  R.  Co.  v. 
James,  56  Fed.  Rep.  looi. 

79.  lustrnctions  as  to  contributory 
negligence.— Where  suit  is  brought  for 
an  injury  received  while  on  a  station  plat- 
form, an  instruction  to  the  effect  that  plain- 
tiff's want  of  ordinary  care  while  on  the 
platform  must  have  contributed  to  his  injury, 
in  order  to  be  a  bar  to  a  recovery,  will  not 
warrant  a  reversal  of  a  judgment  in  his  favor 
where  there  is  another  instruction  to  the 
effect  that  he  must  prove  by  a  preponderance 
of  evidence  that  he  was  free  from  negligence. 
Ohio  &<•  M.  R.  Co.  V.  Hecht,  34  Am.  <S-  Eng. 
R.  Cas.  447,  115  /nd.  443,  15  IVesl.  Rep.  122, 
17  JV.  E.  Rep.  297. 

Where  suit  was  brought  against  an  Ala- 
bama railway  corporation  by  a  passenger 
who  was  injured  by  leaping  from  its  train  in 
that  state,  and  the  facts  in  evidence  made  a 
clear  case,  not  only  of  contributory,  but  of 
gross  negligence  on  his  part,  provided  the 
jury  believed  that  the  conductor  did  not 
prompt  the  plaintiff  to  jump  from  the  train, 
and  that  question  was  fairly  submitted  to 
the  jury,  and  under  the  charge  of  the  court 
the  whole  case  was  made  to  turn  upon  it, 
and  a  verdict  was  found  for  the  defend- 
ant, the  effect  of  contributory  negligence, 
whether  tested  by  the  Alabama  law  or  that 
of  this  state,  would  not  and  ought  not  to 
change  the  result ;  and  there  was  no  error 
in  refusing  to  grant  a  new  trial  because  the 
court  charged  that,  according  to  the  laws  of 
Alabama,  if  the  plaintiff  contributed  to  the 
injury  he  could  not  recover.  Dixon  v.  Mo- 
bile &*  G.  R.  Co.,  80  Ga.  212,  5  S.  E.  Rep. 
496. 

Where  the  evidence  shows  a  company 
grossly  negligent  in  injuring  a  passenger,  an 
instruction  to  the  effect  that  if  the  jury 
found  the  defendant  guilty  of  gross  negli- 
gence it  will  be  liable,  notwithstanding  con- 
tributory negligence  on  the  part  of  the 
plaintiff,  though  not  strictly  correct,  is  not 
ground  for  reversal  where  there  is  no  evi- 
dence tending  to  show  plaintiff  guilty  of 
contributory  negligence.  Wilson  v.  Four- 
teenth St.  R.  Co.,  90  Cal.  319,  27  Pac,  Rep. 
210. 

An  instruction  which  held,  in  substance, 
that  if  the  plaintiff  showed  what  his  acts 
were,  and  they  did  not  appear  to  be  negli- 
gent, the  jury  would  be  justified  in  finding 
that  he  was  free  from  negligence,  while  not 
correct  as  an  abstract  statement  of  the  rule. 


^.  :ir 


408 


APPKAL    AND    ICRROH,  80, 81. 


iira^H 

'  ■  ;  ,^ 

II 

is 

1  i':  j^^ 

was  not  erroneous  where  it  was  clear  that 
plaintiff  was  not  guilty  of  contributory  neg- 
ligence, unless  it  was  by  reason  of  something 
which  he  did,  Raymond  v.  Burlington,  C. 
H.  &*  N.  R.  Co.,  1 8  Am.  Sr-Eng.  R.  Cas.  217, 
13  Am.  &*  Eng.  R.  Cas.  6,  65  Iowa  152,  17 
A^.  W.  Rep.  923.  21  A';  W.  Rep.  495. 

Where  the  defense  of  contributory  negli- 
gence is  relied  on,  it  is  not  error  for  the 
court  to  give  an  instruction,  at  the  instance 
of  the  plaintiff,  which  bases  his  right  of  re- 
covery on  the  neglige'ice  o^  defendant, 
without  mention  of  .  U-  c<  .1  ory  negli- 
gence, where  the  law  of  c.  u'  y  negli- 
gence is  fully  given  to  the  jury  111  instruc  ions 
given  at  the  request  of  the  company.  Louis- 
ville 6-  A^.  R.  Co.  V.  Conru'Jy,  (A'r.)  7  ^ •  ^'^ 
Rep.  914. 

The  claim  and  proof  of  the  passenger  v.'a  . 
that  the  car  was  started  while  she  was  in  the 
act  of  alighting.  The  company  claimed  and 
gave  evidence  tending  to  prove  that  the  car 
had  started,  that  the  passenger  started  to 
get  off  while  the  car  was  in  motion,  and  it 
did  not  appear  that  the  e  was  any  evidence 
or  claim  that  the  cc  mpany  could  have 
avoided  the  accident  ^^fter  the  car  had 
started.  It  further  appeared  that  the  ver- 
dict of  the  jury  must  have  been  arrived  at 
solely  upon  consideration  of  the  question 
whether  plaintiff  was  in  the  act  of  alighting 
before  the  car  started,  and  whether  with  due 
care  the  gripman  could  have  known  that 
before  he  started  the  car.  Held,  that  an 
erroneous  instruction  defining  contributory 
negligence  was  harmless  error.  Tobin  v. 
Omnibus  Cable  Co.,  {Cal.)  58  Am.  Sr'Eng.R. 
Cas.  223.— Following  Craven  v.  Central 
Pac.  R.  Co.,  72  Cal.  345. 

When  the  requirement  of  ordinary  care 
on  the  part  of  the  plaintiff  is  correctly 
stated  in  a  subsequent  instruction  for  the 
plaintiff  and  in  several  instructions  for  the 
defendant,  thus  supplementing  and  explain- 
ing a  defective  instruction,  and  there  is  no 
conflict  in  the  series  of  instructions,  which, 
as  a  whole,  stated  the  law  fully  and  fairly, 
and  the  attention  of  the  jury  is  called  by  a 
special  interrogatory  to  the  question  of  the 
plaintiff's  exercise  of  ordinary  care,  the  error 
will  not  be  such  as  to  require  a  reversal. 
Lake  Erie  &*  W.  R.  Co.  v.  Morain,  140  ///. 
117;  affirming  36  ///.  App.  dyi,  29  N.  E.  Rep, 
869. 

Where  no  instructions  were  asked  or  given 
to  the  jury  concerning  the  rules  of  contrib- 
utory negligence  as  affecting  the  plaintiff's 


right  to  recover,  but  the  petition  alleged  the 
exercise  of  care  on  the  part  of  the  plaintiff, 
and  it  clearly  appeared  from  the  evidence 
that  the  defendant  was  negligent,  and  that 
the  plaintiff  was  free  from  negligence— /^^A/, 
that  the  omission  in  the  instructions  was 
without  prejudice  to  the  defendant.  Flana- 
gan V.  Baltimore  &*  O.  R.  Co.,  83  Iowa  639, 
50  A'.  W.  Rep.  60. 

In  an  action  for  an  injury  at  a  crossing, 
plaintiff's  evidence  tended  to  show  that  he 
stopped  and  listened  for  trains,  including 
that  of  the  company,  and  that  the  whistle  was 
blown  and  the  bell  rung.  Upon  this  state 
of  facts  the  court  instructed  the  jury  to  de- 
cide the  case  upon  the  evidence.  Held,  that 
a  failure  of  the  court  to  instruct  that  con- 
tributory negligence  was  a  matter  of  defense, 
\  hich  must  be  shown  by  a  preponderance 
of  evidence,  was  not  reversible  error.  Whil- 
ton  v.  Richmond  ^  D.  R.  Co.,  s?  Fed.  Rep. 

SS'- 

In  an  action  by  a  passenger  for  personal 
injuries,  the  court  instructed  the  jury  that 
unless  an  act  contributed  to  the  injury  di- 
rectly or  indirectly  it  should  not  be  consid- 
ered. Held,  that  the  words  "or  indirectly  " 
did  not  technically  express  the  law,  but  was 
harmless  error  where  there  was  no  proof  of 
any  secondary  or  indirect  injury.  Kansas 
City,  Ft,  S.  &*  M.  R.  Co.  v.  Stoner,  49  Fed. 
Rep.  209,  4  U.  S.  App.  109,  \  C.  C.  A.2i\. 

80.  Instructions  as  to  comparative 
negligence. — In  an  action  for  injuries 
occasioned  by  the  alleged  negligence  of 
defendant,  the  court,  at  the  instance  of  plain- 
tiff, instructed  the  jury  incorrectly  in  re- 
gard to  the  rule  of  comparative  negligence. 
Held,  as  the  evidence  showed  no  negligence 
on  the  part  of  plaintiff  to  compare  with 
that  of  defendant,  the  latter  could  not  be 
heard  to  complain  of  the  erroneous  instruc- 
tion. Chicago,  B.  &*  Q.  R.  Co.  v.  Dickson, 
63  ///.  151,  7  Atn.  Ry.  Rep.  45. 

81.  Instructions  as  to  elements  of, 
or  measure  of  damages.* — An  instruc- 
tion that  the  question  of  damages  "  is 
wholly  and  entirely  in  the  province  of  the 
jury"  is  not  ground  for  reversal  if  the  trial 
judge  follow  the  general  phrase  complained 
of  immediately  and  in  the  same  sentence 
by  a  specific  enumeration  of  the  items  of 
damages,  and  concludes  with  the  direction 
that  "  all  these  taken  together  would  be  the 
amount  that  the  plaintiff  is  entitled  to  re- 

*  See  also  ante,  48« 


APIM- AL    AND    ERROR,  82. 


409 


cover."  McCloskey  v.  Bell  Gap  R.  Co.,  156 
/'(/.  S/.  254,  27  Ai'/.  Kep.  246. 

Where  the  court,  in  charging  the  jury  as 
to  the  allowance  of  future  damages,  has 
told  them  that  only  danmges  can  be  allowed 
for  such  injuries  as  seem  "  reasonably  cer- 
tain to  be  permanent,"  it  is  not  reversible 
error  that  the  court  should  inadvertently 
use  the  expression  "  liable  to  be  perma- 
nent." Weiler  v.  Manhattan  R.  Co.,  6  A'; 
Y.  Supp.  320. 

Although  the  charge  on  the  subject  of 
the  measure  of  damages  is  not  as  clear  as 
it  might  have  been,  and  dwells  somewhat 
upon  the  subject  of  annuities,  yet  there  is 
no  error  which  injured  the  defendant  where 
the  court  subsequently  gives  clearly  the 
correct  rule  as  to  the  measure  of  damages. 
Georo^ia  R,  Co.  v.  Pittman,  26  Am.  &*  Eng. 
R.  Cas.  474,  73  Ga.  325. 

In  an  action  for  personal  inj\iries  it  is  not 
an  appropriate  expression  to  charge  the 
jury  that  money  is  an  adequate  recompense 
for  pain,  but  it  is  not  reversible  error  where 
the  jury  are  further  instructed  that  pain  is 
an  element  of  damages,  and  that  if  they  find 
for  the  plaintiff  her  recovery  must  be  con- 
fined to  compensatory  damages,  or  such  a 
sum  as  would  compensate  for  the  injuries 
suffered,  which  must  be  determined  by  the 
judgment  and  sound  discretion  of  the  jury, 
an<i  must  be  for  such  measure  as  they  should 
dispassionately  allow.  Morgan  v.  Southern 
Pac.  R.  Co.,  95  Cal.  501,  30  Pac.  Rep.  601. 

An  instruction  in  a  personal  injury  case, 
which  tells  the  jury  that  the  limit  of  the  re- 
covery that  can  be  had  is  the  amount 
claimed  in  the  complaint,  is  objectionable, 
as  tending  to  lead  the  jury  to  infer  that  they 
may  find  that  amount ;  yet  it  is  not  revers- 
ible error  where  the  claim  was  for  $;ooo  and 
the  verdict  for  only  $1200.  Gulf,  C.  6-  S. 
F.  R.  Co.  V.  Killebrew,  {Tex.)  20  S.  W. 
Rep.  182. 

Where  the  amount  of  damages  claimed 
in  a  petition  is  fixed  at  $;Ooo,  a  judgment 
upon  a  verdict  for  $1250  will  not  be  reversed 
:!.s  excessive  because  the  judge  in  instruct- 
in  ;t  the  jury  told  them  several  times  that 
tliey  must  not  exceed  the  amount  claimed 
in  the  petition.  Eddy  v.  Still,  3  Tex.  Civ. 
App.  346,  22  S.  W.  Rep.  525. 

Error  of  the  court  in  charging  the  jury 
that  the  widow  in  this  case  could  recover 
her  actual  damages,  not  exceeding  $5000,  is 
immaterial  where  she  is  entitled  to  recover, 
if  anything,  the  fixed  sum  of  $5000.    Schler- 


cth  v.  Missouri  Pac.  R.  Co.,  115  Mo,  87,  2i 
S.  W.  Rep.  1 1 10. 

Where  a  yartv  is  not  entitled  to  damages 
for  land  taken  by  a  railroad,  a  verdict  for 
the  company  will  not  be  disturbed  for  any 
error  made  by  the  court  as  to  the  measure 
of  damages.  Dryden  v.  St.  Joseph  6-  D.  C. 
R.  Co.,  23  Kan.  525.— Quoting  St.  Joseph 
&  D.  C.  R.  Co.  V.  Dryden,  17  Kan.  282. 

The  error  of  giving  an  instruction  sub- 
mitting elements  of  damages  of  which  no 
definite  evidence  has  been  given  is  not 
ground  for  the  reversal  of  the  judgment 
where  the  plaintiff  has  remitted  enough  of 
the  verdict  to  cover  all  damages  which 
could  have  been  thus  improperly  found. 
Crou'ley  v.  St.  Louis,  I.  M.  &*  S.  R.  Co.,  24 
Mo.  App.  119. 

Where,  in  an  action  against  a  railroad 
company  for  personal  injuries,  plaintiff  in- 
troduces testimony  as  to  loss  of  earnings 
without  objection,  it  is  not  error  to  instruct 
that  the  jury  may  award  damages  for  such 
loss,  although  there  is  no  special  averment 
in  the  petition  claiming  the  same.  Mellor 
V.  Missouri  Pac.  R.  Co.,  47  Am.  &•*  Eng.  R. 
Cas.    450,    105   Mo.    455,   16    5.    IV.   Rep. 

849. 

The  court  authorized  a  finding  of  dam- 
ages for  "  sums  paid  out "  by  the  plaintiff 
for  medical  services.  He  had  paid  none, 
but  had  become  liable  to  the  amount  of 
fifty  dollars.  Held,  that  the  error  did  not 
affect  the  substantial  rights  of  defendant 
upon  the  merits,  and  was  not  a  ground  for 
a  reversal.  Gorham  v.  Kansas  City  &•  S. 
R.  Co.,  113  Afo.  408,  20  S.  W.  Rep.  1060. 

82.  Instructions  as  to  punitive 
damages.* — It  is  error  for  the  trial  judge 
to  charge  upon  the  subject  of  vindictive 
damages  in  a  personal  injury  case,  when  the 
facts  are  clearly  Insufficient  to  justify  the 
allowance  of  such  damages.  But  for  this 
error  the  court  will  not  reverse  if  it  clearly 
appears  that  no  injury  has  resulted  there- 
from. East  Tenn.,  V.  &*  G.  R.  Co.  v.  Lee,  90 
Tenn.  570.  18  5.  W.  Rep.  268. 

In  damage  suits  a  practice  of  instructing 
juries  that  they  may  award  damages  in  any 
amount  not  exceeding  that  claimed  in  the 
petition  should  be  condemned,  but  such  a 
charge  will  not  be  regarded  as  reversible 
error,  where  the  verdict,  under  the  evi- 
dence, is  not  excessive.  Texas  6-  P.  R.  Co. 
V.  Wills,  2  Tex.  App.  {Civ.  Cas.)  700. 

*  See  also  ante,  49. 


410 


Al'i'EAL   AND    ERROR,  8;J,  84. 


s 


8:{.  UefiiMalH  to  iiiHtriiet.* — In  suits 
for  personal  injuries,  a  refusal  to  grant  in- 
structions, correct  in  themselves,  is  not  re- 
versible error  where  the  trial  judge  states 
the  case  fairly  to  the  jury  and  includes  in  a 
general  charge  all  the  points  contained  in 
the  instructions  refused.  G/eeson  v.  Vir- 
ginia  Midland  A\  Co.,  i  App.  Cas.  (D.  Col.) 
185. 

Thus  the  refusal  to  give  an  instruction  to 
the  eflect  that,  if  the  jury  believed  that 
deceased  was  not  a  passenger  on  the  car 
they  arc  to  find  for  the  detendant,  is  not 
reversible  error  when  instructions  to  the 
same  eflect  were  given.  Miiehlhausen  v. 
St.  Louis  A'.  Co.,  28  Am.  &>  Eng.  R.  Cas. 
157,  91  Mo.  332,  1.  S.    IV.  Rep.  315. 

Where  a  plaintiff  in  an  action  for  personal 
injuries  claims  both  actual  and  exemplary 
damages,  the  company  cannot  complain  of 
a  refusal  of  the  court  to  instruct  the  jury 
touching  exemplary  damages,  where  the 
verdict  of  the  jury  is  for  actual  damages 
only.  Texas  &^  P.  R.  Co.  v.  Watts,  (TV.r.) 
18  6:  W.  Rep.  312. 

Where  a  railroad  company  is  sued  for  the 
negligence  of  its  employes  it  cannot  com- 
plain of  the  refusal  of  the  trial  court  to  give 
an  instruction  which  it  asks  for,  imposing  a 
higher  degree  of  care  upon  such  employes 
than  that  imposed  by  the  instruction  which 
the  court  gave.  Ft.  Worth  &>  D.  C.  R.  Co. 
v.  Mackney,  83  Tex,  410.  i8  5.  W.  Rep.  949. 

It  may  be  error  to  refuse  to  charge  that  a 
railway  company  is  required  to  exercise 
more  than  the  usual  amount  of  care  in 
running  its  trains  through  populous  towns, 
because  of  the  greater  peril ;  still  in  an  action 
for  personal  injuries  such  error  is  cured  by 
a  finding  that  the  injury  sued  for  was  sus- 
tained through  the  negligence  of  the  com- 
pany. McAdoo  V.  Richmond  &*  D.  R.  Co., 
41  Am.  &*  Eng.  R.  Cas.  524,  105  N.  Car.  140, 
i\  S.  E.  Rep.  316. 

In  the  absence  of  proof  that  plaintiff  was 
in  charge  of  the  car  at  the  time  of  the  in- 
jury, except  so  far  as  implied  in  his  service 
as  brakeman,  or  had  any  duty  of  inspecting 
it,  there  was  no  error  in  refusing  to  charge 
that  it  was  his  duty  to  observe  any  defect  in 
it,  and  to  avoid  it,  if  dangerous,  and  that 
his  failure  to  do  so  would  prevent  a  re- 
covery. Wedgwood  v.  Chicago  &*  N.  W.  R. 
Co.,  44  Wis.  44,  19  Am.  Ry.  Rep.  393. 

In  an  action  for  injuries  caused  by  collid- 
ing with  a  street  car,  the  company  requested 

*  See  also  ante,  18,  53. 


an  instruction  that  if  plaintiff  "wilfully" 
obstructed  the  passage  of  the  car  he  was 
guilty  of  contributory  negligence.  The 
court  had  already  instructed  as  to  plaintiff's 
duty  to  turn  off  the  track,  and  that  a  failure 
to  do  so  would  constitute  contributory 
negligence.  Held,  that  a  denial  of  the  re- 
quest was  no  ground  for  the  reversal  of  a 
judgment.  Qttinn  v.  Atlantic  Ave.  R.  Co., 
12  A'.  Y.  Supp,  223.— Followed  in  Wiite 
V.  Brooklyn  City  R.  Co., 4  Misc.  (N.  Y.)  286. 

A  passenger  sued  an  elevated  railway 
company  for  injuries  received,  caused  by  the 
train  starting  before  he  had  time  to  alight. 
The  issue  was  whether  an  employe  of  the 
company  or  a  stranger  pulled  the  bell-cord 
and  caused  the  train  to  start.  The  court 
fully  instructed  the  jury  as  to  the  liability 
of  the  company  in  either  case.  Held,  that 
after  this  a  refusal  to  charge  that  there  was 
no  proof  that  the  company's  service  was 
faulty,  or  that  the  bell-cord  was  improperly 
located,  was  not  prejudicial  to  the  defend- 
ant. Ferry  v.  Manhattan  R.  Co.,  44  Am.  &* 
Eng,  R.  Cas.  331,  118  A^.  V.  497,  23  A^  /•". 
Rep.  822,  29  A'.  V.  S.  R.  933 ;  affirming  22  J. 
&-  S.  325,  6  A^.  Y.  S.  R.  821. 

In  an  action  for  personal  injuries  there 
was  positive  evidence  by  plaintiff's  physician 
that  he  would  never  recover  from  his  in- 
juries. Held,  that  a  refusal  to  charge  iliat 
there  was  no  evidence  to  justify  an  allow- 
ance for  future  damages  or  for  permanent 
disability  was  not  error.  Johnson  v.  Broad- 
way Of  S.  A.  R.  Co.,  2  Silv.  Sup.  Ct.  532. 

Plaintiff,  a  passenger,  sued  two  railroad 
companies  for  a  personal  injurj'  received  by 
his  train  colliding  with  a  freight  train  on 
the  other  road,  at  a  point  where  the  two 
tracks  crossed.  It  appeared  that  the  freight 
train  was  running  "wild."  Held,  that,  as 
defendant's  liability  was  fixed  by  conclusive 
evidence  showing  negligence  at  the  cross- 
ing, the  refusal  of  the  court  to  instruct  as 
to  whether  a  statute  requiring  trains  to  run 
on  schedule  time  was  applicable  to  such 
case  or  not  was  harmless  error.  Kansas 
City,  Ft.  S.  6-  Af.  R.  Co.  v.  Stoner,  52  Am. 
6-  Eng.  R.  Cas.  462,  51  Fed.  Rep.  649,  4  U. 
S.  App.  109,  2  C.  C.  A.  437.— Following  j 
Iron  S.  M.  Co.  v.  Mike  &  S.,  G.  &  S.  M.  Co.,  | 
143  U.  S.  394,  12  Sup.  Ct.  Rep.  543,  Quot- 
ing Smith  V.  Shoemaker,  17  Wall.  (U.  S.) 
630. 

84.  Refusal  to  direct  venlict.*— 
A  case  may  be  presented  in  which  the  re- 

*  See  also  post,  lOl. 


APPEAL   AND    KRKOK,  H5. 


411 


fasal  to  direct  a  verdict  for  the  defendant 
at  the  close  of  plaintiff's  testimony  will  be 
a  good  ground  for  the  reversal  of  a  judg- 
ment in  favor  of  the  plaintiff  if  defendant 
rests  his  case  on  such  testimony  and  intro- 
duces none  on  his  own  behalf ;  but  where  a 
railroad  company  is  sued  for  personal  in- 
juries to  a  fireman,  and  the  company  goes 
on  with  its  defense  and  puts  in  testimony 
after  such  refusal ;  and  the  jury,  under  proper 
instructions,  find  against  the  company  on 
the  whole  evidence,  a  judjjment  will  not  be 
reversed,  in  the  absence  of  defendant's  test  i- 
mony,  on  account  of  the  original  refusal, 
even  though  it  would  not  have  been  wrong 
to  give  the  instruction  at  the  time  it  was 
asked.  Grand  Trunk  A'.  Co.  v.  Cummings, 
io6  U.  S.  709,  I  Suf>.  Ct.  Rep.  493. 

85.  Errors  cured  by  other  parts  of 
the  charge. — (i)  General  rules. —  Every 
charge  of  a  court  to  a  jury  must  be  tested 
by  the  facts  to  which  it  is  applicable;  the 
announcement,  therefore,  of  a  general  prin- 
ciple in  a  charge,  which  in  the  abstract  may 
be  wrong,  will  not  be  cause  for  reversal  if  it 
was  so  modified  by  the  charge,  in  view  of  the 
facts  of  the  case,  that  it  could  not  affect  the 
rights  of  the  party  complaining.  Texas  &* 
P.  R.  Co.  V.  Wright,  23  Am.  &•  Eng.  R. 
Cas.  304,  62  Tex.  515. 

Although  one  part  of  a  charge,  when 
taken  alone,  may  be  inaccurate  or  seem  to 
intimate  an  opinion  on  the  evidence,  yet  if 
the  whole  charge,  taken  together,  lays  down 
the  law  correctly,  and  is  sufficiently  clear  to 
be  understood  by  jurors  of  ordinary  capacity 
and  understanding,  it  is  sufficient,  and  a 
reversal  will  not  be  granted.  Georgia  R.  Co. 
V.  Thomas,  73  Ga.  350. 

An  error  of  law  in  instructing  for  the  ap- 
pellee is  no  ground  for  reversal  where  the 
same  proposition  of  law  is  given  in  an  in- 
struction for  the  appellant.  Crutchfieldv, 
St.  Louis,  K.  C.  <S-  N.  R.  Co.,  64  Mo.  255, 
17  Am.  Ry.  Rep.  200.— Distinguished  in 
Lincoln  v.  St.  Louis,  L  M.  &  S.  R.  Co.,  75 
Mo.  27. 

Where  an  instruction  for  plaintiff  is  faulty 
in  omitting  the  requirement  of  proper  care 
on  the  part  <>f  plaintiff,  the  error  will  be 
harmless  when  that  requirement  is  promi- 
nently set  forth  as  an  essential  element  to  a 
recovery  in  other  instructions  on  both  sides. 
Chicago  &*  A.  R.  Co.  v.  Johnson,  116  ///. 
206,  4  A'^  E.  Rep.  381.  Dougherty  v.  Mis- 
souri R.  Co.,  34  Am.  <S-  Eng.  R.  Cas.  488, 
97  Mo.  647,  II  S.  W.  Rep.  251.— Following 


Owens  V.  Kansas  City,  St.  J.  &  C.  B.  R.  Co., 
95  Mo.  169.  OVERRL'I.ING  Suilivan  v.  Han- 
nibal &  St.  J.  R.  Co.,  88  Mo.  169. 

An  instnirtion  which  might  be  construed 
as  wrongfully  placing  the  burden  of  proof 
on  defendant  is  no  cause  for  a  reversal 
where  other  parts  of  the  charge  clearly 
place  the  burden  on  plaintiff.  Ne^iille  v. 
Chicago  &*  N.  IV.  R.  Co.,  79  /owa  232,  44 
A'.   IV.  Rep.  367. 

An  instruction  to  the  effect  that  a  carrier 
of  passengers  is  liable  to  the  same  extent  as 
a  carrier  of  goods  is  error,  hut  is  immaterial 
where  the  case  is  finally  submitted  on  the 
single  question  as  to  whether  the  defend- 
ant's employes  were  negligent.  Caldwell  v. 
Murphy,  i  Duer  (N.  V.)  233. 

In  an  action  by  a  passenger  for  personal 
injuries,  an  instruction  that  before  defend- 
ant can  excuse  itself  it  must  show  by  a  pre- 
ponderance of  testimony  that  its  track,  ma- 
chinery, and  appliances  were  the  best  of  the 
kind  and  in  perfect  condition,  does  not 
correctly  state  the  law,  but  is  not  ground 
for  reversal  where  the  law  is  correctly  stated 
in  another  instruction.  Eureka  Springs  R. 
Co.  v.  Timtnons,  40  Am.  &•  Eng.  R.  Cas.  698, 
51  Ark.  459,  1 1  S.  IV.  Rep.  690. 

An  instruction  as  to  the  statutory  duty 
of  the  company  in  respect  to  sounding  the 
whistle  before  crossing  a  highway,  in  a  case 
where  the  plaintiff  has  sufficient  notice  of 
an  approaching  train,  is  not  material  error 
where  the  court  distinctly  charges  that  the 
failure  to  give  the  signal  will  not  create  a 
liability  against  the  company  unless  the  in- 
jury was  the  result  of  such  failure.  Atchi- 
son, T.  &*  S.  F.  R.  Co.  V.  Walz,  40  Kan.  433, 
19  Pac.  Rep.  787. 

Where  an  employe  sues,  an  error  in  in- 
structing as  to  the  law  of  fellow-servants 
is  not  ground  for  reversal  where  another 
instruction  properly  states  the  law.  Texas 
C.  R.  Co.  V.  Rowland,  3  Tex.  Civ.  App.  158. 
22  S.  W.  Rep.  134. 

The  modification  of  an  instruction  as  to 
the  amount  of  care  required  of  railroad 
companies  to  anticipate  and  provide  against 
unusual  storms,  which  does  not  correctly 
state  the  law  as  modified,  is  not  ground  for 
reversal  where  substantially  the  same  law 
as  requested  had  been  given  in  the  general 
charge.  Connelly  v.  Manhattan  R.  Co..  23 
A^.  Y.  Supp.  88,  68  Hun  456,  52  A'.  Y.  S.  R. 
462. 

Where  a  railroad  company  is  sued  for 
personal    injuries,  an  exception  that   the 


" 


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4\-i 


AI'IMwXL   AND    I'KROK,  M«. 


m 


ik 


s 


s 


court  erred  in  its  instruction  to  the  jury  on 
the  question  of  exemplary  damages  be- 
comes immaterial  where  the  question  of 
exemplary  damages  is  subsequently  with- 
drawn from  the  jury  and  a  verdict  for  actual 
damages  cjnly  is  returned.  7'i:ras  &*  P.  A'. 
Co.  V.  ro/Jt,  1 5 1  6^.  S.  73. 

(2)  Illustrations. — The  court  charged  that 
it  was  the  duty  of  plaintifl  on  getting  on 
defendant's  car  to  use  reasonable  care  to 
put  himself  into  as  safe  a  place  as  he  could 
procure.  //<•/</,  that  if  it  was  error  to  so 
charge,  the  error  was  cured  by  a  charge  that 
if  liiere  was  room  on  the  front  platform  it 
was  plaintiff's  duty  to  take  his  position 
there.  Bruno  v.  Brooklyn  City  R.  Co.,  5 
Misc.  327,  25  A'.  J^'.  Supp.  507,  55  A'.  Y.  S. 
R.  215. 

An  instruction  that  a  railway  company  is 
under  no  obligation  to  its  employes  to  pro- 
vide the  best  and  safest  appliances  for  its 
freight  cars,  etc.,  was  modified  by  inserting 
the  word  "  very  "  before  "  best "  and  adding 
the  words  "  that  could  be  produced."  Held, 
that  while  tae  modification  was  improper, 
the  giving  of  other  instructions  for  both 
parties,  which  stated  the  defendant's  duty 
in  this  regard  in  positive  terms,  will  cure 
the  error.  Chicago,  B.  &*  Q.  R.  Co.  v. 
Warner,  123  ///.  38,  14  A^.  E.  Rep.  206; 
affirming  i  1 1ll.  App.  462. 

In  an  action  by  a  brakeman  to  recover  for 
personal  injuries  while  coupling  cars,  the 
allegation  was  that  he  was  injured  by  his 
foot  being  caught  in  a  frog  which  had  never 
been  blocked.  Held,  that  an  instruction  to 
the  effect  that  the  issue  was  whether  the 
frog  was  blocked  at  the  time  of  the  injury 
is  not  reversible  error  where  the  court  fur- 
ther instructed  that  plaintifl  could  not  re- 
cover if  the  frog  had  been  originally  prop- 
erly blocked  and  had  become  defective  by 
use  or  accident.  Union  Pac.  R.  Co.  v. 
/antes,  $6  Fed.  Rep.  looi. 

In  an  action  for  the  injury  of  a  brakeman 
on  the  ground  of  negligence  in  the  con- 
struction of  a  bridge  of  the  defendant,  evi- 
dence that  the  bridge  was  lower  than  usual 
with  other  companies  is  inadmissible  against 
the  defendant,  and  an  instruction  making 
the  defendant's  liability  for  the  injury  de- 
pend on  the  fact  that  such  bridge  was 
lower  than  the  usual  height  of  bridges  is 
erroneous.  But  such  error  may  be  rendered 
harmless  by  an  instruction  for  the  defend- 
ant to  the  effect  that  the  law  fixes  no  exact 
height  or  standard  for  such  bridges,  but  only 


requires  tlicm  to  be  of  such  height  that  the 
employes  can  perform  their  duties  with 
reasonable  safety  to  themselves.  Clex'elnnd. 
C,  C.  &*  St.  L.  R.  Co.  V.  Halter,  147  ///.  60, 
35  A'.  £.  Rep.  529. 

80.  Yerdk't  not  iiifliionccd  by  cr- 
roiieoiiN  cliarift'.— Though  a  charge  of 
the  court  maybe  in  some  respects  incorrect, 
or  present  some  issues  not  raised  by  the 
pleadings,  yet  if  it  appear  affirmatively  from 
the  record  that  the  finding  of  the  jury  was 
not  influenced  by  such  erroneous  charge, 
the  case  will  not  ordinarily  be  reversed. 
Houston,  E.  &*  W.  T.  R.  Co.  v.  Hardy.  61 
Tex.  230. 

When  the  record  shows  that  the  verdict 
was  warranted  by  the  pleadings,  and  was 
not  outside  the  issues  made,  abstract  error 
in  the  charge  not  appearing  to  have  affected 
the  verdict  is  no  ground  for  reversal.  ///// 
V.  Gulf,  C.  *S«  S.  F.  R.  Co.,  80  Tex.  431,  15  .V. 
W.  Rep.  1099. 

An  erroneous  charge  will  not  be  ground 
for  reversal  when,  under  the  evidence  ad- 
duced, no  other  conclusion  than  that  reached 
could  have  been  legally  and  correctly  arrived 
at.  Dargan  v.  Pullman  Palace  Car  Co., 
(Tex.  App.)  26 A /n.  &•  Eng.  R.  Cas.  149. 

The  appellate  court  will  not  reverse  a 
judgment  where  the  verdict  is  in  accordance 
with  the  law  and  the  weight  of  evidence, 
though  there  may  have  been  some  inac- 
curacies in  the  charge  of  the  trial  court,  but 
not  on  any  controlling  question.  Boston  v. 
Georgia  R.  Co.,  63  Ga.  164. 

The  law  does  not  presume  that  a  jury  in 
a  negligence  case,  which  found  a  verdict  for 
the  plaintiff  notwithstanding  erroneous  in- 
structions by  the  court  upon  the  law  of 
negligence,  were  prejudiced  thereby  in  their 
assessment  of  damages.  Kalembach  v. 
Michigan  C.  R.  Co.,  50  Am.  &*  Eng.  R.  Cas. 
1 5,  87  Mich.  509,  49  A^.  W.  Rep.  1082. 

Where  by  a  special  verdict  the  jury  find 
that  an  accident  was  caused  by  the  defend- 
ant's neglect,  and  that  the  plaintiff  was  not 
guilty  of  any  contributory  negligence,  the 
error,  if  any,  in  an  instruction  from  which 
the  jury  might  possibly  have  inferred  that 
the  plaintiff  might  recover  even  if  guilty  of 
contributory  negligence,  is  immaterial. 
Hinton  v.  Cream  City  R.  Co.,  65  Wis.  323, 
27  A^.  W.  Rep.  147. 

Where  an  adjoining  landowner  sues  a 
railroad  company  for  damages  to  his  laiui 
caused  by  flooding  it,  and  the  verdict  is  for 
a  sum  less  than  the  evidence  shows  him 


m 


AFI'EAL   AND   ERROR,  87-80. 


418 


lat  tlic 

with 

'f/iini/, 

III.  60, 


cUurly  entitlod  to  for  the  flooding  alone, 
it  will  not  be  disturbed  because  the  court 
improperly  submitted  other  issues  to  the 
jury,  such  as  damages  by  tramping  his  land, 
etc.  Texas  C.  A'.  Co.  v.  Clifton,  2  Tex.  App. 
{Civ.  Cas.)  433. 

87.  Errors  cured  by  venllct.— Where 
in  an  action  for  killing  cattle  the  complaint 
alleged  that  the  defendant  had  failed  to 
fence  its  road  as  required  by  law,  so  that 
the  cutilc  in  question  couH  and  did  stray 
upon  the  railroad,  but  failed  to  allege  that 
said  cattle  were  killed  by  a  train  of  cars  on 
defendant's  road.  Held,  that  even  if  the 
complaint  was  defective  (as  to  which  point 
quicrc)  the  defect  was  cured  by  verdict  and 
judgment,  and  could  not  betaken  advan- 
tage of  on  appeal.  Baltimore,  O.  cS-  C.  R. 
Co.  V.  Kreiger,  13  Am.  &*  Eng.  R.  Cas.  602, 90 
Imi.  380. 

88.  Informal  verdict  or  fliidiii{;8.— 
Where  a  company  is  sued  in  two  counts, 
one  for  negligently  killing  a  horse  and  the 
other  for  destroying  property  by  fire,  it  is 
not  reversible  error  for  the  jury  to  return  a 
verdict  for  the  plaintiff  without  showing 
under  which  count  it  is.  Chicago  &*  A.  R. 
Co.  V.  Elmore,  32  ///.  App.  418. 

Where  a  complaint  charges  a  railroad 
company  as  liable  for  goods  lost  as  a  com- 
mon carrier,  a  verdict  showing  that  it  is 
liable  as  a  warehouseman,  if  supported  by 
the  evidence,  will  not  be  set  aside.  Hoyt  v. 
Nevada  County  N.  G.  R.  Co.,  68  Cat.  644,  10 
Pac.  Rep.  187. 

In  an  action  by  an  abutting  owner  against 
an  elevated  railway,  the  trial  court  found  as 
a  fact  that  the  construction  and  operation 
of  the  road  had  caused  a  diminution  in  the 
rental  value  of  plaintiff's  property,  causing 
damages  to  the  amount  of  $5198.  The 
appellate  court  found  that  this  conclusion 
was  sustained  by  the  evidence.  At  the 
request  of  the  defendant  the  trial  court 
also  found  that  the  evidence  did  not 
establish  any  definite  amount  of  damage  for 
which  any  judgment  could  be  rendered. 
The  defendant  claimed  that  the  two  findings 
were  inconsistent,  and  that  therefore  the 
judgment  should  be  reversed.  Held,  that 
as  the  first  finding  was  supported  by  the  evi- 
dence, and  the  second  was  a  mere  naked 
conclusion  of  law  not  supported,  it  was  not 
ground  for  reversal.  Welsh  v.  Metropolitan 
El.  R.  C0..2S/.&'  S.  (N.  y.)  408.  8  N.  y. 
.S////.  492,  29  A',  y.  S.  R.  511.  -Quoted  in 
Knox  7>,  Metropolitan   El.  K.  Co..  58  Hun 


(N.  Y.)  S17.  36  N-  Y.  S.  R.  2,  12  N.  Y.  Supp. 
848. 

8t>.  CaHCH  where,  on  the  whole, 
JiiMtice  has  been  done.  —  Errurs  in 
charging  the  jury  are  no  groimd  for  revers- 
ing a  judgment  which  is  clearly  right. 
Taylor  v.  Danville,  O.  &*  O.  R.  Co.,  10  ///. 
App.iM. 

The  fact  that  the  trial  court  did  not  em- 
phasize the  rule  as  to  the  highest  degree  of 
care,  skill,  and  prudence  required  on  the 
part  of  the  company  did  not  furnish  a 
ground  for  reversal,  as,  in  view  of  the  un- 
contradicted testimony  in  the  case  as  to  the 
injury  having  been  caused  by  the  criminal 
act  of  a  stranger,  it  was  only  necessary  ti 
inquire  whether  defendant  had  rebutted 
the  presumption  of  negligence  which  arose 
from  the  fact  of  the  injury.  Fredericks  v. 
Nortl.  rn  C.  R.  Co.,  (Pa.)  58  Am.  &*  PS/ig. 
R.  Cajr.  41.— Quoting  Spear  z/.  Philadelphia, 
W.  &B.  R.  Co.,  119  Pa.  St.  61. 

Nor  did  the  fact  that  the  court  expressed 
its  opinion  that  the  precautions  taken  by 
the  defendant  were  sufficient  to  relieve  it  of 
the  charge  of  negligence,  constitute  rever- 
sible error  where  the  jury  were  distinctly 
told  that  the  question  was  for  their  decision, 
and  they  were  left  entirely  free  to  act  upon 
their  own  judgment.  Fredericks  v.  Northern 
C.  R.  Co.,  {Pa.)  58  Am.  &*  Eng.  R.  Ca.\.  91. 

Where  the  verdict  against  a  railway  com- 
pany for  killing  stock  by  the  careless  run- 
ning of  a  train  is  satisfactory  to  the  trial 
judge,  and  is  also  satisfactory  to  this  court 
upon  the  substantial  merits)  of  the  contro- 
versy, tested  by  the  evidence  adduced  by  the 
company  itself,  the  case  will  not  be  remanded 
for  a  new  trial  on  account  of  mistakes  or 
inaccuracies  in  the  ciiarge  of  the  court  to 
the  jury.  East  Tenn.,  V.  <S-  G.  R.  Co.  v. 
Barney,  85  Ga.  635,  1 1  S.  E.  Rep.  1028. 

If  the  trial  judge  pronounces  judgment 
against  a  railway  company  for  personal  in- 
juries inflicted  by  its  common-law  negli- 
gence, this  court  will  not  reverse,  though 
deeming  the  judgment  erroneous  upon  the 
reason  stated,  if  the  company  was  liable  for 
non-observance  of  the  statutory  precautions. 
Little  Rock  &*  M.  R.  Co.  v.  Wilson,  90  Tenn. 
-iTi.xd  S.  W.  Rep.  613. 

While  the  testimony  of  a  witness  that  he 
had  fallen  off  the  wall  where  the  plaintiff  was 
injured  was  of  doubtful  admissibility,  unless 
the  testimony  went  further  and  showed  that 
some  responsible  officer  of  the  company 
had  notice  of  tlie  fall,  and  perhaps  then  it 


414 


AIM'KAI,    AM)    liKKOK,  «M)-1)2. 


S 


would  have  been  admissible  only  to  show, 
not  thai  the  witness  fell  and  hurt  himself, 
but  that  it  was  a  dangcruus  place  and  the 
company  iiad  notice  of  it ;  yet,  as  there  is 
no  doubt  that  it  was  a  dangerous  place  and 
that  the  company  ought  to  have  known  it, 
the  admission  of  such  testimony  was  not 
sufficient  to  work  a  reversal.  Central  A'. 
<S-  B.  Co.  V.  Suit'///,  34  Aifi.  &•  Eng.  A',  Cas. 
456,  80  Ga.  526,  5  S.  E.  Rep.  772. 

4.  Objections  not  properly  taken  helmv, 

00.  ObJevtioiiN  to  the  Jiirisdietioii. 

— Whether  a  city  can  sue  a  railroad  com- 
pany at  law  for  the  collection  of  taxe^  is  not 
a  jurisdictional  question  which  can  bt  raised 
at  any  time  ;  it  must  be  raised  in  thi3  court 
below  by  demurrer  or  otherwise.  Daven- 
port V.  Chica^i^o,  R.  I.  &*  P.  R.  Co.,  38  /oiva 

633- 

Suit  was  brought  before  a  justice  against 
a  company  for  killing  stock  for  a  sum  which 
exceeded  the  jurisdiction  of  the  justice,  and 
without  objection  the  case  was  tried  there 
and  taken  on  appeal  to  the  circuit  court, 
which  had  jurisdiction  of  such  cases,  and 
was  there  tried  on  the  merits  without  objec- 
tion. NeM,  that  the  want  of  jurisdiction  of 
the  justice  could  not  be  urged  on  appeal. 
.SoutA  <Sm  A'.  Ala.  R.  Co.  v.  Brown,  53  Ala. 
651,  13  A/n.  Ry.  Rep.  166, 

01.  ObjectioiiM  to  process.— Process 
issued  against  a  railroad  company  was  re- 
turned as  served  upon  " Bush,  a  con- 
ductor." By  leave  of  the  court  the  return 
was  amended  by  inserting  the  Christian 
name  of  the  conductor  in  the  blank,  and  a 
motion  to  quash  the  return  was  overruled. 
On  appeal  it  was  urged  that  the  amended 
return  was  defective  because  it  did  not  show 
service  by  copy,  and  because  it  did  not  show 
service  upon  a  conductor  of  defendant's  road. 
Held,  that,  as  the  objection  made  in  the 
court  below  only  called  attention  to  the  un- 
certainty as  to  the  person  on  whom  it  was 
served,  and  not  to  the  mode  of  service,  such 
objections  could  not  be  made  on  appeal. 
Evansville  &*  C.  R.  Co.  v.  Lawrence,  29 
Ind.  622. 

02.  Objections  relating  to  plead- 
ings.— Where  the  sutficiencyof  a  complaint 
is  tested  for  the  first  time  in  the  appellate 
court,  it  will  be  upheld  if  it  contains  facts 
enough  to  bar  another  action  for  the  same 
cause.  Citizens'  St.  R.  Co.  v.  Willoeby,  {Ind.) 
58  Am.  &>  Eng.  R.  Cas.  485. 

A    complaint    against    the   "Wichita  & 


Southwestern  Company,"  as  a  corpora- 
tion, omitting  the  word  "  railroad,"  bu; 
subsequently  describing  the  corporation  by 
its  full  name,  is  not  ground  for  reversing 
a  judgment  where  no  objection  is  made  in 
the  trial  court.  Atchison,  '/'.  Hh  S.  E.  R. 
Co.  V.  English,  38  Kat,.  1 10, 16  Pac.  Rep.  82. 
In  an  action  against  common  curriers,  an 
objection  that  the  declaration  docs  not  al- 
lege tliiit  the  defendants  were  common  car- 
riers should  be  made  in  the  court  below,  or 
it  is  niH  open  on  u  bill  of  exceptions.  San- 
ford  V.  Housatoni'-  R,  Co.,  11   Cush,  {Mass.) 

«55- 

Under  N.  Y.  act  of  1850,  p.  232,  an  objec- 
tion, where  a  passenger,  who  holds  a  check 
for  lost  baggage  sues,  that  the  compiaint 
does  not  allege  that  he  was  a  passenger, 
cannot  be  i  aised  for  the  first  time  on  appeal. 
Davis  V.  Cayuga  (S~»  S.  R,  Co.,  10  How.  J'r, 
(.V.   K)330. 

Where  there  are  four  counts  in  an  action 
against  a  railroad  for  killing  stock,  all  sim- 
ilar except  as  to  the  description  of  the  stock 
killed,  the  supreme  court  will  not  reverse 
the  cause  because  a  general  judgment  on 
all  the  counts  was  rendered  for  plaintiff, 
wlien  such  question  was  not  brought  before 
the  lower  court  in  the  motion  for  a  new 
trial.  Eickle  v.  St.  Louis,  K.  C.  &*  N.  R. 
Co.,  54  Mo.  219,  12  Am.  Ry.  Rep.  376. — 
Quoted  in  Sweet  v.  Maupin,  65  Mo.  65. 

After  a  trial  on  the  merits  it  is  too  late 
for  the  defendant  then  to  object  that  the 
question  whether  it  had  placed  a  competent 
man  in  charge  of  the  work  was  not  raised 
by  the  pleadings.  Where  pleadings  wouL. 
have  been  amendable  of  course  in  the 
court  below,  the  amendment  will  be  consid- 
ered as  having  been  made.  Trainor  v. 
Philadelphia  &^  R.  R.  Co.,  137  Pa.  St.  148, 
20  Atl.  Rep.  632. 

It  was  objected  that  an  action  against  a 
railroad  company  for  killing  stock  was 
tried  and  presented  to  the  jury  upon  issues 
not  raised  in  the  pleadings.  There  were 
special  exceptions,  but  none  as  to  this  ob- 
jection. Held,  that  the  making  of  specific 
exceptions  in  the  court  below  must  be  re- 
garded as  a  waiver  of  others  not  urged. 
Price  V.  Burlington,  C.  R.  &*  M.  R.  Co.,  42 
Iowa  16. 

In  an  action  against  a  raiload  company 
for  trespass  in  constructing  and  operating 
its  railroad  upon  a  public  street  in  a  citv, 
between  the  centre  thereof  and  plaintiff's 
adjacent  lots,  the  complaint  properly  dc- 


APPEAL   AND    ERROR,  «:»,  »4. 


41.') 


KCribed  the  lots,  and  alleged  that  the  tres- 
pass was  committed  thereon,  but  did  not 
allef^e  plaintiff's  ownership  of  the  fee  to 
the  centre  of  the  street  in  front  of  the  lots, 
The  answer  admitted,  und  the  evidence  at 
the  trial  proved,  that  the  road  was  con- 
structed in  the  street,  but  no  objection  was 
taken  in  the  court  below  on  tlic  ground 
that  the  complaint  failed  to  describe  prop- 
erly the  locus  in  quo,  and  it  appeared  that 
the  defendant  had  not  been  misled  or 
prejudiced  by  the  description  in  the  com- 
plaint. HeiJ,  that  an  objection  to  such 
description  could  not  be  taken  for  the  first 
time  in  the  appellate  court.  Harts  v.  St. 
Paul&*  S.  C.  /i.  Co.,  21  Minn.  358,  18  Aui. 
Ay.  AV/.  430. 

03.  Objections  to  conipcteiioy  of 
jlirurs.— In  an  action  against  a  railroad  to 
recover  damages  to  real  estate  caused  by 
the  location  and  building  of  its  road,  objec- 
tions to  the  competency  of  jurors  on  ac- 
count of  bias  in  favor  of  the  landowner 
must  be  assigned  in  the  motion  for  a  new 
trial,  to  be  available  in  the  supreme  court. 
Hastings  &*  G.  I.  R.  Co.  v.  Ingalls,  1 5  Neb. 
123. — Followed  in  Weir  v.  Burlington  & 
.M.  R.  R.  Co.,  19  Neb.  212. 

04.  Objectioiig  to  competency  of 
evidence. — (i)  General  rules.  —  General 
objections  to  the  admission  of  evidence  are 
sufficient  on  appeal  if  it  appears  that  the 
ground  for  objection  could  not  have  been 
misunderstood,  and,  if  it  had  been  specified, 
the  objection  could  not  have  been  obviated. 
Tozerv.  New  York  C.  6-  H.  R.  R.  Co.,  8 
N.  V.  S.  R.  56.  105  A^.  v.  659,  I  Silv.  App- 
450. 

Where  a  case  is  tried  by  the  court  with- 
out a  jury,  and  there  is  abundant  evi- 
dence, which  is  not  objected  to,  to  sup- 
port the  findings,  an  appellate  court  will 
sustain  a  judgment  where  the  objections 
to  evidence  do  not  sufficiently  point  out 
error  to  enable  the  complaining  party  to 
niise  the  point  intended.  Bohlen  v.  Met- 
ropolitan El.  R.  Co.,  39  A'.  Y.  S.  R.  151, 
14  A^.  Y.  Supp.  378,  27  /.  &*  S.  56s ;  re- 
versed in  133  N.  Y.  677,  mem.;  i\  N.  E.  Rep. 
626.  45  A^.  Y.  S.  R.  931.— Distinguishing 
McGean  ■;•.  Manhattan  R.  Co.,  117  N.  Y.  219, 
27  N.  Y.  S.  U.  337;  Avery  v.  New  York  C. 
R.  &  H.  R.  R.  Co.,  lai  N.  Y.  31.  30  N.  Y.  S. 
R.  471. 

When  on  the  trial  no  objection  was 
made  to  any  evidence  on  which  the  plain- 
tiff relied  to  sustain   his  claim  for  damages, 


and  a  verdict  for  the  plaintiff  showed  the 
special  grounds  on  which  the  jury  rested 
their  verdict,  the  pleadings  being  sufllicient 
to  authorize  such  verdict,  in  support  of 
which  there  was  some  evidence,  tlir  judg- 
ment was  not  reversed  on  appeal.  Houston, 
E.  A-  W.  T.  R.  Co.  V.  Hardy,  61  TV.r.  230. 

Where  the  question  was  a  proper  one  to 
put  to  the  witness  it  is  no  ground  for  a 
new  trial  that  the  answer  was  objectionable, 
when  no  motion  was  made  in  the  court 
below  to  strike  out  the  answer,  Woodiey  v. 
lialtimore  <S-  P.  R.  Co.,  8  Mackey  {D.  C.)  542. 

Whether  it  be  error  or  not  to  allow  a  hus- 
band to  testify  for  his  wife  in  an  action 
brought  by  her  to  recover  damages,  the 
question  cannot  be  raised  for  the  first  time 
on  appeal.  Texas  &*  P.  R.  Co.  v.  Casey,  52 
Tex.  112. 

Where  in  an  action  against  two  defend- 
ants jointly  evidence  was  introduced  tend- 
ing to  establish  a  joint  liability,  it  is  too 
late  to  raise  the  objection  for  the  first  time 
in  this  court  that  evidence  was  suffered 
to  go  to  the  jury  tending  to  prove  negli- 
gence on  the  part  of  one  defendant  only. 
Tierney  v.  Minneapolis  &*  St.  L.  R.  Co.,  21 
A»i.  <S>»  Eng.  R.  Cas.  545,  33  Minn.  311,  53 
Am,  Rep.  35,  23  A^.  W.  Rep.  229. 

Where  a  railroad,  without  objection,  per- 
mits the  introduction  of  evidence  to  show 
that  the  company  had  not  afforded  an  em- 
ploy6  a  safe  place  to  work  and  had  not 
properly  protected  him  against  the  care- 
lessness of  fellow-servants,  the  complaint 
charging  that  he  was  injured  by  reason  of 
the  careless  management  of  the  company's 
train,  without  fault  on  his  part,  it  cannot  be 
objected  after  a  verdict  that  the  evidence 
was  improperly  admitted  as  showing  negli- 
gence not  charged  in  the  complaint.  St. 
Louis,  A.  &-  T.  R.  Co.  v.  Triplett,  54  Ark. 
289,  16  5.  W.  Rep.  266.  15  S.  W.  Rep.  831. 
—Quoting  St.  Louis,  I.  M.  &  S.  R.  Co.  v. 
Harper,  44  Ark.  527. 

Where  evidence  in  relation  to  certain 
damage  is  admitted  without  objection  or 
exception  at  the  trial,  the  propriety  of  in- 
including  such  damage,  if  any,  in  the  assess- 
ment cannot  be  questioned  on  appeal.  Colo- 
rado Midland  R.  Co.  v.  Brown,  47  Am.  &> 
Eiig.  R.  Cas.  164,  15  Colo.  193,  25  Pac.  Rep. 
87. 

(2)  Illustrations. — A  company  when  sued 
for  negligently  causing  the  death  of  a 
minor  pleaded  as  a  defense  a  release  of 
damages  by  the  plaintiff.     Plaintiff  did  not 


•        I 


I-'  ■111®^ 


416 


APPEAL   AND   ERROR,  9.1-07. 


g 

^ 


■'■5'" 

deny  the  execution  of  the  release  in  the 
manner  required  by  Cal.  Code  of  Civ. 
Proc.  §  448,  but  was  permitted  to  prove, 
without  objection,  that  at  the  time  the  re- 
lease was  executed  he  was  not  competent  to 
contract.  The  verdict  being  for  plaintiff, 
defendant  objected  that  there  was  no  issue 
as  to  the  execution  of  the  release,  and  that 
by  failing  to  make  the  affidavit  required  by 
said  section  the  execution  of  the  release 
was  admitted.  //eM,  that  the  question  could 
not  be  raised  in  the  supreme  court,  and  that 
it  was  not  tenable.  Crowley  v.  City  R.  Co. , 
60  Cai.  628. 

A  witness  was  permitted  to  testify  to  the 
condition  of  a  roadbed  of  a  railroad  a  year 
after  an  accident  there.  He  was  on  the  train 
derailed,  and  assisted  the  party  injured  and 
the  other  passengers  out  of  the  wreck,  and 
testified  tnat  he  then  saw  pieces  of  broken 
rail  and  some  rotten  ties,  but  his  attention 
was  not  particularly  directed  to  them,  and 
estimated  the  number  of  rotten  ties  on  the 
roadbed  at  one  out  of  every  five.  It  turned 
ou*  on  cross-examination  that  the  estimate 
was,  in  part  at  least,  based  upon  an  exami- 
nation of  the  ties  and  track  made  by  him 
shortly  before  the  trial.  No  objection  was 
made  on  the  trial  to  this  evidence  or  motion 
to  exclude  the  same.  //<?/</,  that  the  objec- 
tion came  too  late  on  appeal.  Chicago,  P. 
&'S/.  L.  /a.  Co.  V.  Lewis,  145  ///.  67,  33  N. 
E.  Kep.  960. 

A  plaintiff  in  a  suit  for  personal  injuries 
called  two  witnesses,  who  testified  that  tliey 
were  not  present  when  he  was  injured. 
Held,  that  after  this  he  could  not  ask  them, 
for  the  purpose  of  impeaching  their  credi- 
bility, whether  they  had  stated  otherwise  to 
certain  persons ;  and  having  stated  at  the 
time  that  his  object  was  to  impeach  them, 
the  admissibility  of  the  evidence  for  the 
purpose  of  refreshing  their  memories  cannot 
be  considered  on  appeal.  Moore  v.  Chicago, 
St.  L.  <S-  N.  0.  R.  Co.,  9  Am,  &-  Eng.  R.  Cas. 
401,  59  Miss.  243. 

In  an  action  for  personal  injuries  plaintifl 
was  asked  how  much  he  had  earned  in  his 
business  during  the  year  just  preceding  the 
accident,  which  the  defendant  objected  to 
as  immaterial,  irrelevant,  and  incompetent, 
as  not  pleaded,  and  too  speculative  and  re- 
mote, which  was  overruled  and  excepted  to, 
but  no  motion  was  made  to  strike  out  the 
answer.  The  court  limited  the  recovery  to 
pain  and  injiiry.  Held,  that  the  exception 
was  not   well  taken.     Wilson  v.  Brooklyn 


El.  R.  Co.,  30  N.  Y.  S.  R.  240,  9  N.  Y.  Supp. 
"ill ;  affirmed  in  130  A'^,  Y.  675,  ntetn.;  29  A'. 
'E  Rep.  1034,  41  A^.  Y.  S.  R.  952. 

95.  Objections  to  sufliciency  of 
evidence. — The  court  having  ruled  upon 
the  sufficiency  of  the  evidence,  on  a  motion 
that  a  verdict  be  directed  for  the  defendant, 
the  sufficiency  of  the  evidence  to  sustnin 
the  verdict  m^y  be  reviewed  on  an  appeal 
from  the  judgment,  although  no  motion  for 
a  new  trial  had  been  made.  Hefferen  v. 
Northern  Pac.  R.  Co.,  45  Minn.  471,  48  N. 
IV.  Rep.  I,  526. 

The  defendant  cannot  complain  on  appeal 
of  the  failure  of  proof  that  the  animal  entered 
on  the  track  at  a  point  where  it  was  required 
by  law  to  fence,  where  it  did  not  demur  to 
the  evidence  and  the  attention  of  the  trial 
court  was  not  called  to  such  alleged  failure 
of  evidence.  Ringo  v.  St.  Louis,  /.  M.  &-  S, 
R.  Co.,  91  Mo.  667,  10  IVest.  Rep.  268,  4  5 
IV.  Rep.  396. 

Where  an  individual  is  sued  as  being  in 
possession  of,  and  operating  a  railroad,  for 
killing  stock,  and  the  case  is  tried  as  if  it 
was  taken  for  granted  that  he  was  possessed 
of  the  road  and  operating  it,  without  proof 
of  such  facts,  an  objection  that  there  was  no 
proof  that  defendant  operated  the  road,  not 
taken  at  the  trial,  cannot  be  urged  for  the 
first  time  on  p.  motion  for  a  new  trial,  Ben- 
nett V.  Covert,  i^  {/.  C.  C.  P.  SSS- 

96.  Objections  for  variance.  — 
Where  the  question  is  made  on  appeal  that 
there  was  a  variance  between  the  declara- 
tion and  the  evidence,  but  there  was  nn 
objection  made  at  the  trial,  and  it  appears 
that  the  variance  was  such  that  an  amend- 
ment would  have  been  allowed,  if  asked  for, 
so  as  to  conform  the  pleadings  to  the  evi- 
dence, the  matter  will  be  considered  as 
waived  after  verdict.  Illinois  C.  R.  Co.  v. 
Cathey,  70  Miss.  332,  12  So.  Rep.  253. 

97.  Objections  to  counsel's  address 
to  the  Jury.* — When  objectionable  lan- 
guage is  used  by  counsel  in  argument, 
which  it  is  believed  may  improperly  affect 
the  jury,  objection  should  be  made  by  the 
opposing  counsel  at  the  time;  failing  in 
this,  he  cannot  ask  a  reversal  of  the  judg- 
ment for  that  cause,  unless  the  language 
was  plainly  prejudicial  to  an  impartial  trinl. 
Gt4l/,  C.  &*  S.  F.  R.  Co.  v.  Greenlee,  35  Am 
<S-  Eng.  R.  Cas.  425,  70  Tex.  553,  8  5.  IV. 
Rep.  129. 

*See  also  ante,  27,  39,  69, 


ms 


APPEAL   AND   ERROR,  U8-100. 


417 


5«//, 


The  failure  of  counsel  to  call  the  attention 
of  the  court  to.  the  effect  which  improper 
remarks  of  counsel  were  intended  to  have 
upon  the  jury,  with  a  request  that  they  be 
cautioned  against  allowing  the  remarks  to 
influence  their  verdict,  and  the  fact,  as 
shown  by  the  record,  that  the  remarks  seem 
to  have  passed  entirely  from  i.ne  minds  of 
the  jury,  render  the  making  of  the  same 
non-prejudicial  error.  Kirchner  v.  Detroit 
City  R.  Co.,  91  Mich.  400,  51  A^.  W.  Rep. 
1059. 

Objections  to  testimony  must  be  made  at 
the  trial ;  and  an  objection  that  argument 
of  counsel  was  based  on  incompetent  testi- 
<nony  cannot  be  raised  on  appeal  for  the 
first  time.  Sears  v.  Seattle  Con.  St.  R.  Co., 
6  Wash.  227,  33  Pac.  Rep.  389,  1081. 

Where  in  tiie  closing  argument  of  the 
second  trial  of  a  case  plaintiff's  attorney  re- 
ferred to  and  commented  upon  the  testi- 
mony of  witnesses  as  shown  by  the  transcript 
of  their  testimony  given  on  the  former  trial, 
he  is  not  guilty  of  such  misconduct  as  jus- 
tifies a  reversal  of  the  judgment,  although 
such  testimony  was  not  formally  offered  on 
the  second  trial,  if  he  supposed  that  it  had 
been  and  so  treated  it,  and  defendant's  at- 
torney knew  that  he  was  so  treating  it,  but 
made  no  objection.  Pence  v.  Chicago,  R.  I. 
&*  P.  R.  Co.,  42  Am.  <&*  Eng~R.  Cas.  126,  79 
Io7va  389,  44  N.  W.  Rep.  686. 

Where  the  bill  of  exceptions  recites  that 
at  the  trial  plaintiff's  counsel  asserted  that 
the  locality  which  was  exempted  from  the 
operation  of  the  ordinance  regulating  the 
speed  of  moving  trains  was  some  distance 
from  the  place  of  the  accident,  and  this  was 
not  denied  by  defendant's  counsel,  who 
seemed  to  acquiesce  in  the  statement,  the 
fact  that  the  accident  did  not  occur  in  the 
exempted  locality  will  be  taken  to  have  been 
conceded  at  the  trial.  Walsh  v.  Missouri 
Pac.  R.  Co.,  102  Mo.  582,  14  5".  W.  Rep.  873, 
IS  ^'^.  W.  Rep.  757. 

08.  Objections  to  instructions.— A 
verdict  found  on  conflicting  evidence  will 
not  be  disturbed  on  appeal,  where  no  ob- 
jection is  made  to  the  charge  ot  the  court. 
Morgan  v.  New  York  C.  &>  H.  R.  R.  Co.,  23 
A".  Y.  Supp.  197. 

Where  a  defendant  submits  the  question 
of  negligence  to  the  jury  by  an  instruction, 
he  will  be  estopped,  on  appeal  or  error,  from 
claiming  that  there  was  no  proof  of  negli- 
gence. Consolidated  Coal  Co.  v.  Haenni, 
146  ///.  614,  35  N.  E.  Rep.  162. 
I  D.  R.  D.— 27. 


Where  the  defendant's  attorney,  upon  the 
trial,  submitted  to  an  alleged  error  in  the 
charge,  and  encouraged  it  by  preparing  and 
submitting  requests  to  charge  upon  the 
point,  in  which  he  recognized  the  propriety 
of  its  consideration  as  an  element  of  damage, 
it  is  too  late  on  appeal  to  urge  error  in  this 
particular.  Redmond  \.  St.  Paul,  M.  &^  M. 
R.  Co.,  39  Minn.  248,  40  N.  IV.  Rep.  64. 

When  an  exception  is  reserved  to  a  charge 
which  contains  two  or  more  distinct  or  sep- 
arable propositions,  the  attention  of  the 
court  should  be  directed  to  the  precise  point 
of  objection.  An  exception  "  to  this  charge 
and  to  each  part  thereof,  separately  and  suc- 
cessively," will  be  construed  as  a  general 
exception  to  the  entire  charge.  South  &*  N. 
Ala,  R.  Co.  V.  Jones,  56  Ala.  507.— QUOTED 
IN  Mobile  &  M.  R.  Co.  v.  Jurey,  iii  U.  S. 
584. 

Where  suit  is  brought  to  recover  for  in- 
juries to  a  team,  and  no  claim  is  made  in 
the  complaint  for  injury  to  the  harness,  and 
the  evidence  relating  thereto  is  stricken  out 
on  motion  of  defendant,  an  instruction  that 
the  jury  should  allow  for  the  harness,  not 
objected  to  at  the  time,  is  not  reversible 
error.  Leak  v.  Rio  Grande  IV.  R.  Co.,  9 
Utah  246,  33  Pac.  Rep.  1045. 

99.  Objections  to  prayer  for  in- 
structions.—The  plaintiff,  while  going 
over  a  railroad  crossing,  had  his  foot  fast- 
ened in  a  hole  in  a  culvert  which  covered  a 
little  drain  that  ran  along  the  side  of  the 
track.  While  in  this  condition  an  engine 
backed  down  upon  him  and  cut  off  his 
foot.  At  the  trial  the  plaintiff  offered  ten 
prayers,  which  were  all  granted  by  the  court. 
The  defendants  made  objections.  Held, 
that  where  prayers  of  the  opposite  party  are 
excepted  to  only  on  the  ground  of  want  of 
evidence  to  support  them,  the  objection  that 
they  are  incorrect  as  legal  propositions  is 
deemed  waived,  and  will  not  be  considered 
on  appeal.  Baltimore  &•  O.  R.  Co.  v.  Mali, 
28  Am.  6-  Eng.  R.  Cas.  628,  66  Md.  53,  5 
Atl.  Rep.  87. 

1 00.  Necessity  of  request  to  charge. 
— (i)  General  rules. — When  the  statement  of 
the  cause  of  action  and  of  the  defense  made 
by  the  court  in  its  charge  is  correct  as  far 
as  it  goes,  it  is  the  duty  of  a  party  desiring 
further  instructions  to  ask  for  them,  other- 
wise he  cannot  complain  that  they  are  not 
given.  San  Antonio  St.  R.  Co.  v.  Helm,  19 
Am.  6-  Eng.  R.  Cas.  158.  64  Tex.  147. 

In  the  absence  of  a  request  for  a  more 


ti 


418 


APPEAL  AND   ERROR,  lOO. 


»,;' 


specific  charge,  a  judgment,  in  an  action 
against  a  street-car  company  to  recover  for 
personal  injuries  to  a  passenger,  will  not  be 
reversed  on  the  ground  that  no  sufficient 
instruction  was  given  the  jury  by  which  to 
determine  the  da* -ages.  Pederson  v.  Seattle 
Con.  St.  R.  Co.,  6  Wash.  202, 33  Pac.  Rep.  351, 
34  Pac.  Rep.  665. 

Where  a  passenger  sues  for  being  ejected 
from  the  cars  after  he  had  surrendered  a 
ticket,  as  he  claimed,  and  the  defense  is 
made  that  he  was  ejected  because  he  never 
had  or  surrendered  a  ticket,  and  that  he 
was  intoxicated  and  used  unbecoming  lan- 
guage, the  want  of  an  instruction  in  rela- 
tion to  the  right  of  the  conductor  to  remove 
the  plaintiff,  if  intoxicated,  or  using  im- 
proper language,  is  not  the  subject  of  ex- 
ception where  no  request  was  made  for 
such  instruction.  Moore  v.  Fitchburg  R. 
Co.,  4  Gray  (Mass.)  465. 

Where  a  company  is  sued  to  recover  for 
personal  injuries,  and  relies  on  contributory 
negligence  as  a  defense,  after  the  court  has 
properly  instructed  the  jury  as  to  the  "  or- 
dinary care  "  that  the  company  should  use 
to  prevent  injuries,  it  is  not  ground  for  ex- 
ception that  the  court  fails  to  instruct  as  to 
the  effect  of  contributory  negligence,  where 
no  request  is  made  for  such  additional  in- 
struction. Baltimore  &*  O.  R.  Co.  v.  Ba/irs, 
28  Afd.  647.  //art  v.  Charlotte,  C.  &*  A.  R. 
Co.,  33  So.  Car.  427,  12  S.  E.  Rep.  9. 

The  failure  of  the  court  to  define  "  unfit, 
ness  gross  negligence,  and  carelessness," 
which  it  instructed  the  jury  would  author- 
ize a  recovery  by  plaintiff,  is  not  reversible 
error  when  defendant's  counsel  requested 
no  definition  of  such  terms.  Galveston,  //. 
&*  S.  A,  R.  Co.,  V.  Art'spe,  48  Am.  &>  Eng. 
R.  Cas.  350,  81  Tex.  517,  17  5.    W.  Rep.  47. 

Error  cannot  be  predicated  upon  the 
omission  of  the  court  to  define  the  terms 
"diligence,"  "negligence,"  and  "extraor- 
dinary care  "  employed  in  instructions  to 
the  jury  in  an  action  for  personal  injuries, 
when  the  party  complaining  of  such  omis- 
sion has  failed  to  ask  the  court  to  define  the 
terms.  Cogswell  v.  West  St.  &*  N.  E.  Elect. 
R.  Co..  52  Am.  6-  Eng.  R.  Cas.  500, 5  Wash. 
46.  31  Pac.  Rep.  411. 

Instructions  to  the  jury,  defining  negli- 
gence as  "  failure  to  exercise  that  degree  of 
care  which  persons  ordinarily  exercise  under 
like  circumstances,"  and  ordinary  care  as 
"  such  care  and  prudence  as  may  reasonably 
be  expected  of  a  woman  of  the  age  plaintiff 


was  under  tlie  circumstances  in  which  she 
was  placed,"  are  held,  though  somewhat 
meagre,  not  to  be  erroneous,  in  the  absence 
of  any  request  to  make  them  more  full. 
Patrjf  V.  Chicago,  St.  P.,  M.  &•  O.  R.  Co.,  82 
Wis.  408,  52  A^.   W.  Rep.  312. 

(2)  /llustrations. — The  court  below,  at  the 
request  of  the  plaintiff,  instructed  the  jury 
upon  four  separate  and  distinct  proposi- 
tions, the  first  two  containing  only  state- 
ments of  facts  not  disputed,  the  last  two 
propositions  of  law  conceded  to  be  correct. 
//eld,  on  appeal,  that  if  the  defendants 
claimed  that,  in  considering  the  last  two 
propositions  the  jury  had  no  right  to  take 
into  account  the  facts  stated  in  the  first  two, 
and  claimed  that  the  jury  might  have  been 
led  to  do  so  by  the  fact  that  the  court  stated 
those  facts,  they  should  have  asked  the 
court  to  give  such  instruction  as  would 
guard  against  it ;  and,  not  having  done  so, 
they  could  not  insist  upon  the  objection  in 
the  appellate  court.  Hartson  v.  First  Div. 
St.  P.  6-  P.  R.  Co.,  21  Mrnn.  517. 

The  plaintiff,  a  coal-handler,  was  injured 
while  employed  about  an  appliance  for  the 
storage  of  coal,  dangerous  and  unfamiliar 
to  him,  and  placed  in  the  charge  of  a  fel- 
low-employe during  the  temporary  absence 
of  the  regular  foreman,  the  appliance  being 
supplied  by  a  contractor  who  was  to  "erect 
and  operate  it "  at  his  own  expense,  //eld, 
that  the  question  whether  the  temporary 
foreman  was  competent  to  manage  the  ap- 
pliance having  been  fairly  raised  by  the  evi- 
dence, and  the  trial  judge  having  correctly 
.  stated  who  were  fellow-servants,  error  can- 
not be  assigned  to  the  omission  of  specific 
instructions  as  to  the  relation  of  the  fore- 
man to  the  plaintiff,  where  no  request  for 
them  was  made.  Trainor  v.  Philadelphia  &* 
R.  R.  Co.,  137  Pa.  St.  148.  20  Atl.  Rep. 
632. 

Suit  was  prosecuted  against  a  company 
by  parents  for  negligently  causing  the  death 
of  their  son,  who  Wc.;;  an  employ6  of  defend- 
ant. The  court  instructed  the  jury  that  if 
the  death  was  caused  by  the  "unfitness, 
gross  negligence,  and  carelessness  "  of  the 
officers  of  the  company,  then  they  must 
find  for  the  plaintiff.  Held,  that,  in  the  ab- 
sence of  any  request  by  the  defendant  for  a 
definition  of  these  terms,  a  failure  to  so  de- 
fin'j  them  was  not  ground  for  reversal. 
Galveston,  H.  &*  S.  A.  R.  Co.  v.  Arispe,  48 
Atn.  &*  Eng.  R.  Cas.  350,  81  Tex.  517,  17  S. 
W.  Rep.  47. 


APPEAL   AND   ERROR,  101-105. 


419 


101.  Necessity  of  motion  to  direct 

verdict.*— In  the  absence  of  a  request  for  a 
direction  to  find  for  the  defendant,  on  the 
trial  of  an  action  for  personal  injuries,  it  can- 
not be  alleged  that  the  case  should  have  been 
taken  from  the  jury,  on  the  ground  of  con- 
tributory negligence  and  that  the  injury 
was  received  under  a  risk  apparent  and  as- 
sumed by  the  plaintifl  as  incident  to  his 
employment.  Bentley  v.  Cranmer.  137  Pa. 
St.  244,  20  Atl.  Rep.  709. 

102.  Objections  to  findings  of  fact. 
—If  the  conclusions  of  fact  by  the  court 
are  not  sufficiently  full  and  specific,  the  at- 
tention of  the  court  should  be  called  to  the 
defect  by  motion,  exceptions,  or  in  some 
other  proper  method,  otherwise  it  will  not 
be  considered  on  appeal.  The  findings  of 
fact  by  the  court  stand  on  the  same  footing, 
in  this  respect,  as  the  verdict  of  a  jury. 
Gulf,  C.  (S-  5.  F.  Ji.  Co.  V.  Fossett,  66  Tex. 
338,  I  S.  IV.  Rep.  259.— Following  Inter- 
national &  G.  N.  R.  Co.  V.  Smith,  62  Tex. 
252  ;  Belo  V.  Wren,  63  Tex.  727;  Moehring 
V.  Hall,  66  Tex.  240. 

The  referee  found  that  defendant  "  re- 
ceived into  its  care  the  said  plaintiff  and 
his  baggage,  consisting  of  one  trunk  con- 
taining his  personal  effects,"  and  that  the 
value  thereof  was  $554.  These  findings 
wiMc  excepted  to.  It  was  claimed  by  de- 
f  "HJjin,  on  appeal,  that  certain  of  the  arti- 
cles contained  in  the  trunk,  and  included  in 
the  findings,  were  not  in  fact  baggage. 
Held,  that  the  exception  was  not  available 
to  present  the  question  ;  that  it  should  have 
pointed  out  and  designated  the  specific  arti- 
cles claimed  not  to  have  been  properly  in- 
cluded. Ledoux  V.  Grand  Trunk  R.  Co.,  61 
A^.  Y.  613 

103.  Objections  to  the  judgrment. 
— An  objection  that  a  judgment  is  for  a 
greater  amount  than  the  sum  claimed  in  the 
complaint  cannot  be  raised  for  the  first 
time  on  appeal.  Government  St.  R.  Co.  v. 
Hanlon,  53  Ala,  70. 

An  objection  that  a  judgment  against  a 
railroad  company  for  destroying  grain  by 
fire  included  some  grown  on  the  company's 
right  of  way  cannot  be  raised  for  the  first 
time  on  appeal.  Slossen  v.  Burlington,  C. 
R.  <S-  A^.  R.  Co.,  7  Am.  6-  Eng.  R.  Cas.  509, 
10  A^.  IV.  Rep.  860. 

104.  Oltjections  waived  below.— 
Where  a  railroad  company  is  sued  for  per- 


*  See  also  ante,  84. 


sonal  injuries  to  an  employe,  and  after 
plaintiff's  evidence  is  in,  moves  for  a  com' 
pulsory  nonsuit,  which  is  overruled  and  ex- 
cepted to,  the  company  waives  the  benefit 
of  the  exception  by  proceeding  with  its  de- 
fense and  introducing  evidence.  Union 
Pac.  R.  Co. V.Daniels,  152  U.  S.  684,  14  Sup. 
a.  Rep.  756. 

In  an  action  against  a  company  for  kill- 
ing a  brakeman,  where  negligence,  consist- 
ing in  running  the  train  at  loo  great  a  rate 
of  speed,  is  expressly  waived  at  the  trial, 
it  cannot  be  urged,  upon  appeal,  as  a  cir- 
cumstance of  negligence,  that  the  omission 
of  the  defendant  to  place  a  signal  "  caused 
the  increased  rate  of  speed."  Moran  v.  New 
York  C.  &*  H.  R.  R.  Co.,  67  Barb.  (/V.  K.) 
96,  3  T.  &*  C.  770. 

The  defendant's  point,  that  the  animal 
was  abandoned  by  the  plaintiff  owner  with- 
out proper  care  o«-  attention,  which  might 
have  lessened  the  amount  of  the  injury,  is 
not  proper  to  be  considered  for  a  reversal, 
when  no  evidence  was  offered  to  show  that 
the  damages  could  have  been  mitigated  by 
such  care  and  attention,  and  the  matter  was 
not  brought  to  the  attention  of  the  trial 
court  by  instruction  offered  or  otherwise. 
Jackson  V.  St.  Louis,  I.  M.  &»  S.  R.  Co.,  36 
Mo.  App.  170. 

105.  Necessity  of  motion  for  new 
trial  below.— The  objection  that  there  is 
no  evidence  to  support  the  verdict  cannot 
be  raised  in  the  supreme  court  where  there 
has  been  no  motion  for  a  new  trial  in  the 
lower  court.  Byrne  v.  Minneapolis  <S~»  St.  L. 
R.  Co.,  2^  Minn.  200.  12  A^.  W.  Rep.  698. 

The  fact  that  the  damages  may  be  exces- 
sive is  no  ground  for  reversal  of  a  judgment 
when  not  made  the  ground  of  a  motion  for 
a  new  trial,  nor  assigned  as  error  on  appeal. 
Chicago  &*  A.  R.  Co.  v.  Glinny,  19  ///,  App. 
639.  Ottawa,  O.  <S-  F.  R.  V.  R.  Co.  v. 
McMath,  1  ///.  App.  429.  Webster  v.  Cedar 
Rapids  (S-  St.  P.  R.  Co.,  rj  Iowa  315.  Riden- 
hour  V.  Kansas  City  Cable  R.  Co.,  102  Mo. 
270,  135.  W.  Rep.  889.  14  5.  W.  Rep.  760. 
Chicae^o,  S.  F.  &-  C.  R.  Co.  v.  Vivian,  33  Mo, 
App.'iZy 

In  an  action  by  a  person  injured  by  a 
moving  train  at  a  street  crossing,  where 
contributory  negligence  was  relied  upon  as 
a  defense,  and  the  issue  was  so  made  that 
the  pK'  intiff  might  have  shown  wilful  negli- 
gence upon  the  part  of  the  company,  and 
thus  have  avoided  the  effect  of  his  own  con- 
tributory negligence,  the  court  on  its  own 


fi  -^i 


420 


APPEAL   AND   ERROR,  100-107. 


motion  so  instructed  the  jury,  and  submitted 
special  findings  so  as  to  leave  to  their  con- 
sideration only  the  questions  of  negligence 
of  the  company  on  the  one  hand,  and  of 
contributory  negligence  of  tiie  plaintiff  on 
the  other,  which  was  excepted  to,  but  not 
made  the  basis  of  a  motion  for  a  new  trial. 
Held,  that  the  error  of  the  court  in  tlius 
narrowing  the  issue  as  submitted  to  the  jury 
was  waived  by  not  including  it  in  the  motion 
for  a  new  trial.  Gaffney  v.  Pennsylvania  R. 
Co.,  {Ky.)  I  .b'.  W.  Rep.  677. 

106.  What  objections  may  be  first 
made  on  appeal. — The  question  of  the 
jurisdiction  of  the  district  court  of  an  action 
against  a  railroad  company  for  violation  of 
a  city  ordinance  may  be  raised  for  tiic  first 
time  in  the  supreme  court.  Lansing  v.  Chi- 
cago, M.  6-  St.  P.  R.  Co.,  85  Iowa  215,  52  A^. 
W.  Rep.  195. 

Where  a  landowner  sues  a  railroad  com- 
pany for  the  value  of  land  taken  for  right  of 
way,  and  the  value  of  rocks  taken  there- 
from, an  objection  that  the  petition  does 
not  state  facts  constituting  a  cause  of  action 
may  be  raised  on  appeal  for  the  first  time. 
Childs  V.  Kansas  City,  St./.  &*  C.  B.  R.  Co., 
{Mo.)  17  S.  IV.  Rep.  954. 

107.  Various  applications  ol'  the 
rule. — Where  a  record  shows  that  a  rail- 
road company  appeared  by  attorney  in  the 
court  below,  and  consented  to  the  fore- 
closure of  a  mortgage  on  its  road,  on  appeal 
such  appearance  and  consent  must  be  taken 
as  facts ;  if  the  attorney  was  not  authorized 
to  so  appear  and  consent,  his  want  of  author- 
ity can  only  be  taken  advantage  of  in  the 
court  below.  Pacific  R.  Co.  v.  Ketchum,  loi 
U.  S.  289. 

Where  the  question  of  the  joint  liability 
of  two  railway  companies  is  not  raised  in 
the  trial  court  by  exception  to  the  ruling 
of  the  court  in  relation  to  the  exclusion  or 
admission  of  evidence,  by  an  instruction  to 
the  jury,  either  given  or  asked,  or  by  any 
points  made  in  the  defendants'  motion  for  a 
new  trial,  it  cannot  be  considered  by  this 
court.  Chicago,  M.  &•  St.  P.  R.  Co.  v. 
Darhe,  148  ///.  226,  55  A':  E.  Rep.  750. 

The  question  whether  the  plaintiff  was 
negligent,  in  placing  her  property  on  the 
front  platform  of  the  car,  and  the  point 
that  she  did  not  in  fact  part  with  the  cus- 
tody of  the  box,  and  so  cannot  charge  the 
defendants  with  her  loss,  are  not  open  to 
the  defendants  upon  thtse  exceptions,  for  it 
does  not  appear  that  any  such  question  was 


raised  or  point  made  at  the  trial.  Levi  v. 
Lynn  &*  B.  R.  Co.,  11  Allen  {Mass.) 
300. 

The  supreme  court  has  no  jurisdiction  of 
a  cause  on  the  ground  that  it  involves  the 
construction  of  the  constitution  of  the 
United  States  or  of  this  state,  unless  the 
record  as  it  existed  when  the  case  was  ap- 
pealed shows  that  the  constitutional  ques- 
tion was  fairly  and  directly  raised  in  the 
trial  court  by  some  of  the  methods  recog- 
nized by  the  practice  and  procedure  of  the 
court.  Bennett  v.  Missouri  Pac.  R.  Co.,  105 
Mo.  642,  16  5'.  IV.  Rep.  947. 

The  question  whether  it  was  the  custom 
of  the  company  to  deliver  cars  at  any  earlier 
hour  than  the  one  at  which  they  were  fur- 
nished cannot  be  raised  for  the  first  time 
on  appeal.  McGrew  v.  Missouri  Pac.  R. 
Co.,  109  Mo.  582,  195.  W.  Rep.  S3. 

The  position  (if  the  facts  would  sustain 
it)  that  the  managers  of  the  train  were  run- 
ning it  in  accordance  with  the  regulations 
of  the  defendants,  and  that  negligence  was 
not  therefore  to  be  imputed  to  the  man- 
agers but  to  their  principals,  could  not  be 
urged  on  appeal,  it  not  having  been  pre- 
sented to  the  judge  on  the  trinl,  or  passed 
upon  by  him.  Coon  v.  Syracuse  &*  U.  R. 
Co.,  5  A'^  Y.  492/  ajirmingd  Barb.  231. 

Where  an  action  to  recover  for  the  alleged 
impairment  of  an  easement  of  light,  air,  and 
access  appurtenant  to  plaintiff's  land  from 
the  construction  and  operation  of  an  ele- 
vated railway  was  tried  upon  the  assump- 
tion that  plaintif!  had  either  a  fee  or  an 
easement  in  the  street,  and  the  litigation 
was  confined  to  the  question  of  damages, 
and  the  point  that  plaintiff  did  not  own  the 
fee  or  an  easement  was  not  taken  on  the 
trial,  it  is  too  late  to  raise  the  point  on  ap- 
peal. Drucker  v.  Manhattan  R.  Co.,  30  Am. 
&'Eng.  R.  Cas.  418,  106  N.  Y.  157,  \2N.E. 
Rep.  568,  8  A^.  Y.  S.  R.  599;  affirming  19/. 
&-  S.  429. 

In  the  absence  of  any  exception  taken  in 
the  trial  court,  a  judgment  in  favor  of  an 
abutting  owner  against  an  elevated  railway 
company,  awarding  in  one  action  damages 
for  which  two  actions  might  properly  have 
been  brought,  will  not  be  reversed  and  just- 
ice thereby  delayed.  Mitchell  v.  Met,  )/>oli- 
tan  El.  R.  Co.,  4  Silv.  App.  {N.  Y.)  82. 

Where  an  infant  passenger  is  injured  and 
sues  for  damages,  the  question  of  his  right 
to  recover  for  a  diminished  power  to  earn 
money  during  minority  cannot  be  raised  on 


APPEAL   AND    liRROK,   lOK-llO. 


Vn 


A'. 


appeal  for   the    first    time.    Richmond  v. 
Second  Ave.  R.  Co.,  27  N.  Y.  Supp.  780. 

When  there  is  a  mistrial  of  a  cause  and 
tlie  jury  is  discharged,  the  cause  may  be 
again  tried  at  the  same  term,  and  no  objec- 
tion on  account  of  such  second  trial  can  be 
considered  on  appeal,  unless  .  motion  was 
made  in  the  court  below  to  continue  for  the 
term  or  postpone  to  a  later  day  in  the  term. 
Texas  &~  P.  R.  Co.  v.  Garcia,  2i  Am.  &•  Eng. 
R.  CrtJ. '384,  62  Tex.  285. 

Where  a  party  does  not  insist  on  his  right 
to  arbitrate,  but  goes  to  trial  on  the  merits, 
the  error  in  refusing  an  arbitration  cannot 
be  raised  on  appeal.  London,  C.  &*  D.  R, 
Co.  V.  South  Eastern  R.  Co.,  40  Ch.  D.  100. 

A  suit  to  recover  damages  to  adjacent 
property,  caused  by  the  location  and  opera- 
tion of  a  railroad,  was  tried  by  both  parties 
on  the  theory  that  plaintifT  was  entitled  to 
recover  any  diminution  in  the  value  of  his 
property  caused  by  such  location  and  oper- 
ation. Held,  that,  if  the  suit  was  not  tried 
on  the  correct  theory,  neither  party  could 
take  advantage  of  it  on  appeal.  Chicago  &* 
G.  IV.  R.  Co.  V.  IVede/,  44  ///.  App.  215. 

Ill  an  action  to  recover  damages  to  plain- 
tiff's premises  caused  by  the  maintenance 
and  operation  of  defendant's  road,  the  de- 
fendant claimed  upon  appeal  to  this  court 
that  the  premises  being  in  the  possession  of 
tenants  under  plaintiff,  he  could  not  main- 
tain the  action.  No  such  defense  was 
pleaded,  nor  was  the  question  in  any  man- 
ner raised  upon  the  trial.  He/d,  that  the 
point  could  not  be  considered  in  the  court 
of  appeals.  Post  v.  Manhattan  R.  Co.,  125 
125  M  Y.  697,  26  A^.  E.Rep.  14,  3  Silv.App. 
274,  34  A^.  Y.  S.  R.  590 ;  affirmine:  23  N.  Y. 
S.  R.  1007. 

Where,  under  N.  C.  Rev.  Code,  ch.  17,  § 
7,  in  a  proceeding  by  a  warrant,  upon  an 
appeal  to  the  superior  court,  a  verdict 
was  taken  for  the  value  of  an  animal 
killed  on  a  railroad— ^^W,  that  it  was  too 
late  to  take  the  objection  in  the  appellate 
court  that  the  judgment  of  the  justice  of 
the  peace  was  rendered  without  a  valuation 
of  the  animal  by  freeholders.  Aycock  v. 
Wilmington  &*  W.  R.  Co.,  6  Jones  (N. 
Car.)  231. 

5.  Matters  not  apparent  on  the  record. 

108.  TlieKeueral  rule.— The  supreme 
court  cannot  revise  the  action  of  the  courts 
below  on  account  of  facts  not  included  in 
the  case.     Chicago,  M.  &*  St.  P.  R.  Co.  v. 


Wilson,  42  Am.  &*  Etig.  R.  Cas.  153,  133  ///. 
55,  24  A'^,  E.  Rep.  555  ;  affirming  35  ///.  App. 
346. 

The  appellate  court  will  not  entertain  an 
appeal,  in  an  action  against  a  carrier  for  in- 
juries to  a  horse  while  in  transit,  where  the 
abstract  does  not  contain  the  substance  of 
the  record  as  to  the  parts  assigned  as  error. 
Chicago  &*  G.  T.  R.  Co.  v.  Crolie,  33  ///.  App. 

17- 

109.  SuflBciency  of  the  record, 
generally.— Courts  will  take  judicial  no- 
tice of  the  public  laws  of  the  state,  and  they 
need  not  be  specially  pleaded  or  inserted  in 
the  record  on  appeal,  and  this  is  so  of  a 
public  act  incorporating  a  railroad  com- 
pany. Cincinnati,  H.  <S-  /.  R.  Co.  v.  Clifford, 
33  Am.  iS-  Eng.  R.  Cas  81,  113  Ind.  460,  13 
West.  Rep.  384,  1 5  N.  E.  Rep.  524. 

Where  the  record  shows  the  filing  of  a 
demurrer  to  certain  paragraphs  of  an 
answer,  but  does  not  show  any  ruling  of 
the  court  thereon,  or  that  any  reply  was 
filed,  no  question  arises  as  to  the  sufficiency 
of  the  answer,  and  the  presumption  is  that 
the  defendant  waived  a  reply.  Jeff'erson- 
ville,  M.  &*  I.  R.  Co.  v.  In>in,  46  Ind.  180. 

The  supreme  court  cannot  pass  on  the 
effect  of  misconduct  of  counsel  below,  when 
the  only  reference  thereto  in  the  record  is 
in  the  form  of  a  statement  contained  in  the 
motion  for  a  new  trial.  Gray  v.  Chicago, 
M.  &»  St.  P.  R.  Co.,  7S  Iowa  100,  39  N.  W. 
Rep.  213. 

That  the  attention  of  the  court,  on  a 
motion  for  a  new  trial,  was  called  to  the 
fact  that  defendant  had  accepted  the  provi- 
sions of  the  act  of  April  4,  1868,  P.  L.  58, 
limiting  the  liability  of  railroad  companies 
to  $5000  in  case  of  death  caused  by  their 
negligence,  it  not  having  been  offered  in 
evidence  on  the  trial,  does  not  put  it  upon 
the  record.  In  such  case  the  supreme 
court  will  not  pass  upon  the  effect  of 
Article  III,  §  3,  of  the  constitution,  on  the 
acceptance  of  said  act  by  defendant.  Phila- 
delphia, W.  6-  B.  R.  Co.  V.  Conway.  112  Pa. 
St.  511,4  Atl.  Rep.  362. — Explaining  Lang- 
don  V.  Pennsylvania  R.  Co.,  92  Pa.  St.  21. 

110.  or  of  recitals  therein.— 

Where  a  railroad  company  and  another  are 
sued,  a  record  of  the  trial  court  reciting 
that  "the  defendants  were  severally  duly 
called,  but  came  not,  nor  either  of  them," 
is  sufficient  to  show  that  the  company  was 
not  present  by  attorney  or  otherwise.  Union 
Pac.  R.  Co.  v.  Horney,  5  Kan.  340. 


423 


APPEAL   AND   ERROR,  111-113. 


In  an  action  to  recover  damages  for  flood- 
ing plaintiff's  land,  a  judgment  entry, 
"  General  demurrer  to  plaintiff's  trial  amend- 
ment, overruled.  Sjiecial  exceptions,  except 
the  one  of  injury  to  the  cattle,  overruled," 
is  too  indefinite  to  show  what  exce|)tion 
was  sustained,  if  any,  where  several  were 
made  relating  to  the  same  subject-matter. 
Broussard  v.  Sabine  &*  li.  T.  R.  Co.,  75  Tex. 
702.  13  .S".  \\\  Kep.  68. 

111.  Wliiit  must  appear  in  the 
record,  generally. — The  court  of  appeals 
will  review  upon  appeal  the  determination 
of  the  courts  below,  even  upon  a  discretion- 
ary order,  where  it  appears  that  the  decision 
was  based  on  the  ground  of  the  want  of 
power  to  grant  the  application ;  and  where 
the  order  is  not  intelligible  without  reading 
the  opinion  filed  below,  and  it  constitutes  a 
part  of  the  record,  the  court  will  look  to  it, 
where  it  is  referred  to  in  the  order,  and 
shows  that  the  motion  was  denied  upon 
the  ground  stated  in  such  opinion.  Tol- 
man  v.  Syracuse,  B.  &*  N.  Y.  H.  Co.,  92  N. 
y-  353;  reversing  2<)  Hun  143. 

Improper  language  of  counsel  in  his  argu- 
ment to  the  jury  will  not  be  considered 
when  only  shown  by  affidavits.  The  ob- 
jectionable language  should  be  in  the  record. 
Ray  burn  v.  Central  Iowa  R.  Co.,  74  fowa 
637. — Followed  in  Fowler  v.  Strawberry 
Hill,  74  Iowa  644. 

An  objection  that  municipal  bonds  sued 
on  were  not  stamped  as  required  by  the 
United  States  revenue  laws  cannot  be  con- 
sidered when  the  bill  of  exceptions  in  the 
case  is  silent  as  to  whether  they  were 
stamped  or  not.  Chambers  County  v.  Clews, 
21   WalliU.  S.)3i7. 

Error  of  the  court  in  refusing  to  dismiss 
an  action  of  trespass  on  the  ground  that  the 
same  elements  of  damage  were  passed  upon 
and  paid  for  in  a  proceeding  to  coriemn  the 
land,  cannot  be  urged  upon  appe  I  unless 
so  mucii  of  the  proceedings  of  the  uit  for 
condemnation  are  brought  up  as  is  neces- 
sary to  show  that  the  grounds  upon  which 
recoveries  were  had  in  the  two  suits  were 
identical.  Downs  v.  Seattle  &*  M.  R.  Co.,  5 
IVasA.  778,  32  Pac.  Rep.  745.  33  Pac.  Rep. 

973- 

Where  witnesses  in  testifying  refer  to  a 
map  used  on  the  trial,  and  without  which 
their  testimony  is  unintelligible,  if  an  ap- 
pellant desires  this  court  io  consider  the 
weight  of  such  evidence,  the  map  should  be 
returned,  with  the  places  and   objects  to 


wiiich  the  witnesses  referred  identified,  so 
as  to  make  the  evidence  intelligible.  La/- 
son  V.  Northern  Pac.  R.  Co.,  33  Minn.  20,  21 
^V.  W.Rep.^id. 

Plaintiff  sued  for  the  killing  of  a  horse  in 
two  paragraphs  or  counts,  and  a  demurrer 
was  sustained  to  the  first,  but  damages  were 
assessed  and  judgment  rendered  for  plain- 
tiff. Held,  that  it  was  The  right  of  tlie 
defendant  to  ask  the  court  to  instruct  the 
jury  to  assess  damages  only  under  the  good 
paragraph  ;  but  where  the  record  on  appeal 
is  silent  on  that  point,  the  court  will  pre- 
sume that  such  course  was  taken,  and  will 
therefore  sustain  the  judgment.  Indian- 
apolis, P.  &•  C.  R.  Co.  V.  TaJ'e,  11  Ind.  458. 
— F'OLLOWED  IN  Indianapolis,  P.  &  C.  R. 
Co.  V.  Keeley,  23  Ind.  133. 

In  an  action  by  a  conductor  of  a  street  car 
to  recover  for  injuries  received  by  collidin<j 
with  a  truck,  the  nature  of  the  relation  be- 
tween the  driver  of  the  truck  and  the  con- 
ductor was  not  shown,  but  it  appeared  that 
the  latter,  by  means  of  signals  to  the  former, 
stopped  the  car  to  let  off  and  take  on  pass- 
engers, but  there  was  nothing  to  show 
whether  the  driver  was  otherwise  subject  to 
the  orders  of  the  conductor  or  under  his 
control.  Held,  that  the  court,  on  appeiil, 
could  not  take  judicial  notice  of  their  rela- 
tions for  the  purpose  of  reversing  a  judg- 
ment. Seaman  v.  Koehler,  3  Silv.  App.  (A'. 
Y.  ivj. 

112.  Record  must  show  groiiiids 
of  decision  below. — The  Missouri  su- 
preme court  has  not  appellate  jurisdiction 
in  a  common-law  action  for  damages  in  the 
sum  of  $100,  where  the  petition  alleges  the 
delivery  of  certain  goods  to  the  defendant 
for  shipment  as  a  common  carrier  to  another 
state,  the  subsequen'  loss  thereof,  and  the 
defendant's  failure  to  deliver  to  plaintiff  at 
their  destination  ;  and  the  answer  alleges  a 
contract  of  shipment  to  the  end  of  defend- 
ant's line  within  the  state  and  to  forward 
the  goods  by  connecting  lines,  and  avers 
full  performance  on  its  part,  the  record  not 
disclosing  the  grounds  upon  which  the  trial 
courr  based  its  finding.  Nail  v.  Wabash, 
St.  L.  &•  P.  R.  Co.,  97  Mo.  68,  10  S.  IV.  Rep. 
610.— Reviewed  in  Wabash  W.  R.  Co.  v. 
Siefert,  41  Mo.  App.  35. 

1 13.  When  the  evidence  must  ap- 
pear in  the  record.— Where  a  writ  of 
error  is  taken  upon  a  judgment  on  a  verdict, 
the  paper- book  of  plaintiff  in  error  should 
contain  the  whole  of  the  evidence  properly 


ficd,  s(i 

Lai- 

20,  21 


AIMM'AL    AND    ERROR,  114,115. 


423 


certified;  and  wlicrc  it  contains  only  disputed 
and  uncertified  extracts  from  tiie  testimony, 
the  judgment  will  be  affirmed.  Oakland  R. 
Co.  V.  Thomas,  i  Pennyp.  {Pa.)  435. 

Where  the  case  is  tried  before  the  court 
and  a  jury,  and  the  jury  render  a  general 
verdict  and  make  special  findings,  and  tlie 
special  findings  appear  tobe  slightly  ambigu- 
ous, but  do  not  appear  to  be  in  conflict  with 
the  general  verdict,  and  the  court  renders 
judgment  in  accordance  with  the  general 
verdict,  in  the  absence  of  the  evidence  in 
the  supreme  court  the  judgment  of  the 
court  below  will  not  be  reversed.  St.  Lout's, 
Ft.  S.  &»  W.  R.  Co.  v.  Noble,  43  Kan.  310,  23 
Pac.  Rep.  438. 

Where  the  demand  is  not  liquidated,  or 
where  the  law  does  not  fix  the  measure  of 
damages,  a  writ  of  inquiry  must  be  executed 
and  the  damages  sustained  must  be  shown 
by  proof,  and  this  must  appear  upon  the 
record  on  appeal.  Snider  v.  St.  Louis,  I.  M. 
&>  S.  R.  Co.,  7  Am.  &*  Eng.  R.  Cas.  558,  73 
Mo.  465.— Followed  and  distinguished 
IN  Boswell  V.  St.  Louis,  I.  M.  &  S.  R.  Co.. 
73  Mo.  470. 

Under  §  242  of  the  Montana  Code  of  Civil 
Procedure,  a  direction  to  the  jury  to  find 
for  the  defendant,  on  the  ground  of  plain- 
tiff's contributory  negligence,  is  a  nonsuit, 
and  if  an  appeal  be  taken  by  plaintiiT  from 
the  direction  of  the  court  he  must  incorpo- 
rate his  evidence  in  the  record.  McKay  v. 
Montana  Union  R.  Co.,  {Mont.)  31  Pac.  Rep. 

999. 

The  failure  of  a  jury  to  determine  the 
question  of  contributory  negligence,  whefe 
the  same  is  made  an  issue,  is  only  ground  for 
the  reversal  of  a  judgment  where  the  record 
contains  evidence  tending  to  show  such  con- 
tributory negligence.  McNarra  v.  Chicago 
&>  N.  IV.  R.  Co.,  41   IVis.  69. 

Although  the  refusal,  at  the  close  of  plain- 
tiff's  testimony,  in  a  suit  against  a  railroad 
for  personal  injuries,  to  direct  a  verdict  for 
defendants  would  justify  a  reversal  of  a 
judgment  against  them,  yet  if  they  proceed 
with  their  defense  and  introduce  testimony 
which  is  not  in  the  record,  the  judgment  on 
the  verdict  which  the  jury,  under  proper  in- 
structions, find  against  them  will  not  be  re- 
versed on  account  of  that  refusal.  Grand 
Trunk  R,  Co.  v.  Cummings,  1 1  Am.  &*  Eng. 
R.  Cas.  254,  12  Am.  &*  Eng.  R.  Cas.  204, 106 
U.  S.  700,  I  Sup.  Ct.  Rep.  493. 

Where  a  company  was  enjoined  from  lay- 
ing its  track  over  certain  lands,  but  the  in- 


junction was  subject  to  be  dissolved  on  pay- 
ing certain  damages  awarded  to  the  land- 
owner, and  the  case  is  appealed,  the  supreme 
court  has  a  right  to  hear  evidence  outside  of 
the  record,  to  show  that  such  award  has  been 
paid  and  the  case  settled ;  and  it  appearing 
by  such  evidence  that  the  matters  in  dispute 
had  been  settled,  and  that  the  road  is  already 
constructed  and  in  operation,  the  appeal 
will  be  dismissed.  Atlanta  &•  F.  R.  Co.  v. 
Blanton,  80  Ga.  563, 6  5.  E.  Rep.  584.— Quot- 
ing Dakota  County  v.  Glidden,  113  U.  S. 
222. 

1 14.  or  bill    of  exceptions.— 

Where  a  diagram  of  a  locality,  showing 
where  stock  was  killed,  is  offered  in  evi- 
dence and  rejected,  it  must  be  set  out  in  a 
bill  of  exceptions,  in  order  to  reserve  the 
question  on  the  ruling.  Indianapolis, P.  S" 
C.  R.  Co.  V.  Irish,  40  Ind.  277. 

A  bill  of  exceptions  may  contain  all  the 
evidence,  although  it  appear  that  the  jury 
were  allowed  to  inspect  the  place  where  the 
matters  referred  to  in  the  pleadings  occurred. 
Jeffersonville,  M.  &*  I.  R.  Co.  v.  Bowen,  40 
Ind.  545.— Overruling  Evansville,  I.  &  C. 
S.  L.  R.  Co.  V.  Cochran,  10  Ind.  560. 

A  contractor  sued  to  recover  for  work 
done  under  a  contract  providing  that  the 
estimates  of  the  engineer  were  to  be  final, 
but  charging  fraud  and  collusion  between 
the  engineer  and  the  defendant  company  in 
making  the  estimates.  The  court  instructed 
the  jury  that  the  estimates  of  the  engineer 
were  conclusive  if  honestly  made,  but  on  ap- 
peal the  bill  of  exceptions  did  not  contain 
the  contract  nor  any  of  the  evidence  to 
which  the  instruction  related.  Held,  that 
the  supreme  court  had  nothing  before  it  by 
which  it  could  determine  whether  there  was 
error  in  the  ruling  or  not.  Hinkle  v.  San 
Francisco  &>  N.  P.  R.  Co.,  55  Cal.  627. 

6.  Reviewing  the  Evidence  or  the  Facts. 

115.  How  far  reviewable,  gener- 
ally.— (i)  Rule  of  non-interference. — It  is 
the  uniform  practice  of  the  supreme  court 
not  to  disturb  the  verdict  of  a  jury  or  the 
finding  of  a  court  on  questions  of  fact  when 
the  verdict  or  finding  is  not  clearly  wrong 
on  the  evidence.  Ft.  Wayne,  M.  &*  C.  R. 
Co.  V.  Grove,  47  Ind.  1 33. 

Where  there  are  circumstances  strongly 
supporting  the  verdict  of  a  jury,  the  supreme 
court  will  not  disturb  such  verdict.  Indian- 
apolis, P.  6*  C.  R.  Co.  V.  Collingwood,  71  Ind. 


i' 
■4 


424 


APPKAL   AND   ERROR,  115. 


Co.  7'. 


m 


476.— Distinguishing  Ohio  &M.  R. 
Cole,  41  Ind.  331. 

The  verdict  of  a  jury  upon  questions  of 
fact  properly  submitted  to  it  will  not  be  dis- 
turbed on  appeal  in  the  absence  of  error  in 
the  record.  Fisher  v.  Delaware  (S>»  ff.  C.  Co., 
153  Pa.  St.  279,  26  A//.  Rep.  18. 

In  all  judiciiil  proceedings  in  this  state 
facts  are  for  the  jury,  and  there  being  evi- 
dence enough  to  support  the  verdict,  and 
the  true  facts  as  found  by  the  jury  making 
a  case  recoverable  under  the  common  law  as 
generally  understood  and  ruled  wherever 
that  system  prevails,  and  not  at  variance 
with  the  latest  adjudications  in  South  Caro- 
lina, where  the  accident  occurred  ;  and  the 
presiding  judge  having  approved  the  finding 
of  the  jury,  this  court  will  not  interfere  ex- 
cept in  cases  of  abuse  of  discretion.  Atlanta 
&*  C.  A.  L.  R.  Co.  V.  Tanner,  68  Ga.  384. 

No  repetition  by  courts  of  review,  that  cer- 
tain evidence  doer  or  does  not  sustain  the 
verdict  finding  care  or  negligence  in  the  par- 
ticular case,  makes  the  conclusions  of  fact  ar- 
rived at  by  such  courts,  and  the  language  in 
which  they  express  such  conclusions,  doc- 
trines of  law  for  other  cases.  Chicago  &*  N. 
W.  R.  Co.  v.  Bouck,  33  ///.  App.  123. 

The  questions  where  and  how  a  crossing 
should  be  built,  and  whether  under  or  over 
defendant's  tracks,  were  questions  of  fact 
for  the  trial  court,  and  there  being  evidence 
to  sustain  its  findings  in  these  respects,  and 
it  appearing  that  it  had  fairly  exercised  its 
discretion,  its  determination  could  not  be 
disturbed  here.  Buffalo  S.  6-  C.  Co.  v.  Dela- 
ware, L.  &*  W.  R.  Co.,  130  N.  V.  152,  29  JV. 
E.  Rep.  \i\,\i  N.Y.S.  R.  z^^',  affirming  27 
N.  Y.  S.  R.  216.  7  N.  V.  Supp.  604. 

Where  judgment  was  entered  upon  the 
award  of  a  referee  in  a  submission  under  Pa. 
act  June  16,  1836,  P.  L.  718,  §  6  (in  this  case 
an  action  ex  delicto  against  a  railroad 
company  for  unlawful  discriminations),  the 
specifications  of  error,  relating  chiefly  to 
the  referee's  findings  of  fact,  being  approved 
by  the  court,  and  the  testimony  not  being 
fully  presented,  the  findings  cannot  be  re- 
viewed, even  if  it  were  proper  under  the  act. 
Borda  v.  Philadelphia  S*  R.  R.  Co.,  141  Pa. 
St.  484,  21  Atl.  Rep.  665. 

Where  real  estate  has  been  condemned 
(or  the  purpose  of  a  railroad,  and  damages 
have  been  awarded  to  a  landowner  by  a  jury, 
and  the  only  error  assigned  in  the  supreme 
court  is  that  the  verdict  is  excessive,  the 
court  ordinarily  will  not  vacate  or  modify  it 


if  based  upon  the  evidence  of  witnesses 
acquainted  with  the  land  and  capable  of 
making  a  fair  estimate.  Omaha  Belt  R.  Co. 
V.  Johnson,  24  Ned.  707,  40  N.  W.  Rep.  134, 
—Followed  in  Fremont,  E.  &  M.  V.  R.  Co. 
V.  Meeker,  28  Neb.  94. 

Where  the  jury  believe  that  an  injury  to 
an  employ6  was  occasioned  by  the  con- 
ductor's negligence,  and  without  fault  on 
plaintiff's  part,  and  the  trial  judge  refuses  to 
grant  a  new  trial,  the  court  will  let  the  ver- 
dict stand  unless  there  was  some  abuse  of  his 
discretion.  Georgia  R.  &* B.  Co.  v.  Gohlwire, 
56  Ga.  196. 

The  supreme  court  will  not  disturb  the 
finding  of  the  jury  on  the  question  whether 
the  servant  at  the  time  of  the  accident  was 
engaged  in  the  prudent  and  careful  dis- 
charge of  his  duties  in  his  employment. 
Gutridge  v.  Missouri  Pac.  R.  Co.,  105  Mo. 
520,  16  5.  W.  Rep.  943. 

Where  the  proof  shows  that  a  cow  was 
found  on  her  back  in  the  ditch  at  the  side 
of  the  track  dead,  with  the  body  bloated 
and  blood  oozing  from  her  nose,  a  verdict 
finding  that  she  was  killed  by  a  train  will 
not  be  disturbed  on  appeal,  though  the 
court  may  have  doubts  as  to  its  correctness. 
Chicago  &*  N.  W.  R.  Co.  v.  Dement,  44  ///. 
74.— Distinguished  in  Moore  v.  Burling- 
ton &  W.  R.  Co.,  31  Am.  &  Eng.  R.  Cas. 
572,  72  Iowa  75,  33  N.  W.  Rep.  371. 
Quoted  in  Ohio  &  M.  R.  Co.  v.  Atleberry, 
43  111.  App.  80. 

Where  in  an  action  for  injury  to  cattle 
at  a  farm  crossing,  where  the  railway  ran 
through  plaintiff's  yard,  the  jury  twice  found 
for  the  plaintiff,  acquitting  him  of  all  blame, 
and  found  the  company  guilty  of  negligence 
in  not  keeping  a  sufficient  lookout  on 
rounding  the  curve  before  coming  to  the 
crossing,  the  court  refused  to  interfere. 
Bender  v.  Canada  S.  R.  Co.,  37  I/.  C.  Q.  B. 
25.— Applied  in  Bennett  v.  Grand  Trunk 
R.  Co.,  3  Ont.  446. 

An  animal  was  killed  by  a  train  where  a 
small  town  was  built  up  and  used  as  a  sta- 
tion. The  road  had  been  fenced  at  the 
place,  but  a  gap  had  been  opened  by  some 
one  in  front  of  the  town.  It  was  not  dis- 
tinctly shown  whether  the  town  was  laid 
out  up  to  and  along  the  railroad  or  not. 
Held,  that  the  court  on  appeal  would  not 
find,  in  opposition  to  the  trial  court,  that 
the  company  was  not  in  fault  in  not  closing 
up  the  fence.  Indianapolis  S-  C.  R.  Co.  v. 
Snelling,  16  Ind.  435. 


APPEAL   AND    l-KKOK,   115. 


425 


While  always  disposed  to  give  to  verdicts 
of  juries  all  proper  weight,  the  law  of  Lou- 
isiana imposes  on  the  court  the  duty  of  re- 
viewing their  findings  on  the  facts  as  well 
as  on  the  law»and  when,  upon  the  evidence 
before  them,  it  appears  that  a  verdict  is 
naiiifestly  erroneous,  they  are  bound  to 
reverse  it.  Olivier  v.  Louisville  &*  N.  R. 
Co.,  47  Am.  (S-  I£ng.  R.  Cas.  576,  43  La,  Ann. 
804,  9  So.  Rep.  431. 

(2)  Question  of  contributory  negligence. 
— Where  a  railroad  company  is  sued  for 
negligently  causing  an  injury,  and  contribu- 
tory negligence  is  relied  upon  as  a  defense, 
and  the  case  is  submitted  to  the  jury  on 
proper  instructions  as  to  the  law  of  both 
negligence  and  contributory  negligence, 
with  direction  to  the  jury  to  determine  the 
case  upon  their  own  recollection  of  the  evi- 
dence, a  verdict  for  the  plaintiff  will  not  be 
disturbed.  Akersloot  v.  Second  Ave.  R.  Co., 
40  iV.  Y.  S.  R.  231,  27/.  <S-  S.  51:5,  15  A^.  Y. 
Supp.  864.  Kentucky  &•  I.  B.  Co.  v.  Quink- 
ert,  2  Inii.  App.  244,  28  A^.  E.  Rep.  338. 

Where  the  evidence  of  contributory  neg- 
ligence, in  an  action  for  damages,  is  insuffi- 
cient to  authorize  the  court  in  taking  the 
case  from  the  jury,  and  the  jury  made  a 
finding  upon  the  facts,  the  appellate  courts 
will  not  weigh  the  evidence.  Shepard  v. 
St.  Louis,  I.  M.  '  •  5.  R.  Co.,  3  Mo.  App.  550. 
lUienemann  v.  St.  Paul,  M.  &*  M.  R.  Co.,  18 
Am.  <&*  Eng.  R.  Cas.  153,  32  Minn.  390,  20 
JV.  IV.  Rep.  379. 

Where  plaintiff  is  injured  while  attempt- 
intj  to  drive  across  a  place  where  defendant 
company  was  constructing  its  track,  it  is  a 
question  for  the  jury  to  determine  whether 
the  injury  might  have  been  avoided  by  a 
greater  degree  of  care  on  plaintiff's  part ; 
and  their  findings  upon  the  questions  of 
both  negligence  and  contributory  negligence 
cannot  be  disturbed  by  the  court  of  appeals. 
Rembe  v.  New  York,  O.  <S»  W.  R.  Co.,  1 
Silv.  App.  154,  102  A'.  Y.  721,  mem.;  7  JV.  E. 
Rep.  797,  2  A';  Y,  S.  R.  498;  affirming  32 
Hun,  68,  mem. 

The  supreme  court  will  not  reverse  the 
finding  of  the  trial  court  that  the  plaintiff 
was  not  negligent  (as  a  matter  of  law)  in 
approaching  and  crossing  a  railroad  track, 
unless  no  other  conclusion  is  fairly  deduc- 
ible  from  the  evidence,  giving  bim  the  ben- 
efit of  every  reasonable  inference  that  may 
be  drawn  from  it.  Kenney  v.  Hannibal  &» 
St.  /,  R,  Co,,  105  Mo.  270,  IS  S.  JV.  Rep. 
983,  16  5.  W.  Rep,  837. 


(2)  Hlustrat/ons.  —  Whether  any  notice 
was  given  of  the  dividing  of  the  freight 
train  in  a  particular  manner,  or  whether  any 
warning  was  given  of  a  sudden  movement 
of  the  train  (the  immediate  cause  of  the 
injury),  or  whether  the  party  thereby  injured 
or  killed  was  at  the  time  using  due  care  for 
his  safety,  or  whether  he  was  a  fellow-ser- 
.  vant  with  others  to  whom  the  negligent  acts 
were  attributed,  are  questions  of  fact  not 
subject  to  review  on  the  evidence  in  this 
court,  except  so  far  as  they  may  have  a 
bearing  upon  the  instructions  given  or  re- 
fused. Chicago,  B,  <S-  Q.  R,  Co,  v.  Bell,  112 
///.  360. 

The  issue  was  made  as  to  whether  the 
action  was  barred  under  the  statute  limiting 
the  time  in  which  to  commence  another 
suit  after  a  reversal,  and  was  correctly  sub- 
mitted to  the  jury  upon  evidence  sufficient 
to  support  their  verdict.  Held,  that  judg- 
ment based  upon  such  verdict  should  not 
be  disturbed.  Chisholm  v.  Chicago  Gf  N.  R. 
Co,,  2  ///.  App.  174. 

The  jury  found  as  a  fact  that  the  defend- 
ant was  guilty  of  negligence  in  two  or  more 
particulars  causing  the  injuries  complained 
>  of.  Held,  that  the  supreme  court  cannot, 
under  the  evidence  and  as  a  matter  of  law, 
say  that  the  finding  of  the  jury  is  erroneous. 
St,  Louis  &>  S,  F,  R,  Co.  v.  Weaver,  28  Am. 
&*  Eng,  R,  Cas.  341,  35  Kan.  412,  11  Pac. 
Rep,  408. 

A  brakeman  sued  for  injuries  received 
while  passing  through  a  tunnel  by  striking 
an  arch  which  was  but  4  feet  and  7  inches 
above  the  top  of  the  car.  At  the  first  trial 
he  testified  that  he  was  sitting  down  when 
he  entered  the  tunnel,  and  a  judgment  in 
his  favor  was  reversed  on  the  ground  that, 
if  sitting  on  the  top  of  the  car  it  was  im- 
possible for  him  to  come  in  contact  with 
the  arch.  At  a  second  trial  he  testified  that 
he  was  sitting  down,  but  rose  up  as  he  en- 
tered the  tunnel,  and  that  he  was  not  asked 
on  the  first  trial  whether  he  stood  up.  Held, 
that  a  verdict  in  his  favor  would  not  be  dis- 
turbed on  appeal.  Hunter  v.  New  York,  O. 
&*  W.  R.  Co.,  ID  A^.  Y,  Supp,  795. 

In  an  action  for  the  non-delivery  of  a  car- 
load of  lumber,  where  the  evidence  shows 
that  the  car  was  placed  on  a  side-track  in 
the  presence  of  the  agents  of  the  consignee, 
and  that  he  or  some  of  his  employes  jumped 
on  the  car  and,  pulling  out  a-  piece  of  the 
lumber,  said,  "This  is  the  lumber  we  have 
been  waiting  for,"  a  judgment  for  the  de-. 


I: 


!■ 


426 


APPliAL   AND   ERROR,  110,117. 


IW 


f 


(endant  will  not  be  disturbed  on  appeal. 
Armistead  L,  Co.  v.  Louimillf,  N.  O.  &*  T.  A*. 
Co.,  (Miss.)  II  So.  Kep.  472. 

A  company  was  sued  to  recover  for  a  house 
which  was  washed  away,  as  alicijed,  by  the 
negligent  construction  of  a  railroad  em- 
bankment. The  evidence  showed  thai  the 
embankment  did  raise  the  water,  hut  it  was 
not  shown  that  tiie  increased  deptii  of  water 
contributed  to  the  destruction  of  the  iiuusc. 
Held,  that  a  finding  tiiat  it  did  not  do  so 
will  not  be  disturbed  on  appeal.  Ilfrey  v. 
Sabine  &*  E.  T.  R.  Co.,  76  Tex.  63,  13  S.  W. 
Kep.  165. 

lltt. on  appeal  from  iiiterinc- 

diate  appellate  court.— The  affirmance 
of  a  judgment  for  the  plaintiff  by  the  Illinois 
appellate  court,  in  an  action  for  negligence, 
must  be  taken  as  settling  all  questions  of 
fact  necessary  to  a  recovery,  in  favor  of  the 
plaintitl  below,  and  as  holdin^r  the  evidence 
sufficient  to  sustain  tlie  finding  of  the  jury 
under  the  issues  made  by  the  pleadings. 
Lake  Shore  &*  M.  S.  R.  Co.  v.  Brmvn,  31  Am. 
6-  Eng.  R.  Cas.  61 ,  123  ///.  162,  14  A'.  E.  Rep. 
197.  Indianapolis  &*  S/.  L.  R.  Co.  v.  Mor- 
genstern,  12  Am.  6^  Eng.  R.  Cas.  228,  106 
///.  216.  Lake  Erie  &'  IV.  R.  Co.  v.  ZoJ^n- 
ger,  15  Am.  &•  Eng.R.  Cas.  371, 107  ///.  199. 
Chicago,  R.  I.  &-  P.  R.  Co.  v.  Lewis,  19  Am. 
&•  Eng.  R.  Cas.  224,  109  ///.  120;  affirming 
13  ///.  App.  166.  Pennsylvania  Co.  v.  Ellett, 
42  Am.  &•  Eng.  R.  Cas.  64,  132  ///.  654,  24  A^. 
E.  Rep.  559. 

Where  the  liability  of  a  defendant  com- 
pany depends  upon  the  existence  of  negli- 
gence, a  verdict  for  the  plaintifT,  supported 
by  some  evidence,  and  approved  by  the  New 
York  general  term,  cannot  be  reviewed  by 
the  court  of  appeals  as  being  against  the 
weight  of  evidence.  Downs  v.  New  York 
C.  R.  Co.,  56  A^.  Y.  664 ;  affirmitig  i  T.  <S- 
C.  add.  20. 

Where  a  verdict  is  rendered  upon  con- 
flicting testimony,  and  is  approved  by  the 
trial  judge  and  the  general  term,  the  court 
of  appeals  has  no  jurisdiction  to  review  it. 
Neiv  Jersey  Steamboat  Co.  v.  Mayor,  &*c.,  of 
N.  Y.,  2  Silv.  App.  23,  109  A^.  Y.  621,  mem.\ 
ISN.E.  Rep.  877,  14  A^.K  i.  R.  57;  affirm- 
ing 39  Hun  657,  mem. 

117.  Conflict  of  evidence.— (i)  The 
general  rule.—  \  judgment  supported  by 
evidence,  although  conflicting,  will  not  be 
disturbed  on  the  ground  of  insufficiency  of 
proof.  Denver  &*  R.  G.  R.  Co.  v.  Morrison, 
3  Colo.  App.  194.    Atlanta  6-  W.  P.  R.  Co. 


v.  Smith,  81  (Ja.  620,  8  5.  E.  Rep.  446. 
Northeastern  R.  Co.  v.  Harnett,  89  Ga  399, 
IS  S.  E.  Rep.  492.  Pittsburgh,  C.  &*  St.  L. 
R.  Co.  v.  Hume,  34  Ind.  326.  Bohan  v.  St. 
PaulSr*  D.  R.  Co.,  49  Minn.  488,  52  A'.  W. 
Rep.  1 33.  Doty  v.  Chicago,  St.  P.  &•  A'.  C. 
R.  Co.,  49  Minn.  499,  52  TV.  IV.  Rep.  135. 
Cousins  V.  Third  Ave.  R.  Co.,  25  N.  Y.  S.  R. 
341,  53 //««  634, 6  A'.  Y.  Supp.  gs°-  Texas 
Pac.  R.  Co.  V.  Davidson,  68  Te.v.  370,  4  .S. 
W.  Rep.  636.  Gulf,  C.  6-  5.  F.  R.  Co.  v.  Holt, 
( Tex.)  1 1  Am.  &•  Eng.  R.  Cas.  72.  Hurd  v. 
Union  Pac.  R.  Co.,  8  Utah  241.  30  Pac.  Rep, 
982.  Central  Trust  Co.  v.  Wabash,  St.  L.  &* 
P.  R.  Co.,  58  Am.  &»  Eng.  R.  Cas.  642,  57 
Fed.  Rep.  441. 

Where  the  liability  of  a  defendant  de- 
pends upon  proof  of  negligence,  and  the 
evidence  is  conflicting  as  to  the  negligence, 
the  appellate  court  will  not  disturb  the 
verdict  where  the  case  has  been  properly 
submitted  to  the  jury  under  instructions 
stating  the  law  correctly.  Donaldson  v. 
Mississippi  &*  M.  R.  Co.,  18  Iowa  280. 

Where  there  is  a  conflict  in  the  evidence, 
and  there  is  no  ground  for  a  holding  that 
the  finding  of  the  jury  is  not  the  honest 
and  intelligent  exercise  of  judgment  upon 
the  facts  of  the  case,  the  judgment  will  not 
be  disturbed  on  appeal.  Moody  v.  St.  Paul 
&•  S.  C.  R.  Co.,  41  Iowa  284.  Frandsen  v. 
Chicago,  R.  I.  &*  P.  R.  Co.,  36  Iowa  372. 

A  verdict  will  not  be  disturbed  where  the 
evidence  is  not  of  such  a  character  as  to 
bring  the  mind  irresistibly  to  the  conclusion 
that  the  verdict  was  not  the  result  of  a  free, 
sound,  and  unbiassed  exercise  of  judgment 
on  the  part  of  the  jury,  and  that  manifest 
injustice  will  result  if  the  verdict  is  per- 
mitted to  stand.  Allison  v.  Chicago  &*  N. 
W.  R.  Co.,  42  Iowa  274.  Wilson  v.  Bur- 
lingtoH  &*  M.  R.  R.  Co.,  33  Iowa  591. 

The  evidence  being  conflicting  and  the 
trial  judge  being  satisfied  with  the  verdict, 
the  appellate  court  will  not  interfere  with 
his  discretion  in  refusing  a  new  trial.  Geor- 
gia Pac.  R.  Co.  V.  Rigden,  85  Ga.  867, 1 1  S.  E. 
Rep.  603.     Georgia  Pac.  R.  Co.  v.  Weaver, 

85  Ga.  869.  \\  S.  E.  Rep.  614.  Western  &» 
A.  R.  Co.  V.  Denmead.  83  Ga.  351,  9  S.  E. 
Rep.  683.    Richmond  &•  D.  R.  Co.  v.  Davis, 

86  Ga.  76,  12  S.  E.  Rep.  266;  Missouri  Pac. 
R.  Co.  V.  Holley,  30  Kan.  465,  1  Pac.  Rep. 

130.  554- 

An  appellate  court  is  not  authorized  to 
set  aside  a  verdict  when  the  evidence  is 
conflicting ;  it  is  only  when  there  is  no  cvi* 


J, 


'4 


Al'lM'AL   AND    KKKOR,   117. 


427 


44f>. 

39y. 

■/.  Z. 

St. 

w. 

'.  c. 

'35- 
|V.  A. 


deuce  to  su|)port  a  vcrdirt,  or  wlu;ii  llu- 
verdict  is  pal|>ably  ugainst  the  wcij^lit  of  evi- 
dence, that  the  appellate  court  lan  disturb 
the  findings u(  the  jury.  Jcvas  &*X.  O.K. 
Co,  V.  Ludtkc,  3  Tex.  Civ.  App.  308,  23  S, 
ir.  Kep.  82.  Chuaf,'o,  M.  6-  SI.  P.  R.  Co. 
V.  Krueger,  23  III.  App.  639;  ajfu  med  in  part 
1 24  ///.  457. 

Where  suit  is  brought  to  recover  for  per- 
sonal injuries  alleged  to  have  been  caused 
by  negligence,  and  the  evidence  of  plaintiff, 
if  believed,  is  sufficient  to  make  out  a  case, 
and  the  evidence  of  the  defendant  is  suffi- 
cient to  relieve  it  from  liability,  if  believed, 
it  is  proper  to  submit  the  case  to  the  jury, 
and  a  court  will  presume  that  the  jury  dis- 
believed the  evidence  of  one  party  and  be- 
lieved the  evidence  of  the  one  for  whom 
the  verdict  is,  and  will  not  disturb  the  ver- 
dict on  that  account.  Styler  v.  Long  Island 
a:  Co..  75  //nn  {N.  V.)  547,  27  N.  V.  Supp. 
II 13. 

(2)  Illustrations. — The  decision  of  the 
trial  court  upon  a  motion  for  a  new  trial  for 
alleged  misconduct  of  jurors,  made  upon 
conflicting  affidavits,  will  not  be  reversed 
unless  clearly  erroneous.  Tierney  v.  Min- 
neapolis &*  St.  L.  R.  Co. ,  2 1  Am.  &*  Eng.  R. 
i-'<'s.  545.  33  ^^finn.  3".  53  Am.  Rep.  35,  23 
N.  W.  Rep.  229. 

The  evidence  being  in  conflict  upcm  a 
question  as  to  whether  or  not  a  car  would 
or  could,  when  "  kicked  "  by  a  locomotive, 
spring  or  jump  forward,  a  judgment  ren- 
dered upon  the  verdict  of  the  jury  will  not 
be  disturbed  unless  the  appellate  court 
knows  judicially  that  the  verdict  stated  that 
which  was  physically  an  impossibility.  Chi- 
cago, St.  L.  &*  P.  R.  Co.  v.  C/iampion,  (Ind.) 
32  A'.  £.  Rep.  874. 

A  conductor  sued  his  company  for  a  bal- 
ance of  salary,  and  the  company  set  up  the 
defense  that  he  was  not  to  receive  his  pay 
until  he  had  accounted  for  all  fares  col- 
lected, which  he  had  failed  to  do.  There 
was  the  evidence  of  private  detectives  that 
he  had  received  two  fares  for  which  he  had 
not  accounted,  but  which  was  denied  by 
plaintiff.  Held,  that  a  verdict  for  plaintifl[ 
would  not  be  disturbed  where  it  also  ap- 
peared that  his  salary  had  been  paid,  and 
that  he  had  not  been  discharged,  for  two 
months  after  the  company  had  knowledge 
of  the  facts  as  testified  to  by  the  detectives. 
Rand  V.  Rome,  IV.  <S-  O.  R.  Co.,  32  A\  V. 
S'.  R.  426,  10  A'.   V.  Supp.  300,  56  Hun  645. 

fj)  Rule  applied  to  cases  of  injuries  to 


pii\si/igers, —When:  a  passenger  sues  a  street 
railway  for  personal  injuries  caused  by 
being  thrown  down  by  the  sudden  starting 
of  the  car,  and  his  evidence  shows  such  to 
be  the  facts,  and  witnesses  for  the  defense 
do  not  fully  agree  as  to  the  manner  of  tlic 
injury,  a  verdict  in  favor  of  the  plaintiff  will 
not  be  disturbed  on  appeal.  Ganley  v. 
lirooklyn  City  R.  Co.,  28  A'.  Y.  S.  R.  94,  5 
Silv.  Sup.  319,  7  A'.  1'.  Supp.  854,  55  Hun 
605. 

In  an  action  by  a  passenger  to  recover  for 
personal  injuries  received  while  about  to  get 
on  his  car,  after  having  slopped  tor  a  meal, 
the  complaint  charged  negligence  both  in 
starting  the  car  too  soon  and  in  starting  it 
with  a  sudden  jerk  as  he  was  about  to  step 
on.  There  was  a  conflict  of  evidence,  both 
as  to  the  negligence  of  the  company  and  as 
to  whether  plaintiff  was  free  from  negligence 
or  not,  but  the  preponderance  of  evidence 
tended  to  show  that  the  company  was  not 
at  fault.  Held,  that  a  verdict  for  plaintiff 
would  not  be  disturbed,  though  the  supreme 
court  was  of  opinion  that  the  triat  court 
should  have  granted  a  new  trial  on  the 
ground  that  the  verdict  was  against  the 
weight  of  evidence.  Union  Pac.  R,  Co.  v. 
Diehl,  21  Am.  &>  Eng.  R.  Cas.  350,  33  A'an. 
422,  6  Pac.  Rep.  566. 

A  passenger  sued  to  recover  damages  re- 
ceived while  alighting  from  a  train.  The 
evidence  showed  that  he  was  young  and 
active,  and  unencumbered  with  baggage,  and 
that  the  train  stopped  long  enougli  to  allow 
him  to  alight  with  safety.  There  was  some 
evidence  tending  to  show  that  the  station 
and  platform  were  not  sufliclently  lighted, 
but  it  was  not  shown  that  this  contributed 
directly  to  the  injury.  Held,  that  a  veraict 
finding  the  railroad  company  negligent  as 
to  lighting  its  station,  and  that  this  caused 
the  injury,  would  not  be  disturbed  on  appeal 
where  the  case  was  submitted  on  proper  in- 
structions. St.  Louis,  I.  M.  (S~»  S.  R.  Co.  v. 
White,  30  Am.  &*  Eng.  R.  Cas.  545,  48  Ark. 
495,  4  S.  VV.  Rep.  52. 

(4)  injuries  to  persons  at  crossings. — 

Where  a  company  is  sued  for  causing  an 
injury  at  a  crossing,  and  there  is  a  conflict 
of  evidence  as  to  the  negligence  of  those  in 
charge  of  the  train,  a  verdict  finding  the 
company  negligent  will  not  be  disturbed  on 
appeal.  Purinton  v.  Maine  C.  R.  Co.,  78 
Me.  569,  7  Atl.  Rep.  707. 

Where  a  company  is  sued  for  an  injury  at 
a  crossing  alleged  to  have  been  caused  by  the 


4128 


APPKAL    AND    liKKOR,  117. 


defective  condition  uf  the  planking  ut  the 
crossing,  and  there  is  a  conHict  of  (.'vidcnce 
as  to  whether  the  plani<ing  had  been  re- 
moved on  each  side  of  the  rails,  the  appel- 
late court  will  not  disturb  a  verdict  for 
plaintiff.  Currier  v.  Ogdensburg  ij^  L.  C. 
Ji.  Co.,6  N.   V.  Supp.  615. 

(5) injuries  to  eviployh. — When  in  an 

action  by  an  employe  for  an  injury  alleged 
to  have  been  caused  by  the  negligence  of 
the  defendant  the  plaint •**  obtains  a  verdict, 
the  supieme  court  will  not,  because  there  is 
contradictory  evidence  on  some  points,  inter- 
fere with  the  conclusions  of  the  jury,  sup- 
ported by  the  action  of  the  trial  court,  over- 
ruling a  motion  for  a  new  trial.  Lake  Erie 
<S»  W.  R.  Co.  V.  Everett,  1 1  Am.  &*  Eng.  R. 
Cas.  221,  86  /mi.  229. 

Where  a  plaintiff's  evidence  is  all  clear 
and  consistent  to  the  point  that  his  injury 
resulted  from  "  a  defective  brake,"  and  de- 
fendant company's  evidence  is  in  conflict 
therewith,  and  defendant  moves  that  the 
verdict  be  set  aside  as  contrary  to  the  evi- 
dence, which  is  certified,  and  defendant 
excepts  to  the  overruling  of  the  motion, 
this  court  is  precluded  from  comparing  and 
weighing  the  conflicting  testimony,  and 
must  affirm  tiie  ruling.  Richmond  &*  D.  R. 
Co.  v.  Burnett,  88  Va.  538.  14  S.  E.  Rep.yji. 

The  owner  of  a  railway  was  sued  for  the 
death  of  an  engineer,  caused  by  a  bridge 
giving  way  which  was  charged  to  have  been 
defective.  The  evidence  showed  that  the 
engineer  was  employed  by  one  who  acted  as 
assistant  superintendent  of  the  line,  and 
that  the  owner  knew  that  the  bridge  was 
defective ;  but  the  evidence  was  conflicting 
as  to  whether  the  engineer  knew  or  had 
reasonable  notice  of  its  condition.  Held, 
that  a  verdict  for  plaintiff  should  not  be 
disturbed  on  appeal.  Davis  v.  Button,  78 
Cal.  247,  20  Pac.  Rep.  545,  18   Pac.  Rep.  133. 

(6) fires  caused  by  sparks. — A  verdict 

for  plaintiff  in  an  action  against  a  rail- 
road for  damages  caused  by  sparks  from 
its  locomotive  will  not  be  disturbed  on 
appeal  where  there  is  a  conflict  of  evidence 
as  to  whether  the  locomotive  was  supplied 
with  proper  appliances  for  preventing  fire, 
and  whether  it  was  in  good  order.  Missouri 
Pac.  R.  Co.  V.  Plat2er,{Tex:)  155.  IV.  Rep 

577. 

Proof  that  fire  from  an  engine  destroyed 
plaintiff's  property  raises  a  presumption  of 
negligence  on  the  part  of  the  company.  This 
presumption,  supported  by  the  testimony  of 


an  expert  that  "the  engine  starting  the  fire 
was  out  of  repair,"  is  sufficient  to  support  a 
verdict  against  the  company,  Xhough  there 
be  other  evidence  tending  to  show  that 
there  was  no  negligence;  and  the  verdict 
will  not  be  disturbed  unless  the  evidence  for 
the  defense  negatives  the  idea  of  negligence 
ill  a  most  complete  and  convincing  manner. 
Dean  v.  Chicago,  M.  &*  St.  P.  R.  Co.,  39 
Minn.  413, 40  A'.  W.  Rep.  270.— Explain  KB 
IN  Greenfield  v.  Chicago  &  N.  W.  R.  Co.,  83 
Iowa  270. 

'  On  a  claim  that  a  verdict  for  the  value  of 
certain  property  destroyed  by  fire  was  ex- 
cessive, there  was  evidence  that  its  value 
was  greater,  and  again,  that  it  was  less  than 
found  by  the  jury.  Held,  the  verdict  could 
not  be  disturbed.  Pielke  v.  Chicago,  M,  &* 
St.  P.  R.  Co.,  6  Dai.  444,  43  A'.  H'.  Rep. 
813. 

(7)  flooding  lands. — Where  a  com- 
pany is  sued  for  damages  to  land  caused  by 
flooding  it,  a  verdict  in  favor  of  the  plaintiff 
will  not  be  disturbed  where  there  is  some 
conflict  of  evidence.  Chicago  &•  A.  R.  Co. 
V.  Glinny,  19  ///.  App.  639. 

In  an  action  for  damages  for  flooding  lands, 
plaintiff's  evidence  was  ample  to  establish 
the  fact  that  the  injuries  were  caused  by 
the  negligent  manner  in  which  the  com- 
pany's track  was  constructed.  The  com 
pany  introduced  considerable  evidence  to 
contradict  this.  Held,  that  the  fact  of  a 
conflict  of  evidence  would  not  authorize  the 
supreme  court  to  disturb  a  verdict  in  favor 
of  the  plaintiff.  Sabine  <S-  E.  T.  R.  Co.  v. 
Johnson,  (TV.r.)  7  S.  W.  Rep.  378 :  / 
appeal,  65  Tex.  389. 

(8)  killing   stock.  —  The  late 

court  will  not  interfere  in  an  actioi.  gainst 
»  railroad  for  killing  stock  where  tlic  rec- 
ord presents  only  questions  of  fact  arising 
upon  a  conflict  of  evidence.  Indiana,  B.  &• 
W.  R.   Co.  V.  Hinshaw,  21    ///.   Afip.   335. 

Harmon  v.  Charleston  &•  S.  R.  Co.,  88  Ga. 
261,  14  S.  £.  Rep.  574.  Jacksonville,  T.  &- 
K,  W.  R.  Co,  V.  Wellman,  26  Ela.  344,  7  So. 
Rep.  845, 

A  verdict  awarding  damages  for  stock 
killed  will  not  be  disturbed  on  appeal  where 
the  evidence  is  conflicting,  unless  the  facts 
and  circumstances  show  that  the  jury  were 
influenced  by  passion  or  malice.  Louisville, 
E.  &*  St.  L.  R.  Co.  V.  Lewis,  31  ///.  App. 
281. 

In  an  action  to  recover  for  stock  killed 
by  the  alleged  failure  of  the  company  to 


w 


APPEAL   AND   ERROR,  IIH. 


42!) 


maintain  n  sufficient  fence,  where  the  evi- 
dence is  conflicting,  a  finding  of  a  referee 
tiiut  the  fence  wns  insufficient  will  not  be 
disturbed.  Archibald  v.  New  York  C.  &>  H. 
A'.  R.  Co.,  38  A'.  Y.  S.  A".  790,  60  //««  581, 
14  A'.  Y.  Siipp.  801. 

Where  the  issue  is  made  as  to  the  time 
thiit  stock  were  killed,  and  a  witness  for 
pi.iintilT  swears  that  it  occurred  at  6  a.m., 
anrl  the  engineer  swears  that  it  occurred  at 
iialf-past  12  P.M.,  the  case  may  be  sub- 
mitted to  the  jury  to  determine  the  lime  of 
killing,  and  in  such  case  their  finding  will 
not  be  disturbed  on  appeal.  Texas  &*  N. 
O.  A'.  Co.  V.  Ludtke,  3  Tex.  Civ.  App.  308,  23 
.s.   W.  Rep.  82. 

If  all  the  evidence  can  be  harmonized  by 
the  exercise  of  reason  and  in  accord  with 
the  probabilities  arising  from  the  nature  of 
the  case,  it  is  not  what  the  law  regards  as  a 
conflict  of  evidence;  and  where,  when  so 
considered,  the  testimony. showed  without 
conflict  that  the  stock  in  question  were  in- 
jured upon  the  highway  crossing,  the  ver- 
dict for  damages  was  not  sustained  by  the 
evidence,  and  should  have  been  set  aside. 
Sullivan  v.  Wabash  St.  L.  &*  P.  R.  Co.,  58 
Iowa  602,  1 2  A^.  W.  Rep.  620. 

Where  suit  was  brought  against  a  railroad 
company  for  negligently  killing  a  cow  of 
the  plaintiff,  and  the  evidence  was  conflict- 
ing as  to  the  distance  at  which  the  cow 
could  have  been  seen  by  the  agents  of  the 
defendant,  and  the  court  below  refused  to 
disturb  the  verdict  of  the  jury  in  favor  of 
the  plaintiff,  this  court  will  not  control  his 
discretion  thus  legally  exercised.  Georgia 
R.  Co.  v.  Sigman,  77  Ga.  71. 

Where  suit  is  brought  to  recover  for  cattle 
killed  at  or  near  a  highway  crossing,  the 
appellate  court  will  not  interfere  with  a  ver- 
dict found  on  conflicting  evidence  as  to 
whether  the  cattle  were  on  the  crossing  or 
not.     Chicago  <S-  A.  R.  Co.  v.  Kemp,  25  ///, 

AP:    39- 

Proof  that  stock  were  killed  by  a  railroad 
company  raises  a  presumption  of  negligence 
on  its  part,  and  this  presumption,  supported 
by  evidence,  though  the  evidence  is  conflict- 
in  '.  is  sufficient  to  support  a  verdict  against 
the  company,  and  the  appellate  court  will 
not  disturb  a  judgment  based  thereon  where 
the  trial  court  was  satisfied  with  the  finding. 
Georgia  R.  &*  B.  Co.  v.  Cox,  64  Ga.  619. 

Where  the  evidence,  tending  to  show  a  de- 
mand for  the  killing  of  stock  under  the  pro- 
visions of  ch.  94  of  the  laws  of  Kansas,  1874, 


is  conflicting,  and  sufficient  evidence  is 
given  on  the  trial  to  sustain  the  demand, 
the  finding  of  the  trial  court  that  a  demand 
was  made  will  be  uplitld.  Kansas  City,  Ft. 
S.  &*  G.  R.  Co.  v.  Mc Henry,  24  Kan.  501. 

The  plaintiff  sued  the  defendant  railway 
company  to  recover  the  value  of  a  horse 
killed  by  the  company ;  the  evidence  as  to 
whether  the  horse  was  killed  through  the 
carelessness  of  the  defendant  was  conflicting, 
but  there  was  evidence  to  support  the 
verdict,  and  the  verdict  not  being  clearly 
against  the  weight  of  the  evidence,  it  will 
not  be  disturbed.  Jacksonville,  T.^  K.  \V\ 
R.  Co.  V.  Hunter,  26  Fla.  308,  8  So.  Rep. 
450. 

In  an  action  for  killing  a  horse  it  appeared 
that  the  track  had  been  fenced,  but  that  the 
company  had  burned  a  portion  of  it,  and  it 
was  conceded  that  the  company  was  liable 
if  the  horse  went  upon  the  track  through 
the  burned  portion.  The  specific  question 
as  t(.>  whether  the  horse  did  go  upon  the 
track  through  the  opening  was  submitted 
to  the  jury,  who  found  that  he  did.  Held, 
that  as  the  question  was  fairly  submitted 
on  conflicting  evidence,  a  verdict  for  plain- 
tiff should  not  be  disturbed.  Hungerford 
V.  Syracuse,  B.  Sf  N.  Y.  R.  Co.,  19  ^V.  Y.  S. 
R.  47,  50  Hun  602.  4  N.  Y.  Supp.  643. 

118.  Weight  of  cvidciiev.— The  su- 
preme court  will  not  disturb  a  verdict  on 
the  mere  weight  of  the  evidence.  Ft. 
Wayne,  J.  &*  S.  R.  Co.  v.  Husselinan,  65  Ind. 
73.— CRirrcisiNG  Toledo  &  W.  R.  Co.  v. 
Goddard,  25  Ind.  \^.—Evansville  &■•  C.  R. 
Co.  V.  Smith,  65  Ind.  92.  Lake  Erie  &•  W. 
R.  Co.  V.  Mattix,  4  Ind.  App.  176.  30  A^.  E. 
Rep.  81 1. 

The  special  findings  of  a  jury,  like  a  gen- 
eral verdict,  cannot  be  disturbed  upon  the 
ground  that  they  are  against  the  weight  of 
the  evidence,  unless  they  are  flagrantly  so. 
Louisville  <S-  A^.  R.  Co.  v.  Mitchell,  87  Ky. 
327,  8  S.  W.  Rep.  706. 

There  being  some  evidence  in  support  of 
the  verdict,  an  order  of  the  district  court  re- 
fusing to  set  it  aside  as  against  evidence  will 
be  affirmed.  Clelandv.  Minneapolis  &>  St. 
L.  R.  Co.,  7  Am.  6-  Eng.  R.  Cas.  589,  29 
Minn.  170,  12  A^.  W.  Rep.  461.  Van  Gent  v. 
Chicago,  M.  Or*  St.  P.  R.  Co.,  80  lo^va  526,  45 
N.  W.  Rep.  913. 

Where  the  questions  of  negligence  and 
contributory  negligence  have  both  been  sub- 
mitted to  and  passed  upon  by  the  jury,  the 
court  will  not  reverse  the  judgment  on  the 


! 


!; 


;■: 


430 


APPEAL   AND    ERROR,  119. 


'1  .  , 


weight  of  the  evidence.  Pittsburgh,  C.  &• 
St.  L.  A\  Co.  V.  Martin,  8  Am.  <S-  Eng.  R. 
Cas.  253,  82  Ind.  476. 

Where  the  defense  of  contributory  negli- 
gence is  made  and  submitted  to  tiie  jury  on 
proper  instructions,  their  finding  should  not 
be  set  aside  by  an  appellate  court  on  its  own 
views  of  the  evidence.  O'Donncll  v.  New 
York  «&*  H.  R.  Co.,  8  Daly  {N.  K.)  409; 
affirmed  in  77  N.  Y.  625,,  mem. — Reviewing 
Metz  V.  Second  Ave.  R.  Co.,  3  Abb.  App. 
Dec.  (N.  Y.)  274. 

Where  the  evidence  and  circumstances 
surrounding  a  case  tend  to  prove  the  exist- 
ence of  a  given  fact  or  state  of  facts,  and 
have  been  passed  upon  by  a  jury  in  a  civil 
suit,  their  finding,  unless  set  aside  by  the 
trial  judge  or  appellate  court,  is  conclusive 
upon  the  supreme  court,  and  it  is  wholly  im- 
material wiiether  that  court  think  such  find- 
ing is  in  accordance  with  the  weight  of  evi- 
dence or  not.  Illinois  C.  R.  Co.  v.  Haskins, 
22  Am.  &•  Eng.  R.  Cas.  343,  1 1 5  ///.  300,  2 
A':  E.  Rep.  654. 

Though  the  appellate  court  may  doubt 
the  correctness  of  a  verdict  against  a  com- 
pany for  killing  stock,  still  the  \erdict  will 
not  be  disturbed  where  the  question  of  the 
company's  negligence  was  fairly  submitted 
to  the  jury,  and  their  finding  is  not  without 
evidence  to  support  it,  and  where  the  trial 
court  has  overruled  a  motion  for  a  new  trial. 
Yazoo  <S»»  M.  V.  R.  Co.  v.  Williams,  67  Miss. 
18.  7  So.  Rep.  279. 

The  weight  of  the  evidence  and  the  de- 
gree of  negligence  it  tends  to  prove  are 
questions  of  fact  for  the  jury  in  the  first  in- 
stance, and  for  the  appellate  court  in  the 
last ;  it  is  also  a  question  of  fact  whether 
the  proof  establishes  negligence  that  may 
be  the  subject  of  comparison.  Chicago,  B. 
6-  Q.  R.  Co.  V.  Warner,  123  ///.  38,  14  A^.  E. 
Rep.  206 ;  affirming  22  ///.  App.  462. 

Whether  the  bell  of  a  locomotive  was  ring- 
ing is,  in  a  case  of  conflicting  evidence,  a 
question  for  the  jury,  and  the  supreme  court 
will  not  disturb  its  finding  thereon,  even 
where  it  appears  to  be  against  the  weighs  of 
the  evidence.  Dickson  v.  Missouri  Pac.  R. 
Co.,  104  Mo.  491,  16  S.  W.  Rep.  381. 

When  an  animal  is  seen  alive  during  an 
afternoon  in  the  vicinity  of  a  railroad  track, 
imd  tlic  next  morning  the  tracks  of  the  ani- 
mal are  traced  upon  an  open  bridge,  and 
along  that  bridge  for  the  space  of  twenty  or 
twenty- five  feet  appear  blood  and  bunches 
uf  hair  of  a  color  corresponding  with  that  of 


the  animal,  and  the  animal,  showing  marks 
of  violence,  is  found  dead  some  time  there- 
after m  the  water  below  the  bridge,  and  a 
witness  testifies  that  during  the  night  after 
the  animal  was  seen  alive  he  heard  a  train 
whistle  as  it  approached  the  bridge  and  then 
heard  something  fall  into  the  water  and 
swimming  therein — held,  that  a  verdict  of 
the  jury  that  the  animal  was  killed  by  the 
railroad  company  in  the  operation  of  its 
railroad  will  not  he  set  aside  as  against  the 
evidence.  Union  Pac.  R.  Co.  v.  Harris,  1 1 
Am.  &'  Eng.  R.  Cas.  431,  28  Kan.  206.— Dis- 
tinguishing Atchison,  T.  &  S.  F.  R.  Co.  j'. 
Seeley.  24  Kan.  265. 

Where  the  plaintiff's  testimony  simply 
shows  that  the  atiimals  were  killed  some 
time  between  6  o'clock  p.m.  and  8  o'clock  of 
the  next  morning,  and  isabsolutely  silent  as 
to  the  hour  at  which  they  were  killed,  and 
it  is  conceded  that  the  night  herd  law  was  in 
force,  and  the  testimony  of  the  defendant 
from  unimpeached  witnesses  shows  that  tliey 
were  killed  about  the  hour  of  midnight, 
which  testimony  is  contradicted  neither  di- 
rectly nor  indirectly  by  any  witness,  and  is 
supported  by  every  fact  appearing  in  the 
case,  a  verdict  for  the  plaintiff  will  be  set 
aside  as  against  the  evidence,  although  it 
was  coupled  with  a  special  finding  that  the 
jilry  did  not  know  the  hour  at  which  the 
animal"  were  injured.  Union  Pac.  R.  Co. 
V.  Z>:  .,  r,  28  Kan.  200. 

110.  Prepoiiileraiice  of  evidence. 
— Though  the  preponderance  of  evidence 
seems  to  be  against  the  verdict,  if  there  is 
enough  to  support  it  the  refusal  to  grant  a 
second  new  trial  is  not  an  abuse  of  discre- 
tion. City  &>  S.  R.  Co.  V.  Waldhaur,  84  Ga. 
706,  II  S.E.  Rep.  452.  Kansas  City,  Ft,  S. 
&*  M.  R.  Co.  V.  Grimes,  50  Kan.  655,  32  Pac. 
Rep.  376.  Louisville  &*  N.  R.  Co.  v.  Adams, 
(A^.)  10  5.   W.  Rep.  425. 

Where  in  an  action  for  injuries  alleged  to 
have  been  occasioned  by  negligence  tiie 
jury  have  by  their  verdict  found  that  there 
was  such  negligence,  and  also  that  the  plain- 
tiff was  free  from  contributory  negligence, 
the  court  cannot  set  the  verdict  aside  upon 
the  mere  preponderance  of  the  testimony. 
Evansville,  R.  &*  E.  R.  Co.  v.  Harrington,  8 
Am.  &*  Eng.  R.  Cas.  395,  82  fnd.  534. 

Where  the  verdict  of  a  jury  is  not  sus- 
tained by  sufficient  evidence  to  make  out  a 
primafacie  case  in  favor  of  such  verdict, 
the  judgment  founded  thereon  should  in  all 
cases  be  reversed.     But  where  the  verr'ict  is 


APPEAL  AND   ERROR,  120,121. 


431 


sustained  by  evidence  sufficient  lo  malce  out 
a  prima-facie  case,  and  all  the  evidence 
against  the  verdict  is  merely  in  parol,  the 
judgment  founded  upon  such  verdict  should 
not  be  reversed  unless  some  ground  for  re- 
versal is  found  other  than  merely  that  the 
preponderance  of  the  evidence  is  against 
the  verdict.  Kansas  Pac.  R.  Co.  \.  Brady, 
17  Kan.  380.— Quoting  Atchison,  T.  &  S.  F. 
R.  Co.  2/.  Stanford,  12  Kan.  369. — Quoted 
IN  Kansas  City,  Ft.  S.  &  G.  R.  Co.  v.  Fos- 
ter, 39  Kan.  329. 

It  is  the  province  of  the  jury  to  pass  upon 
the  credibility  of  the  witnesses  and  upon 
the  consideration  and  weight  which  shall  be 
given  to  the  testimony,  and  when  they  have 
passed  upon  it  and  the  trial  court  refuses  to 
grant  a  new  trial,  upon  the  ground  that  the 
verdict  is  against  the  clear  preponderance  of 
the  evidence,  this  court  will  not  reverse  the 
judgment  on  that  ground  when  there  is  any 
evidence  to  support  it.  Pool  v.  Chicago,  M. 
&•  St.  P.  R.  Co.,  8  Am.  &>  Eiig.  R.  Cas.  360, 
56  Wis.  227,  14  ^V,   IV.  Rep.  46. 

A  preponderance  of  the  evidence  must  be 
manifestly  and  palpably  in  favor  of  the  ver- 
dict to  justify  an  appellate  court  in  revers- 
ing an  order  of  the  trial  court  setting  it 
aside.  Ayers  v.  Minneapolis,  St.  P.  &*  S.  St. 
M.  R.  Co.,  46  Minn.  134,  48  N.  W.  Rep.  683. 

Plaintiff  sued  for  the  value  of  a  mare 
which  was  found  lying  about  six  feet  from  a 
cattle-guard  on  defendant's  road  so  seriously 
injured  that  she  died  the  next  day.  The 
jury  found  that  she  was  struck  by  a  train  or 
frightened  by  an  engine  so  that  she  ran  into 
the  cattle-guard,  and  so  was  injured.  The 
evidence  to  sustain  such  finding  was  all  cir- 
cumstantial, while  defendant's  employes  tes- 
tified that  no  such  accident  occurred.  Held, 
that  while  the  preponderance  of  the  evi- 
dence seemed  to  be  against  the  finding  of 
the  jury,  yet  the  court  cannot  say  that  the 
jurv  were  not  warranted  in  so  finding,  nor 
that  the  trial  judge  erred  in  overruling  a 
motion  for  a  new  trial,  since  they  saw  and 
heard  the  witnesses,  and  were  better  able  to 
judge  of  the  weight  that  should  be  given  to 
their  testimony.  Cox  v.  Burlington  &*  IV. 
R.  Co.,  77  /owa  478,  42  N.  IV.  Rep.  429. 

120.  Credibility  of  witueHses.— 
Where  a  railroad  company  is  sued  for  kill- 
ing stock,  and  live  witnesses  testify  as  to 
the  condition  of  the  animals  when  found, 
tending  to  show  that  they  were  killed  by  a 
train,  a  verdict  for  plaintiff  will  not  be  dis- 
turbed on  appeal  because  the  fireman  and 


engineer  testify  positively  that  they  were 
not  so  killed.  Rosecrans  v.  Wabash,  St.  L. 
(S-  P.  R.  Co.,  83  Mo.  678. 

Plaintiff  sued  for  personal  injuries  re- 
ceived by  being  struck  by  a  moving  train 
when  about  to  cross  a  track  on  a  street.  He 
and  several  other  witnesses  testified  that  no 
bell  was  rung  nor  signal  given,  but  that  the 
train  approached  silently  at  a  point  where 
the  view  was  obstructed  ;  while  several  wit- 
nesses for  tiie  defendant  testified  posiiively 
to  the  ringing  of  the  bell,  the  witnesses  for 
the  defendant  ha'  '  \^  a  preponderance  in 
numbers.  Held,  i  it  it  was  a  question  for 
the  jury  as  to  the  belief  of  the  witnesses, 
and  for  them  to  consider  all  the  surround- 
ing circumstances,  and  their  verdict  will  not 
be  disturbed  by  the  general  term.  Ander- 
son V.  New  York,  L.  E.  Sf  IV.  R.  Co.,  2  Silv. 
Sup.  Ct.  (iV.  V.)  9. 

121.  InsuiUcieucy  of  evidence.— 
(i)  General  rules. — The  claim  that  if  the 
evidence  "tends  to  support"  the  verdict 
the  court  could  not  reverse  the  judgment  of 
the  evidence  is  not  strictly  correct.  The 
true  rule  is  that  if  the  verdict  was  not  sup- 
ported by  sufficient  evidence  it  may  be  re- 
versed, although  the  evidence  "  tends  to 
support "  the  verdict.  The  court  cannot 
weigh  conflicting  evidence,  but  may  decide 
the  question  of  the  sufficiency  of  evidence. 
Cleveland.  C,  C.  &•  I.  R.  Co.  v.  Wynant, 
{Ind.)  55  Am.  &*  Eng.  R.  Cas.  80,  34  N.  E. 
Rep,  569. 

A  verdict  will  only  be  set  aside  on  appeal 
for  insufficiency  of  evidence  when  the  court 
can  say  that  the  evidence  did  not  tend  to 
support  the  verdict.  Moore  v.  Missouri  Pac. 
R.  Co.,  7  Am.  &»  Eng.  R.  Cas.  568,  73  Mo. 
438.— Followed  in  Williams  v.  Missouri 
Pac.  R.  Co.,  74  Mo.  453;  Terry  v.  Missouri 
Pac.  R.  Co.,  77  Mo.  254. 

An  appellate  court  will  not  disturb  a  ver- 
dict on  the  ground  of  insufficient  evidence 
where  the  testimony  was  conflicting  and  the 
greater  number  of  witnesses  testified  in 
accordance  with  the  verdict.  Hughes  v. 
Chicago,  St.  P.  &*  K.  C.  R.  Co.,  {Iowa)  55 
A'.  W.  Rep.  470. 

Where  the  question  of  negligence  is  one 
of  fact,  the  supreme  court  will,  so  far  as  the 
demurre'  to  the  evidence  is  concerned,  only 
look  to  see  if  there  is  sufficient  evidence  to 
support  the  verdict.  Winters  v.  Kansas 
City  Cable  R.  Co.,  40  Am.  &*  Eng.  R.  Cas, 
261,  99  Mo.  509,  12  5.  W.  Rep.^%2,  6  L.  R. 
A.  536. 


WM 


t 


43'^ 


APPEAL  AND   ERROR,  121. 


A  judgir.ent  in  an  action  to  recover  for  an 
injury  resulting  from  negligence  will  not  be 
reversed  on  the  ground  of  variance  in  the 
allegation  of  the  negligence,  and  the  proof 
or  failure  of  the  evidence  to  sustain  the 
allegation,  if  there  is  evidence  tending  to 
prove  such  allegation.  Laie  i>/tore  &*  Af. 
S.  K.  Co.  V.  Hmidt,  140  ///.  525,  30  A^.  E. 
Rep.  458;  affirming  41  ///.  App.  220. 

Where  a  railroad  company  is  sued  for  per- 
sonal injuries  caused  by  negligence,  and 
there  is  evidence  by  plaintiff  tending  to 
prove  all  the  elements  of  such  a  cause  of 
action,  a  verdict  for  plaintiff  will  not  be  dis- 
turbed. Chicago,  M.  &*  St,  P.  /i.  Co.  v. 
yaiido,  26  ///.  App,  601.  See  also  to  same 
effect  Savannah,  D.  &"  IV.  S,  L.  R.  Co.  v, 
Schieffdin,  So  Ga.  576,  5  S.  E.  Rep.  781. 
Central  R.  &*  B.  Co.  v.  Dodd,  83  Ga.  507,  10 
S.  E.  Rep.  206.  Louisville,  N.  A.  &*  C.  R.  Co. 
V.  Diamond  State  I.  Co.,  25  ///.  App.  536. 
Fogerty  v.  Minneapolis  &»  St.  L,  R.  Co.,  30 
Minn.  185.  14  N.  IV.  Rep,  878. 

Where  plaintiff  makes  out  a  prima-facie 
case  under  the  statute,  in  an  action  for  kill- 
ing stock,  the  appellate  court  will  not  dis- 
turb a  verdict  in  favor  of  plaintiff.  Ohio  &» 
M.  R.  Co.  V.  O'Domull,  26  ///.  App.  348. 

In  an  action  for  killing  stock,  where  the 
evidence  is  unsatisfactory  and  conflicting, 
the  appellate  court  will  not  disturb  a  verdict 
for  that  cause  alone.  Peoria,  D.  &*  E,  R.  Co. 
V.  Powell,  32  ///.  App.  53. 

(2)  Illustrations.—^hcYt  a  company  is 
sued  to  recover  for  the  value  of  cross-ties 
taken  from  land,  proof  showing  that  the 
company  took  274  ties  is  insufficient  to  sup- 
port a  verdict  for  the  value  of  1000  ties. 
Jacksonville,  T,  &*  K,  W,  R.  Co.  v.  Roberts, 
22  Fla,  324. 

Where  on  the  trial  of  an  action  for  a  per- 
sonal injury  on  the  ground  of  negligence  in 
operating  the  road,  it  is  practically  conceded 
by  both  parties  that  the  defendant  was  in 
the  possession  of  the  road  and  operating  it, 
and  that  the  men  in  charge  of  the  road  and 
its  machinery  were  servants  of  the  defend- 
ant, the  objection  that  such  facts  are  not 
proven  will  be  devoid  of  merit.  Lake  Erie, 
&*  IV,  R.  Co.  v.  Wills,  140  ///.  614,  31  N.  E. 
Rep,  122;  affirming  39  ///.  App.  649. 

Suit  was  brought  to  recover  the  value  of  a 
mare  alleged  to  have  been  killed  by  defend- 
ant's train,  and  the  proof  showed  that  she 
was  found  in  a  cattle-guard  so  injured  that 
she  afterwards  died  ;  but  the  evidence  failed 
to  show  that  she  was  thrown  or  driven  into 


the  cattle-guard  or  injured  by  a  train,  but 
rather  compelled  a  contradictory  inference. 
Held,  that  a  verdict  for  plaintiff  should  have 
been  set  aside  as  without  evidence  to  sup- 
port it.  Brockert  v.  Central  Iowa  R.  Co.,  75 
Iowa  529,  39  N.  W.  Rep.  871.— Distin- 
guished IN  Van  Slyke  v.  Chicago,  St.  P.  & 
K.  C.  R.  Co.,  80  Iowa  620. 

A  bill  of  exceptions  allowed  to  the  ruling 
of  a  judge  that  three  defendant  railroads, 
which  were  sued  jointly  for  the  loss  of  goods, 
were  liable,  if  either  was  liable,  omitted  to 
state  the  facts  on  which  the  ruling  was  based. 
It  appeared  that  the  three  roads  formed  a 
continuous  line ;  that  the  goods  lost  were 
delivered  to  one  of  the  companies  without 
any  written  contract,  and  were  lost  while  in 
the  hands  of  another  of  the  companies ;  and 
no  agreement  was  shown  between  the  com- 
panies for  the  through  transportation  of 
goods.  There  was  conflicting  evidence  as 
to  the  terms  of  the  plaintiff's  contract  for 
the  transportation  of  his  goods  and  as  to 
the  arrangement  between  the  three  com- 
panies. Held,  that  the  exceptions  must  be 
sustained.  Pratt  v.  Ogdensbutg  &*  L.  C.  R. 
Co.,  102  Mass.  557. 

In  an  action  for  personal  injuries  plaintiff 
offered  no  evidence  except  his  own,  which 
was  quite  contradictory,  and  which  was  con- 
tradicted also  by  credible  witnesses  for  de- 
fendant. There  was  also  evidence  tending 
to  prove  that  his  memory  was  affected  by 
the  injuries.  Held,  that  the  evidence  was 
too  unreliable  to  sustain  a  verdict  in  his 
favor.  Kenney  v.  Ocean  Steamship  Co.,  1 1  A'. 
Y.  Supp,  412. 

In  an  action  for  damages  to  stock  at  a 
public  crossing,  by  reason  of  the  failure  to 
sound  the  whistle  eighty  rods  from  the 
crossing,  and  the  further  reason  that  the 
speed  of  the  train  was  not  slackened,  where 
there  is  some  evidence  to  show  that  the  sig- 
nal was  not  given  and  that  the  train  did  not 
slow  up,  and  that  the  injury  might  have 
been  prevented  if  the  signal  for  the  crossing 
had  been  given  or  the  train  slackened,  the 
verdict,  otherwise  supported  by  evidence, 
will  not  be  disturbed.  Southern  Kansas  R. 
Co.  v.  Schmidt,  45  Am.  &»  Eng.  R,  Cas.  489, 
44  Aaw.  374,  24  Pac.  Rep.  496. 

Plaintiff  commenced  an  action  before  a 
justice  of  the  peace  to  recover  for  a  colt 
killed  by  the  defendant  railroad  company, 
and  obtained  a  judgment,  which  was  re- 
versed in  the  county  court.  There  was  no 
evidence  that  any  engine  or  cars  had  passed 


lli 


APPEAL   AND   ERROR,  122,  123. 


433 


over  the  road  during  the  time  after  the  colt 
was  last  seen  alive  and  before  it  was  found 
dead,  or  that  the  company  had  any  notice 
that  its  fence,  over  which  the  colt  v,ent  onto 
the  track,  was  defective.  Held,  that  for 
these  reasons  there  was  a  doubt  as  to  whether 
plaintiff  had  introduced  proof  enough  to 
entitle  him  to  recover,  but  the  judgment 
should  only  be  reversed  and  so  modified  as 
to  allow  a  new  trial  before  the  justice. 
Hathaway  v.  Fitchburg  R.  Co.,  49  N.  V.  S.  R. 
466,  66  Hun  628,  20  N.  Y.  Supp.  917. 

122.  Entire  absence  of  evidence. 
— Where  the  question  is  one  purely  of  fact, 
yet  if  there  is  a  total  failure  of  proof  to  sus- 
tain the  verdict  of  the  jury,  the  supreme 
court  will  set  aside  the  judgment  and  re- 
mand the  cause  for  a  new  trial.  Atchison, 
T.  6-  5.  F.  R.  Co.  v.  Seeley,  24  Kan.  ?6s.— 
Distinguished  in  Union  Pac.  R.  Co.  v. 
Harris,  ii  Am.  &  Eng.  R.  Cas.  431,  28  Kan. 
206.— Indianapolis  <S-  C.  R.  Co.  v.  Wil- 
liams, 14  Ind.  521. 

A  decree  entered  in  a  suit  against  a  rail- 
road company  to  enforce  a  contractor's  lien, 
which  is  not  supported  by  tiie  evidence  in 
some  respects,  should  be  reversed.  Illinois 
IV.  E.  R.  Co.  V.  Gay,  7  ///.  App.  404. 

Where  two  railroad  companies  are  sued, 
a  joint  judgment  against  both,  which  is  en- 
tirely unsupported  by  the  evidence  as  to  one, 
will  be  reversed.  Chicago,  B.  &•  Q.  R.  Co, 
v.  Coleman,  18  ///.  297. 

Where  it  is  claimed  that  then  h  no  evi- 
dence of  a  fact,  such  as  negligence  in  operat- 
ing a  train  of  cars,  upon  which  to  base  an  in- 
struction, and  the  alleged  error  in  giving  the 
instruction  depends  upon  there  being  no 
evidence  tending  to  prove  the  fact,  the  su- 
preme court  will  examine  the  evidence  to 
see  if  it  does  prove,  or  tend  to  prove,  such 
fact.  Union  R.  &•  T.  Co.  v.  Shacklet,  28 
Am.  &*  Eng.  R.  Cas.  193,  119  ///.  232,  10  JV, 
E.  Rep.  896. 

Where  plaintiff  sues  to  recover  for  stock 
killed  through  an  alleged  defect  in  a  cattle- 
guard,  a  verdict  for  plaintiff  cannot  be  sup- 
ported where  there  is  no  evidence  of  negli- 
gence on  the  part  of  the  company  in  either 
constructing  or  repairing  the  cattle-guard. 
Chicago  &»  N.  W.  R.  Co.  v.  Hart,  1^111.  App. 
186.  Chicago  6f  A.  R.  Co.  v.  Rice,  71  ///. 
567. 

In  an  action  against  a  railroad  company, 
under  the  statute,  for  killing  stock  in  run- 
ning and  operating  a  railroad  alleged  to 
belong  to  the  defendant,  where,  though  there 
I  D.  R.  D.— 28. 


is  no  evidence  given  as  to  the  ownership  of 
such  railroad,  there  is  no  evidence  to  the 
contrary,  yet  if  the  defendant  appear  and 
contest  the  cause,  the  supreme  court  on 
appeal  will  not  set  aside  a  verdict  for  the 
plaintiff  on  account  of  the  mere  absence  of 
such  affirmative  evidence.  Evansville  &*  C. 
R.  Co.  V.  Snapp,  61  Ind.  303.  —  Distin- 
guished IN  Wabash  R.  Co.  v.  Forshee,  77 
Ind.  158.  Followed  in  Evansville  &  C.  R. 
Co.  V,  Haddon,  62  Ind.  209 ;  Evansville  & 
C.  R.  Co.  V.  Beard,  62  Ind.  210. 

Where  in  an  action  against  a  railroad 
company,  under  the  statute,  for  killing 
stock  there  is  evidence  that  at  the  time  of 
the  killing  the  defendant  owned  and  oper- 
ated the  railroad  upon  which  the  stock  were 
killed,  the  court  trying  the  case  might 
reasonably  infer  therefrom,  in  the  absence 
of  evidence  to  the  contrary,  that  the  loco- 
motive and  cars  which  struck  and  killed 
the  stock  were  the  property  of  the  defend- 
ant; and  in  such  cfse  the  supreme  court 
will  not  disturb  a  finding  for  the  plaintiff 
merely  for  want  of  direct  evidence  of  such 
ownership.  Evansville  &*  C.  R,  Co.  v. 
Smith,  6$  Ind.  92.  —  DISTINGUISHED  IN 
Wabash  R.  Co.  v.  Forshee,  77  Ind.  158. 

Upon  an  examination  and  consideration 
of  the  evidence  in  an  action  brought  to  re- 
cover damages  for  injuries  alleged  to  have 
been  caused,  first,  by  the  negligence  of  a 
co-employ6  in  overloading  a  hand-car  in 
which  plaintiff,  a  section-hand,  rode  to  his 
work;  and,  second,  by  the  negligence  of 
another  co-employ6  in  pushing  plaintiff 
from  the  car — held,  that  there  was  no  evi- 
dence which  would  have  justified  the  jurors 
in  finding  that  the  hand-car  was  overloaded, 
and  that  therefore  the  court  erred  in  refus- 
ing to  so  instruct  the  jury.  Steffenson  v. 
Chicago,  M.  &*  St.  P.  R.  Co.,  48  Minn.  285, 
51  A^.  W.  Rep.  610;  {former  appeal,  45 
Minn.  355). 

123.  Beviewinsr  flndinfrft  on  trial 
by  the  court.— Although  there  was  con- 
flict in  the  evidence  before  the  trial  court, 
the  findings  of  fact  in  that  court,  sitting  as 
a  court  of  chancery,  are  conclusive  in  the 
appellate  court  unless  they  are  so  mani- 
festly erroneous  as  to  demonstrate  some 
oversight  or  mistake.  Dooly  Block  v.  Salt 
Lake  R.  T.  Co ,  56  Am.  6-  Et^.  R.  Cas.  513, 
9  Utah  31,  33  Pac.  Rep.  229. 

The  findings  of  fact  of  the  court  sitting 
as  a  master  on  the  question  of  the  reason- 
able practicability  of  an  overhead  crossing 


M 


434 


APPEAL  AND   ERROR,  124. 


will  not  be  set  aside  on  appeal,  except  on 
the  ground  of  palpable  error.  Baltimore  6- 
C.  V.  R.  E.  Co.'s  Appeal.  {Pa.)  3  Am.  &•  Eng: 
Ji.  Cas.  242. 

Where  the  issue  in  a  case  presents  a 
question  of  negligence  as  the  foundation  of 
the  plaintiff's  right  of  recovery,  and — the 
intervention  of  a  jury  being  waived — the 
court  have  found  for  the  plaintiff  on  the 
issue  made,  and  judgment  has  been  entered 
thereon,  and  the  cause  comes  up  on  a  peti- 
tion in  error,  founded  on  an  agreed  state- 
ment of  the  facts,  but  omitting  a  statement 
whether  there  was  negligence  or  not,  the 
supreme  court  cannot  find  that  fact  con- 
trary to  the  finding  of  the  court  below,  the 
question  whether  there  was  negligence  or 
not  being  not  a  question  of  law  merely, 
but  a  question  of  fact  to  be  found  from  the 
testimony.  Cleveland  &*  T.  R.  Co.  v.  John- 
son, 10  Ohio  St.  591. 

Where  a  case  is  tried  before  the  court 
without  a  jury,  its  findings  of  fact  should  be 
given  the  same  effect  as  the  verdict  of  a 
jury.  So  where  suit  is  brought  for  killing 
a  cow,  and  is  so  tried,  on  evidence  show- 
ing that  the  cow  was  Icilled  by  a  "  wild  " 
engine,  and  that  it  was  not  seen  until  the 
engine  was  within  100  feet  of  it,  when  the 
whistle  was  blown,  but  it  was  found  impos- 
sible to  avoid  the  accident,  and  there  was  a 
conflict  of  evidence  as  to  whether  the  statu- 
tory signals  were  given,  a  judgment  for 
plaintiff  should  not  be  disturbed  on  appeal. 
Jacksonville,  S.  E.  R.  Co.  v.  Carlsen,  29  ///. 
App.  230. 

Plaintiff  had  his  team  standing  with 
others  near  a  station  at  a  place  designed 
for  the  purpose,  waiting  the  arrival  of  a 
train.  While  so  waiting  he  left  his  team  in 
charge  of  the  hackman  next  him  and  went 
into  the  station  to  get  lunch.  While  he 
was  absent  the  engineer  of  a  switcher  ran  it 
down  to  a  point  close  by  the  teams  and 
blew  with  the  whistle  several  excessively 
loud  and  shrill  blasts  to  call  in  the  flagman. 
All  the  horses  became  frightened,  but  the 
engineer,  seeing  this,  continued  to  blow  the 
whistk  in  the  same  manner,  and  the  plain- 
tiff's horses  ran  away  and  were  injured. 
The  court  below  found  that  the  company 
was  guilty  of  negligence  and  that  the  plain- 
tiff was  not  guilty  of  contributory  negli- 
gence. Held,  that  the  finding  upon  both 
points  was  one  of  fact  that  could  not  be 
reviewed.  Fritts  v.  New  York  6*  A''.  E.  R. 
Co.,  62  Conn.  503,  26  Atl.  Rep.  347.— Apply- 


ing Nolan  V.  New  York,  N.  H.  &  H.  R.  Co., 
S3  Conn.  461 ;  Farrell  v.  Waterbury  Horse 
R.  Co.,  60  Conn.  239.  QUOTING  Isbell  v. 
New  York  &  N.  H.  R.  Co.,  27  Conn.  404. 

7.  Reviewing  the  amount  awarded. 

124.  In  general. — In  a  case  involving 
vindictive  damages  the  supreme  court  would 
set  aside  a  verdict  if  it  had  reason  to  sus- 
pect that  such  verdict  was  the  result  of  bias 
in  favor  of  one  class  of  suitors  or  prejudice 
against  another  class.  Augusta  &*  S.  R.  Co. 
v.  Dorsey,  68  Ga.  228. 

The  court  will  be  more  reluctant  to  inter- 
fere with  a  verdict,  as  awarding  excessive 
damages,  where  the  point  was  not  distinctly 
made  in  the  court  below,  but  was  brought 
up  under  the  general  exception  that  the 
verdict  was  contrary  to  law  and  evidence. 
Georgia  Southern  R.  Co.  v.  Neel,  68  Ga.  609. 

Whether  damages  found  by  a  jury  are 
excessive  or  not  does  not  present  a  question 
of  law.  If  no  improper  testimony  affecting 
the  subject  of  damages  has  been  admitted, 
and  the  court  has  given  to  the  jury  proper 
instructions  to  guide  them  in  reaching  a 
conclusion,  the  amount  of  damages  awarded 
is  beyond  the  reach  of  a  writ  of  error.  Hunn 
v.  Michigan  C.  R.  Co.,  41  Am.  &■>  Eng.  R. 
Cas.iS2,  78  Mich.  513,  7  Z.  /?.  A.  500,  44  N. 
W.  Rep.  502. 

Where  a  verdict  is  the  evident  result  of 
prejudice,  partiality,  or  mistake,  and  not  of 
that  calm  and  considerate  weighing  of  the 
facts  in  evidence  which  should  always  char- 
acterize the  deliberations  of  a  jury,  the  ap- 
pellate court  will  not  hesitate  to  interfere. 
Duggan  V.  Wabash  W.  R.  Co.,  46  Mo.  App. 
266. — Following  Spohn  v.  Missouri  Pac. 
R.  Co.,  87  Mo.  74 ;  Jackson  v.  St.  Louis,  I. 
M.  &  S.  R.  Co.,  29  Mo.  App.  500. — McKinley 
V.  Chicago  &*  N.  IV.  R.  Co.,  44  Iowa  314. 

While  courts  may  review  the  finding  of 
juries  in  actions  for  personal  injuries,  still, 
when  only  the  amount  of  the  verdict  is  ob- 
jected to,  they  interfere  with  much  caution 
and  hesitation,  and  only  reverse  where  the 
verdict  is  plainly  and  palpably  excessive. 
Dalzell  V.  Long  Island  R.  Co.,  i  Silv.  Sup. 
a.  {N.  Y.)  582, 

Where  the  verdict  of  a  jury  is  excessive 
it  is  the  duty  of  the  nisiprius  court  to  set  it 
aside ;  but  its  refusal  to  do  so  cannot  be  re- 
viewed by  this  court.  Nelson  v.  Oregon  R. 
6-  A';  Co.,  13  Or^.  141,  9  Pac.  Rep.  321. 

Where  a  verdict  is  for  a  gross  sum,  an 
objection  that  it  included  interest  will  not  be 


APPEAL  AND    ERROR,  126. 


435 


reviewed  on  appeal.  Wilson  v.  Atlanta  &* 
C.  A.  L.  R.  Co.,  i6  So.  Car.  587. 

The  supreme  court  of  South  Carolina 
cannot  review  a  judgment  on  the  ground 
that  the  damages  awarded  are  excessive. 
Bowen  v.  Atlantic  &*  F.  B.  V.  R.  Co.,  14  Am. 
&•  Eng.  R.  Cas.  332,  17  So.  Car.  574.— Ap- 
plying Brickman  v.  South  Carolina  R.  Co., 
8  So.  Car.  173;  Steele  v.  Charlotte,  C.  4  A. 
R.  Co.,  1 1  So.  Car.  589. 

An  appellate  court  can  grant  relief  on 
the  ground  that  a  verdict  in  a  suit  for  per- 
sonal injuries  inflicted  by  the  negligence  of 
another  is  excessive,  only  when  the  amount 
is  so  disproportionate  to  the  injuries  inflicted 
as  to  evidence  a  wrong  motive  on  the  part 
of  the  jury.  Gulf,  C.  &•  S.  F.  R.  Co.  v. 
Greenlee,  23  Am.  &*  Eng.  R.  Cas.  322,62  Tex. 

344- 

Where  a  party  sues  a  railroad  company 
for  putting  him  off  the  cars  with  force,  at  a 
place  not  authorized  by  law,  and  he  recov- 
ers damages  grossly  in  excess  of  the  injuries 
received,  the  verdict  of  the  jury  should  be 
set  aside  by  the  court  trying  the  cause,  and, 
failing  to  do  so,  the  judgment  will  be  re- 
versed that  a  new  trial  may  be  had.  Chicago 
a^  N.  W.  R.  Co.  v.  Peacock,  48  ///.  253. 

Where  a  company  is  sued  for  a  horse 
fatally  injured  while  in  the  hands  of  a  com- 
mon carrier,  a  verdict  for  a  much  larger  sum 
than  is  warranted  by  the  evidence  will  be  set 
aside  on  appeal,  though  the  evidence  as  to 
the  value  of  the  horse  is  conflicting.  Harris 
V.  Panama  R.  Co.,  5  Bosw.  (N.  V.)  312. 

Where  the  value  of  stock  killed  by  a  rail- 
road is  laid,  under  a  ^'idelicit,  at  $200,  and 
there  is  also  an  averment  that  each  is  of  the 
value  of  $19.50,  and  the  verdict  is  for  a  sum 
less  than  $200  but  more  than  the  separate 
values  arfded—Z/ij/rf,  that  the  verdict  might 
be  sustained  by  treating  the  averment  of 
separate  values  as  surplusage.  Ohio  &*  At. 
R.  Co.  V.  Clutter,  82  III.  123. 

On  a  creditor's  bill  against  a  railroad  com- 
pany some  of  the  debts  proved  are  under 
$500,  but  there  is  one  for$i  11 7.60  proved  be- 
fore ♦he  commissioner,  and  the  decree  of  the 
circuiv  court  is  in  favor  of  all  the  creditors 
a^rainst  the  company.  An  appeal  by  the 
company  brings  up  all  of  them,  and  the  ap- 
pellate court  will  pass  upon  all.  Winchester 
«S-  S.  R.  Co.  V.  Col/elt,  27  Gratt.  ( Fa.)  777, 
17  Am.  Ry.  Rep.  121. 

135.  When  the  verdict  will  not  be 
disturbed.*— (1)  Ingeneral. — The  court  of 

*  When  appellate  court  will  not  disturb  ver- 


appeals  has  no  jurisdiction  to  reverse  a 
judgment  in  an  action  for  negligence  be- 
cause of  excessive  damages.  Gale  v.  New 
York  C.  <S-  H.  R.  R.  Co.,  76  JV.  V.  594 ; 
affirming  53  How.  Pr.  385;  13  Hun  i. 
Maker  v.  Central  Park,  N.  &*  E.  R.  R.  Co., 
67  A''.  Y.  52,  1 5  Am.  Ry.  Rep.  293 ;  affirming 
T  /.&*  S.  155.— Followed  in  Laxz/.  Forty- 
second  &  G.  St.  F.  R.  Co.,  14  J.  &  S.  (N.  Y.) 
448. 

The  question  of  the  amount  of  the  verdict 
is  peculiarly  one  for  the  jury,  and  the  su- 
preme court  will  not  interfere  with  it  on  the 
ground  of  excessiveness,  unless  it  clearly  ap- 
pears that  such  verdict  was  the  result  of  im- 
proper motives  or  conduct  on  the  part  of  the 
jury.  Hanlon  v.  Missouri  Pac.  R.  Co.,  104 
Mo»  381,  16  S.  IV.  Rep.  233.  Louisville,  N. 
A.  (S-  C.  R.  Co.  V.  Pedigo,  tj  Am.  &•  Eng.  R. 
Cas.  310, 108  Ind.  48 1 ,  8  A^.  iE".  Rep.  627.  Tier- 
ney  v.  Minneapolis  &•  St.  L.  R,  Co.,  21  Am.  &» 
Eng.  R.  Cas.  545,  33  Minn.  311,  53  Am.  Rep. 
35, 23  A^.  W.  Rep.  229.  Koch  v.  St.  Paul  City 
R.  Co.,  45  Minn.  407,  48  A^.  W.  Rep.  191. 
Pry  V.  Hannibal  Sr*  St.  J.  R.  Co.,  73  Mo. 
123.  Adams  V.  Midland  R.  Co.,  t,\  L.  J. 
Exch.  35,  10  W.  R.  84.  Singleton  v.  South- 
western R.  Co..  21  Am.  &»  Eng.  R.  Cas.  226, 
70  'Ja.  464,  48  Am.  Rep.  574. — QuOTiNC; 
Bryan  v.  Acee,  27  Ga.  91. 

It  is  not  the  province  of  the  supreme 
court  to  determine  on  a  writ  of  error  whether 
a  verdict  is  excessive,  and  the  correction  of 
that  error,  if  there  be  any,  is  with  the  court 
below  upon  a  motion  for  a  new  trial,  the 
granting  or  refusal  of  which  is  not  assign- 
able as  error.  New  York,  L.  E.  <S-  W.  R.  Co. 
v.  Winter,  52  Am.  iS-  Eng.  R.  Cas.  328,  143 
I/.  S.  60,  12  .Sup.  Ct.  Rep.  356.— Quoting 
JEtn-A  Life  Ins.  Co.  v.  Ward,  140  U.  S.  76. 
—Followed  in  Northern  Pac.  R.  Co.  v. 
Charless.  51  Am.  &  Eng.  R.  Cas.  198.  51  Fed. 
Rep.  562,  7  U.  S.  App.  359.  2  C.  C.  A.  380.— 
Northern  Pac.  R.  Co.  v.  Charless,  51  Am.  &- 
Eng.  R.  Cas.  198,  51  Fed.  Rep.  562,  7  (/.  S. 
^PP-  359.  2  C.  C.  A.  380.— Following  New 
York,  L.  E.  &  W.  R,  Co.  v.  Winter.  143  U. 
S.  60,  12  Sup.  Ct.  Rep.  -^6.— Olson  v.  .St. 
Paul  &*  D.  R.  Co.,  AH  Am.  <S-  Eng.  R.  Cas. 
573.  45  Minn.  536.  48  A^.  W.  Rep.  445. 
Kumliv.  Southern  Pac.  R.  Co.,  21  Oreg.  505. 
28  Pac.  Rep.  637.  Houston  &-  T.  C.  R.  Co. 
v.  Boehm,  9  Am.  &*  Eng.  R.  Cas.  366,  57  Tex. 
152.    Ft.  Worth  6-  A^  O.  R.  Co.  v.  Wallace, 

diet  as  excessive  in  personal  injury  casi-s.  Vari- 
ous examples  and  instances,  see  note,  11  L.  R. 
A.  47. 


4 


F'      "TJ 


I     ii 


5: 


436 


APPEAL  AND   LRROR,  126. 


,♦» 


i 


40  Am.  S-  En^.  R.  Cas.  248,  74  Tex.  581.  12 
S.  W.  Rep.  227. 

The  supreme  court  will  not  reverse  a  case 
on  the  ground  of  excessive  damages  unless 
they  are  obviously  outrageous  and  excessive. 
Ohio  <S-  M.  R.  Co.  v.  /utfy,  120  /n<f.  397, 22  A^. 
E.  Rep.  252. 

The  finding  of  a  referee  as  to  the  value  of 
an  animal  killed  by  a  railroad  not  in  excess 
of  the  market  value,  as  shown  by  clear  and 
uncontradicted  evidence,  will  not  be  set 
aside  on  the  ground  that  it  is  excessive. 
Jacksonville,  T.  &*  K.  W.  R.  Co.v.  Garrison, 
30  Fla.  567,  i:  So.  Rep.  926.  Jacksonville, 
T.  &*  K.  W.  R.  Co.  V.  Garrison,  30  Fla.  557. 
1 1  So.  Rep.  929. 

In  actions  for  damages  the  appellate  court 
will  not  disturb  a  verdict  for  plaintiff  where 
the  evidence  is  conflicting  and  where  the 
verdict  does  not  exceed  plaintiff's  loss,  if  his 
evidence  is  true,  though  the  court  would  have 
found  a  verdict  for  a  less  amount.  St.  Louis, 
I.  At.  &*  S.  R.  Co.  V.  Spann,  (Ark.)  20  S.  W. 
Rep.  914.  McClean  v.  Chicago,  I.  6-  D.  R. 
Co.,  67  Iowa  568,  25  A'^,  W.  Rep.  782. 

The  supreme  court  will  not  generally  look 
closely  into  small  matters  of  amounts  of 
damage  after  the  jury  have  passed  upon 
them  and  the  presiding  judge  had  approved 
their  finding.  Central  R.  Co.  v.  Russell,  75 
Ga.  810. 

The  jury  having  returned  two  verdicts 
for  substantially  the  same  amount,  the  court 
of  appeals  will  not  reverse  upon  the  ground 
that  the  verdict  is  excessive.  Louisville  &* 
N.  R.  Co.  V.  Ballard,  88  Ky.  159,  10  S.  fV. 
Rep.  429. 

Plaintiff  instituted  suit  against  a  company 
for  damages  and  recovered  a  verdict  for 
92538,  which  on  appeal  was  held  to  be  ex- 
cessive, the  court  intimating  that  $1200  was 
sufficient.  On  a  second  trial  there  was  ad- 
ditional evidence  as  to  pluintitf's  damages, 
and  he  recovered  $1500.  Held,  on  second 
appeal,  that  the  verdict  would  not  be  dis- 
turbed. Patten  v.  Chicago  V*  N.  fV.  R.  Co., 
36  Wm.  413. 

(2)  Cases  0/  personal  injuries. — A  verdict 
awarding  damages  for  injuries  received  by 
the  negligence  of  a  street-car  company  will 
not  be  reversed  on  appeal,  on  the  ground 
that  the  damages  are  excessive,  where  it  has 
been  approved  by  the  trial  court,  and  where 
it  appears  to  be  the  result  of  a  fair  and 
honest  judgment  of  the  jurors.  Sivain  v. 
Fourteenth  St.  R.  Co.,  93  Cal.  179,  28  Pac. 
Rep.  829. 


Where  it  is  apparent  that  the  trial  judge 
did  not  regard  damages  assessed  as  exces- 
sive, the  appellate  court  will  not  interfere  in 
the  absence  of  anything  to  show  that  the  jury 
acted  from  prejudice,  partiality,  or  other  im- 
proper motive.  Louisville,  N.  A.  &*  C.  K.  Co. 
V.  Miller,  (/nd.)  58  Am.  (&*  Eng.  R.  Cas.  304. 

The  jury  are  the  proper  judges  of  the 
quantum  of  damages  for  injuries  received  by 
passengers,  and  this  court  will  not  overrule 
the  judge  below  in  refusing  a  new  trial  for 
excessive  damages,  unless  the  excess  be 
manifest  and  gross.  Georgia  R.  &*  B.  Co.  v. 
Mc  Curdy,  45  Ga.  288. 

Where  the  verdict  is  not  so  excessive  as 
to  shock  the  moral  sense  the  supreme  court 
will  not  order  a  new  trial.  So  held,  where 
plaintiff  recovered  $2433  ^o""  being  pushed 
of!  a  moving  train  near  a  station  by  the  con- 
ductor, who  had  refused  to  stop  the  car  at 
the  station  to  allow  plaintiff  to  get  off. 
East  Tenn.,  V.  &*  G.  R.  Co.  v.  Hyde,  89  Ga. 
721,  15  5.  £.  Rep.  621. 

If  the  verdict  of  the  jury  in  awarding 
damages  against  a  street  railroad  company 
for  the  infliction  of  an  injury  through  the 
gross  negligence  of  a  driver  is  su.stained  by 
the  testimony  in  the  record,  as  well  for  the 
amount  given  as  for  the  liability,  the  su- 
preme court  will  not  enter  into  an  examina- 
tion of  the  question  whether  vindictive  dam- 
ages have  any  place  in  the  law  of  Louisiana, 
where  the  principal  is  made  liable  only  for 
the  neglect  of  his  agent.  But  in  such  a 
case  the  verdict  of  the  jury,  being  sustained 
by  the  evidence  in  the  record,  will  be 
affirmed  on  appeal.  Howell  v.  St,  Charles 
S.  R.  Co.,  22  La.  Ann.  603. 

Where  the  evidence  tended  to  show  that 
plaintiff  was  confined  to  his  house  for  three 
weeks  after  the  accident,  that  both  of  his 
sides  were  compressed,  that  pneumonia  re- 
sulted, that  up  to  the  time  of  the  trial  he 
had  been  unable  to  work  and  had  suffered 
continual  pain,  and  also  that theinjuryml^ht 
be  permanent,  a  verdict  of  $5000  will  not  be 
set  aside  by  the  supreme  court  as  excessive. 
Hanlon  v.  Missouri  Pac.  R.  Co.,  104  Mo. 
381,  16  S.  W.  Rep.  233. 

In  an  action  by  one  injured  on  a  railway 
crossing  by  a  passing  train  it  appeared  that 
he  was  a  physician  sixty  years  of  age  and 
earned  about  1(12500  a  year,  that  his  nose  and 
three  ribs  were  broken  and  his  spine  and 
hip  were  injured,  and  some  of  his  teeth 
were  broken  and  knocked  out,  and  that  he 
is  permanently  paralyzed  on  one  side  of  his 


APPEAL   AiNU    ERROR,   ia«. 


437 


face,  and  that  he  is  an  invalid  for  life,  so 
that  his  earnings  are  much  reduced.  Held, 
that  a  verdict  for  $10,175  will  not  be  dis- 
turbed by  the  supreme  court  because  exces- 
sive. Gratiot  V.  Missouri  Pac,  R.  Co.,  55 
Am.  &>  Eng.R.  Cas.  108,  116  Mo.  450,  21  S. 

IV.  Rep.  1094.— Quoting  Griffith  v.  Mis- 
souri Pac.  R.  Co.,  98  Mo.  168. 

(3)  Eminent  domain  cases. — Where  a  jury 
a<isesses  damages  for  land  taken  for  the  pur- 
poses of  a  railroad  upon  uncontradicted 
evidence  of  unimpeachable  witnesses,  who 
appeared  to  be  respectable  and  experienced 
men,  the  court  cannot  say  that  the  jury 
acted  corruptly,  perversely,  or  erroneously 
because  the  damages  are  large,  where  they 
are  justified  by  the  evidence,  if  it  is  believed. 
Doyle  V.  Main  Shore  Line  R.  Co.,Zo  Me.  136, 
13  Atl.  Rep.  275. 

Where  the  evidence  is  conflicting  as  to 
value,  and  the  jury  have  examined  the 
premises  in  person,  the  court  will  not  re- 
verse on  the  ground  alone  that  the  damages 
assessed  may  be  considered  high,  unless  they 
are  clearly  excessive.     Chicago  &•  E.  R.  Co. 

V.  /a cods,  1 10  ///.  414. 

120.  Reniittiug  excessive  dam- 
a}jt*s«* — (1)  General  rules. — Where  the  ap- 
pellate court  believes  that  the  damages  are 
excessive  it  may  impose  upon  the  successful 
party  the  alternative  of  a  new  trial  or  ac- 
cepting a  reduced  amount.  Noel  v.  Dubuque, 
li.  6-  M.  R.  Co.,  44  Iowa  293.  St.  Louis  &» 
S.  F.  R.  Co.  v.  Trimble,  54  Ark.  354,  1 5  S. 
IV.  Rep.  899.  Kennon  v.  Gilmer,  5  Mont. 
257,  5  Pac.  Rep.  847.  Smith  v.  Wabash,  St. 
L.  &»  P.  R.  Co.,  31  Am.  &•  Eng.  R,  Cas.  331, 
92  Mo.  359,  4  S.  W.  Rep.  129.  Missouri 
Pac.  R.  Co.  V.  Dwyer,  36  Kan.  58,  12  Pac. 
Rep.  352.  Furnish  v.  Missouri  Pac.  R.  Co., 
102  Mo.  438, 135.  W.  Rep.  1044.— Not  fol- 
lowing Harrold  v.  New  York  El.  R.  Co.,  24 
Hun  (N.  Y.)  184;  Chicago  &  E.  I.  R.  Co.  v. 
Holland,  18  III.  App.418, 122  III.461 ;  Wood- 
bury V.  District  of  Columbia,  5  Mackey  (D. 
C.)  irj.—  Waldhier  v.  Hannibal &-  St./.  R. 
Co.,  87  Mo.  37. — Distinguished  in  Hawes 
7'.  Kansas  City  Stock  Yards  Co.,  103  Mo.  60. 
Reviewed  and  quoted  in  Dougherty  v. 
Missouri  R.  Co.,  34  Am.  &  Eng.  R.  Cas.  488. 
See  also  37  Am.  &  Eng.  R.  Cas.  206,  97  Mo. 
647,  15  West.  Rep.  235,  8  S.  W.  Rep.  900,  11 
S.  W.  Rep.  251. 

The  practice  of  requiring  the  plaintiff  to 
remit  a  portion  of  his  damages  and  render- 

*  See  also  an.'/,  3. 


ing  judgment  for  the  residue,  when  there  is 
no  ground  for  a  new  trial  except  that  the 
damages  awarded  by  the  jury  are  excessive, 
is  too  well  established  in  this  state  to  be 
called  in  question.  Libbyv.  Scherman,  \i,(i 
III.  540,  34  A^.  E.  Rep.  801. 

In  damage  suits  it  is  only  where  the  find- 
ings of  the  jury  may  be  separated  into  dis- 
tinct parts,  or  where  error  is  readily  discern- 
ible and  separable,  and  may  have  increased 
the  finding,  that  the  appellate  court  is  justi- 
fied in  directing  or  permitting  a  remittitur  of 
a  part.  Woods  v.  Richmond  6-  D.  R.  Co.,  1 
App.  Cas.  {D.  Col.)  165. 

Where  a  jud{,'ment  against  a  railroad  for 
killing  stock  is  reversed  on  appeal  as  exces- 
sive, and  before  the  end  of  the  term  the 
plaintifT  files  a  remittitur  of  the  excess  of  the 
judgment  above  the  actual  value  of  the  stock 
killed,  the  court  will  set  aside  its  judgment 
of  reversal  and  affirm  the  judgment  of  the 
lower  court  as  thus  modified.  Gulf,  C.  &* 
S.  F.  R.  Co.  v.  Key,  4  Tex.  App.  (Civ.  Gw.) 
448,  16  5.  W.  Rep.  543. 

The  supreme  court  will  not,  because  the 
damages  awarded  by  the  verdict  of  a  jury 
are  excessive,  indicate  a  sum  to  be  remitted 
so  that  on  such  remittitur  being  entered 
judgment  may  be  affirmed  as  to  the  residue. 
Gurley  v.  Missouri  Pac.  R.  Co.,  104  Mo.  211, 
16  5.  W.Rep.  II. 

Such  excessive  verdict  will  not  be  dis- 
turbed by  the  supreme  court  unless  on  its 
face  it  appears  to  be  the  result  of  passion 
or  prejudice,  and  where  it  does  so  appear  to 
be  the  result  of  passion  or  prejudice  it  will 
be  set  aside  entirely.  Gurley  v.  Missouri 
Pac.  R.  Co.,  10^  Mo.  211,  16  S.  W.  Rep.  11. 
— Criticised  in  Holmes  v.  Atchison,  T.  & 
S.  F.  R.  Co.,  48  Mo.  App.  79.  Reviewed 
IN  Zurfluh  V.  People's  R.  Co.,  46  Mo.  App. 
636. 

A  verdict  in  an  action  for  personal  in- 
juries, where  the  injury  is  permanent  and 
recovery  hopeless,  will  not  be  reduced  if  the 
trial  judge  is  satisfied.  Britton  v.  South 
Wales  R.  Co.,  27  L.  J.  Exch.  355. 

(2)  Illustrations.— ^htTC,  in  addition  to 
compensatory  damages  for  plaintiff's  ex- 
penses, loss  of  time,  diminished  capacity  for 
labor,  and  suffering,  the  jury  are  erroneously 
instructed  to  consider  the  element  of  puni- 
tive damages,  a  remittitur  of  such  excessive 
damages  will  not  be  allowed.  St.  Louis,  I. 
M.  &>  S.  R.  Co.  V.  Hall,  42  Am.  6-  Eng.  R. 
Cas,  208,  53  Ark.  7,\iS.  W.  Rep.  138.— Ap- 
proving Blunt  V.  Little,  3  Mason  (U.  S.) 


; 


438 


APPEAL   AND    ERROR,  I27-12U. 


(?7. 


I02.  Limiting  Little  Rock  &  Ft.  S.  R.  Co. 
V.  Barker,  39  Ark.  491. 

Where  it  appeared  that  plaintiff  was  left 
after  an  accident  fully  able  to  earn  a  liveli- 
hood, only  needing  proper  treatment  to 
effect  a  complete  cure,  and  that  the  acci- 
dent resulted  in  nothing  more  serious  than 
inflammation  of  the  hip,  which  caused  great 
pain,  some  loss  of  time,  and  considerable 
expense  for  medical  attendance,  a  verdict 
for  $25,000  was  held  excessive,  and  ordered 
to  be  reduced  to  $500.  Peyton  v.  Texas  &* 
P.  J{.  Co.,  41  Am.  &*  Eng.  R.  Cas.  550,  41 
La.  Ann.  861,  6  5o.  Rep.  690. 

A  verdict  of  f  10,000  in  favor  of  a  married 
woman,  43  years  old,  for  injuries  which 
caused  nervous  prostration  and  other  pain 
and  inconvenience,  but  which  did  not  pre- 
vent her  from  walking  about,  held  to  be  ex- 
cessive and  ground  for  a  new  trial,  unless 
she  stipulated  to  accept  I4000.  Lockwood 
V.  Twenty-third  St.  R.  Co.,  15  Daly  (N.  V.) 
374 ,7N.V.  Supp.  663 ;  28  A^.  Y.  S.  R.  16. 

Plaintiff  was  at  the  time  of  the  accident 
thirty-six  years  of  age,  with  an  earning 
capacity  of  eight  dollars  a  week.  The  jury 
gave  him  a  verdict  of  $20,000.  Held,  exces- 
sive, and  reduced  to  $15,000.  Pfeffer  v. 
Buffalo  R.  Co.,  4  Misc.  {N.  K.)  465. 

A  judgment  for  $10,000  for  the  loss  of  a 
hand  to  a  man  who  was  earning  $75  per 
month  and  who  had  fully  recovered,  except 
the  loss  of  the  hand,  held  to  be  excessive, 
but  affirmed  upon  remission  of  all  above 
$4000.  Brown  v.  Southern  Pac.  R.  Co.,  7 
Utah  288,  26  Pac.  Rep.  579. 

127.  Setting  atiide  verdict  for  in- 
adequate damages.— If  the  owner  of 
stock  killed  is  entitled  to  recover  at  all,  he 
is  entitled  to  the  full  value  of  the  stock, 
and  a  judgment  for  one-fourth  of  the  value, 
as  proved,  will  be  set  aside  as  inconsistent. 
Smedley  v.  Chicago  <S*  N.  IV.  R.  Co.,  45  ///. 
App.  426, 

Where  in  an  action  to  recover  damages 
for  injury  to  property  the  cause  of  the  in- 
jury is  a  matter  of  conjecture,  a  verdict  in 
favor  of  the  plaintiff  will  not  be  set  aside  at 
his  instance  because  the  verdict  is  not  as 
lai^e  as  it  probably  would  have  been  had 
the  cause  of  the  injury  been  fully  proved. 
Benson  v.  Burlington  6*  M.  R.  R.  Co.,  18 
Neb.  659. 

A  passenger  sued  for  being  ejected  from 
a  train,  and  it  appeared  that  the  items  of 
his  damage  were :  (i)  the  cost  of  an  addi- 
tional ticket,  fifty  cents ;  (2)  the  loss  of  two 


or  three  hours'  time,  value  not  proven  ;  fj) 
the  money  equivalent  for  the  indignity  put 
upon  him  and  for  the  injury  to  his  feelings. 
He  recovered  a  verdict  for  |io.  Held,  thnt, 
as  the  last  item  may  have  been  worthy  of 
substantial  compensation  or  not,  which  was 
for  the  jury,  the  court  will  not  review  the 
verdict  on  appeal  as  inadequate.  Phelan  \\ 
New  York  C.&*H.  R.  R.  Co.,  \2  N.  Y.  .s. 
R.  413,  ^6  Hun  679. 

A  verdict  of  a  jury  in  assessing  damiiges 
will  not  be  disturbed  on  appeal  simply  he- 
cause  the  evidence  would  have  warranted  a 
much  higher  verdict.  So  held,  in  an  action 
against  a  railroad  company  for  causing  a 
fire  on  a  farm-land,  where  the  suit  was  for 
$1500  and  the  verdict  was  for  $164,  and 
where  the  evidence  left  considerable  doubt 
as  to  the  amount  of  land  burned  over  and 
the  extent  of  the  damage.  IVitte  v.  Gulf, 
C.  &*  S.  F.  R.  Co.,  ( 7>.r.)  6  S.  W.  Rep.  618. 

128.  Increaslngr  inadequate  dnni- 
asres.— Damages  allowed  by  a  jury  will  not 
be  increased  on  appeal  unless  manifestly 
inadequate.  Moses  v.  Louis7<Hle.  N.  O.  £~ 
T.  R.  Co.,  30  Am.  &•  Eng.  R.  Cas.  556.  39 
La.  Ann.  649,  2  So.  Rep.  567. 

Where  a  jury  has  failed  to  do  justice  iti 
the  awarding  of  damages,  the  court  on  ap- 
peal may  give  proper  relief.  So  where  it 
appeared  that  plaintiff  was  knocked  sense- 
less, had  his  ear  cut  through,  received  a 
severe  gash  on  his  head,  had  his  face  smashed 
and  bruised  and  his  leg  severely  sprained, 
and  that  after  recovering  consciousness  he 
was  seized  with  vomiting,  was  laid  up  for 
several  days,  suffering  great  pain,  and  in- 
curred considerable  expense  for  board  and 
medical  treatment,  a  verdict  for  $100  was 
regarded  as  inadequate  and  was  increased 
to  $500,  Sullivan  v.  Vicksburg,  S.  &*  P.  R. 
Co.,  30  Am.  6-  Eng.  R.  Cas.  168,  39  La. 
Ann.  800,  2  So.  Rep.  586. 

m.  TAKnra  Ain>  psBnoiiHO  ah  appeal. 

120.  In  ereneral.— When  a  statute  gives 
a  court  jurisdiction  to  try  an  action  upon 
appeal,  the  court  does  not  obtain  jurisdic- 
tion of  the  subject-matter  of  the  action 
unless  the  appeal  be  taken  in  a  proper  case 
and  in  the  manner  prescribed  by  law. 
Spaulding  v.  Milwaukee,  L.  S.  &*  W.  R.  Co., 
lo  Am.  &*  Eng.  R.  Cas.  509,  57  IVis.  304. 

Where  the  president  of  :i  railroad  com- 
pany was  informed  that  a  suit  was  about  to 
be  brought  against  his  company,  before  a 


APPEAL   AND    ERROR,   I.JO,  131. 


439 


justice  of  tlic  peace,  and,  believing  that  a 
ii'coveiy  in  such  suit  would  be  unjust,  gave 
i  istructions  to  tlie  most  convenient  station 
ii;;ent  to  attend  the  trial,  and,  in  case  of  a 
rtcuvery  against  the  company,  to  appeal  to 
cnuri,  and  such  agent  was  a  diligent  and 
faithful  officer,  but  from  ignorance  of  the 
law  failed  to  procure  security  for  the 
appeal— AM,  that  there  was  no  such 
luclies  on  the  part  of  the  president  as  de- 
prived the  company  of  a  right  to  a  recar- 
'hxri.  North  Carolina  R.  Co,  v.  Vinson,  8 
Jones  (N.  C.)  119. 

130.  Time  of  taking.— In  proceed- 
ings to  acquire  title  to  land  under  Code 
Iowa,  §  1254,  the  time  for  taking  an  appeal 
from  the  assessment  of  commissioners  be- 
gins to  run  from  the  time  the  assessment  is 
actually  made  and  reduced  to  writing  and 
made  public,  or  in  some  legitimate  manner 
brought  to  the  notice  of  the  parties  inter- 
ested. Jamison  v.  Burlington  &*  W.  R,  Co., 
27  Am.  St*  Eng.  R.  Cas.  413,  69  Iowa  670,  29 
N.  IV.  Rep.  774. 

Where  a  party  entitled  to  an  appeal  in 
eminent  domain  proceedings  uses  diligence 
in  endeavoring  to  perfect  the  same,  ihe  law 
will  not  permit  him  to  be  deprived  of  it 
through  the  neglect  of  the  officer  whose 
duty  it  was  to  prepare  the  transcript.  Re- 
publican  Valley  R.  Co.  v.  McPherson,  1 2  Neb. 
480,  11  N.  W.  Rep.  739.— Distinguished 
IN  Clinton  v.  Missouri  Pac.  R.  Co..  122  U. 
S.  469.  Reviewed  in  Giflordz/.  Republican 
V.  &  K.  R.  Co..  20  Neb.  538. 

A  suit  is  suspended  during  the  period 
between  the  death  of  a  party  and  the  order 
granting  a  continuance,  and  this  period  is 
not  to  be  deemed  any  part  of  the  time  lim- 
iti'fi  for  taking  an  appeal.  Mcliridc  v. 
.\orlhern  Pac.  R.  Co.,  42  AiU.  Sf  Eni;;.  R. 
Cas.  146,  19  Or  eg.  64,  23  Pac.  Rep.  814. 

Where  the  depositions  taken  in  support 
of  a  rule  show  that  the  justice  of  the  peace 
has  no  jurisdiction  of  an  action  of  trespass 
to  recover  for  injuries  to  a  car,  and  that 
the  defendant  was  misled  by  the  justice's 
statement,  the  district  court  will  grant 
relief  by  allowing  an  appeal  nunc  pro  tunc. 
Hestonville  Pass.  R.  Co.  v.  BoyU,  i  Pa.  Dist, 
230. 

A  decree  in  a  quo  warranto  proceeding 
to  enforce  a  forfeiture  against  a  railroad 
company  will  not  be  reviewed  on  appeal 
unless  it  be  prosecuted  at  the  term  of  the 
court  in  session,  or,  if  not  in  session,  at  the 
first  term  to  be  held  after  judgment  has 


been  rendered  In  u  district  court,  as  provided 
by  statute.  International  &»  G.  N.  R.  Co.  v. 
State,  41  Am.  6-  Eng.  R.  Cas.  6ii,  75  Tex, 
356,  7  R.R.&*  Corp.  L.J.  305, 12  .V.  W.Rep, 
685. 

Where  an  appeal  is  a  matter  of  right,  the 
efflux  of  the  time  within  which  it  may  be 
taken  is  stopped  by  the  filing  of  the  appeal 
bond ;  but  where  the  appeal  depends  upon 
discretion  or  allowance,  the  time  of  limita- 
tion runs  until  the  application  or  petition 
for  appeal  is  presented.  Womtr  v.  Ravens- 
wood,  S.  6-  G,  R.  Co.,  37  W.  Va.  287, 16  S.  E, 
Rep.  488.— Quoting  and  following  Long 
V.  Ohio  River  R.  Co.,  35  W,  Va.  333. 

131.  Notice  of  aiipetil.— The  filing  of 
proof  of  a  legally  effectual  service  of  the 
notice  of  appeal  is  jurisdictional,  and  a 
failure  to  comply  with  the  statute  cannot 
be  cured  by  amendment  after  the  time  to 
appeal  has  expired.  Stolt  v.  Chicago,  M.  &* 
St.  P.  R.  Co.,  49  Minn.  353,  51  A'.  W^.  Rep, 
H03. 

Under  N.  Y.  Code  Civ.  Proc.  §  3046,  au- 
thorizing '.lie  appellate  court  to  allow  an 
amendment  upon  such  terms  as  justice  re- 
quires, where  the  appellant  has  omitted  to 
do  any  act  necessary  to  perfect  the  appeal, 
the  omission  to  subscribe  a  notice  of  appeal 
ii;ay  be  cured  by  amendment.  Gutbrecht  v. 
Prospect  Park  &*  C,  I.  R.  Co.,  28  Hun  (N. 

y.)  497- 

Notice  of  an  appeal  was  required  to  be 
served  on  a  railroad  company,  and  also  upon 
the  clerk  of  the  court,  but  in  taking  an 
appeal  the  citation  was  served  upon  the 
company,  and  afterward  filed  with  the  clerk, 
and  its  contents  were  made  known  to  him. 
Z/eM,  that  such  service  upon  the  clerk, 
though  informal,  was  not  ground  for  dis- 
missing the  appciil.  Black  v.  Chicago  Sf 
N.  W.  R.  Co.,  18  Wis.  208. 

By  an  obligation  payable  to  a  certain  per- 
son or  bearer,  the  maker,  in  consideration 
of  one  dollar,  the  receipt  of  which  was  there- 
in confessed,  and  of  the  delivery  to  be  made 
to  him  by  a  certain  railroad  company  of  a 
specified  number  of  shares  of  its  capital 
stock,  acknowledged  himself  to  be  indebted 
in  a  certain  sum,  which  he  promised  to  pay 
in  instalments  as  the  construction  of  the 
roadbed  progressed,  in  proportion  to  month- 
ly estimates  thereof,  and  that  the  whole 
should  be  paid  on  the  completion  of 
such  roadbed.  Held,  that  such  company 
having  been  made  a  party  defendant,  but  no 
judgment  having  been  rendered  against  it 


!''■' 


440 


AI'PliAL   aNU    1:RK()K,   lilii,  13;i. 


«b 


,*» 


Mi'-'.'  i3 


f 


below,  it  need  nut  be  made  a  party  tu  nor 
served  witli  nutice  uf  an  appeal ;  and  that 
a  failure  tu  give  nutice  to  the  cunipany  uf 
such  an  appeal  is  gruund  for  setting  aside  a 
submission  of  the  cause  on  default,  but  nut 
for  a  dismissal  uf  the  appeal.  c/<i/'/'  v.  Con- 
tituntal  Imp.  Co.,  57  Ind.  135,  18  Am.  Ry. 
Rep.  505. 

132.  Purties.— Where  a  party  claim- 
ing a  right  of  way  under  a  contract  was  not 
before  the  court  below,  and  it  is  apparent 
that  he  has  an  interest  in  the  subject-matter 
of  the  suit,  he  must,  be  made  a  party  before 
the  court  will  determine  his  rights  in  the 
premises.  Koenig  v.  Chicago,  />'.  d*  Q.  R. 
Co.,  27  Neb.  699,  43  N.  IV.  Rep.  423. 

In  a  suit  by  bondholders  to  foreclose  a 
mortgage  to  secure  the  bonds,  wherein  the 
railroad  company  and  the  mortgage  trustees 
are  defendants,  the  company  is  the  only 
real  defendant,  and  may  appeal  alone.  Nor- 
wich  6-  W.  R.  Co.  V.  Johnson,  15  Wall.  {U. 
S.)i. 

A  judgment  was  obtained  against  the 
"Southern  Pacific  Railroad  Company"  in  a 
suit  filed  Sept.  6,  1871.  On  July  10,  1873,  a 
writ  uf  errur  was  directed  to  the  "Texas  & 
Pacific  Railway  Company."  Held,  that  the 
acts  of  May  24,  1871,  and  May  2.  1873, 
clearly  show  a  consolidation  of  the  first- 
mentioned  company  under  the  name  of  the 
latter,  and  that  therefore  the  writ  was  prop- 
erly directed.  Stephenson  v.  Texas  &*  P.  R. 
Co.,  42  Tex.  162.— Approved  in  Acres  v. 
Moyne,  59  Tex.  623.  Followed  in  Texas 
&  P.  R.  Co.  V.  Murphy,  46  Tex.  356. 

The  Connecticut  act  of  1889  relating  to 
grade  crossings  (Sess.  Laws  1889,  ch.  220) 
provides  in  effect  that  the  directors  of 
every  company  which  operates  a  railroad  in 
that  state  shall  apply  for  the  removal  of  at 
least  one  grade  crossing  each  year  for  every 
sixty  miles  of  road;  *  *  '*  and  that  if  the 
directors  of  any  company  fail  so  to  do  the 
commissioners  shall  order  such  crossing 
or  crossings  removed,  etc.  Held,  that  the 
railroad  commissioners  were  proper  parties 
defendant  to  an  appeal  taken  from  an  order 
made  by  them  under  the  statute.  New 
York  &>  N.  E.  R.  Co.'s  Appeal,  55  Am,  &* 
Eng.  R.  Cas.  88,  62  Conn.  527,  26  All.  Rep. 
122. 

Where  a  suit  was  instituted  against  a 
railway  company  and  was  prosecuted  to  a 
judgment  in  the  lower  court,  and  the  rights 
and  franchises  of  that  company  were  trans- 
ferred to  another  company  thereafter,  such 


latter  company  cannot  be  made  a  party  to 
the  appeal  by  muiion  in  the  supreme  court. 
If  it  is  the  successor  uf  the  defeiiUant  com- 
pany it  must  have  an  uppurtuniiy  tu  con- 
test the  pretension  that  it  inherits  the 
liabiiiiics  uf  that  company,  and  the  appel- 
late cuuri  cannot  assume  as  undisputed  fact 
that  it  represents  its  predecessor  in  sutli 
sense  as  to  be  liable  fur  thai  predecessor's 
obligations.  Ranger  v.  A'tii'  Orleans,/.  &• 
G.  N.  R.  Co.,  Mann.  (La.)  176. 

W.  filed  his  declaration  in  the  county 
court,  alleging  that  E.,  as  superintendent 
and  general  manager  of  the  Macuii  & 
Brunswick  Railroad,  and  the  Macon  & 
Brunswick  Railroad  had  damaged  him  the 
sum  of  eighty  dollars,  by  reasun  uf  une 
of  the  railroad  trains  running  over  certain 
cows.  The  declaration  closed  with  a  prayer 
for  process  against  E.,  as  superintendent, 
and  the  railroad  company.  Service  was 
perfected  on  the  company,  but  nut  un  K. 
Judgment  was  rendered  fur  the  plaintitT, 
and  the  cumpany  appealed.  Held,  that 
the  company  was  a  party  to  the  suit  and 
had  a  right  to  appeal  whether  the  other 
party  did  so  or  not,  and  that  a  dismissal  of 
such  appeal,  on  motion,  fur  want  of  proper 
parties  thereto,  was  errcjr.  Macon  &*  B.  R. 
Co.  v.   Washington,  69  Ga.  764. 

133.  Security.  —  An  instrument  in- 
tended as  an  appeal  bund,  and  piuportiii); 
in  the  body  thereof  to  bind  a  railroad  com- 
pany, but  which  is  signed  by  a  certain 
person  as  agent  of  the  company,  followed  by 
a  scrawl  for  a  seal,  is  not  a  valid  bond  of 
the  company.  Savannah,  F.  &*  W.  R.  Co. 
V.  Clark,  23  Fla.  308,  2  So.  Rep.  667. 

Where  an  appeal  bond  of  a  railway  com- 
pany is  sued  on,  and  there  is  no  plea  under 
oath  denying  that  it  is  such  bond  as  it  pur- 
ports on  its  face  to  be,  and  it  is  signed  by 
the  president  and  secretary,  with  the  cor- 
porate seal  atuched,  no  other  proof  of  its 
being  the  bond  of  the  company  is  necessary. 
Keithsburg  &*  E.  R.  Co.  v.  Henry,  ^Jll.  255. 
Where  an  appeal  bond  executed  in  the 
name  of  a  railroad  company  has  the  seal  of 
the  corporation  attached,  the  presumption 
is  that  the  person  using  the  seal  had  author- 
ity to  do  so.  Indianapolis  &*  St.  L.  R.  Co. 
v.  Morganstern,  9  Am.  &*  Eng.  R.  Cas.  469, 
ir;  ///.  149. 

Perfecting  an  appeal  from  a  decree  de- 
claring the  charter  of  a  railroad  company 
forfeited,  by  giving  an  appeal  bond,  sus- 
pends the  decree  of  forfeiture  and  enables 


AIMM: AL   AND   KRROR,   i:»4,  l;irt. 


44t 


the  company  to  execute  ap|)cal  or  writ  of 
error  bonds  to  have  other  judgments 
against  it  reviewed;  and  the  validity  of  such 
blinds  will  not  be  nfTected  by  a  subsequent 
atrirmance  of  the  decree  of  forfeiture.  Tfxas 
Trunk  A\  Co.  v.  Jackson,  85  Tex,  605,  22  S. 
ir.  Hfp.  1030. 

The  decree  ordered  payment  of  a  sum  0/ 
money  by  a  raril  way  company,  and  in  default 
that  a  receiver  should  be  appointed;  from 
it  the  company  gave  notice  of  appeal, 
and  moved  to  stay  the  appointment  of  the 
receiver  and  the  enforcement  of  the  debt 
until  after  judgment  on  appeal.  The  court 
refused  the  application  unless  security  were 
given  for  payment  of  the  debt  in  case  the 
decree  should  be  affirmed ;  and  in  any 
event  ordered  defendants  to  pay  the  cost  of 
the  motion.-  Fox  v.  Toronto  &*  N.  R.  Co., 
26  Grant  Ch.  (Ont.)  352. 

On  an  appeal  by  a  railroad  company  from 
a  judgment  rendered  by  a  justice  of  the 
peace,  to  the  circuit  court,  the  appeal  bond 
was  executed  by  the  company's  attorneys 
only,  notwithstanding  a  rule  of  the  latter 
court  prohibiting  attorneys  "  from  being 
received  as  security  in  such  cases."  Held, 
on  motion  to  dismiss  the  appeal,  that  such 
attorneys,  though  probably  liable  for  con- 
tempt of  such  rule,  are  liable  on  the  bond, 
and  that  the  bond  is  sufficient.  Ohio  &*  M, 
R.  Co.  v.  Hardy.  64  Ind.  454.  See.also  Ohio 
(S-  M.  R.  Co.  V.  Hay,  64  Ind.  597. 

Where  a  judgment  is  rendered  in  favor  of 
A.  against  C.,  before  a  justice  of  the  peace, 
on  a  similar  award  of  damages  for  a  right  of 
way  made  by  a  board  of  county  commis- 
sioners,  and  C,  for  the  purpose  of  perfect- 
ing an  appeal  to  the  district  court,  gives  a 
bond  running  to  B,  an  entire  stranger  to 
the  record  and  proceedings,  and  no  special 
equities  are  shown— ^^/<r/,  that  the  district 
court  committed  no  error  by  refusing  to 
permit  the  perfecting  of  an  appeal  by  the 
giving  of  a  new  bond  running  to  A.  Lovitt 
V.  Wellington  6-  W.  R.  Co.,  26  Kan.  297.— 
Quoted  in  Chicago,  K.  &  W.  R.  Co.  v. 
Abilene  Town-Site  Co.,  42  Kan.  97,  104,  21 
Pac.  Rep.  1 1 12. 

A  court  entered  a  decree  allowing  the 
bondholders  of  a  railroad  conipany  to  pur- 
chase the  road,  or  to  reorganize  it  without 
a  sale,  and  allowing  the  non-subscribing 
bondholders,  who  were  largely  in  the  minor- 
ity, to  participate  in  the  purchase  or  reor- 
ganization if  they  chose  to  come  in  by  a 
certain  time.     The  road  was  in  the  hands 


of  a  lecciver  and  was  paying  but  little  more 
than  expenses,  but  it  appeared  that,  if  it 
went  into  the  hands  of  the  purchasers  at 
once,  by  making  certain  improvements  it 
could  be  made  much  more  profitable.  Held, 
that  a  small  minority  of  the  stockholders, 
who  were  dissatisfied  and  wished  to  appeal, 
should  give  bond  sufficient  to  secure  the 
majority  against  loss  for  the  time  they 
would  be  out  of  possession  of  the  road  if 
they  reorganized,  or  out  uf  the  use  of  the 
money  if  the  road  was  sold,  which  bond 
was  fixed  at  $100,000.  Duncan  v.  Mobile  &- 
O.  R.  Co.,  3  Woods  (I/.  S.)  597. 

134.  Abstract.  —  An  abstract  of  the 
pleadings,  showing  the  grounds  on  which 
the  damages  were  asked,  not  having  been 
filed  as  required  by  the  rules  of  court  and 
the  statute,  and  such  abstract  being  neces- 
sary for  the  determination  of  the  assigned 
errors,  the  appeal  will  be  dismissed.  Cun- 
ningham V.  l/nion  Pac.  R.  Co.,  1 10  Mo.  208, 
19  S.  W.  Rep.  822. 

135.  ANsigiiiiiciit  of  errors. — Where 
the  trial  court  has  required  a  remittitur  of 
excessive  damages,  unless  there  be  a  dis- 
tinct assignment  of  errors  touching  such 
procedure,  the  court  on  appeal  will  not  in- 
quire whether  the  r^;«/'////«r  ought  to  have 
been  allowed  or  not.  Sabine  &*  E.  T.  R, 
Co.  V.  Hadnot,  30  Am.  &*  Eng.  R.  Cas.  197, 
67  Tex.  503,  4  S.  IV.  Rep.  138. 

Where  a  railroad  company  is  sued  for  in- 
juries resulting  from  an  accident,  an  assign- 
ment of  error  that  the  court  refused  to 
allow  evidence  of  the  declarations  of  the 
conductor  made  after  the  accident  is  too 
general  to  be  considered,  where  there  is 
nothing  to  show  what  declarations  are  re- 
ferred to.  Newsom  v.  Georgia  R.  Co.,  62 
Ga.  339. 

In  an  action  by  a  wife  for  the  death  of  her 
husband  at  a  railroad  crossing,  an  assign- 
ment of  error  that  immediately  after  the  ac- 
cident the  little  children  of  a  witness  came 
running  down  the  road  and  told  him  what 
had  happened,  is  not  available  where  no 
evidence  of  the  witness  whose  testimony  is 
sought  to  be  excluded  a|.  pears  in  the  rec- 
ord, and  it  is  not  stated  in  the  motion  for  a 
new  trial  what  were  the  sayings  made  by 
the  children.  Chattanooga,  R.  <S-  C.  R.  Co.  v. 
Clowdis,  90  Ga.  258. 

An  assignment  that  the  court  erred  in 
overruling  defendant's  objection  to  the  in- 
troduction of  evidence,  without  specifying 
which  of  a  large  number  of  such  rulings  is 


443 


AIM'UAI.   AND    I'KROR,  i;i«. 


^ 


Jl- 


;*s 


^'^ ' 


nfi'iTPfl  to,  in  inHiiflicit'iH.    ^Iitn-r/nni  h'l/i. 
C,>.  V.  I'iatt,  51   Minn.  5f)«,  53  A'.   \\\  A',/. 

«77. 

In  an  action  for  personal  injuries  at  a 
crossing,  an  assignment  of  error  tliat  the 
court  erred  in  refusing  to  give  the  jd,  4th. 
5tii,  and  6th  charge  is  too  general  to  he  con- 
sidered, iiiilveilon,  //.  &*  S.  .1,  A'.  Co.  v. 
.»/<i/;//ri,  (7Vr.)  19  .v.  H'.  Ktp.  376. 

An  assigniucnt  of  error  that  "  the  verdict 
is  against  the  law  and  evidence,"  without 
anytliing  more  specific,  is  too  general  to  be 
considered,  unless  the  assignment  is  funda- 
mental, or  the  record  shows  that  a  reversal 
is  absolutely  necessary  t<>  prevent  injustice. 
ISonntr  v.  Whilcomb,  80  Te.x.  178,  15  S.  W. 
Ktp.  899. 

Amendments  to  the  appellant's  assign- 
ment of  errors  will  be  allowed  in  the  su- 
preme court  where  the  appellee  will  not  be 
prejudiced  thereby,  nor  the  submission  of 
the  cause  delayed.  Hall  v.  Chicago,  R.  I. 
6-  P.  K.  Co.,  84  /ffw,!  311.  51  A'.  IV.  Kep. 
150.— Quoting  Potter  v.  Chicago,  R.  I.  & 
P.  R.  Co.,  46  Iowa  399. 

By  an  obligati(jn  payable  to  a  certain  per- 
son or  bearer,  the  maker,  in  consideration 
of  one  dollar,  the  receipt  of  which  was 
therein  confessed,  and  of  the  delivery  to  be 
made  to  him  by  a  certain  railroad  company 
of  a  specified  number  of  shares  of  its  capital 
stock,  acknowledged  himself  to  be  indebted 
in  a  certain  sum,  which  he  promised  to 
pay  in  instalments  as  the  construction  of 
roadbed  progressed,  in  proportion  to  the 
monthly  estimates  thereof,  and  that  the 
whole  should  be  paid  on  the  completion  of 
such  roadbed.  Held,  that,  the  company 
having  been,  by  the  assignment  of  errors, 
made  an  appellee  instead  of  an  appellant, 
such  assignment  is  informal,  but  that  a  fail- 
ure to  object  thereto  is  a  waiver  of  such 
informality.  Clark  v.  Continental  Imp.  Co., 
57  Ind.  135.  18  Am.  Ry.  Rep.  505. 

130.  Bill  of  ex(;cption8.— A  question 
raised  by  appellant  upon  a  demurrer  to  evi- 
dence, where  the  matters  relating  to  it  have 
not  been  preserved  in  a  bill  of  exceptions, 
cannot  be  considered  on  appeaf.  IVillisch 
v.  Indianapolis  <S-  St.  L.  R.  Co.,  10  ///.  App. 
403. 

A  bill  will  not  be  considered  which  is 
neither  signed  nor  sealed  by  the  trial  judge, 
and  which  is  otherwise  irregular.  Wabash, 
St.  L.  &•  P.  R.  Co.  V.  Peterson,  1 5  ///.  App. 
149. 

In  an  action  against  a  railroad  company 


fur  failing  to  properly  carry  and  deliver 
goods,  if  an  ap|)eal  be  taken,  a  bill  of  ex- 
ceptions not  signed  and  sealed  by  the  trial 
judge  will  not  be  regarded  as  a  part  ol  the 
record,  and  the  appellate  court  will  presume 
that  there  was  sufficient  evidence  to  sii|) 
pf)rt  the  judgment.  Chicago  &»  N,  R.  Co. 
V.  Benham,  25  ///.  ////  248. 

An  appeal  by  a  railroad  company  in  an 
action  brought  to  recover  from  it  for  a  pci- 
sonal  injury  alleged  to  have  been  occasioned 
through  its  negligence, for  the  reason  that  the 
bill  of  exceptions  was  not  signed  and  sc.iled 
by  the  trial  judge,  will  not  be  considered. 
Chicago,  B.  &»  Q.  R.  Co.  v.  Johnson,  34  ///. 
/I//.  351. 

A  stipulation  of  parties  that  a  certain 
document  shall  stand  for  a  bill  of  excep- 
tions docs  not  meet  the  positive  require- 
ment of  the  law  that  a  bill  of  exceptions 
shall  be  signed  and  sealed  by  the  trial  judpe 
before  it  shall  become  a  part  of  the  record. 
Illinois  C.  R.  Co.  v.  Gilchrist.  9  ///.  App. 

Where  an  amendment  to  a  declaration  is 
offered  but  is  disallowed  by  the  court,  it  does 
not  constitute  a  part  of  the  1  >  cord  ;  and  in 
order  to  have  this  court  review  the  ruling 
of  the  court  below  in  rejecting  such  ofTercd 
amendment,  it  should  be  set  out  in  the  bill 
of  exceptions  or  annexed  to  the  same  as  an 
exhibit  properly  authenticated.  Harnett  v. 
F.ast  Tenn.,  V.&'G.  R.  Co.,  87  Ga.  766. 13  .V. 
E.  Rep.  904.— Following  Sibley  w.  Mutual 
R.  F.  L.  Assoc,  87  Ga.  738. 

Recitals  in  a  bill  of  exceptions,  to  the 
effect  that  "  the  plaintiff  introduced  evi- 
dence tending  to  prove  his  claim  for  dam- 
ages," and  that  "  the  court  found  the  issues 
for  the  plaintiff,"  are  sufficient  to  show  that 
the  finding  of  the  court  as  to  the  recovery 
'vas  based  upon  evidence  in  the  cause. 
Boswell  V.  St.  Louis,  I.  M.  <S-  S.  R.  Co.,  7 
Am.  &*  Eng.  R.  Cas.  561,  73  ./»/<».  470.— FOL- 
LOWING AND  DISTINGUISHING  Snider  V.  St. 
Louis,  I.  M.&  S.  R.  Co.,  73  Mo.  465. 

The  supreme  court  has  power,  of  its  own 
motion,  to  correct  any  error  or  improvi- 
dence in  the  allowance  of  a  writ  of  man- 
damus ;  and  when  it  has,  through  oversight 
or  inadvertence,  issued  an  alternative  writ 
to  compel  a  circuit  nidge  to  settle  and  sign 
a  bill  of  exceptions  not  containing  all  the 
facts  deemed  necessary  by  him,  it  will,  on 
discovery  of  the  mistake,  set  aside  and  va- 
cate the  writ  and  direct  a  bill  to  be  pre- 
pared according  to  the  facts  and  settled  be- 


III'' 


APPKAL   AND    KKUOR,   1.17   141. 


4(; 


fore  ilic  trial  judge.  Stutt-  <i  ret.  v.  Cloug/i, 
1,1)  Wis.  369,  34  X.  IV,  Rep.  399. 

\;n.  Uricr.  -Where  no  brief  is  filed  by 
the  appellee,  the  court  will  reverse  the  judg- 
ment pro  forma,  unlcHS  on  examination 
the  case  seems  to  demand  a  decision  on 
the  merits.  Ti-rre  /fiiutf,  V.  is*  I,  H.  Co.  v. 
Cooiiwin,  4  ///.  App.  165. 

I.'IM.  Certificate  of  triiil  Jiultrc— 
Where,  in  an  action  in  a  justice's  court, 
plaintitl  demanded  jud((nient  for  $100  only, 
lur  stock  killed  by  a  railroad,  and  judgment 
was  rcn<lcred  for  him  for  that  amount  and 
costs,  and  the  jud^nu-nt  bore  Interest  at  six 
per  cent.,  and  the  defendant  appealed  the 
c;iuse  to  the  circuit  court,  where  judgment, 
as  limited  by  the  prayer  of  the  |)ctiti()n,  was 
aRaiii  rendered  for  $100  and  costs— ^-/r/, 
that  this  court  had  no  jurisdiction  to  enter- 
tain an  appeal  from  the  circuit  court  with- 
out a  certiticate  of  the  trial  judge.  Hays  v. 
C/iiiiigo.  li.  Sr*  Q.  A'.  Co.,  64  Anva  593. — 
Followed  in  Ardery  v.  Chicago,  B.  &  Q. 
K.  Co..  65  Iowa  723. 

1:10.  8tateiii('iit  of  f'iictH.  —  It  is  a 
general  principle  that  the  appellate  court 
will  not  review  the  action  of  the  trial  court 
in  giving  or  refusing  instructions  where 
there  is  no  statement  of  facts,  but  the  fol- 
lowing form  exceptions  to  this  rule :  (1) 
Where  the  err  r  is  so  glaring  as  to  leave  no 
doubt  that  the  finding  of  the  jury  was 
controlled  by  the  erroneous  charge  ;  (2) 
Where  the  charge  and  verdict  are  upon 
issues  not  made  in  the  pleadings,  /////v. 
<Jm//,  C.  «S-  S.  F.  A'.  Co.,  80  7V.r.  43 ' .  >  5  -J*'-  ^• 
Hep.  1099. 

In  appeals  to  the  supreme  court  of  Texas, 
in  the  absence  of  a  statement  of  facts  that 
court  will  consider  the  trial  judge's  conclu- 
sions of  facts  as  correctly  drawn  ;  therefore, 
in  an  action  against  a  railroad  for  personal 
injuries,  in  the  absence  of  such  statement  of 
facts  the  conclusions  of  the  judge  that  there 
was  no  negligence  on  the  part  of  the  plain- 
tiff contributing  to  her  injuries  must  be 
deemed  correct.  Texas  &>  P.  R.  Co.  v.  Cole, 
(Tex.)  I  S.  W.  Rep.  631.— Dlstinguishing 
Texas  &  P.  R.  Co.  v.  Cole,  (Tex.)  i  S.  W. 
Rep.  629. 

140.  Filiii((  the  record.  —  When  a 
record  is  not  filed  in  the  appellate  court 
within  the  first  two  days  of  the  first  term 
succeeding  that  at  which  the  judgment  was 
rendered,  an  appeal  will  be  dismissed.  Chi- 
cago. B.  6-  Q.  R.  Co.  v.  Aurora,  5  ///.  App. 
395.    speck  V.  Hickman,  5  III.  App.  395. 


Where  the  record  of  appeal  is  not  tiled 
within  three  judicial  days  after  the  return 
day,  and  no  extension  of  time  has  been  ob- 
tained, the  appeal  must  be  dismissed  if  re- 
quired by  the  appellee.  A'i-ni>  Orleans  &»  C. 
A'.  Co.  V.  Hood,  3  l.a.  Ann.  226.  Sec  also 
lialtinme  i^  O.  R.  Co.  v.  Harris,  7  ff'd//. 
(d'.  .V.)  574.  — Foi.i.dWKK  IN  Chicago,  R.  I. 
&  P.  R.  Co.  V.  (irinncll,  53  Iowa  55. 

The  filing  of  a  transcri,  t  in  the  district 
court  within  sixty  days  after  the  assessment 
of  damages,  in  an  eminent  domain  proceed- 
ing, as  provided  by  Neb.  Coinp.  St.  ch.  16, 
{  97,  is  essential  to  the  validity  of  an  appeal. 
Gifford  v.  Republican  V.  &*  K.  R.  Co.,  20 
Aed.  538,31  A',  ir.  Ri-p.  II.— Revikwino 
Republican  Valley  R,  Co.  t>.  Linn,  15  Neb. 
234 ;  Nebraska  R.  Co.  v.  Van  Dusen.  6  Neb. 
160;  Republican  Valley  R.  Co.  v.  McPher- 
son,  12  Neb.  480. 

IV.    PBOGEDURE  IN  AFPXLLATX  OOUXT. 

141.  Ill  gciierui. — A  ruling  made  on 
the  first  appeal  of  a  cause  will  be  adhered 
to  on  all  subsequent  appeals  of  the  same 
cause,  whether  wright  or  wrong.  And  so, 
the  conclusion  of  this  court,  announced  in 
the  opinion  on  rehearing  on  a  former  ap- 
peal (see  62  Iowa  594),  as  to  what  constitutes 
a  conflict  of  evidence  as  to  negligence  in  an 
action  against  a  railway  company  for  dam- 
ages for  a  fire  caused  by  a  locomotive,  is 
adhered  to  on  this  appeal  without  recon- 
sideration. Baicockv.  Chicago^  N.  W.  R. 
Co.,  72  Iowa  197,  28  A'.  W.  Rep.  644,  33  A'; 
W.  Rep.  628.— Following  Adams  County 
V.  Burlington  ft  M.  R.  R.  Co..  55  Iowa  94. 

Where,  on  a  former  appeal,  the  supreme 
court  held  that,  according  to  the  statutes  of 
Missouri,  which  were  introduced  in  evidence 
to  support  the  answer  of  the  railroad  com- 
pany, the  judgment  of  garnishment  rendered 
in  a  justice's  court  in  St.  Louis  was  void, 
and  constituted  no  defense  to  the  cause  of 
action  set  out  in  the  complaint,  such  declara- 
tion continues  to  be  the  law  of  the  case  on 
a  subsequent  appeal  to  the  appellate  court. 
Terre  Haute  &*  I.  R.  Co.  v.  Baker,  4  Ind. 
App.  66,  30  A^.  E.  Rep.  431. 

A  company  was  enjoined  from  construct- 
ing its  road  across  a  tract  of  land  until 
payment  of  the  damages  that  had  been 
awarded,  and  pending  an  appeal  it  paid  the 
damages  under  protest  and  entered  upon  the 
land.  Held,  that  the  appellate  court  could 
not  enter  judgment  for  the  amount  so  paid. 


444 


APPEAL   AND   ERROK,  142. 


or  any  part  thereof,  and  tliat  the  fact  of 
its  being  paid  under  protest  would  make  no 
difference.  Atlanta  &*  F.  R.  Co.  v.  Blan- 
ton,  80  Ga.  563,  6  S.  K.  Rep.  584. 

142.  Afllrmanee.— (I)  Whm  proper, 
generally. — Where  a  bond  is  sued  on  and 
the  dii mages  equal  or  exceed  the  penalty,  it 
is  usual  to  allow  interest  after  the  date  of  the 
breach  ,  but  where  a  bond  is  given  to  secure 
the  building  of  a  railroad,  in  a  penalty 
equal  to  the  value  of  certain  lands  con- 
veyed as  a  bonus  to  aid  in  tlie  building  of 
the  road,  and  it  appears  that  the  lands  were 
unproductive  and  the  company  derived  no 
income  therefrom,  in  an  action  upon  the 
bond  for  a  failure  to  build  the  road,  the 
action  of  the  court  in  refusing  to  find  inter- 
est will  not  be  disturbed  on  appeal.  Blewett 
V.  Front  St.  C.  R.  Co.,  51  Fed.  Rep.  625,  7 
U.  S.  App.  285,  2  C.  C.  ^.  415  ;  affirming  49 
Fed.  Rep.  126. 

The  s  lie  question  involved  was  the  correct- 
ness of  the  trial  court  in  directing  a  verdict 
on  the  ground  that  plaintitf  was  guilty  of 
negligence  ;  and  it  appearing  that  the  exer- 
cise of  even  slight  care  on  the  part  of  the 
plaintiff  would  have  enabled  him  to  avoid 
the  accident,  the  judgment  is  affirmed.  Gelh- 
hard  v.  Detroit,  G.  H.  &-  M.  R.  Co.,  79 
Mich,  586,  44  A^.  W.  Rep.  1045. 

Where  the  pleadings  upon  which  the 
cause  was  tried  do  not  appear  in  the  tran- 
script of  the  record,  all  presumptions  are  in 
favor  of  the  action  of  the  trial  court,  and 
thn.  judgment  will  be  affirmed.  Central 
Sav.  Bank  v.  Bellefontaine  R.  Co.,  2  Mo. 
App.  601,  mem. 

Where  a  writ  of  mandamus,  directed  to  a 
commissioner  of  public  works  in  the  city  of 
New  York,  requiring  him  ;o  issue  a  permit 
to  the  relator  for  the  removal  of  a  pave- 
ment, hnd  been  fully  executed  and  the  per- 
mit av;)  Jed  of  by  the  relator,  and  thereafter 
the  commissioner  had  gone  out  of  office — 
held,  on  appeal  to  this  court,  that  as  there 
was  no  question  of  practical  importance  to 
be  decided,  the  order  granting  the  writ 
should  be  affirmed  without  considering  the 
questir  .<  as  to  whether  the  relator  was  enti- 
tled to  the  writ.  People  v.  Squire,  no  N. 
Y.  666,  2  Silv.  App.  113,  \Z  N.  E.  Rep.  362, 
18  A^  Y.  S.  R.  528;  affirming  21  /.  6-  S. 
536. 

Where  two  corporations  are  sued  jointly, 
and  there  is  a  separate  verdict  against  each, 
and  the  court  on  appeal  finds  reversible 
error  as  to  one  but  not  as  to  the  other,  a 


judgment  as  to  the  one  where  there  is  no 
error  will  be  affirmed  on  the  plaintiff  dis- 
missing the  suit  as  to  the  other;  otherwise 
the  entire  case  will  be  reversed  and  re- 
manded. Western  Union  Til.  Co.  v.  Phil- 
lips, 2  Te.x:  Civ.  App.  608,  21  S.  W.  Rep. 
638. 

Where  an  appeal  is  taken  from  a  judg- 
ment awarding  damages  for  stock  killed  by 
a  railroad  company,  and  the  error  assigned 
is  in  allowing  interest  on  the  value  of  the 
animals,  and  the  plaintiff  files  a  remittitur 
of  such  interest,  the  judgment  will  be 
affirmed  as  thus  corrected.  Galveston,  H. 
6-  S.  A.  R.  Co.  V.  Carter,  { Tex.  App.)  18  S. 
IV.  Rep.  196. 

Where  an  action  by  a  passenger  against  a 
railroad  company  is  appealed  by  the  com- 
pany, and  the  error  assigned  consisted  in 
the  introduction  of  improper  testimony, 
which  could  only  affect  the  verdict  by  in- 
creasing the  damages,  a  rehearing  will  be 
allowed  on  application  accompanied  by  an 
offer  to  remit  the  excessive  damages ;  and 
the  judgment,  as  thus  reduced,  will  be 
affirmed.  Galveston,  H.  &*  S.  A.  R.  Co.  v. 
Wesch,  {Tex.  Civ.  App.)  21  S.  IV.  Rep.  313; 
affirmed  21  .S.  IV.  Rep.  1014. 

Where,  on  appeal,  in  an  action  by  a  father 
to  recover  damages  for  an  injury  to  his 
daughter,  alleged  to  have  been  caused  by 
defendant's  negligence,  the  record  shows 
that  the  verdict  for  the  plaintiff  is  sustained 
by  a  preponderance  of  evidence,  and  that 
the  instructions  to  the  jury  were  sufficiently 
favorable  to  the  defendant,  the  judgment 
will  be  affirmed.  Larson  v.  LaJte  Superior, 
T.  6-  T.  R.  Co.,  79  Wis.  201,  48  A^.  W.  Rep. 
421. 

(2)  Illustrations.  • —  Suit  was  brought 
against  a  company  for  negligently  causing 
the  death  of  a  conductor.  Two  trials  re- 
sulted in  the  same  verdict.  Held,  in  the 
appellate  court,  that  a  judgment  based  upon 
the  second  verdict  should  be  affirmed,  there 
being  no  substantial  error  in  the  record. 
Chicago,  M.  6-  St.  P.  R.  Co.  v.  Snyder,  27 
///.  App.  476. 

In  an  action  by  a  female,  who  claimed  to 
be  a  passenger,  to  recover  for  personal  in- 
juries caused  by  iumpi'.igfrom  acar  to  avoid 
a  collision,  it  appeared  that  she  had  no  pass, 
but  had  money  to  pay  her  fare ;  but  the  con- 
ductor, without  directly  demanding  a  fare, 
was  referred  to  her  brother,  who  was  a  brake- 
man  on  the  same  train ;  but  plaintiff  was 
not  permitted  to  testify  as  to  previous  con- 


APPEAL  AND   ERROR,  143. 


445 


IS   IKI 

iff  dis- 
erwisc 
nd  re- 
riiil- 
.  Rep. 


versations  with  her  brother  on  the  subject, 
but  did  testify  that  she  had  no  previous  ar- 
rangement by  whicii  she  was  to  travel  on  a 
pass,  and  had  purchased  no  ticlcet.  Held, 
that  a  verdict  and  judgment  in  favor  of 
plaintiff,  based  upon  the  fact  that  she  had 
no  pass  and  was  a  regular  passenger,  should 
not  be  disturbed.  Morris  v.  New  York,  O. 
d^W.  R.  Co..  73  Hun  (N.  V.)  560,  26  A^,  y. 
Supp.  342,  56  A^.  Y.  S.  R.iy. 

Two  actions  were  brought  again;>t  a  rail- 
road company  to  recover  for  personal  in- 
juries to  a  minor  girl— one  by  the  father,  and 
the  other  by  the  girl  herself.  The  action  by 
the  father  was  tried,  resulting  in  a  judgment 
in  his  favor,  which  was  affirmed  on  appeal. 
When  the  second  case  came  on  for  trial  it 
was  conceded  that  the  plaintiff  was  entitled 
to  recover  unless  the  evidence  varied  mate- 
rially from  that  in  the  former  action.  At 
the  trial  of  the  second  case,  an  engineer,  who 
had  testified  at  the  former  trial  that  he  did 
not  whistle  until  plaintiff  was  struck,  was 
not  produced  as  a  witness,  and  two  other 
witnesses,  whose  evidence  had  supported  the 
engineer  at  the  former  trial,  did  not  give 
similar  testimony,  but  there  was  evidence 
on  the  part  of  the  defendant  that  the  whistle 
was  blown  much  earlier.  Plaintiff's  testi- 
mony was  the  same  as  that  given  by  her  at 
the  former  trial,  //e/d,  that  a  judgment  for 
plaintiflF  should  be  affirmed.  Swt//  v.  Staten 
Island  R.  T.  R.  Co.,  44  A^.  Y.  S.  R.  747,  63 
ffun  628,  17  A^.  Y.  Supp.  654. 

143.  Reversal.— (i)  When  proper,  gen- 
erally.— Where  the  jurisdiction  of  a  federal 
court  depends  upon  diverse  citizenship  under 
the  statute,  which  is  not  suthcicntly  shown 
by  the  record,  the  appellate  court  will  reverse 
a  judgment,  though  no  exception  to  the 
jurisdiction  was  taken  in  the  trial  court; 
and  no  amendment  will  be  allowed  in  the 
appellate  court.  St.  Louis,  I.  M.  &*  S.  R.  Co. 
V.  Newcom,  56  Fed.  Rep.  951.— Quoting 
Mansfield,  C.  &  L.  M.  R.  Co.  z/.  Swan,  in 
U.  S.  379,  4  Sup.  Ct.  Rep.  510. 

Where  two  judgments  in  the  same  cause, 
awarding  damages  to  the  plaintiff,  based 
upon  the  same  evidence,  have  been  reversed 
for  want  of  evidence  to  sustain  them,  and  a 
third  judgment  is  obtained  upon  substan- 
tially the  same  evidence,  such  judgment 
will  be  reversed  and  the  cause  dismissed, 
since  it  is  evident  that  the  litigation  can 
serve  no  legitimate  end.  St.  Louis,  /.  M.  &*  S. 
R.  Co.  v.  Aforgart.  56  Ark.  2 1 3,  19  i".  \V.  Rep. 
75'- 


Where,  under  any  view  whicli  can  be  taken 
of  the  testimony  of  the  witnesses  who  saw 
the  conduct  of  plaintiff's  decedent,  it  appears 
that  he  was  not  in  the  exercise  of  that  care 
and  caution  which  it  was  his  duty  to  observe 
in  approaching  and  crossing  a  railroad  trcick, 
a  judgment  for  his  administrator  will  be  re- 
versed. Apsey  V.  Detroit,  L.  <S-  A'^.  R.  Co., 
83  Mich.  432,  47  A'.  IV.  Rep.  319. 

Where  the  proofs  show  a  party  entitled  to 
nominal  damages,  which  would  entitle  him 
to  recovery  of  costs,  a  judgment  for  the  op- 
posite party  will  be  reversed.  Moore  v.  New 
York  El.  R.  Co.,  23  A^.  Y.  Supp.  863,4  Misc. 
(N.  V.)  132. 

Where,  notwithstanding  an  omission  of 
the  defendant  to  move  for  a  nonsuit  or  to 
ask  for  binding  instructions  to  the  jury,  it  is 
clear  that  the  admitted  facts  fail  to  establish 
any  negligence  in  the  defendant,  and  that 
plaintiff,  as  matter  of  law,  must  always  fail 
to  recover,  a  judgment  for  the  plaintiff  will 
be  reversed  without  a  new  venire.  Graham 
V.  Pennsylvania  Co.,  47  Am.  6-*  Ettg.  R.  Cas. 
522,  139  Pa.  St.  149,  21  Atl  Rep.  151. 

(2)  Illustrations.  —  Plaintiff  sued  to  re- 
cover for  stock  killed,  and  filed  a  complaint 
in  twocounts,  alleging  the  killing  of  different 
stock  at  different  times  and  places.  The 
evidence  was  sufficient  to  find  the  company 
guilty  under  one  count,  but  not  under  the 
ct'v..t"  Held,  that  a  judgment  for  plaintiff 
r<hjV"i.i  be  reversed  as  to  one  count  only. 
Kendrick  v.  Chicago  &•  A.  R.  Co.,  81  Mo. 
521. 

Plaintiff,  a  brakeman,  was  injured  while 
passing  through  a  tunnel.  The  entrance  of 
the  tunnelwas2ofeet  in  height.  Two  hundred 
feet  from  the  entrance  a  brick  arch  began, 
which  reduced  the  height  of  the  tunnel  to  1 5 
feet  9  inches.  Plaintiff  testified  that  he  went 
on  top  of  a  box-car  and  sat  down,  and  that 
was  the  last  that  he  remembered.  He  was 
found  upon  the  ground  with  a  gash  on  his 
forehead,  which  it  was  claimed  he  received 
by  coming  in  contact  with  the  arch.  The 
car  on  which  plaintiff  was  sitting  was  11 
feet  2  inches  high  from  the  rail  to  the  foot- 
board that  the  men  walked  on.  Held,  that 
as  the  plaintiff  could  not  have  been  injured 
by  striking  the  arch  while  he  was  sitting 
upon  the  car  a  verdict  in  his  favor  must  be 
reversed.  Hunter  v.  New  York,  O.  &•  W. 
R.  Co.,  41  Am.  &•  Eng.  R.  Cas.  248.  1 16  A^ 
)'.  615,  23  A'.  E.  Rep.  9,  27  A^.  Y.  S.  R.  729 ; 
reversing  42  Hun  657,  5  A^.  Y.  S.  R.  64. 

I>efendant   hafi  contracted  to  supply  the 


'■'I 


APPEAL  AND   ERROR,  144. 


£ 


H.  &  L.  H.  R.  Co.  witli  W(X)d.  In  1858  de- 
fendant released  the  railway  company  from 
the  contract,  and  the  company  covenanted 
to  indemnify  defendant  against  all  contracts 
made  by  him  with  one  M.,  among  which 
was  a  contract  to  convey  to  M.  two  lots  of 
land.  In  1865  defendant  wrote  to  the  rail- 
way company  stating  that  plaintiffs  had 
claimed  from  him  rent  in  arrear  on  thes.. 
two  lots  amounting  to  $2000,  and  offering, 
if  the  company  would  pay  him  that  sum  a'ld 
reconvey  the  leases,  to  assume  them  for  the 
future.  The  company  assented,  paid  him 
the  $2000,  transferred  to  him  the  leases 
which  he  had  trans.'^rred  to  them,  and  took 
a  receipt  under  seal  froni  defendant  as  in 
full  of  all  claims  for  such  leases,  by  which 
receipt  defendant  dischar^jed  the  company 
of  all  further  liability  in  respect  of  such 
leases  under  the  indenture  of  1858.  The 
company  had  previously  paid  the  rent  of 
both  these  lots,  and  defendant,  after  receiv- 
ing this  money,  paid  the  rent  on  one  lot. 
The  plaintiflfs  having  recovered  from  defen- 
dant as  for  money  received  to  their  use — 
keld,  that  the  verdict  was  wrong,  for  though 
the  settlement  was  made  on  the  basis  of  the 
amount  due  to  them  on  the  leases,  yet  the 
money  was  paid  to  defendant, not  as  plaintiffs' 
money,  but  a^  the  price  of  the  company's 
discha.'ge,  and  there  was  no  privity  between 
the  plaintiffs  and  defendant.  Ciinatfa  R.  Co. 
V.  McDomiU,  25  U.  C.  Q.  ii.  384. 

144.  DiMiiiisHtil  of  appeal.— An  ap- 
peal will  be  dismissed  where  the  notice  of 
appeal  gives  one  date  to  the  judgment 
appealed  from  and  the  undertaking  another 
date,  but  the  record  only  shows  one  of  an 
earlier  date  than  either,  Atkinson  v.  Chicago 
&»  N.  W.  R.  Co.,  69  Wis.  362,  34  N.  IV.  Rep. 

63- 

Where,  upon  inspection  of  the  record 
filed  in  the  court  of  appeals  in  an  action 
tried  by  a  jury,  it  appears  that  the  case 
presents  no  question  of  law  that  can  be  re- 
viewed, the  appeal  will  be  dismissed  on 
motion.  Dalzcll  v.  /.f«,c  Island  R.  Co., 
119  N.  y.  626,  2  Silv.  App.  531,  23  N.  E. 
Rep.  487,  28  A^.  1'.  S.  R.  946;  dismissing  ap- 
peal from  53  Hun  633,  25  A^.  Y.  S.  R.  166,  i 
Silv.  Sup.  Ct.  582,  6  A'.   Y.  Supp.  167. 

An  appeal  will  lie  from  a  personal  decree 
for  the  balance  of  a  railroad  mortgage  debt 
after  a  sale  of  the  mortgaged  property,  but 
a  reversal  of"  the  former  decrees  of  fore- 
closure vacatrs  such  personal  decree,  in 
which  case  the  appeal  will  be  fli^niissed  for 


want  of  a  subject-ma' ter  on  which  to  oper- 
ate. Chicago,  D.  6-  V.  R.  Co.  v.  Fosdick, 
12  Am.  <S-  Eng.  R.  Cas.  367,  106  (/.  S.  82,  i 
Sup.  CI.  Rep.  10. 

An  appeal  was  taken  in  a  railroad  fore- 
closure suit  from  an  order  allowing  a  certain 
claim  by  one  styling  himself  "the  purclias- 
ing  trustee  of  defendant's  property,"  Lvitit 
was  not  disclosed  what  interest  or  right  he 
had  in  the  proceedings,  for  whom  hearu-das 
trustee,  or  that  he  was  interested  in  any  way 
in  the  fund  from  which  the  claim  would  he 
paid  ;  neither  did  it  appear  that  tlie  property 
had  been  sold  unrler  the  decree.  //<■/</,  that 
there  was  nothing  to  show  that  such  person 
had  n  right  to  appeal,  and  his  appeal  should 
be  dismissed.  Fitzgerald  v.  Evans,  49  Fed. 
Rep.  426,  4  U.  S.  App.  154,  I  C.  C.  A.  307. 

A  judgment  was  obtained  against  "  the 
purchaseis  of  the  Wt-stcrn  Railroad  of  Ala- 
bama," and  an  appeal  was  prosecuted  under 
the  name  of  "  the  Central  Railroad  and 
Banking  Company  of  Georgia."  Held,  that 
the  appeal  should  be  dismissed  on  motion 
of  appellees,  though  it  appeared  that  an 
amendment  had  been  allowed  substituting 
the  cor[)oration  named  instead  of  the  pur 
chasers  of  the  road.  Hodnett  \.  Central  R. 
&*  li.  Co.,  68  Ala.  562. 

This  action  was  brought  in  the  district 
court  to  permanently  enjoin  the  defendants, 
railroad  commissioners,  from  publishing' 
and  enforcing  a  schedule  of  inaximum  rates 
to  be  charged  by  the  railroad  companies  of 
the  state  for  the  trans|)ortation  of  cars  anrl 
freight.  A  temporaiy  injunction  was  al- 
lowed in  the  di.strict  court,  and  a  motion  to 
dissolve  it  was  overruled,  and  defendants 
appealed  to  this  court  from  the  ruling  on 
that  motion,  and  the  ap|)eal  was  submitted 
on  arguments  to  this  court.  Subsequently 
plaintiff  tiled  in  the  distiict  court  a  dismissal 
of  the  cause  on  the  ground  that  the  objec- 
tionable .schedule  of  rates  had  been  aban 
doned  by  the  defendants,  and  paid  the  costs 
in  the  ca.se  :  and  these  facts  wore  didy  made 
of  record  in  the  case  in  this  court.  Held: 
(1)  that,  as  the  main  cause  was  no  longer 
pending,  the  appeal  from  the  interlocutory 
order  could  no  longer  be  maintained;  (2) 
that  even  if  the  order  appealed  from  was  ci- 
roneous,  the  error  ceased  to  be  prejudii  iai, 
and  that  this  court  would  not  review  it. 
Chicago,  R.  I.  &*  P.  R.  Co.  v.  Dey.  76  lo-wa 
278,41  N.  ir.  Rep.  17. 

A  receiver  was  1  involuted  for  a  railro.id 
in  an  action  by  a  cteditor  of  the  company 


^^m 


7K 


APPEAL   AND   ERROR,  l-i5,  140. 


447 


to  sequestrate  its  assets,  and  without  notice 
toamajc'ityof  the  stockholders,  on  motion 
of  a  nrincrity,  the  receiver  was  ordered  to 
sell  the  road.  The  majority  of  the  stock- 
holders gave  notice  and  moved  for  an  order 
vacating  the  order  of  sale,  which  was  denied, 
and  appeal  was  taken  to  the  general  term. 
J/M,  that  in  hearing  the  appeal  the  general 
term  had  a  right  to  grant  a  stay  of  proceed- 
ings until  the  further  order  of  the  court.witli- 
out  prejudice  to  a  new  application  to  vacate 
the  order,  and  that  such  order  by  the  general 
term  was  not  reviewable  by  the  court  of 
|)peals.  Syracuse  Sav.  Bank  v.  Syracuse, 
t.  Sr*  N.  v.  R.  Co.,  9  Am.  Sr'Eng.  K.  Cas.  585, 
UN.  Y.  no;  dismissing  appeal  from  25 
Hun  318.— FOLLUWlNc  Gray  v.  New  York 
Floating  Elevator  Co.,  88  N.  Y.  645  ;  Genet 
V.  Delaware  &  H.  C.  Co.,  86  N.  Y.  625. 

A  proceeding  was  instituted  in  the  name 
of  the  people  to  restrain  a  company  from 
laying  a  track  in  a  city ;  afterward  the 
complaint  was  dismissed,  but  an  attorney 
interested  in  the  case,  without  authority 
from  the  attorney-general,  took  the  case 
from  the  special  to  the  general  term,  and 
thereupon  the  attorney-general  signed  an 
order  discontinuing  the  appeal.  Held,  that 
this  order  should  not  be  vacated  without 
notice  to  all  the  parties.  People  v.  Central 
C.  T.  R.  Co.,  21  Hun  {N.  K.)  476. 

145.  Ordoriiig  new  trial  below.— 
Where  there  is  a  conflict  of  evidence  as  to 
whether  the  death  was  caused  by  tbe  injury 
or  by  disease,  and  the  jury  were  oroperly 
instructed  as  to  the  law,  a  new  trial  will  not 
be  granted  on  appeal.  Richmond  &»  D.  R. 
Co.  v.  Davis,  86  Ga.  76,  12  S.  E.  Rep.  266. 

The  appellate  court  will  grant  a  new  trial 
where  a  verdict  is  clearly  against  the  undis- 
puted evidence  but  the  trial  judge  has  re 
fused   to  set  it  aside.    Helfrich   v.   Of^den 
City  R.  Co.,  7  Utah  186,  26  Pac.  Rep.  295. 

Where  suit  was  instituted  for  damaf:>es 
alleged  to  have  been  sustained  by  the  plain- 
tiff in  consequence  of  the  closing  of  the 
ditches  on  his  plantation  by  the  building  of 
a  railroad,  and  no  evidence  was  given  on 
the  trial  from  which  an  estimation  of  the 
damages  could  be  formed,  and  the  jury 
found  a  verdict  for  the  plaintiff,  the  court 
remanded  the  case  for  a  new  trial.  Trudean 
\.  New  Orleans,  J.  ^  G.  V.  R.  Co.,  15  La. 
Ann.  717. 

Where  a  man  suffered  serious  injury  as  a 
remote  consequence  of  being  carried  by  his 
railway  station  in  tho  night,  tli »  only  dirrrt 


injury  being  that  he  was  obliged  to  walk  an 
extra  hundred  rods,  he  was  still  allowed  a 
new  trial  on  reversal  of  a  verdict  for  the 
remote  injury,  as  it  could  not  be  said  that 
damages  for  the  direct  injury  would  not 
carry  costs.  Lewis  v.  Flint  &*  P.  M.  R.  Co., 
56  Mich.  638,  23  A^.  IV.  Rep.  469. 

In  an  action  by  an  employe  for  personal 
injuries,  two  issues  were  made :  (i)  As  to 
whether  the  machinery  used  was  defective; 
(2)  whether  the  defendant's  superintendent 
was  negligent.  Held,  that  it  was  proper  to 
instruct  the  jury  as  to  the  law  relating  to  each 
issue,  and  that  if  there  was  evidence  rela- 
ting to  the  defective  machinery,  and  there 
was  nothing  to  show  on  which  is.^ue  the 
verdict  was  found,  an  order  granting  a  new 
trial  for  refusing  to  properh'  instruct  as  to 
the  defective  machinery  was  proper.  Brymer 
v.  Southern  Pac.  R.  Co .  90  Cal.  496,  27  Pac. 
Rep.  371- 

Three  several  actions  were  commenced 
before  a  justice  of  the  peace  against  a  rail- 
road company  for  killing  stock,  but  only  one 
citation  was  issued.  The  justice  refused  to 
consolidate  the  suits  and  proceeded  to  irial. 
If  the  three  claims  had  been  consolidated 
the  amount  would  have  exceeded  the  juris- 
diction of  the  justice ;  but  on  appeal  to  the 
circuit  court  the  cases  were  ordered  consol- 
idated and  judgment  was  rendered  for  the 
plaintiff.  Held,  that  such  judgment  must  be 
reversed  and,  so  far  as  the  first  claim  was 
involved,  rennanded  to  the  circuit  court  to 
be  retried,  and  th^t  the  other  two  claims 
should  be  remanded  to  the  justice  to  be  pro- 
ceeded on  as  claim  5  where  no  summons  had 
issued.  Louisville  &^  N.  R.  Co.  v.  McCollis- 
ter,  66  Miss.  106,  5  So.  Rep.  695. 

140.  Slandnte,  and  ftirtlier  pro- 
cecdiiif^s  below.— (I)  General  rules.— 
In  a  suit  for  damages  resulting  from  an  ac- 
cident, a  fact  proved  in  the  case,  and  bear- 
ing on  a  subsequent  case  growing  out  of  the 
same  cause,  will  be  noticed  in  the  subsequent 
case,  in  which  the  testimony  is  reticent  on 
the  point.  Under  such  circumstances  the 
second  case  will  be  remanded  for  testimony 
on  the  point,  in  furtherance  of  substantial 
justice.  Paland  v.  Chicago,  St.  L.  &>  A'.  O. 
R.  Co.,  42  La.  Ann.  290,  7  So.  Rep.  899. 

A  case  will  not  be  remanded  to  a  lower 
court  wheie  it  is  brongiii  to  compel  a  rail- 
road to  transfer  stock  to  a  purchaser  at  an 
execution  sale,  in  order  that  the  conflicting 
claims  of  third  parties  may  be  adjudicated. 
Third   parties  will   not   be    bound   by  the 


W>.    '  "n'li 


448 


APPEAL   AND    ERROR,  146. 


K    i 


$» 


.ih 


judgment  and  may  assert  their  rights  in 
separate  actions.  Morehead  v.  Westsrn  N. 
C.  A\  Co..  96  JV.  Car.  362,  2  S.  E.  Rep.  247. 

AVhere  a  decree  of  the  lower  court,  in  a 
railmaf*.  foreclosure  suit,  was  reversed  on 
appeal  and  sent  back  with  a  mandate  to  the 
court  below  to  niuke  certain  specified  cor- 
rections, no  new  investigation  is  meant,  and 
it  is  not  error  in  the  court  below  to  refuse 
to  reopen  the  case  to  hear  new  matter  dis- 
covered since  the  f^rst  trial.  Kneelandv. 
American  L.  A-  T.  Co.,  138  U.S.  509,  11 
Sup.  a.  R^p.  426. 

Where  a  judgment  of  the  United  State; 
district  court  is  reversed  by  the  supreme 
court,  and  a  mandate  is  sent  down  to  enter 
judgment  for  the  defendant,  the  lower  court 
must  obey  the  mandate.  .  ;".i-  par!e  Dubuque 
<S-  P.  R.'Co.,  I  IVall.  {U.  S.)  69.— roLLOW.  i 
IN  Re  Washington  &  G.  R.  Co..  140  U.S.  91. 

Upon  a  mandate  from  the  United  States 
supreme  court  '..0  the  court  below,  in  an 
action  to  recover  land,  to  enter  judgment 
for  defendant,  the  lower  court  should  simply 
enter  the  judgment  as  directed,  and  should 
not  enter  judgment  that  defendant  has  a 
right  or  title  to  the  land.  Litchfield  v. 
Dubuque  &-  P.  R.  Co.,  7  IVall.  {U.  S.)  270; 
reaffirmed  in  Williams  v.  Batter,  17  Wall. 
iU.  S)  144. 

(2)  Illustrations. — A  ferry  owner  leased 
certain  grounds  to  a  railroad  in  consider- 
ation that  the  railroad  would  transport  its 
passengers  and  freights  across  a  river  in  his 
ferry.  Afterward  the  railroad  was  sold 
and  the  purchasing  company  continued  to 
use  the  grounds,  but  diverted  its  freights 
from  the  ferry.  The  ferry  owner  treated 
the  lease  as  ended  by  the  sale  of  the  rail- 
road, and  entered  an  equitable  suit  for 
the  use  and  occupation  of  the  grounds. 
Held,  that  the  supreme  court,  after  deciding 
that  the  parties  had  accepted  the  terms  of 
the  original  lease  so  as  to  be  bound  in 
equity,  could  remand  the  case  to  the  lower 
court,  for  amended  proceedings,  so  as  to  do 
full  justice  between  the  parties.  Wiggins 
Ferry  Co.  v.  Ohio  6-  M.  R.  Co.,  52  Am.  (S- 
Eng.  R.  Cas.  82,  142  U.  S.  396,  12  Sup.  Ct. 
Rep.  188. 

A  mandate  of  the  supreme  court  recited 
that  the  receiver  of  a  railroad  company  was 
dead,  and  that  the  company  had  been  sub- 
stituted as  plaintiff  in  error,  and  ordered 
that  the  defendant  in  error  recover  her 
costs,  and  that  "such  execution  and  pro- 
roedings  be  had  as  according  to  right  and 


justice  and  the  laws  of  the  United  States 
ought  to  be  had."  Execution  issued  ac- 
cordingly for  the  amount  of  the  judgment 
with  interest  at  the  rate  fixed  by  the  state- 
law  when  the  judgment  was  rendered. 
Held,  that  such  judgment  conformed  to  the 
mandate,  and  that  a  circuit  court  of  appeals 
had  no  jurisdiction  to  review  it.  Texas  d~ 
P.  R.  Co.  V.  Anderson,  149  U.  S.  237,  13  Si/p. 
Ct.  Rep.  843. 

Matters  not  in  issue,  inadvertently  de- 
cided by  the  supreme  court,  are  under  the 
control  of  the  court  of  chancery  after  a 
mandate  has  been  sent  down.  Thus  the 
defendant  B.  had  recovered  a  judgment 
against  the  defendant  railroad — one  of  three 
railroad  companies,  partners,  operating  their 
respective  roads  as  one  continuous  line — and 
had  levied  on  an  engine,  baggage-car,  etc., 
as  thf;  property  of  said  company ;  where- 
upon the  orators,  two  of  the  three  partners, 
brought  a  bill  to  enjoin  B.,  alleging  that 
the  property  levied  on  was  partnership 
property;  that  the  liabilities  of  the  part- 
nership largely  exceeded  its  assets ;  and 
that,  therefore,  the  property  could  not  be 
held  on  B.'s  execution.  B.  answered  and 
filed  a  cross  bill,  praying  that  his  judg- 
ment be  declared  a  first  lien  on  the  rolling 
stock,  and  that  the  lien  be  enforced  by  a 
sale  ;  or,  if  it  were  decided  that  he  was  enti- 
tled to  have  only  an  undivided  third  part 
sold,  to  have  that  set  apart  and  sold.  There 
was  no  evidence  as  to  the  proportionate  in- 
terests of  the  partners  in  the  engine.  The 
mandate  was  "for  the  amount  of  one-third 
the  value  "  of  the  property  levied  upon. 
Whereupon  the  orators  applied  to  the  court 
of  chancery  for  leave  to  amend  their  bill  by 
setting  forth  the  proportion  of  interest  that 
the  defendant  railroad  had  in  the  engine, 
claiming  that  it  could  not  exceed  one- 
eighth  ;  which  leave  was  granted.  A  master 
was  appointed  to  ascertain  the  value  01  the 
property  anJ  such  interest,  and  on  the  com- 
ing in  of  the  report  a  decree  was  entered  for 
B.  for  ^y,  of  such  value.  Held,  that  the 
mandate  was  not  obligatory  on  the  court 
of  chancery ;  that  no  icsue  was  raised  by 
the  pleadings  as  to  the  proportion  of  in- 
terest ;  that  the  court  inadvertently  assumed 
that  the  defendant  railroad  had  one-third 
interest;  and  that  the  rioiendment  was 
properly  allowed.  Lamcille  Valley  R.  Co.  v. 
fiixby,  57  Vt.  548. 

A  statement  filed  in  an  action  before  a 
justice  of  the  peace  to  .-ecover  for  stock 


APPEAL  AND   ERROR,  147.— APPEARANCE,  1. 


440 


killed,  under  the  statute,  was  held  to  be  in- 
sufficient because  it  did  not  aver  ttiat  the 
stock  were  not  killed  within  the  limits  of 
an  incorporated  town,  and  that  therefore 
the  judgment  in  favor  of  plaint  iff  was 
erroneous.  It  appeared  to  be  a  case  where 
tiic  defect  could  be  remedied  by  an  amend- 
ment in  the  circuit  court.  Held,  that  the 
case  should  not  be  dismissed,  but  should  be 
remanded  to  the  circuit  court  for  amend- 
ment. Schulte  V.  St.  Louis,  I,  M.  &>  S.  A'. 
Co.,  76  J/tf.  324. 

Upon  petition  tiled  in  a  suit,  wherein  a 
railway  company  had  been  put  into  a  re- 
ceiver's hands,  for  damages  for  the  negli- 
^cnt  killing  of  petitioner's  horse,  alleged  to 
have  been  of  the  value  of  $50,000,  a  refer- 
ence had  been  made  to  ascertain  the  value 
of  the  horse.  The  commissioner,  having 
taken  evidence,  reported  the  horse  to  have 
hee;^  worth  $40,000;  but  the  court  recom- 
iiutle<i  the  report,  and  the  commissioner 
took  additional  evidence,  and  reported  the 
horse  to  have  been  worth  only  $1000.  The 
additional  evidence  did  not  warrant  the  last 
report,  yet  the  evidence  offered  by  petitioner 
as  to  the  speed  and  celebrity  of  the  horse 
did  not  sustain  his  claim  to  have  the  first  re- 
port confirmed.  NM,  that  both  reports 
.lould  be  set  aside  and  that  an  issue  should 
be  directed  to  be  tried  by  a  jury  at  the  bar 
of  the  court  below  to  ascertain  the  amount 
of  the  damages  sustained  by  the  petitioner. 
MeUndy  v.  Barbour,  25  Am.  &•  Eng.  K.  Cas. 
622,  78  Va.  544. 

147.  Efl'ect  of  the  appeal  while 
pen<liii|;.  —  Appeals  under  supersedeas 
bonds  suspend  judgments  during  their  pen- 
dency, and  orders  made  in  the  progress  of  a 
case,  though  interlocutory  in  their  character, 
may,  when  ihey  affect  the  merits  of  the 
case,  be  revised  after  a  final  judgment. 
Ft.  Worth  St.  K.  Co.  v.  Rosedale  St.  R.  Co.,  68 
lex.  163.  7  •5>'.  W.  y.p.  381. 

Where  an  appeal  is  in  the  nature  of  a  writ 
of  error,  and  only  carries  up  the  case  to  the 
court  of  appeals  as  an  appellate  court  for 
the  correction  of  errors  that  may  have  inter- 
vened on  the  trial  of  the  case  below,  and 
for  its  adjudicaticm  upon  the  question 
whether  the  judgment  appealed  from  should 
be  affirmed,  reversed,  or  modified,  and  the 
court  has  no  other  than  appellate  powers 
to  affirm,  reverse,  or  modify,  then  such  ap- 
peal docs  not  vacate,  but  merely  suspends, 
the  operation  of  the  judgment.  So  held. 
where  a  plaintiff  who  had  sued  for  personal 
1  D.  R.  D.— 29. 


injuries  died  pending  an  appeal  from  an 
order  reversing  a  judgment.  Lewis  v.  St. 
Louis  <S-  /.  At.  A*.  Co.,  59  Mo.  495,  8  Am.  Ry. 
Rep.  450. 

While  an  appeal  from  a  decree  foreclosing 
a  railroad  mortgage  is  pending  the  trial 
court  has  no  power  to  order  a  receiver  of 
the  road  to  turn  it  over  to  another  com- 
pany or  to  order  him  to  pay  money  to  the 
mortgage  bondholders.  Branson  v.  La 
Crosse  6-  M.  R.  Co.,  i  Wall.  {U.  S.)  405, 

Individual  bondholders,  not  parties  to  a 
decree  in  a  railroad  foreclosure  suit,  direct- 
ing a  sale  of  the  property,  have  no  legal 
right  to  have  the  decree  executed  while  an 
appeal  therefrom  is  pending  in  the  supreme 
court  of  the  United  States,  where  the  mort- 
gage trustee  in  his  judgment  thinks  that  a 
sale  is  not  for  the  best  interests  of  all  con- 
cerned ;  but  the  court  allows  the  trustee  to 
execute  the  order  of  sale  or  not,  pending 
the  appeal,  as  he  may  think  best.  Farmers' 
L.&*T.  Co.  V.  Central  Iowa  R.  Co., \  Dill. 
{U.  S.)  533. 

When  an  appeal  is  taken  from  the  ap- 
pointment of  a  receiver,  the  authority  of 
the  receiver  is  suspended  until  a  determina- 
tion of  the  appeal,  and  the  cause,  notwith- 
standing the  appeal,  remains  in  the  nisi 
prius  court,  and  amendments  and  other 
changes  in  the  pleadings  may  be  made  as  in 
other  cases.  In  such  a  case,  on  appeal,  no 
question  will  be  determined  except  that 
which  immediately  led  to  the  appointment 
of  a  receiver  without  notice.  Wabash  R. 
Co.  V.  Dykeman,  133  Ind.  56,  32  A'.  E.  Rep. 
823. 

APPEAEANGE. 

In  justices'  courts,  in  stock-killing  cases,  see 
AisiMAi.s,  Injuries  to,  Oil. 

1.  What  constitutes  an  appear- 
ance.—In  an  action  against  a  railroad,  de- 
fendant appeared  "  in  its  own  proper  per- 
son," and  pleaded.  Held,  that  the  plea  was 
bad,  because  a  plea  by  a  corporation  aggre- 
gate, which  is  incapable  of  personal  ap- 
pearance, must  purport  to  be  by  attorney. 
Nispel  V.  Western  U.  R.  Co.,t\Ill.  311.— 
Following  Nixon  v.  Southwestern  Ins. 
Co.,  47  III.  444.  Overruling  Mineral 
Point  R.  Co.  V.  K?ep,  22  III.  9. 

Action  for  the  death  of  plaintiff's  intes- 
tate, alleged  to  have  been  caused  by  the 
wilful  neglect  of  defendant,  was  brought  in 
the  county  where  the  injury  occurred,  and 


:*iii 


450 


APPEARANCE,  2,  3. 


I 


process  issued  to  that  county  and  returned 
executed  on  K.,"thc  agent  of  the  com- 
pany." The  defendant  filed  an  answer  stat- 
ing tliat  K.  was  not  the  agent  of  the  com- 
pany, and  asking  that  the  action  be  abated. 
A  demurrer  to  tiiis  answer  was  sustained, 
and  defendant  thsn  moved  to  quash  the  re- 
turn on  the  summons.  The  court  sustained 
tiiis  motion,  but  required  the  defendant, 
over  its  objection,  to  plead  to  the  merits 
upon  the  ground  that  the  answer  previously 
filed  was  an  appearance  to  the  action ;  and 
a  trial  resulting  in  a  judgment  for  pliiintifT, 
this  appeal  is  prosecuted.  Held,  that  there 
was  no  uppearance,  and  that  the  objection  to 
the  jurisdiction  was  not  waived  by  the  tiling 
of  the  answer  to  the  merits  under  protest. 
Chesapeake,  O.  (S-  S.  R.  Co.  v.  Heat/i,  87  A>. 
651,  9  S.  IV.  Rep.  832.— Following  13akcr7'. 
Louisville  &  N.  R.  Co.,  4  Bush.  (Ky.)  619. 
Quoting  Harkness  v.  Hyde,  98  U.  S.  476. 
—  DISTINGUISHKD  IN  Harper  v,  Newport 
News  &  M,  V.  Co.,  90  Ky.  359. 

2.  EfTect,  generally.— Where  proceed- 
ings for  the  appraisalofdamages.commenced 
before  the  first  judge  of  a  court  of  common 
pleas,  were  directed  by  him  to  be  trans- 
ferred to  the  county  judge,  on  one  (•  ly's 
notice  being  given  to  the  owner  of  the  land, 
and  the  landowner  subsequently  appeared 
before  the  county  judge  without  raising  the 
objection  that  he  had  not  had  notice  of  the 
transfer — held,  that  such  notice  being  f<vi  his 
benefit,  such  appearance  by  him  was  a  waiver 
of  it,  or  an  admission  that  notice  had  been 
regularly  served.  Polly  v.  Saratoga  &>  IV. 
R.  Co., ^  Barb.  (JV.  V.)  449. 

3.  to  collier  jurisdiction. —  A 

corporation  existing  under  the  laws  of  an- 
other state,  having  appeared  and  pleaded  to 
an  action  in  the  New  York  supreme  court, 
cannot  subsequently  object  to  the  jurisdic- 
tion of  the  court.  Cook  v.  Champlain  Tramp. 
Co.,  I  Den.  (N.  K.)  91.  Brooks  v.  Nnv  York 
6-  G.  L.  R.  Co..  30  Hun  {N.  V.)  47. 

Where  a  non-resident  corporation  is  sued 
in  a  slate  court,  and  served  by  process  out- 
side of  the  state,  an  appearance  is  a  waiver 
of  objections  to  the  jurisdiction  of  thd  ourt, 
so  far  as  the  non  residence  is  concerned, 
though  it  be  expressly  declared  that  the  ap- 
pearance is  fr>r  the  purpose  of  raising  the 
question  of  jurisdiction  only.  St  I.ouis,  A. 
5-  7.  R.  Co.  V.  Whitley,  77  Tex.  126,  13  S. 
W.  Rep.  853. 

In  transitory  actions,  private  corpor.-uions, 
like  natural  persons,  may  be  sued  anywhere 


where  the  court  can  obtain  jurisdiction  of 
the  corporation,  either  by  legal  service  of 
process  or  its  appearance  by  attorney ;  and 
where  such  corporation  appears  and  pleads 
to  the  action,  and  the  court  has  juri.sdiction 
over  the  subject-matter,  it  cannot  raise  the 
question  of  the  authority  of  the  court  to 
finally  dispose  of  the  case.  New  Orleans,  J. 
6-  G.  N,  R.  Co.  V.  Wallace,  50  Afiss.  244. 
Carpenter  v.  Central  Park,  N.  &*  E.  R.  R. 
Co.,  II  Aid.  Pr.  N.  S.  {JV.  K)  416,  4  /Jaly 
550,  mem. 

Appearance  by  counsel  for  a  defendant 
cr.'poration,  and  taking  part  in  the  argu- 
ment of  the  case  in  the  supreme  court,  re- 
served in  the  district  court,  will  constitute  a 
general  appearance  in  the  case  and  submis- 
sion to  the  jurisdiction  of  the  court,  and 
such  appearance  in  the  supreme  court  estops 
the  defendant  from  denying  his  appearance 
in  the  district  court.  Cleveland,  C.  <S«»  C.  R. 
Co.  V.  Mara,  26  Ohio  St.  185,  13  Aw.  Ry. 
■AV/.  335.— Distinguished  in  Cleveland  & 
M.  V.  R.  Co.  V.  Wick,  35  Ohio  St.  247. 

An  action  by  a  railroad  company  against 
a  tax  collector  brought  in  a  different  county 
from  that  in  which  he  resides  and  holds  his 
office,  for  wrongfully  collecting  certain  fees 
from  the  company  while  collecting  taxes,  a 
voluntary  appearance  and  pleading  to  the 
merits  of  tiie  action  is  a  waiver  of  objec- 
tions to  the  jurisdiction  of  the  court.  Kane 
V.  Union  Pac.  R.  Co.,  5  Ned.  105. 

Under  the  jur'iciary  act  of  1789  a  United 
States  circuit  court  may  maintain  jurisdic- 
tion wher  some  of  the  defendants  reside  in 
the  state  where  the  suit  is  brought  and 
other  defendants  reside  in  other  st'ttes,  but 
who  appear  and  submit  to  the  jurisdiction. 
Ii\  such  case  the  want  of  juri^diction  relates 
to  the  person  only,  and  is  waived  by  ap- 
pearance. Pond  V.  Vermont  Valley  R,  Co., 
12  Blatchf.  (U.  S.)  280. 

Urder  the  judiciary  act  of  I789,§  11,  a  de- 
fendant who  was  not  found  or  served  in  the 
distrun  where  sued,  waives  the  question  of 
jurisdiction  hy  voluntarily  appearing  in  the 
action.  IVinans  v.  McK'ean  R.  &*  N.  Co.,  6 
Blatchf.  ((/.S.)  215. 

Under  the  New  Vork  Code  of  Civ.  Pr"., 
|i  •66,  the  want  of  jurisdiction  \n  th'.  su- 
{jerior  city  courts  is  matter  of  defenjc,  and 
is  waived  by  appearance,  unless  it  is  pleaded 
in  the  answer;  and  if  thus  waived  the  court 
siiould  proceed,  notwithstanding  it  may  aj)- 
pear  that  if  objection  had  been  maile  to  the 
jurisdiction  it  would  have  been  sustained. 


APPEARANCE,  4-«. 


45! 


McLean  v.  St.  Paul  A'  C.  K.  Co.,  i  N.  Y.  S. 
A*.  89,  18  Abb.  N.  Cas.  423.— Applying 
Pease  v.  Delaware,  L.  &  W.  R.  Co..  10  Daly 

459- 
4.  —  as  a  waiver  of  defects  in  pro- 

cPHHt  —  A  full  appearance,   in    an    action 

where  the  court  has  jurisdiction  over  the 

sul)ject-matter,  is  a  waiver  of  any  irregular- 

itv  in  the  process  or  in  its  service.     Louis- 

vilh\  N.  A.  &•  C.  H.  Co.  V.  Nicholson,  60 

liul.  158. 

By  the  appearance  to  the  action  in  any 
case,  for  any  other  purpose  than  to  take  ad- 
vantage of  the  defective  execution  or  non- 
execution  of  process,  a  defendant  places 
himself  precisely  in  the  situation  in  which 
he  would  be  if  process  were  executed  upon 
him,  and  he  thereby  waives  all  objection  to 
the  defective  execution  or  non-execution  of 
process  upon  him.  Mahany\.  Baltimore  &* 
O.  R.  Co.,iS  VV.  Va.  609. 

Though  a  corporation  may  be  sued  under 
a  wrong  name,  yet  if  it  appears  and  litigates 
the  cause  on  its  merits  without  objection,  it 
thereby  waives  the  defect  in  the  summons. 
Virginia  &»  M.  S.  N.  Co.  v.  United  States, 
Taney  (U.  5.)  4 1 8. 

In  an  action  against  a  railroad  company 
to  recover  for  live  stock  killed,  a  failure  to 
serve  the  summons  on  the  defendant  by  de- 
livery of  a  copy  to  the  conductor,  as  re- 
quired by  statute,  is  waived  by  the  appear- 
ance of  the  company  to  the  action.  Louis- 
ville, N.  A.  &-  C.  R.  Co.  v.  Stover,  57  Iml. 
559,  18  Am.  Ry.  Rep.  398. 

rt.  or  defect  in  service.— The 

general  appearance  of  the  attorney  of  a  de- 
fendant corporation  is  a  waiver  of  any  de- 
fect or  want  of  sufficient  service  of  process. 
Buckjield  Branch  R,  Co.  v.  Benson,  43  Me. 

374- 

A  corporation,  after  appearing  generally 
and  pleading  to  the  merits  in  an  action  in 
a  justice's  court,  cannot  afterwards  object 
that  the  summons  was  not  served  in  con- 
formity with  the  requirements  of  statute. 
Anderson  v.  Southern  Minn.  R.  Co.,  21  Minn. 
30.— Approvino  McCormick  v.  Pennsyl- 
vania C.  R.  Co.,  49  N.  Y.  303 ;  Congar 
V.  Galena  &C.  U.  R.  Co.,  17  Wis.  477. 

An  appearance  for  the  purpose  of  con- 
senting to  a  continuance  is  a  waiver  of  in- 
sutficient  service,  and  confers  jurisdiction. 
Peters  v.  St.  Louis  &*  I.  M.  R.  Co.,  59  Mo. 
406. 

Where  a  defendant  specially  appears  for 
the  purpose  of  contesting  the  sufficiency  of 


service  of  proceus,  objections  to  such  suffi- 
ciency are  waived  by  a  further  appearance, 
and  asking  that  a  default  be  set  aside  on 
grounds  not  relating  to  the  mode  of  service, 
and  moving  to  strike  off  plaintiff's  petition. 
Pry  V.  Hannibal  &*  St.  J.  R.  Co.,  73  Mo. 

«23- 

The  appearance  of  a  railway  company  be- 
fore a  justice,  in  response  to  a  summons 
served  o'n  a  station  agent,  though  limited  to 
the  purpose  of  a  motion  to  quash  the  ser- 
vice of  the  summons,  when  followed  by  a 
full  appearance  and  a  motion  for  a  nonsuit, 
waives  any  objection  to  the  suit.  Colorado 
C.  R.  Co.  V.  Caldwell,  11  Colo.  545,  19  Pac. 
Jiep.  542. 

Where  defendants  appear  and  move  to 
dismiss  a  cause  for  defects  in  the  summons, 
remaining  and  submitting  to  a  trial  of  the 
action  upon  its  merits  after  the  motion  is 
overruled  is  a  waiver  of  the  defects  in  the 
service  of  summons.  Kronski  v.  Missouri 
Pac.  R.  Co.,  77  Mo.  362. 

Where  a  railroad  company  appears  gener> 
ally  before  a  justice  of  the  peace,  in  an  at- 
tachment proceeding,  and  moves  to  sei 
aside  a  judgment  by  default,  it  thereby 
waives  any  defect  in  the  service  of  summons. 
Gant  V.  Chicago,  R.  /.  &*  P.  R.  Co..  79  Mo. 
502.— Followed  in  Fitterling  v.  Missouri 
Pac.  R.  Co.,  20  Am.  &  Eng.  R.  Cas.  454,  79 
Mo.  504. 

Where  a  corporation  appears  in  a  suit  in 
a  circuit  court  of  the  United  States  and 
answers  generally,  it  thereby  waives  the 
right  to  object  that  the  court  had  not  ac- 
quired jurisdiction  over  it  because  process 
was  served  on  it  in  a  district  where  it  had 
no  corporate  existence.  Kelsey  v.  Pennsyl- 
vania R.  Co.,  14  Blatchf.  (U.  S.)  89.— Dis- 
tinguishing Pomcroy  v.  New  York  &  N. 
H.  R.  Co  ,  4  Blatchf.  (U.  S.)  120. 

O. as  an  adiniHsioii  of  corporate 

cliaractcr. — A  corporation  by  appearing 
to  a  suit  thereby  admits  its  corporate  exist- 
ence. Missouri  River,  Ft.  S.  &*  G.  R,  Co. 
v.  Shirley,  20  Kan.  660.— DISTINGUISHING 
Stanleys.  Farmers'  Bank,  r;  Kaii.  592.  Fol- 
lowing Seaton  v.  Chicago,  R.  I.  &  P.  R. 
Co.,  55  Mo.  416.— Followed  in  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Brewer,  20  Kan. 
669. 

Where  a  foreign  corporation  voluntarily 
appears  in  an  attachment  suit  and  gives 
bond  in  its  corporate  name,  it  is  thereby 
estopped  from  denying  its  corporate  exist- 
ence.   Hudson  V.  St.  Louis.  K.  C.  &*  N.  R. 


158 


APPKARANCli,  7,8. 


Co.,  53  Afo.  525.     Smith  v.  Burlington  &*  M. 
K.  A'.  Co.,  II  Mo.  526. 

Where  a  public  corporation  appears  to  an 
action  and  makes  an  affirmative  defense, 
liice  a  private  corporation,  it  admits  its  cor- 
porate existence.  Eubank  v.  lidina,  88  Mo. 
650. 

Where  defendants  are  sued  as  a  corpora- 
tion, a  general  appearance  and  filing  an 
affidavit  of  merits  do  not  prevent  them  from 
thereafter  denying  that  they  are  a  corpora- 
tion. Greenwood  v.  Lake  Shore  A'.  Co  ,  10 
Gray  (Mass.)  373. 

7.  Special  or  limited  apiietirtiiicc.— 
A  full  appearance  waives  defects  in  pro- 
cess, but  a  limited  one,  for  the  purpose  of 
making  objections,  does  not.  New  Albany 
&*  S.  R.  Co.  V.  Combs,  13  /ml.  490. 

A  special  appearance  for  the  single  pur- 
pose of  objecting  to  the  jurisdiction  of  the 
court  and  setting  aside  service  of  sum- 
mons, and  to  dismiss  the  action  for  want  of 
service,  is  not  a  general  appearance  or 
waiver  of  defects  in  the  service.  Sanderson 
V.  Ohio  C.  H.  &*C.  Co..  61  IVts. 6og,  21  N.  W. 
Rep.  818. 

A  provision  of  a  state  statute  which  gives 
to  a  special  appearance,  made  to  challenge 
the  court's  jurisdiction,  the  effect  of  a  gen- 
eral appearance,  so  as  to  confer  jurisdiction 
over  the  person  of  the  defendant,  is  not 
binding  upon  the  federal  courts  in  that 
state,  and  does  not  apply  to  a  suit  brought 
against  a  railroad  company  in  a  district  in 
which  the  company  has  not  headquarters  or 
a  principal  office.  Galveston,  H.  &*  S.  A.  R. 
Co.  v.  Gonzales,  1516^.  A.  496.— Following 
Southern  Pac.  R.  Co.  v.  Denton,  146  U.  S. 
202 ;  Mexican  C.  R.  Co.  v.  Pinkney,  149  U.  S. 
194.  Reviewing  Thorn  v.  Central  R.  Co., 
26N.  J.  L.  121. 

Where  a  corporation  enters  a  special  ap- 
pearance for  the  purpose  of  removing  a 
cause  from  a  state  to  a  federal  court,  it  does 
not  thereby  consent  to  the  jurisdiction  of 
the  state  court.  Hendrickson  v.  Chicago.  R. 
I.  &-  P.  R.  Co.,  22  Fed.  Rep.  569.— Dis 
TINGUISHED  IN  Tallman  v.  Baltimore  &  O. 
R.  Co.,  45  Fed.  Rep.  1 56. 

Where  special  appearance  is  entered  for 
the  purpose  of  moving  to  quash  the  officer's 
return  on  the  summons,  incidentally  praying 
judgment  in  connection  with  the  motion 
whether  it  should  be  compelled  to  plead,  it 
is  not  such  an  appearance  as  would  waive 
objection  to  the  service  of  process.  Fair- 
banks v.  Cincinnati,  N.  O.  &•  T.  P.  R.  Co.,  54 


Fed.  Rep.  420,  9  U.  S.  App.  212,  4  C.  C.  A. 
403. 

Where  a  company  is  sued  for  injuries  to 
stock,  a  special  appearance  for  no  other 
pur|>ose  except  to  a|)pcal  from  a  justice  of 
the  peace  to  the  district  court,  and  there  to 
make  a  case  for  the  supreme  court,  i.s  not 
such  an  appearance  as  will  waive  def( cts  in 
the  bill  of  particulars.  ,S/.  Louis  &^S.  I'.  A". 
Co.  V.  Mc Reynolds,  24  Kan.  368.—  F()I.I.(»\vki) 
IN  St.  Louis  &  S.  F.  R.  Co.  v.  Ellis,  25  Kiin. 
108 ;  Kansas  City,  L.  &  S.  W.  R.  Co.  v.  Richol- 
son,  31  Kan.  28. 

M.  Comiielliiig  appearniire.— Action 
was  brought  by  plaintifT  against  defendants, 
a  company  incorporated  in  Nova  Scotia,  hut 
residing  in  the  United  States,  and  not 
British  subjects.  An  attorney  in  Halifa.x 
was  retained  by  them  to  defend  the  cause, 
and  took  some  proceedings  therein,  and,  ar- 
cording  to  the  affidavit  of  pkintitT's  attor- 
ney, promised  to  appear  and  plead.  This, 
however,  defendants'  attorney  denied. 
Plaintiff's  attorney,  after  some  years'  delay, 
applied  to  the  court  for  an  order  requirin); 
defendants'  attorney  to  enter  an  appearance, 
in  order  that  the  court  might  have  jurisdic- 
tion. Held,  that  if  defendants'  attorney  hail 
given  a  signed  understanding  to  appear,  he 
would  be  compelled  to  do  so,  but  that  other- 
wise the  court  had  no  jurisdiction,  and  could 
not  grant  the  desired  order.  Belloni  v. 
Sydney  &*  L.  R.  Co.,  9  Nov.  Sc.  137. 


APPLICATION. 

For  appointment  of  receiver,  see  Receivers, 

IV. 
—  certiorari,  see  Certioraki,  8. 
Necessity  of,  to  abate  suit,  set  Abatement, 

11. 
Of  payments,  see  Payment,  7. 


APPOINTMENT. 

Of  agents,  see  Agency,  l-O. 

—  attorneys,  see  Attorneys,  1-3. 

—  directors,  see  Baltimore  &  Ohio  Railroad, 

1. 

—  directors  by  city,  see  Direciors,  4. 

—  personal  representatives,  see   Exkcutoks 

AND  Administrators,  1-4. 

—  railway  commissioners,  see  Railway  Com- 

missioners, II. 

—  receiver,  see  Receivers,  I-III. 

—  receiver,  when  abates  action,  see  Abate- 

MI-NT,  8. 


1'!^ 


AIM'KHNTICliS,  1.— ARBITRATION   AND   AWARD.   1. 


•i:>3 


Of  trustees,  see  Tkusts  and  Trustbks,  I. 

—  trustees  for  bondholders,  mc  Mortoaobs, 

V.I. 

—  umpire,  see  Arbitration  and  Award,  10« 


APPBAI8EMENT. 

Of  damages  for  killing  stock,  constitntional- 
ity  of  statutes  as  to,  see  Animals,  In- 

JURIBS  TO,  8. 

—  land  taken,  see  Eminent  Domain,  XI,  4. 

—  property  levied  on,  see  Execution.  19. 


APPRENTI0E8. 

1.  Master'H  right  of  action  for  in* 
Juries  to.— A  master  may  recover  for  per- 
sonal injuries  to  his  apprentice,  whereby  he 
loses  his  services,  caused  by  the  negligence 
of  a  street-car  company  while  on  its  cars  as 
a  passenger,  though  the  contract  to  safely 
carry  was  made  by  the  company  and  the 
apprentice  in  the  absence  of  the  master. 
Ames  V.  Union  R.  Co.,  117  Mass.  541,  6  Am. 
Ky.  Rep.  260. 


ARBITRATIOH  AND  AWARD. 

Assessment  of  land  damages  by  arbitrators, 
see  Eminent  Domain.  XI.  5  ;  XV,  5  (</) 
XVI,  4  (*). 

Company's  engineer  as  arbitrator,  see  Con- 
struction of  Railways  II,  3  (b). 

I.  THE  STIBMISSIOH 453 

II.   PB0GXEDINO8  BEfOBI  THE  ABBI- 

TBATOBS 456 

in.   THE  AWABD  :  HOW  EHIOBOED  AHD 

HOW  IMPEAOHBD 459 

I.  THE  SUBMISSIOH. 

1.  Wliat  may   be  submitted.— An 

agreement  between  a  railroad  company  and 
its  contractors,  to  the  effect  that  estimates 
of  the  amount  of  work  done  should  oe  re- 
ferred to  third  persons,  whose  determina- 
tion should  be  conclusive  upon  the  parties, 
is  not  invalid,  and  an  award  made  thereun- 
der, in  good  faith,  is  binding.  Ross  v.  Mc- 
Arthur.  52  Am.  &»  Eng.  R.  Cas.  i,  85  Iowa 
203;  52  N.  \V.  Rep.  125. 

Where  a  lessor  company  gives  a  lessee 
company  notice  that  it  will  consider  the 
agreement  between  them,  giving  the  lessor 
the  right  to  run  over  the  lines  of  the  lessee, 
at  an  end,  after  a  certain  day,  and  the  lessee 
takes  no  heed  of  the  notice  and  continues  t  > 


run  trains,  the  matter  comes  within  the 
terms  of  an  agreement  for  referring  all  mat- 
ters and  differences  between  the  parties  to 
arbitration.  Llanelly  R.  &*D.  Co.  v.  London 
<S-  A'.  W.  R.  Co.,  20  W.  R.  898. 

Where  two  railway  companies  enter  into 
an  agreement  for  jointly  working  surburban 
passenger  traffic,  which  provides  that  "  any 
questions  of  difference  arising  under  this 
agreement  shall  be  referred  to  arbitration, 
pursuant  to  the  Railway  Companies  Arbi- 
tration Act,  1859,"  a  question  in  dispute  re- 
lating to  the  respective  liability  for  an  acci- 
dent which  occurred  to  the  trains  of  one 
company  carrying  the  passengers  of  the 
other  company,  which  company  alleges 
that  the  accident  arose  through  the  negli- 
gence of  the  «)ther,  does  not  fall  within  the 
terms  of  the  agreement  and  need  not  be  re- 
ferred to  arbitration.  North  London  R.  Co. 
V.  Great  Northern  R.  Co.,  47  L.  T.  N.S.  383; 
reversed  in  L.  R.  11  Q.  B.  D.  30,  52  L.J.  Q. 

B.  D.  380,  48  L.  T.  695,  31  IV.  R.  490.— Dis- 
CUSSKD  IN  I^ndon  &  B.  R.  Co.  v.  Cross,  L. 
R.  31  Ch.  D.  354.  34  W.  R.  301,  55  L.  J.  Ch. 
313.  54L.  T.  309. 

Where  two  railway  companies  are  empow- 
ered by  special  act  to  enter  into  a  working 
agreement,  but  no  provision  is  made  in  such 
act  respecting  arbitration,  and  the  agree- 
ment made  contains  a  clause  providing  that 
any  difference  shnll  be  determined  by  arbi- 
tration, in  accordance  with  the  Railway  Ar- 
bitrati(m  Act,  1859,  the  railway  commission- 
ers have  no  jurisdiction  under  §  8  of  the 
Regulation  of  Railways  Act,  1876,  to  decide 
differences  arising.  Great  IVestern  R.  Co. 
v.  Water/ord  &-  L.  R.  Co.,  L.  R.  17  Ch.  D. 
493,  50  L.  J.  Ch.  D.  513.  44  L.  T.  N.  S.  723. 
29  VV.  R.  826, — Considered  in  Stannard  v. 
Vestry  of  St.  Giles,  L.  R.  20  Cli.  D.  190,  51 
L.  J.  Ch.  629,  46  L.  T.  243,  30  W.  R.  693. 

The  Railway  Companies  Arbitration  Act, 
1859,  gives  power  to  railway  companies  to 
agree  in  writing  to  refer  matters  in  differ- 
ence, as  they  arise,  to  arbitration.  Torbit^ 
&-  B.  R.  Co.  V.  South  Devon  R.  Co.,  2  /?>-.*- 

C.  T.  Cas.  391.  Port  pat  rick  R.  Co.  v.  Cale- 
donian R.  Co.,  3  Ry.Sf  C.  T.  Cas.  189. 

The  Railway  Companies  Arbitration  Act, 
1859,  does  not  authorize  railway  companies 
to  refer  differences  between  them  to  arbitra- 
tion, but  merely  authorizes  railway  compa- 
nies to  agree  to  a  reference  in  a  particular 
form  and  manner.  Waterford  &•  L.  R.  Co. 
V.  Great  Western  R.  Co.,  3  Ry.  &*  C.  T. 
Cas.  546. 


1 1 

i 


\    '^r^. 


454 


ARBITRATION    ANU    AWARD,  2. 


III! 


M! 


With  regard  to  diflcrvnces  arising  iti  the 
course  uf  tiieir  business,  railway  companies 
have  power  to  agree  to  u  reference  without 
the  authority  of  an  act  of  parliament. 
VVattrford  &*  L.  R.  Co.  v.  Great  IVestern 
R.  Co.,  3  A>.  &*  C.  T.  Cas.  546. 

The  8tli  section  of  the  Regulation  of 
Railways  Act,  1873,  does  not  apply  to  an  ar- 
bitration clause  inserted  in  an  agreement 
between  railway  companies,  made  in  pursu- 
ance of  a  special  net,  where  such  special  act 
does  not  in  itself  require  or  authorize  the 
matters  comprised  in  the  arbitration  clause 
to  be  referred.  Waterford  &*  L.  A'.  Co.  v. 
Great  Western  A*.  Co.,  3  Ry.  &*  C.  T.  Cas. 
546. 

An  agreement  between  two  railway  com- 
panies provided  that  all  disputes  were  to  be 
referred  to  a  single  arbitrator  to  be  named 
as  therein  stated.  The  agreement  was  made 
under  the  provisions  of  a  special  act,  but 
there  was  no  clause  in  such  act  requiring  or 
authorizing  matters  in  difference  to  be  re- 
ferred to  arbitration.  Held,  that  the  rail- 
way commissioners  had  no  jurisdiction  to 
determine  the  matters  in  dispute  on  a  refer- 
ence for  that  purpose.  Waterford  &*  L.  R. 
Co.  v.  Great  Western  R.  Co.,  3  Ry.  6-  C.  T. 
Cas.  546. 

Under  a  provision  in  a  working  agree- 
ment providing  for  the  submission  to  arbi- 
tration of  all  questions  arising  between  the 
companies  as  to  its  construction,  the  ques- 
tion whether  certain  new  works  on  the  line 
were  a  capital  or  revenue  charge,  and 
whether  works  of  the  former  class  were 
chargeable  to  the  owning  company,  was  re- 
ferred to  the  commissioners.  The  agree- 
ment contained  no  reference  to  new  ex- 
penses not  chargeable  to  revenue ;  but  it 
was  contended  that  it  must  have  been  fore- 
seen that  new  works  would  be  required  from 
time  to  time,  and  that  the  question  how 
they  were  to  be  executed  and  paid  for  was  & 
matter  arising  generally  out  of  the  agree- 
ment, and,  therefore,  one  of  those  matters 
which  the  companies  had  agreed,  in  case  of 
difference,  to  settle  by  arbitration.  Held, 
that  such  particular  difference  could  not 
properly  be  said  to  arise  out  of  anything 
contained  in  the  agreement,  and  that  the 
arbitration  clause  did  not,  save  questions 
of  p.-oviding  for  the  due  working  of  the  line 
ill  I  lie  manner  contemplated  by  the  agree- 
ment (e.g.,  to  meet  some  requirement 
needed  for  the  protection  of  the  public), 
apply  to  matters  not  mentioned  in  any  part 


of  the  agreement.    Midland  G.  W.  R.  Co. 
V.  Dublin  &•  Af.  R.  Co.,  4  Ry.  &•  C.  T.  C,u. 

HI- 

An  apparatus  for  heating  water  for  tin- 
comfort  of  passengers  is  a  revenue  charged, 
for  whether  made  a  fixture  or  not,  such  an 
apparatus  is  more  an  accessory  to  the  busi- 
ness done  upon  a  railway  than  to  the  mil 
way  upon  which  the  business  is  done.  Miii 
land  G.  W.  R.  Co.  v.  Dublin  &*  Af.  R.  Co., 
4  Ry.  6-  C.  T.  Cas.  145. 

2.  Who  may  Hiibiiilt  or  apply  I'or 
reference.— It  is  within  the  powers  of 
the  directors  of  a  railroad  company  to  in- 
quire into  the  regularity  of  a  dividend  that 
has  been  made,  and  to  order  that  the  sum 
paid  be  refunded,  but  they  have  no  power 
to  submit  such  questions  to  arbitration, 
especially  against  the  consent  of  some  of  the 
stockholders.  Grata  v.  Redd,  4  B.  Mon. 
(Ay.)  178. 

Where  a  dispute  arises  between  a  railroad 
company  and  a  party  who  had  erected  ai\ 
eating-house  at  a  station,  on  the  lands  of  the 
company,  a  resolution  of  the  board  of  direc- 
tors, authorizing  the  president  of  the  com- 
pany to  receive  the  building  at  the  valuation 
of  disinterested  parties,  clothed  him  with 
the  power  to  refer  the  matter  to  arl)itraiioni 
and  the  appearance  of  the  company  be- 
fore the  arbitrators,  by  its  agents  and 
counsel,  without  objection  to  the  reference, 
amounts  to  a  ratification,  and  estops  it  from 
making  any  objection  to  the  submission 
after  the  award  is  made.  Memphis  &*  C.  A'. 
Co.  V.  Scruggs,  50  Aliss.  284. 

Agents  of  a  railroad  company,  who  were 
employed  to  purchase  land,  had  frequently, 
but  without  express  authority,  referred  the 
question  of  the  price  that  should  be  paid  for 
land  to  arbitrators,  and  the  price  awarded 
had  been  paid  by  officers  of  the  company. 
Held,  that  the  agents  had  the  implied  au 
thority  to  submit  such  matters, and  that  the 
company  would  be  bound  thereby.  Wood  v. 
Auburn  <S-  R.  R.  Co.,  8  N.   Y.  160. 

Two  railway  companies  entered  into  an 
agreement  to  refer  all  matters  in  dispute  to 
arbitration, as  provided  by  the  Railw-iy  Com- 
panies Arbitration  Act,  1859,  which  was 
confirmed  and  made  binding  by  a  special 
act.  Held,  this  did  not  confer  jurisdiction 
upon  the  commissioners  to  undertake  an 
arbitration  on  the  application  of  one  of  the 
companies  only.  Queen  v.  Midland R.  Co.,  19 
Q.  B.  D.  540,  56  L.J.  Ch.  D  585.  5  ^>  '^'- 
C.  T.  Cas.  267.— Reviewing  Caledonian  R. 


N' 


m 


ARIU  I  RATION   AND   AWARD,  »,  4. 


4b:t 


A'.  c;>. 
r.  c'«.v. 


Co. »'.  Greenock  &  W.  B.  R.  Co..  L.  R.  a  II.  L. 
Sc.  347  ;  Great  Western  R.  Co.  v.  Waterford 
&  L.  R.  Co.,  17  Ch.  D.  493.  DlSTiNOUlSH- 
INO  Great  Western  R.  C<>.  v.  Halesowen 
R,  Co..  53  L.J.Q.  B.473,  4  Ncv.  &  Man.  224. 
The  clause  in  the  8th  section  of  the  Re- 
gulation of  Railwuy.s  Act,  1873,  which  eii- 
nbles  one  party  to  apply  for  the  arbitration 
of  the  railway  commissioners,  "  where  any 
(lifTerence  between  railway  companies  is, 
under  the  provisions  of  any  general  or  siicciul 
act,  required  or  authorized  to  be  referred  to 
arbitration,"  applies  only  to  cases  in  which 
the  specific  diflfercncc  has  been  required  or 
authorized  by  a  general  or  special  act  to  be 
referred  to  arbitration.  OrM/  Western  K. 
Co.  V.  Waterford  &*  L.  R.  Co..  L.  R.  17  Ch. 
D.  493.  5°  f-  /•  '^h.  D.  5'3.  44  /^.  T.  N.  S. 
723,  29  W.  R.  826.— CoN.siDKRKiJ  IN  Stan- 
nard  v.  Vestry  of  St.  Giles.  L.  R.  20  Ch.  D. 
190,  51  L.  J.  Ch.  629,  46  L.  T.  243,  30  W.  R. 

693- 

3.  Wlicii  a  miliinlHHioii  may  1>« 
coiiipclhMl. — It  seems  that  an  agreement 
which  provides  that  all  ditTcrcnces  shall  be 
referred  to  arbitration  when  the  agreement 
has  been  scheduled  to  and  continned  by  an 
act  of  parliament,  entitles  one  of  the  com- 
panies parties  to  the  agreement  to  compel 
a  reference  to  the  railway  commissioners, 
under  §  8  of  the  Regulation  of  Railways  Act. 
1873.  Bedford  &^  N.  R.  Co.  v.  Midland  R. 
Co..  4  Ry.&'C.  T.  Cas.  170. 

A  working  agreement  between  two  com- 
panies, made  in  pursuance  of  a  special  act, 
contained  a  general  arbitration  clause.  Hrld, 
that  a  difference  under  this  agreement  was 
a  difference  between  railway  companies 
under  the  provisions  of  a  special  act  re- 
quired or  authorized  to  be  referred  to  arbi- 
tration, within  the  meaning  of  the  8th  section 
of  the  Regulation  of  Railways  Act.  1873. 
Portpatrick  R.  Co.  v.  Caledonian  R.  Co.,  3  Ry. 
&-  C.  T.  Cat.  189. 

A  clause  in  a  special  act  of  a  railway  com- 
pany provided  that  the  engines,  carriages, 
officers,  and  servants  in  charge  should  have 
the  privilege  of  using  one  railway  to  a  certain 
junction,  and  that  any  differences  which 
might  from  time  to  time  arise  should  be  set- 
tled by  arbitration.  Held,  that  it  was  not  a 
condition  precedent  to  the  exercising  of  the 
running  powers  and  facilities  conferred  by 
the  above  section  that  the  differences  stated 
should  be  settled  by  arbitration.  Toff  Vale 
R.  Co.  v.  Rarry  D.  6-  R.  Co.,  7  Ry.  &»  C.  T. 
Cas.  53. 


4.  ICft'ert  of  tlic  mihiiiiHMioii  to  oimt 
JiiriH«llcttoii  of  coiirtN.— Where,  under 
an  agreement  nmlirmed  by  act  of  parlimcnt, 
the  parties  were  l>ound  to  settle  by  arbitra- 
tion all  differences  that  might  arise  between 
them  as  to  the  meaning  and  effect  of  the 
agreement,  or  as  to  the  mmie  of  carrying  it 
out — AM/,  that  the  jurisdiction  of  the  courts 
was  by  this  agreement  excluded,  and  that 
all  disputes  arising  under  it  must  be  settled 
by  arbitration.  Caledonian  R.  Co.  v.  Grten- 
ock  &*  W.  B.  R.  Co..  I..  R.  2  .SV.  ////.  347, 
3  Ry.  <S-  C.  T.  Cas.  15.  Watford &*  R.  R.  Co. 
v.  London  6-  A'.  W.  R.  Co..  L.  R.  8  Eq.  231, 
38  L.  J.  Ch.  449,  17  W.  R.  814.  21  L.  T. 
N.  S.  81. 

An  agreement  between  railway  companies 
to  submit  matters  in  dispute  to  arbitration, 
under  the  Railway  Companies  Arbitration 
Act,  1859,  \%  4  and  26,  makes  it  the  duty  of 
the  court  to  give  effect  to  such  agreement 
if  either  company  insists  upon  it,  but  if  not 
so  insisted  on  the  court  is  not  deprived  of 
its  jurisdiction.  London,  C.  «S>*  I).  R.  Co.  v. 
South  Eastern  R.  Co.,  40  Ch.  1).  100,  6  Ry.  &• 
C.  T.  Cas.  Ixviii.— DiSTiNCJUiSHiNG  Wat- 
ford &  R.  R.  Co.  V.  London  &  N.  W.  R.Co., 
L.  R.  8  Eq.  231 ;  Caledonian  R.  Co.  v.  Green- 
ock &  W.  B.  R.  Co..  L.  R.  2  H.  L.  Sc.  347. 

Although  an  account  between  two  mil- 
way  companies  is  of  such  a  nature  as  to 
render  it  a  proper  subject  of  a  suit  in  equity, 
the  court  is  bound  to  give  effect  to  a  defi- 
nite agreement  to  refer  disputes  to  arbitra- 
tion, under  the  Railway  Companies  Arbi- 
tration Act.  i8j9,  $  26.  and  cannot  entertain 
the  suit.  Watford  &-  R.  R.  Co.  v.  London 
&*  N.  W.  R.  Co.,  L.  R.  8  Eq.  231,  38  L.  J. 
Ch.  449,  17  W.  R.  814.  21  L.  T.  N.  S.  81. 

Where  an  agreement  between  two  rail- 
way companies  contains  a  provision  to  refer 
all  differences  to  an  arbitrator  to  be  ap- 
pointed each  year,  the  jurisdiction  of  the 
court  to  determine  a  controversy  is  not 
ousted  where  no  standing  arbitrator  has 
been  appointed  in  accordance  with  such 
provision.  Wolverhampton  &*  W.  R.  Co.  v. 
London  &-  N.  W.  R.  Co.,  L.  R.  16  Eq.  433, 
43  L.  J.  Ch.  131.— Considered  in  Don- 
nell  V.  Bennett,  L.  R.  22  Ch.  D.  835,  52  L. 
J.  Ch.  414,  48  L.  T.  68,  31  W.  R.  316. 

Where  a  contract  provides  that  the  cer- 
tificate of  the  engineer  or  of  an  arbitrator 
shall  be  a  condition  precedent  to  payment, 
the  court  does  not  obtain  jurisdiction  be- 
cause of  the  power  to  refer  to  arbitration. 
Sharpe  v.  San  Paulo  R.  Co.,  L.  R.  8  Cli.  597. 


IMAGE  EVALUATION 
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23  WIST  MAIN  STMIT 

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456 


ARlilTKATION    AND   AWARD,  5-8. 


I 


An  agreement  between  twn  lailrcad  com- 
panies, to  refer  all  matters  of  dispute  be- 
tween tliem  to  arbitration,  does  not  oust  a 
court,  either  at  law  or  in  equity,  oi  jurisdic 
tion,  but  upon  a  proper  case  made  a  court 
will  even  enjoin  a  submission  to  arbitration. 
March  v.  Eastern  R.  Co.,  40  A'^.  H.  548. 

An  agreement  to  submit  to  arbitration 
will  not  be  held  valid  when  its  effect  is  to 
oust  the  court  of  jurisdiction.  Chamberlain 
V.  Connecticut  C.  R.  Co.,  54  Co"n.  472,  4  N. 
Eng.  Rep.  477,  9  At  I.  Rep.  2\i . 

By  the  terms  of  a  contrat  jei.'een  C.  & 
Co.  and  the  defendants,  a  railway  company, 
it  was  agreed  that  all  matter.^  i-^  dispute 
between  the  parties  arising  or  tv  'vc"".  out 
of  or  connected  with  the  contr^c  '  :'d  be 
settled  by  arbitration.  C.  &  C  ;.'  came 
insolvent,  and  this  suit  was  brought  iy  their 
assignee  in  insolvency  to  recover  the  cost  of 
the  construction  of  the  railway.  Upon  the 
application  of  the  defendants  under  §  167 
of  the  C.  L.  P.  Act  (C.  S.  U.  C.  c.  22),  an 
order  was  granted  staying  all  proceedings 
in  this  suit,  it  being  held  that  the  circum- 
stance that  the  contractor  had  become  in- 
solvent did  not  take  the  case  out  of  the 
statute.  Johnson  v.  Montreal  6f  O.  R.  W. 
Co.,  6  Prac.  (Ont.)  230. 

5.  What  ainouiits  to  h  submission. 
— Defendant  entered  into  an  agreement 
with  a  railroad  company  to  erect  stone 
crushers  along  the  line  of  its  road,  with  a 
provision  in  the  contract  to  the  effect  that 
when  the  stone  was  all  furnished  the  com- 
pany should  have  the  option  of  buying  the 
crushers,  and  if  a  satisfactory  price  could 
not  be  agreed  on  between  the  parties  each 
should  select  an  arbitrator  and  the  two  thus 
selected  should  select  athird,  who  should  fix 
the  price  of  such  crushers,  which  decision 
should  be  final.  Held,  that  this  was  a  sub- 
mission to  arbitrators  whose  decision  hadall 
the  force  of  an  award.  Missouri,  K.  <&•  T. 
R.  Co.  V.  Elliott,  56  Fed.  Rep.  772. 

6.  Revocation.— Where  matters  in  dis- 
pute have  been  submitted  to  arbitration,  a 
mistake  of  law  by  the  arbitrator  touching 

I  matters  within  his  jurisdiction  does  not 
give  a  dissatisfied  party  the  right  to  come 
into  court  and  have  the  submission  revoked. 
James  V.James,  22  Q.  B.  Z>.  669. — Explain- 
ing East  &  W.  I.  D.  Co.  V.  Kirk,  12  App. 
Cas.  738. 

After  the  directors  of  a  company  had  en- 
tered into  an  agreement  to  arbitrate  a  cer- 
tain matter,  they  voted  to  revoke  the  sub- 


mission unless  the  arbitrators  would  make 
certain  findings.  Subsequently  the  presi- 
dent of  the  company  signed  a  paper  in  the 
name  of  the  corporation,  absolutely  revoking 
the  submission,  which  was  laid  before  the 
directors  and  ratified  and  approved,  with  a 
recital  that  the  directors  "  will  treat  the 
said  submission  as  no  longer  in  force." 
Held,  that  this  was  an  unconditional  revoca- 
tion of  the  submission.  Boston  &^  L.  R. 
Co.  V.  Nashua  6»  L.  R.  Corp.,  139  Mass. 
463.— Reviewed  in  Nashua  &  L.  R.  Corp. 
V.  Boston  &  L.  R.  Corp. ,  1 57  Mass.  268. 

II.    PROCEEDINGS  BEFOBE  THE 
ARBITRATORS. 

7.  Qualifications  of  arbitrators.— 

A  bank  held  shares  of  a  railroad  company 
as  collateral  security  for  the  debt  of  a  per- 
son of  fair  standing  and  good  credit.  Held, 
that  this  would  not  disqualify  stockholders 
of  the  bank  from  acting  as  arbitrators  in  a 
matter  wherein  the  railroad  company  was 
interested.  Their  interest  was  too  remote 
and  contingent  to  induce  a  reasonable  sus- 
picion that  it  would  influence  their  decision. 
Leominster  v.  Fitchburg  &*  IV.  R.  Co.,  7  Allen 
(Mass.)  38. 

A  railway  company  entered  into  a  con- 
tract, one  provision  of  which  was  that  T., 
"if  and  so  long  as  he  shall  continue  to  be 
the  company's  principal  engineer,"  should 
be  the  arbitrator  as  to  matters  in  difference. 
Afterwards  the  company  was  amalgamated 
by  act  of  parliament  with  another  railway 
company.  Disputes  having  arisen  between 
the  parties  to  the  contract,  T.  made  two 
awards  as  to  the  subject-matter  of  it.  Held, 
that  he  was  still  the  proper  person  to  make 
the  awards.  Wansbeck  R.  Co.  v.  Trowsdale, 
L.  R.  I  C.  P.  269, 1 2  Jur.  N.  S.  740. 

8.  Their  jurisdiction  anrt  powers.— 
The  arbitrators  to  be  appointed  under 
the  Ga.  Act  of  1847,  to  assess  and  award 
damages  against  railroad  companies  for 
injuries  done  to  property,  are  a  court  with 
limited  jurisdiction,  and  the  record  of  their 
proceedings  must  show  nil  that  the  Act  re- 
quires to  give  jurisdiction,  and  if  it  does  not 
the  proceeding  is  coram  nonjudice  and  void. 
Macon  iS-  W.  R.  Co.  v.  Davis,  13  Ga.  68. 

The  record  in  such  case  should  show  that 
the  proceedings  took  place  at  the  depot  of 
the  company  in  that  magistrate's  district, 
on  the  line  of  the  road,  in  the  direction  the 
train  was  moving  when  the  injury  occurred, 
nearest  to  the  point  where  the  injury  did 


1 
1 1 


f 


i 


ARBITRATION    AND   AWARD,  it-Ui. 


45^ 


f 


I 


occur;  that  the  magistrate  who  appointed 
the  arbitrators  was  a  magistrate  of  the  dis- 
trict ;  that  the  arbitrators  are  freeholders 
of  that  district ;  and  that  the  agent  of  the 
company  did  not  attend  at  the  depot  in  that 
district,  to  hear  complaint,  as  directeu  by 
the  statute.  Macon  &*  IV.  R.  Co.  v.  Davis, 
13  Ga.  6S. 

When  the  agent  fails  so  to  attend,  and 
arbitrators  are  then  appointed,  and  they  pro- 
ceed to  make  an  award,  it  is  not  necessary 
that  the  company  should  have  notice  of  their 
proceedings.  Macon  &^  IV.  K.  Co.  v.  Davis, 
13  Ga.  68. 

Where  real  property  is  to  be  surrendered 
to  the  lessor,  and  the  matter  of  compensa- 
tion that  he  is  to  make  to  the  lessee  is  sub- 
mitted to  arbitration,  the  arbitrators  have 
the  right  to  construe  the  contract,  and  esti- 
mate the  value  of  the  property  at  the  time, 
upon  the  testimony  before  them ;  and  al- 
though they  may  have  erred  in  the  applica- 
tion of  tiie  law  or  the  facts,  the  court  will 
not  decree  their  award  void.  Memphis  &* 
C.  R.  Co.  V.  Scruggs,  50  Miss.  284.— QUOT- 
ING Jones  V.  Boston  Mill  Co.,  6  Pick 
(Mass.)  148.  Reviewing  Boston  Water 
Power  Co.  v.  Gray,  6  Met.  (Mass.)  131. 

An  agreement,  submittmg  to  arbitration 
the  question  of  damages  to  an  abutting 
owner  caused  by  the  erection  and  operation 
of  an  elevated  railway,  provided  that  the 
arbitrators,  by  a  majority  vote,  might  exer- 
cise their  discretion  as  to  the  manner  and 
way  in  which  to  inform  themselves  of  the 
matters  and  tilings  in  dispute,  and  that  they 
might  refuse  to  hear  witnesses  and  counsel, 
and  proceed  to  follow  their  determination 
in  whatever  manner  they,  or  a  majority  of 
them,  might  decide.  Held,  that  this 
authorized  the  arbitrators  to  inform  them- 
selves by  reading  the  evidence  in  other 
similar  cases  reported.  Bennett  v.  Union  El. 
R.  Co.,  5  Silv.  Sup.  Ct.  464,  9  N.  Y.  Supp. 
915.— Distinguishing  Halsteadz/.  Seaman, 
82  N.  Y.  27. 

9.  Evidence  on  the  hearing.— An 
agreement  providing  for  the  appointment 
of  commissioners  to  fix  the  value  of  certain 
property  to  be  acquired  by  a  railroad  com- 
pany, provided  that  the  commissioners 
should  be  governed,  in  estimating  said 
valuation,  by  the  rules  of  law  applicable  to 
proceedings  under  the  statute,  with  a  right 
of  appeal ;  that  no  compensation  was  to  be 
allowed  for  damage  to  this  or  adjoining 
property,  but  they  were  to  take  into  co;!- 


sideration  "the  capabilities  of  the  premises 
for  any  use  whatever."  Helil,  thai  this 
would  fairly  admit,  as  an  element  of  value, 
evidence  of  improvements  of  which  the 
property  was  capable.  In  re  New  York,  L. 
Sm  IV.  R.  Co.,  27  Am.  &*  Eng.  R.  Cas.  404, 
102  N.  Y.  704,  7  N.  E.  Rep.  559,  2  N.  Y.  S. 
R.  456,  I  Silv.  App.  79 ;  reversing  40  Hun 
130;  which  modified  2  Hviv.  Pr.  N.  S.  225. 

10.  Appointment  of  umpire. — An 
appointment  of  an  umpire  by  the  board  of 
trade  within  twenty  one  days  after  the  last 
appointment  of  two  arbitrators  who  made 
no  award  is  valid.  In  re  East  <S-  IV.  I. 
Docks  &'L.&'  B.J.R.  Co.,  s Railw.  Cas.  527. 

11.  Hearing  before  umpire.— When 
a  new  arbitrator  is  chosen  by  the  original 
arbitrators,  either  party  has  the  right  to 
adduce  additional  testimony  and  additional 
arguments.  And  when  either  party  has  not 
only  not  waived  such  right,  but,  before  the 
award  was  made,  presented  his  protest  to 
the  arbitrators  as  soon  as  could  reasonably 
be  done,  and  served  an  injunction  upon 
them  to  restrain  them  from  proceeding,  and 
the  arbitrators  shut  him  out  from  this  right 
and  make  their  award  in  the  face  of  the 
protest  and  injunction,  it  is  such  miscon- 
duct as  will  set  aside  the  award.  West  Jer- 
sey R.  Co.  V.  Thomas,  21  N.J.  Eg.  205. 

Where  a  matter  is  submitted  to  arbitra- 
tion, proceeding  to  hear  and  determine  the 
matter  without  giving  the  plaintiff  notice 
or  an  opportunity  to  be  heard  is  irregular 
and  illegal,  and  would  vitiate  an  award  or  be 
ground  for  enjoining  the  arbitrators;  but 
where  a  matter  has  been  submitted  to  two 
arbitrators,  and  the  evidence  and  the  argu- 
ments of  counsel  are  to  be  in  writing,  this 
will  extend  to  a  hearing  before  the  two  ar- 
bitrators and  an  umpire,  or  a  third  person, 
which  they  are  authorized  to  select  if  they 
cannot  agree,  and  the  parties  are  not  en- 
titled to  a  'urther  hearing.  IVest  Jersey  R. 
Co.  v.  Th,  .las,  7  Phila.  {Pa.)  635.— Dis- 
tinguishing Pickerin  v.  Capetown  R.  V. 
Co.,  I  Eq.  Cas.  84. 

12.  Eifeet  of  failure  to  agree.— Ar- 
bitrators chosen  under  Ind.  Local  Laws, 
1849,  P-  364.  §  5.  having  reported  to  the  cir- 
cuit court  that  they  were  unable  to  agree, 
etc.,  their  duties  terminated  with  such  re- 
port, and  they  could  not  afterward  proceed 
to  make  an  award.  Jeffersonville  R.  Co.  v. 
Mounts,  7  Ind.  669. 

13.  Enjoining  the  proceedings.— 
Where  a  preliminaiy  injunction   has  been 


ii 


% 


%  'f.\ 

m 


ft 


458 


ARBITRATION   AND    AWARD,  14-16. 


issued  against  arbitrators  to  restrain  them 
from  making  an  award,  mere  signing  of  an 
award  afterward,  which  they  had  previously 
agreed  upon,  and  keeping  it  in  their  pos- 
session, is  not  a  violation  of  the  injunction 
so  as  to  authorize  an  atiacliment  for  con- 
tempt. PVfsi  Jersey  R.  Co.  v.  Thomas,  7 
Phila.  (Pa.)  635. 

An  injunction  should  not  be  granted  to 
restrain  proceeding  with  an  arbitration  on 
the  ground  that  a  certain  engineer  acting 
as  arbitrator  was  disqualified  as  such  by 
reason  of  his  having  expressed  an  opinion 
on  the  point  in  dispute  in  a  letter  written  by 
him,  unless,  from  a  fair  construction  of  such 
letter,  it  appears  that  he  had  made  up  his 
mind  so  as  not  to  be  open  to  change  it  upon 
argument.  Jackson  v.  Barry  R.  Co.,  [1893] 
1  Ch.  238. 

Under  the  Judicature  Act,  1873,  §  25,  sub- 
sec.  8,  the  high  court  has  no  jurisdiction  to 
enjoin  a  party  from  proceeding  with  an  ar- 
bitration in  a  matter  beyond  the  agreement 
to  refer,  although  such  arbitration  proceed- 
ing may  be  futile  and  vexatious.  North 
London  R.  Co.  v.  Great  Northern  R.  Co.,  L. 
R.iiQ.  B.  D.  30.  52  L.  J.  Q.  B.  D.  380,  48 
/-.  T.  695,  31  W.  R.  490;  reversing  S.  C.  47 
L.  T.  N.  S.  383.— Discussed  in  London  & 
B.  R.  Co.  V,  Cross,  L.  R.  31  Ch.  D.  354,  34 
W.  R.  301,  55  L.  J.  Ch.  313,  54  L.  T.  309. 

14.  Vacating  the  appoiutmeiit.— 
Where  a  court  has  appointed  commis- 
sioners to  ascertain  the  value  of  certain 
property  to  be  acquired  by  a  railroad  com- 
pany, under  a  written  agreement,  mere  fear 
that  the  award  will  be  excessive  is  no 
.'jround  for  an  order  vacating  their  appoint- 
ment. In  re  New  York,  L.  ^  W.  R.  Co. 
27  Am.  &*  Eng.  R.  Cas.  404,  102  N,  V. 
704,  7  N.  E.  Rep.  559,  2  A^.  V.  S.  R.  456,  i 
Silv.  App.  79 ;  reversing  40  Hun  1 30,  which 
modified  2  Now.  Pr.  N.  S.  225. 

15.  Compensation.— TUough  the  par- 
ties to  an  arbitration  agree  hat  the  arbitra- 
tors shall  fix  their  own  compensation,  yet 
upon  a  proper  suggestion  that  it  is  extor- 
tionate or  excessive,  it  becomes  the  duty  of 
the  judge  to  hear,  and,  if  necessary,  to  pass 
upon  the  question  just  raised.  Kelly  v. 
Lynchburg  &»  D.  R.  Co.,  no  A^.  Car.  431,  15 
5.  E.  Rep.  200. 

When  upon  the  coming  in  of  the  award 
the  court  ordered  m  t  ces  to  issue  to  the 
arbitrators  to  file  itemized  accounts  of  the 
time  engaged  and  expenses  incurred  by 
each,  together  with  the  value  of  tlioir  ser- 


vices; and  in  response  to  this  order  such 
accounts  were  filed,  to  which  the  defendants 
formally  excepted — held,  (i)  that  it  was  too 
late  to  object  to  the  order;  (2)  that  the  ruling 
of  the  court  that  it  had  "  no  power  to  con- 
sider the  evidence,  in  the  absence  of  sus- 
tained proof  of  allegation,  or  some  affidavit 
if  the  party  setting  forth  fraud,  collusion, 
conspiracy,  or  unfairness,"  was  error.  Reily 
v.  LynJiburg  &•  D.  R.  Co.,  no  N.  Car.  431, 
1 5  S.  E.  Rep.  200. 

The  court  has  power  to  fix  the  compensa- 
tion of  its  arbitrators  when  it  is  not  agreed 
upon,  to  cut  it  down  if  it  is  excessive,  and 
this  in  the  absence  of  formal  allegation  and 
pn  of.  Kelly  v.  Lynchburg  &^  D.  R.  Co.,  \  10 
N.  Car.  431,  155.  E.  Rep.  200. 

The  promoters  of  an  undertaking  must, 
for  the  purpose  of  taking  up  the  award,  pay 
the  fees  due  to  the  arbitrators,  they  having 
a  lien  on  the  award  for  such  fees,  except  so 
far  as  the  obligation  may  be  limited  by  §  24 
of  the  Lands  Clauses  Act.  Queen  v.  South 
Devon  R.  Co.,  15  Q.  B.  1043,  15  Jur.  464,  20 
L.J  Q.B.14S- 

16.  Costs. — The  right  of  a  claimant,  in 
arbitration  proceedings  under  the  Lands 
Clauses  Consolidation  Act,  1845,  to  costs  is 
independent  of  the  taxation  of  theni.and  an 
action  may  be  maintained  for  costs  though 
their  amount  has  not  been  settled.  Metro- 
politan D.  R.  Co.  V.  Sharpe,  L.  R.  5  App. 
Cas.  425.  50  L.  J.  Q.  B.  D.  14,  43  L.  T.  N. 
S.  130,  29  W.  R.  617. 

A  special  railway  act  declaring  the  pro- 
visions of  the  Lands  Clauses  Consolidation 
Act,  1845,  to  be  incorporated  with  it,  except 
where  expressly  varied,  does  not  repeal  the 
provisions  as  to  costs  in  arbitration  proceed- 
ings in  the  latter  act  by  directing  that  arbi- 
trations shall  be  conducted  by  an  arbitrator 
appointed  by  the  board  of  trade,  but  con- 
taining no  specific  directions  as  to  costs. 
Metropolitan  D.  R.  Co.  v.  Sharpe,  L.  R.  5 
App.  Cas.  425,  50  L.  T.  Q.  B.  D.  14,  43  L. 
T.  N.  S.  130,  29  W.  R.  617. 

Where  an  arbitrator  by  consent  is  given 
power  to  determine  the  matter  of  costs  and 
expenses  his  certificates  of  costs  must  be  en- 
forced, and  one  of  the  parties  cannot  claim 
to  have  the  costs  settled  by  the  taxing- 
master.  In  settling  such  costs  the  arbi- 
trator may  obtain  professional  help.  Row- 
cliff  e  V.  Devon  6-  5.  R.  Co.,  21  W.  R.  433. 

The  costs  of  arbitration,  which  are  to  be 
settled  by  the  arbitrator  or  the  umpire,  need 
not  be  incorporated  in  the  award,  but  may 


ARBITRATION    AND   AWARD,   17-20. 


459 


<' 


be  ascertained  at  a  subsequent  time,  wiiich 
need  not  be  within  three  months  after  the 
time  of  the  reference.  If  the  arbitrator  or 
umpire,  as  the  case  may  be,  refuse  or  neg- 
lect to  settle  the  costs  he  may  be  com- 
pelled hy  mandamus.  Gould  v.  Staffordshire 
Potteries  Waterworks  Co.,  5  Exch.  214,  i  L. 
Af.  <S-  /'.  264,  6  Railw.  Cas.  568,  \\Jur.  528, 
19  L.J.  Exch.  281.  Contra,  Quick  v.  London 
6-  A'  W.  R.  Co..  5  Railw.  Cas.  20,  5  Z?.  <S- 
L.  685,  13 /«r.  408,  18  L.  J.  Q.  B.  89. 

The  court  has  no  jurisdiction  to  review 
the  taxation  of  costs  of  an  arbitration  to 
settle  disputed  compensation  made  by  a 
master  acting  in  pursuance  of  §  i  of  the 
Lands  Clauses  Act.  1869.  Sandbach  Charity 
Trustees  v.  North  Staffordshire  R.  Co.,  37 
L.  T.  N.  ^.391. 

III.  THS  AWABD;    HOW    ENFOBCED  AHD 
HOW  IMPEACHED. 

17.  Execution.— The  attestation  of  an 
award  by  a  witness  was  essential,  under  Ind. 
Rev.  St.  1843,  to  its  valif^ty.  Jeffersonville 
R.  Co.  V.  Mounts,  7  Ind.  1^69. 

18.  What  is  an  award.— Where  three 
persons  are  chosen  by  the  vendor  and 
vendee  of  land  to  ascertain  and  fix  its  value 
and  to  certify  such  valuation,  the  certificate 
of  valuation  cannot  be  considered  as  more 
conclusive  or  binding  than  an  award;  but  it  is 
an  award,  and  the  referees  cannot  be  con- 
sidered otherwise  than  as  arbitrators.  Dick- 
inson V.  Chesapeake  &-  O.  R.  Co.,  7  W.  Va 

390. 

A  common  council  passed  an  ordinance 
allowing  a  street  railway  company  to  lay  its 
track  on  the  street,  reserving  the  right  to 
another  company  to  use  the  track  jointly, 
upon  making  compensation  as  fixed  by  the 
council.  Held,  that  the  determination  of 
the  compensation  to  be  thus  made  was  not 
an  arbitration.  Jersey  City  &*  B.  R.  Co.  v. 
Jersey  City  &*  H.  H.  R.  Co.,  20  A''.  /.  Eq. 
61  ;  reversed  in  21  A'^.  J.  Eq.  550.— Dis- 
tinguished IN  Louisville,  N.  A.  4  C. 
R.  Co.  V.  Phillips,  31  Am.  &  Eng.  R.  Cas. 
432,  112  Ind.  59.  Followed  in  North 
Baltimore  Pass.  R.  Co.  v.  North  Ave.  R. 
Co.,  75  Md.  233.  Quoted  in  State  ex  rel. 
V.  Corrigan  C.  St.  R.  Co.,  85  Mo.  263. 

Certain  disputes  in  which  a  railroad  was 
interested  >"ere  referred  to  arbitration.  By 
clause  2  of  the  order,  the  referees  were 
directed  to  make  and  publish  their  award 
in  writing  on  or  before  January  3,  1887,  or 
such  other  day  as  they  should  appoint ;  but 


during  the  reference  it  was  agreed  that  they 
should  go  on  the  ground  and  ascertain  the 
quantities  of  material  moved,  and  certify 
their  findings;  other  questions  to  remain 
open.  On  August  23d,  preceding  the  above 
date,  the  arbitrators  made  and  published 
a  report  as  to  the  quantities  of  material 
moved.  Held,  that  such  finding  was  not  an 
award  as  provided  for  under  said  clause  2, 
nor  an  award  within  the  meaning  of  the 
C.  L.  P.  Act,  §  209,  but  merely  a  finding  of 
facts  pending  the  reference,  so  as  to  enable 
the  arbitrators  thereafter  to  make  an  award, 
Conmee  v.  Canadian  Pac.  R.  Co.,  16  Ont.  639. 

10.  Time  within  whicli  to  make.— 
Under  §  23  of  the  Lands  Clauses  Consol- 
idation Act,  1845,  the  umpire  must  make  his 
award  within  three  months  from  the  date 
of  his  appointment.  Pullen  &>  Liverpool, 
{Mayor)  in  re,  ^i  L.J.  Q.  B.28S,  46  Z.  T.  N. 
S.  391. 

An  award  made  after  the  statutory  period 
of  three  months  will  not  be  set  aside  if  the 
parties  have  consented  enlarge  the  time. 
Palmer  v.  Metropolitan  R.  Co.,  31  L.  J.  Q. 
B.  259. 

Where  an  arbitrator  from  time  to  time 
enlarged  the  period  for  making  his  award 
under  the  submission  made  by  the  parties, 
the  award  was  valid  notwithstanding  it  was 
not  made  within  the  statutory  period  of 
three  months.  Caledonian  R,  Co.  v.  Lock- 
hart,  6Jur.  JV.  S.  131 1,8  py.  R.  373,  3  L.  T. 
N.  S.  252,  3  Macq.  H.  L.  Cas.  808. 

20.  All  the  arbitrators  must  con- 
cur in  award.— An  award,  by  the  com- 
mon law,  to  be  valid  must  have  been 
concurred  in  by  all  the  arbitrators.  Jeffer- 
sonville R.  Co.  V.  Mounts,  7  Ind.  669. 

Under  §  5  of  "an  act  for  the  benefit  of 
the  Ohio  &  Indianapolis  Railroad  Com- 
pany," etc.  (Local  Laws  1849,  p.  364),  there 
can  be  no  valid  award  where  all  the  arbitra- 
tors have  not  agreed  thereto.  Jeffersonville 
R.  Co.  v.  Mounts,  7  Ind.  669. 

The  general  statute  of  1843,  concerning 
arbitrations,  and  the  fifth  section  of  "an act 
for  the  benefit  of  the  Ohio  &  Indianapolis 
Railroad  Company,"  etc.,  above  men- 
tioned, cannot  be  taken  in  pari  tnnteria. 
Jeffersonville  R.  Co.  v.  Mounts,  7  Ind.  669. 

One  of  the  arbitrators  was  not  present 
when  an  award  was  agreed  upon,  nor  noti- 
fied of  the  meeting  at  which  it  was  made. 
Held,  under  the  Rev.  St.  1843,  that  the 
award  was  invalid.  Jeffersonville  R.  Co.  v. 
Mounts,  7  Ind.  669. 


i^t 


I:     !! 


\m 


460 


ARBITRATION    AND    AWARD,  21-25. 


Where,  under  tlie  terms  of  a  submission, 
the  award  is  to  be  by  the  arbitrators  or  a 
majority  of  them,  an  award  made  by  a  ma- 
jority, in  the  absence  of  anything  to  show 
fraud,  will  not  be  set  aside  merely  because 
the  amount  is  excessive.  Port  Huron  &* 
N.  W.R.  Co.  V.  Callanan,  6i  Mich.  22,  11 
West.  Rep.  525,  34  A'.   W.  Rep.  678. 

21.  Award  luiiMt  follow  submis- 
sion.— Where  the  parties  submitting  tlie 
matter  to  arbitration  request  the  arbitrators 
to  hear  and  determine  separately  the  dif- 
ferent items  submitted,  an  award  is  not 
invalid  because  not  embracing  all  the  mat- 
ters submitted ;  nor  is  its  validity  affected 
where  the  agreement  to  arbitrate  was  re- 
voked after  the  award  was  made  and  pub- 
lished. Nashua  &*  L.  R.  Corp.  v.  Boston  &• 
L.  R.  Corp.,  157  Mass.  268,  3t  N.  E.  Rep. 
1060.— Reviewing  Boston  &  L.  R.  Corp.  v. 
Nashua  &  L.  R.  Corp..  139  Mass.  463. 

22.  Returi>.  of  award  to  court.— 
An  award  inclosed  in  an  envelope  and  sent 
by  mail,  addressed  to  the  clerk  of  the  court, 
at  the  court  house,  and  received  by  him  and 
so  endorsed,  is  a  return  of  the  award  to  the 
court  within  the  meaning  of  Mass.  Pub. 
St.  ch.  188,  §  8,  providing  that  "the  award 
shall  be  delivered  by  one  of  the  arbitra- 
tors to  the  court  *  *  *  ,  or  shall  be  inclosed 
and  sealed  by  the  arbitrators  and  trans- 
mitted to  the  court. "  Morrellv.  Old  Colony 
R.  Co.,  158  Mass.  69,  32  N.  E.  Rep.  1030. 

Under  Mass.  Pub.  St.  ch.  188,  §  8,  requiring 
that  awards  be  inclosed  in  an  envelope  and 
sealed  by  the  arbitrators  and  transmitted  to 
the  court,  it  is  not  necessary  that  there  be 
anything  written  on  the  envelope  showing 
its  contents,  though  it  is  a  common  and  con- 
venient practice  to  do  so.  Morrell  v.  Old 
Colony  R.  Co.,  158  Afass.  69.  32  A^.  E.  Rep. 
1030. 

23.  What  awards  are  valid.— Where 
a  proceeding  is  instituted  under  the  Penn- 
sylvania act  of  April  3,  1830.  to  obtain  the 
possession  of  demised  premises  for  non- 
payment of  rent,  an  award  by  the  arbitra- 
tors finding  a  certain  amount  of  money  due 
is  irregular,  and  the  award  will  be  set  aside. 
Philadelphia  <S-  R.  R.  Co.  v.  Thornton.  3 
Phila.  (Pa.)  257. 

A  railroad  contractor  sued  for  damages 
for  being  wrongfully  dismissed  before  com- 
pletion of  his  work.  The  declaration  set  out 
the  contract,  which,  inter  alia,  provided  for 
payment,  part  in  cash,  and  the  remainder  in 
stock,  and  averred  that  the  company  had 


failed  "  to  pay  the  amounts  that  had  become 
payable  prior  to  his  dismissal."  Afterward 
the  suit  was  referred  to  an  arbitrator,  who 
made  an  award  for  damages  for  not  having 
received  a  portion  of  the  stock  for  work  be- 
fore the  dismissa'  //eld,  that  the  award 
was  not  open  to  the  objection  that  it  in- 
cluded damages  not  embraced  in  the  writ 
and  declaration.  New  York  &*  C.  R.  Co.  v. 
Myers,  18  //ow.  (U.  S.)  246. 

An  award  by  an  arbitrator  generally  as  to 
the  whole  action  under  distinct  contracts 
for  constructing  as  many  distinct  portions 
of  a  railway  is  good,  and  it  is  unnecessary 
for  him  to  find  separately  upon  each  con- 
tract. Craws haiv  v.  York  i"  iV.  M.  R.  Co., 
I  B.  C.  C.  45,  \6Jur.  668, :     ..  /.  Q.  B.  274. 

Where  two  railway  companies  having  con- 
necting lines  agree  to  refer  to  arbitration  the 
matter  of  determining  arrangements  to  be 
made  for  affording  proper  facilities  for  the 
conveyance  and  pccommodation  of  passen- 
gers, etc.,  between  two  points,  the  arbitra- 
tors do  not  exceed  their  authority  in  mak- 
ing an  award  directing  the  number  of  trains 
to  be  run,  the  speed,  and  other  similar  mat- 
ters; an  arrangement  directed  by  the  arbi- 
trators is  not  defective  because  not  limited 
in  point  of  time  where  either  party  may  by 
notice  require  a  fresh  arbitration.  Eastern 
Union  R.  Co.  v.  Eastern  Counties  R.  Co.,  2 
El.  &^  Bl.  530,  22  L.J.  Q.  B.  37!. 

24.  Awards  valid  in  part.— Although 
an  arbitrator  exceeds  his  jurisdiction  in 
ordering  the  money  to  be  paid,  the  rest  of 
the  award  may  be  good ;  and  where  the 
award  ascertains  the  amount  of  the  purchase- 
money  which  the  company  by  the  submission 
agreed  to  pay,  there  is  sufficient  to  enable 
the  court  to  make  an  order  on  it  to  pay  such 
sum.  Lindsay  v.  Direct  London  &•  P.  R.  Co., 
\  L.  M.  &*  P.  529,  1$  fur.  224, 19Z./.  Q.  B. 
417. 

25.  Construction  and  effect  of 
awards. — The  award  of  an  arbitrator,  upon 
a  reference  by  the  N.  and  R.  Ry.  Cos.,  de- 
cided that  a  joint  station,  portion  of  railway, 
and  works  should  be  constructed  by  the  R. 
Co.,  and  that  the  costs  and  expenses  of  con- 
structing the  same  should  be  borne  and  paid 
by  the  two  companies  In  equal  shares.  The 
companies  differed,  first,  as  to  the  length 
of  line  to  be  constructed  under  the  award ; 
secondly,  as  to  an  alteration  (which  was  also 
a  great  improvement)  proposed  by  the  R. 
Co.  in  the  mode  of  carrying  out  the  award 
by  substituting  an  incline  for  a  hoist,  as  a 


ARBITRATION    AND   AWARD,  26-28. 


461 


means  of  raising  gouds  from  a  low  to  a  high 
level.  Held,  on  the  first  point,  that  upon 
the  construction  of  the  award  the  contention 
of  the  N.  Co.  was  right ;  on  the  second,  that 
the  N.  Co.,  not  having  objected  to  the  alter- 
ation when  informed  of  it,  must  be  presumed 
to  have  consented  to  it,  but  that  they  must 
have  the  same  facilities  for  passing  to  and 
from  the  incline  that  the  R.  Co.  would  have  ; 
and  authority  was  given  them  to  defer  pay- 
ment of  their  share  of  the  cost  of  the  line 
and  station  until  these  were  given  them  to 
the  satisfaction  of  the  court.  Isle  of  Wight 
R.  Co.  V.  Ryde  &>  N.  R.  Co..  2  Ry.  &•  C.  T. 
Cas.  251. 

The  R.  Co.  having  incurred  considerable 
outlay  in  the  construction  of  the  joint  station 
and  line,  applied  for  an  order  for  payment 
from  the  N.  Co.,  or  that  the  latter  company 
might  give  security.  The  N.  Co.  contended 
that  no  payment  was  due  from  them  until 
the  works  were  completed.  Held,  that  under 
the  award  payment  must  b**  concurrent  with 
both  parties,  but  that  the  R.  Co.  was  not 
entitled  to  be  paid  until  they  advanced  the 
side  of  the  works  in  which  the  N.  Co.  were 
interested  as  far  as  their  own,  and  that  in 
the  meantime  the  N.  Co.  must  give  security 
for  the  costs  and  expenses  incurred  by  the 
R.  Co.  Isle  of  Wight  R.  Co.  v.  Ryde  <S-  N. 
R.  Co.,  2  Ry.  6-  C.   T.  Cas.  251. 

26.  Conclusiveness. — An  award  by  an 
arbitrator,  whom  the  submission  requires  to 
determine  all  questions  at  issue,  may  be  set 
aside  if  not  conclusive  of  the  rights  of  the 
parties.  McGregor  (&*  M.  R.  R.  Co.  v.  Sioux 
City  (&-  St.  P.  R.  Co.,  49  I(rwa  604. 

A.  contracted  to  build  a  railroad  for  B.,  to 
be  paid  upon  monthly  estimates,  to  be  made 
by  B.'s  engineers,  of  the  work  dono,  and 
made  sub-contracts  with  C.  for  the  building 
of  certain  sections.  As  the  work  progressed, 
the  estimates  made  were  small,  and  A.  hav- 
ing died,  C.  presented  claims  against  A.'s 
estate  on  account  of  said  underestimates. 
There  being  matters  in  dispute  also  between 
A.'s  estate  and  B.,  they  petitioned  the  pro- 
bate court,  as  provided  by  statute,  for  an 
order  to  refer  all  said  matters  to  referees,  and 
the  order  was  granted  and  the  award  duly 
made.  The  clai.n  of  C.  against  A.'s  estate, 
on  account  of  said  underestimates,  was  also 
a  valid  claim  on  the  part  of  A.'s  estate  against 
B.  Held,  that  said  submission  was  broad 
enough  to  cover  all  claims  and  demands  be- 
tween the  parties,  A.'s  estate  and  B.,  includ- 
ing the  claim  on  account  of  said  under- 


estimates. Held,  also,  thai  the  claim  being 
within  the  submission,  the  award  was  a  bar  to 
any  action  brought  for  the  recovery  thereof, 
or  of  any  claim  that  was  included  in  the 
submission,  t-iough  it  was  not  in  fact  brought 
before  the  arbitrators  ;  the  same  rule  apply- 
ing in  this  respect  as  thougli  it  had  been  an 
award  by  deed.  Darker  v.  Belknap,  39  {'/. 
168. 

A.'s  estate  and  B.  were  made  defendants 
to  a  bill  in  chancery  brought  by  C,  seeking 
relief  on  account  of  said  underestimates. 
The  bill  was  ordered  to  be  dismissed  as  to 
B.  and  retained  as  only  against  A.'s  estate, 
hut  before  formal  dismissal  A.'s  representa- 
tive filed  a  cross-bill  against  B.  and  C,  set- 
ting forth  the  same  facts  as  were  in  the 
original  bill  and  the  proceedings  thereon, 
and  claiming  that,  from  facts  established  by 
the  decree  in  the  former  bill,  B.  should  in- 
demnify A.'s  estate  against  all  claims  by  C. 
in  consequence  of  short  and  false  estimates 
of  B.'s  engineers.  Held,  that  B.  could  rely 
for  defense,  first,  upon  the  award,  as  a  bar 
to  inquiry  in  respect  to  the  merits  of  claims 
litigated  or  which  might  have  been  litigated 
under  it;  second, upon  the  merits  of  the  re- 
spective claims  set  up  in  the  cross-bill,  as 
disclosed  by  the  proof  in  the  case,  irrespec- 
tive of  the  award,  the  same  as  if  it  were  an 
independent  proceeding.  Barker  v.  Bel- 
knap, 39  Vt.  168. 

27.  Confirniation  by  court.— A  stat- 
utory award  is  not  subject  to  confirmation 
by  the  court  unless  a  copy  thereof,  together 
with  notice  in  writing  of  the  motion  to  con- 
firm, has  been  served  on  the  adverse  party 
at  least  fifteen  days  before  filing  the  award 
and  motion  in  the  proper  court.  Spring- 
field &^  S.  R.  Co.  V.  Calkins,  90  Mo.  538,  3  S. 

W.  Rep.  82. 

Where  this  course  is  not  pursued,  the  ar- 
bitration, if  relied  on  at  the  trial,  must  be 
set  up  by  amended  or  supplemental  pleading, 
and  where  this  is  not  done  evidence  of  an 
arbitration  and  award  is  not  admissible. 
Springfield&*  S.  R.  Co.  v.  Calkins,  90  Mo.  538, 
3  S.  W.  Rep.  82. 

28.  Actions  upon  awards. —  In  an 
action  upon  an  award,  the  defendants  being 
an  incorporated  railroad  comp,iny,  an  agree- 
ment of  submission  to  arbifaiion  by  the 
plaintiff  and  defendants,  as  a  su  sisting  obli- 
gation, being  in  evidence  without  objection, 
both  parties  having  joined  in  a  request  to 
one  of  the  witnesses  to  write  an  award  al- 
ready determined  on  by  the  referee  s,  and  the 


^J 


■m 


4Ga 


ARBITRATION   AND   AWARD,  20,30. 


defendants  having  offered  a  series  of  prayers 
assuming,  as  a  matter  of  fact,  said  agree- 
ment U)  be  an  existing  contract  between 
tlie  parlies,  tiieubjection  subsequently  made, 
that  the  autliority  of  the  president  of  said 
company  to  sign  said  agreement  was  not 
submitted  to  the  jury  as  a  distinct  fact, 
comes  too  late.  Maryland  &*  D.  K,  Co.  v. 
Potter,  19  Md.  458. 

Although  it  may  generally  be  necessary  to 
submit  the  question  of  notice,  as  a  fact,  to 
the  jury,  to  entitle  one  claiming  upon  an 
award  to  recover,  it  is  not  so  in  a  case  where 
that  necessity  is  avoided  by  an  express 
agreement,  or  where  the  parties  themselves 
make  the  appointment  of  the  time  and  place 
for  hearing  before  the  arbitrators.  Mary- 
land &•  D.  R.  Co.  V.  Porter,  19  Md. 
458. 

Upon  the  filing  of  an  award  directing 
payment  to  the  plaintiff  of  a  certain  sum 
in  dollars  and  cents,  the  defendant  moved, 
upon  affidavits  setting  forth  the  contracts 
upon  which  the  award  was  based,  that  the 
judgment  to  be  rendered  thereon  should 
be  so  framed  that  defendant  might  dis- 
charge the  same  with  certain  bonds,  as 
stipulated  in  the  said  contract.  Held,  that 
evidence  aliunde  of  the  principle  upon  which 
the  award  was  based  was  not  competent; 
and  that  the  award,  being  regular  on  its  face, 
and  no  objection  on  account  of  fraud,  mis- 
take, or  irregularity  being  made,  should  be 
affirmed.  IVyait  v.  Lynchburg  &•  D.  A'.  Co., 
1 10  N.  Car.  245,  14  S.  E.  Rep.  683. 

Suit  was  brought  against  a  railroad  com- 
pany to  recover  damages  for  injury  to  mer- 
chandise while  being  carried,  and  by  agree- 
ment of  the  parties  the  case  was  submitted 
to  arbitration  and  the  plaintiff  was  awarded 
$41  damages.  At  the  trial  plaintiff  claimed 
that  he  was  entitled  to  more,  but  said  if  the 
company  would  pay  that  sum  in  ten  days  he 
would  accept  it.  It  appeared  that,  if  the 
arbitrators  overlooked  any  item  of  damage, 
such  oversight  was  due  to  plaintiff's  failure 
to  call  their  attention  to  it.  Held,  that  he 
was  bound  by  the  award,  and  that  a  failure 
to  pay  the  amount  awarded  would  not  give 
him  the  right  to  bring  a  new  action,  his 
remedy  being  an  action  to  enforce  the  award. 
Houston  &*  T.  C.  R.  Co.  v.  Newman,  2  Tex. 
App   (Civ.  Cas.)  303. 

20.  Appeals  from  awards.— In  a  suit 
upon  a  void  award,  made  under  Ind.  Local 
L;ivvs  1849,  p.  364,  §  5,  the  defendant  is  not 
i.siup|)ed    from  denying  its  validity  by  not 


having  appealed  therefrom.  Jeffersonville 
R.  Co.  V.  Mounts,  7  Ind.  669. 

The  Pennsylvania  act  of  1817,  requiring 
corporations  to  give  bail  absolute  for  the 
debt,  in  cases  of  appeals  from  the  award  of 
arbitrators,  was  superseded  by  the  non-im- 
prisonment act  of  1842;  therefore  a  corpo- 
ration iias  a  right  to  appeal  from  an  award 
without  giving  such  bond.  Erie  &^  A,  R. 
Co.  V.  Atlantic  ^  G.  \V.  R.  Co.,  3  Pittsb. 
(Pa.)  232. 

30.  luipeaclimeiit  of  awards,  kt^'ii- 
erally.— The  question  whether  an  award  is 
excessive  or  unjust  cannot  be  considered  in 
a  court  of  equity,  nor  are  its  merits  reviewed. 
But  where  the  alleged  errors  are  of  a  s(jrt 
sufficient  to  set  aside  the  award,  the  court 
will  regard  theni,  so  that  a  determination 
apparently  excessive  may  be  reviewed.  West 
Jersey  R,  Co.  v.  Thomas,  21  N.J.  Eq.  205. 

The  court  of  chancery  has  jurisdiction 
over  awards,  but  it  will  not  exercise  it  in 
case  of  awards  which,  by  agreement,  are 
made  rules  of  court.  The  court  in  which 
the  rule  is  entered  has  that  power,  and  must 
exercise  it.  West  Jersey  R.  Co.  v.  Thomas, 
21  N.J.  Eq.  205. 

No  court  will  review  and  correct  an 
award  ;  the  only  power  is  to  set  it  aside 
for  corruption  or  misconduct  in  the  arbi- 
trators, or  for  a  plain  mistake  of  law  or  fact. 
And  if  arbitrators  decide  against  law,  not  by 
mistake,  but  of  purpose,  with  the  intention 
of  making  a  just  award,  when  the  strict 
principles  of  law  seem  to  them  to  work  in- 
justice, their  award  will  not  be  disturbed. 
West  Jersey  R.  Co.  v.  Thomas,  21  A'.  J.  Eq, 
205. 

The  inability  of  a  company  under  its  char- 
ter to  expend  its  funds  in  paying  an  award 
is  no  ground  for  setting  the  award  aside. 
In  re  Barrie  (3^"  N.  R.  Co.,  22  U.  C.  Q.  B.  2S. 

Where  a  railway  act  provides  that  the 
expense  of  altering  the  gauge  of  a  railway 
should  be  borne  by  several  companies  in 
equitable  proportions,  to  be  determined  in 
case  of  difference  by  the  board  of  trade,  the 
board  of  trade  and  their  successors  the  rail- 
way commissioners  have  a  discretion  which 
the  court  cannot  control,  and  a  bill  to  set 
aside  their  award  on  the  ground  of  undue 
delegation  of  authority,  and  the  admission  of 
cx-parte  statements,  should  not  be  sustained. 
Newry  &^  E.  R.  Co.  v.  Ulster  R.  Co.,  8  De  G., 
M.  (S-  G.  487. 

A  railroad  company  and  its  contractors 
for  the  construction  of  a  section  of  its  road 


F 


ARBITRATION    AND   AWARD,  31, 32. 


463 


submitted  to  an  arbitrator  questions  in 
dispute  between  them  as  to  the  liquidated 
damages  that  the  contractors  should  pay 
for  not  completing  the  road  on  time  and  as 
to  the  right  of  tlie  engineer  to  extend  the 
time  for  u  completion  of  the  work,  with  the 
provision  that  the  arbitrator  had  the  right 
to  construe  the  contract  between  them,  the 
right  to  determine  all  questions  of  fact  in 
relation  to  the  contract,  and  the  right  to 
determine  the  application  of  the  law  to  these 
matters  of  fact.  Held,  that  where  the  ob- 
jections made  to  the  award  relate  only  to 
the  construction  of  the  contract,  such  ob 
jections  constitute  no  ground  for  setting  it 
aside.  Adams  v.  Great  North  of  S.  R.  Co., 
[1891]^.  C.  31. 

31.  Iii?veacliinciit  for  luiBtake.— 
ArbitratoiS  have  authority  to  decide  all 
questions  of  law  necessary  to  the  decision 
of  the  matter  submiUed  to  them,  unless 
they  are  restricted  by  the  terms  of  submis- 
sion, and  their  mistakes  in  adopting  erro- 
neous rules  are  not  a  legal  cause  for  avoiding 
their  award  ;  and  a  court  will  refuse  to  review 
the  award,  although  it  is  accompanied  by  a 
statement  of  the  facts  and  particulars  upon 
which  it  is  made,  signed  by  the  arbitrators 
and  made  part  of  the  award.  Smith  v. 
Boston  &*  M.  R.  Co.  16  Gray  (Mass.) 
521. 

Arbitrators  who  are  not  restricted  by  the 
terms  of  submission  are  authorized  to  decide 
all  questions  of  law  and  fact  arising  in  the 
case,  and  their  decision  upon  questions  of 
law  discussed  before  them,  deliberately  and 
fairly  made,  is  conclusive.  Their  award 
may  be  impeached  by  showing  that  they 
have  fallen  into  some  mistake  of  tlie  law 
by  which  they  are  misled,  so  that  their 
award  is  not  the  result  of  their  judgment ; 
but  their  mistake  in  drawing  conclusions  of 
fact  from  evidence,  or  in  adopting  erroneous 
opinions  of  the  law  upon  debated  questions, 
is  not  a  legal  cause  for  avoiding  their 
award.  White  Mountains  R.  Co.  v.  Beane, 
39  A^.  H.  107. 

An  award  of  the  chief  engineer  of  a  rail- 
road will  be  set  aside  where  it  appears  that 
he  made  a  clear  mistake  in  regard  to  the 
number  of  cross-ties  delivered  by  plaintiffs, 
and  that  he  was  a  stockholder  in  the  com- 
pa'  y  and  thus  an  interested  party.  Atlanta 
<&>•  A*.  A.  L.  R.  Co.  V.  Mangham,  49  Ga. 
266. 

Where  an  arbitrator,  in  passing  upon  the 
claim  of  a  contractor  with  a  railway  com- 


pany for  extra  work,  has  not  been  guilty  of 
misconduct,  and  lias  acted  witliin  liis  juris- 
diction, his  mistake  in  point  of  law,  in  ad- 
mitting certain  evidence,  is  ncj  ground  for 
setting  aside  the  award.  Favicll  x.  Eastern 
Counties  R.  Co.,  2  Exch.  344,  17  L.J.  Exch. 
223. 

A  railroad  hotel  or  eating-house  was  built 
upon  the  lands  ("'  a  company,  and  at  the  end 
of  the  term  the  matter  of  compensation  that 
should  be  paid  by  the  company  upon  taking 
possession  of  the  property  was  referred  to 
arbitration,  w  itli  a  provision  that  tlie  amount 
of  the  award  should  constitute  a  lien  on  the 
property.  Held,  that  as  this  lien  could  only 
be  enforced  by  a  court  of  chancery  by  a 
sale  of  the  property,  the  lien  attached  from 
the  making  of  the  award  and  gave  the  court 
equity  jurisdiction.  Memphis  &*  C.  R.  Co. 
v.  Scruggs,  50  Miss.  284. 

32.  Iiiipeacliiiieut  fur  fraud  or  cor- 
ruption.—A  distinction  must  be  made 
where  an  award  is  sought  to  be  vacated  upon 
motion,  and  where  a  court  of  equity  is  re- 
resorted  to  to  set  aside  the  award  for  fraud 
or  concealment.  In  the  first  class  of  cases 
the  award  will  not  be  set  aside  or  vacated 
where  any  mistake  of  law  or  fact  does  not 
appear  on  the  face  of  the  award  itself ;  but 
in  the  second  class  extrinsic  evidence  may 
be  resorted  to  to  show  that  the  arbitrators 
have  acted  through  prejudice,  or  that  there 
have  been  fraudulent  practices  or  conceal- 
ments by  the  prevailing  party.  Valle  v. 
North  Mo.  R.  Co.,  37  Mo.  446. 

Though  the  simple  fact  that  one  of  the 
parties  to  the  submission  wrote  the  award  in 
the  absence  of  the  other,  who  was  not  noti- 
fied of  the  time  and  place  of  meeting  of  the 
arbitrators  proceeding  to  make  their  award, 
may  not,  of  itself,  be  sufficient  to  invalidate 
the  award,  still  it  may  be  considered,  unex- 
plained, as  affording  just  ground  for  sus- 
picion and  criticism.  But  where  such  party 
in  such  case  wrote  the  award  himself,and  so 
wrote  it  that  it  is  materially  erroneous  and 
deceptive  in  his  favor,  and  the  arbitrators  did 
sign  it  as  written,  a  court  of  equity  may  set 
it  aside,  Dickinson  v.  Chesapeake  6*  O.  R, 
Co.,  7  W.  Va.  390. 

Mediators  (amiables  compositeurs)  are  not 
subject  to  the  provisions  of  art.  1346,  Quebec 
Code  of  Procedure,  and  their  award  can  only 
be  set  aside  by  reason  of  fraud  or  collusion 
if  given  on  the  matters  referred  to  them. 
So  held,  on  petition  by  a  contractor  for  the 
construction  of  a  railway,  to  set  aside  the 


i 


■i 

■  t 

Hi 

.^ 

aU\ 

4G4 


ARBITRATION   AND   AWARD,  33— ARREST,  1. 


iiward  of  arljitiator!)  rinding  tlic  amount  due 
liin).  McGrifvy  v.  Queen,  19  Can.  Su/>.  Ct, 
I  So;  reversing  14  Can.  Sup.  CI.  735. 

Where  a  railroad  company  is  one  of  the 
parlies  in  an  arbitration  procecdinK.  proof 
lliat  one  (jf  tiie  arbitrators  hud  received  an 
oiler  of  the  solicitorship  of  tlic  company 
while  the  reference  was  pending,  which  lie 
accepted  after  a  finding,  is  good  ground  for 
setting  aside  the  award.  Conmec  v.  Cana- 
dian Pac.  R.  Co.,  16  Ont.  639. 

Matters  in  dispute  between  a  railroad 
company  and  its  contractor  were  submitted 
t(^  arbitration,  and  resulted  in  an  award  and 
judgment  for  a  large  sum  in  favor  of  the 
contractor.  Afterward  the  company  began 
suit  to  set  aside  the  award,  on  the  ground 
of  fraud,  in  that  its  assistant  engineer  was  a 
secret  partner  in  the  contract.  Held,  that 
proof  that  the  assistant  engineer  only  ac- 
quired an  interest  after  the  contract  was 
made  and  had  no  connection  with  the  mak- 
ing of  the  contract  or  superintending  the 
work  was  not  sufficient  to  set  aside  the 
award.  Union  K.  Co.  v.  Dull,  124  U.  S.  173, 
8  Sup.  a.  Rep.  433. 

It  is  no  ground  for  setting  aside  an  award 
in  such  case  that  the  assistant  engineer  was 
sworn  as  a  disinterested  witness  and  gave 
evidence  before  the  arbitrators  in  favor  of 
the  contractor,  where  there  is  no  evidence  to 
show  that  he  did  not  tell  the  truth,  but 
where  in  fact  he  was  corroborated.  Union 
R.  Co.  V.  Dull,  124  U.  S.  173,  8  Sup.  Ct.  Rep. 

433- 

33.  Impeaclimeut  for  iniscouduct 
of  arbitrators.— If  the  arbitrators  proceed 
without  the  knowledge  of  either  party  and 
without  giving  him  an  opportunity  to  be 
heard,  or  if  they  decide  without  any  evi- 
dence, it  is  such  misconduct  as  will  set  aside 
their  award.  West  Jersey  R.  Co.  v.  Thomas, 
21  N.J.  Eq.  205. 

A  proceeding  for  malicious  prosecution 
against  a  railroad  company  was  submitted 
to  arbitration,  with  the  provision  that  the 
referees,  or  two  of  them,  should  report  to 
the  court,  whose  report  should  be  binding 
and  conclusive  upon  tlie  parties.  Held,  that 
an  award  which  was  unobjectionable  upon  its 
face  will  not  be  set  aside  upon  the  ground  that 
a  heated  conversation  took  place  between 
two  of  the  referees  on  the  one  side  against 
the  other,  whereupon  the  two  refused  to 
further  confer  with  the  third  and  made  the 
award  without  his  signing  it.  Roberts  v. 
Old  Colony  R.  Co.,  123  Muss.  552. 


ARGUMENT. 

Of  counsel  to  the  jury,  see  Trial,  V,  5. 

discretionary  power  of  court  over,  see 

Api'Eal,  27. 

improper  remarks,  when  ground  for  re- 
versal, see  Afpeai.,  30,  <it>. 

objections    to,  how   to   be  taken,   see 

AlTEAL,  1)7. 

reading  statutes  to  jury,  see  Animals. 

Injuries  to,  525. 


ARKANSAS. 

Aid  to  railroads  by  the  state,  see  State  Aid. 

II. 
Double  damages  for  killing  stock  in,  see  Ann 

MALS,  Injuries  to,  505. 


ARREST. 

For  crime,  see  Criminal  Law,  II. 

Of  execution  sales,  see  Execution,  24. 

—  judgment,  see  Judomenp,  V. 

—  receiver,  when  a  contempt,  see  Contempt, 

4. 
Offense  of  resisting,   see  Criminal  Law,  III. 
See  also  False  Imprisonment. 

1.  In  civil  actions  (grounds  for.— 

Where  the  agent  of  a  railroad  company  re- 
ceives gold  as  the  funds  of  the  company 
and  pays  in  silver  at  a  time  when  gold  is  at 
a  premium,  proof  that  he  had  not  accounted 
for  the  premium,  but  had  written  a  threat- 
ening letter  to  prevent  one  from  informing 
the  company  that  he  had  been  dealing  with 
brokers  and  had  made  over  $5000,  is  suffi- 
cient evidence  to  warrant  an  order  of  arrest 
in  an  action  for  the  premium  so  converted. 
Panama  R.  Co.  v.  Robinson,  4  T.  (S-  C.  (A^. 
Y.)  672,  2  Hun  381. 

Defendants,  while  acting  in  a  fiduciary 
capacity  toward  the  company,  took  certifi- 
cates of  stock  and  converted  them,  with  the 
coupons  attached,  and  disposed  of  the  same 
and  appropriated  the  proceeds.  Held,  that, 
if  the  certificates  were  the  property  of  the 
company,  then  the  defendants  were  liable 
to  arrest  under  N.  Y.  Code,  §  179.  subsec. 
2,  authorizing  nrrest  of  the  party  in  an 
action  fc.  property  embezzled  or  fraudu- 
lently misapplied  by  an  officer  or  agent  of 
a  corporation,  in  the  course  of  his  employ- 
ment as  such,  or  by  ^  .  agent  or  other  person 
acting  in  a  fiduciary  capacity.  Northern  R, 
Co.  V.  Carpentier,  4  Abb.  Pr.  {N.  Y)  47. 

Under  the  N.  Y.  Code,  §  206,  a  party  may 
be  arrested  when  he  nas  been  guilty  of  a 


ARREST,  a-5. 


465 


fraud  in  concealing  and  disposing  of  the 
property,  or  in  the  talcing,  detention,  or 
conversion  for  which  the  action  is  brought ; 
and  to  maintain  this  action  it  is  not  essen- 
tial that  the  plaintiffs  should  be  the  owners 
of  property  taken,  detained,  or  converted. 
A  bailee,  trustee,  or  any  other  person  who 
is  responsible  to  liis  principal  may  maintain 
the  action.  Northern  R.  Co.  v.  Carpentier, 
4  Abb.  Pr.  {N.   )'.)  47. 

2.  Of  feiiinlcM. — A  female  defendant 
was  shown  to  have  aided  and  abetted  co- 
defendants  in  taking  railroad  certificates  of 
stock  and  disposing  of  the  same  for  their 
own  nse  and  benefit.  Held,  that  this 
showed  a  wilful  injury  to  property,  subject- 
ing the  female  to  arrest  under  the  N.  Y. 
Code,  §  179,  providing  that  no  female  shall 
be  arrested  in  any  action  except  for  a  wilful 
injury  to  a  person,  character,  or  property. 
Northern  R.  Co.  v.  Carpentier,  3  Abb.  Pr. 
{N.  Y.)  259,  13  How.  Pr.  222. 

A  woman  who  was  known  to  be  of  lewd 
character  came  into  defendant's  waiting- 
room  several  hours  before  train  time,  and 
for  misconduct  there  was  removed  by  the 
police  at  the  request  of  the  company's  agent. 
Held,  that  if  she  was  entitled  to  a  verdict 
at  all  it  was  for  nothing  more  than  nominal 
damages,  and  that  a  verdict  in  her  favor 
for  $175  should  be  set  aside.  Beeson  v.  Chi- 
cago, R.  I.  &-  P.  R.  Co.,  13  Am.  &^  Eng.  R. 
Cas.  45,  62  Iowa  173,  17  N.  W.  Rep.  448. 

3.  Of  passengers,  at  instance  of 
carrier.* — A  police  officer  who,  in  re- 
sponse to  the  invitation  of  the  regular 
agents  of  the  company,  assists  in  ejecting  a 
passenger  becomes  a  special  agent  of  the 
company  for  that  purpose,  and  is  subject  to 
the  same  rule  in  regard  to  excessive  vio- 
lence in  executing  the  regulations  of  the 
company  as  its  employes.  Jardine  v.  Cor- 
nell, 34  Am.  &>  Ettg.  R.  Cas.  307,  50  N.  J.  L. 
485,  14  Atl.  Rep.  590. 

If  the  conduct  of  a  passenger  unlawfully 
persisting  in  riding  in  a  railroad  car  is  such 
as  to  constitute  him  a  disorderly  person,  a 
policeman  may,  by  virtue  of  his  office,  arrest 
such  disorderly  character,  notwithstanding 
the  fact  that  such  policeman  was  originally 
called  in  as  an  agent  of  the  company;  and 
for  violence   incident  to  such    arrest  the 


*  Liability  of  company  for  arrests  of  passen- 
gers by  servants,  see  note,  32  Am.  St.  Rep.  100. 

Company  not  liable  for  unlawful  arrests  by 
servants,  see  note,  18  Am.  &  Eno.  R.  Cas.  386. 
I  D.  R.  D.— 30. 


company  and  its  agents  ate  not  liable.  Jar- 
dine  v.  Cornell,  34  Am.  &^  Eng.  R.  Cits.  307, 
50  N.  J.  L.  485,  14  ////.  Rip.  590. 

When  a  city  police  officer  takes  by  force 
a  disorderly  person  from  the  scene  of  dis- 
order to  the  |)olice  station,  such  action  will 
be  presuini'd  to  have  been  done  by  virtue  of 
his  official  character,  notwithstanding  the 
fact  tiial  prior  to  such  disorderly  conduct 
the  officer  was  in  law  the  agent  of  the  de- 
fendant ;  and  for  force  used  in  making  said 
arrest  the  defendant  is  not  liable.  Jar- 
dine  V.  Cornell,  34  Am.  &^  Eng.  R.  Cas.  307, 
50  A\J.  L.  485,  14  Atl.  Rep.  590. 

4.  Of  person  obstructing  track.— 
Persons  in  cliarge  of  a  passenger  train  saw 
an  obstruction  on  the  track,  and  about  the 
same  time  saw  plaintiff  running  from  the 
place  of  the  obstruction.  They  stopped  the 
train,  suspecting  that  he  had  placed  the 
obstruction  there,  captured  him,  and  took 
him  before  an  officer  for  a  preliminary  ex- 
amination. Sufficient  evidence  was  not 
produced  to  hold  him,  and  he  was  dis- 
charged and  returned  without  expense  to 
himself.  They  had  no  authority  to  make 
the  arrest,  unless  such  authority  were  im- 
plied from  their  being  employes  of  the 
company.  Held,  that  the  company  was  not 
liable.  Porter  v.  Chicago,  R.  I.  6-  P.  R. 
Co.,  41  Iowa  358. 

5.  Power  of  ofScer  in  effecting 
arrest. — An  officer  having  a  writ  by  which 
he  is  commanded  to  arrest  the  body  of  the 
defendant,  a  railroad  engineer,  may,  for  the 
purpose  of  making  the  arrest,  lawfully  stop 
a  train  of  cars  run  by  such  engineer.  St. 
Johnsbury  <S-  L.  C.  R.  Co.  v.  Hxtnt,  38  Am, 
6-  Etig.  R.  Cas.  238,  60  Vi.  588.  7  N.  Eng. 
Rep.  39,  I  L.  R.  A.  189,  6  Am.  St.  Rep.  138, 
15  Atl.  Rep.  1 86. 


1 
•*  I 


ARRIVAL. 

Notice  of,  see  Carriage  of  Merchandise,  V, 
2 ;  Express  Companies,  II,  5. 


ARSON. 

Prosecution  for  burning  bridges,  see  Crim- 
inal Law,  III. 


ARTICLES  OF  ASSOCIATIOH. 
See  Incorporation,  9. 


460 


ASSAULT,  CIVIL   ACTION    FOR,  1,2. 


ASSAULT,  ClVn  ACTION  FOB. 

By  conductors,  see  Conductor,  lO. 
Criminal  prosecution  for,  see  Criminal  Law, 

III. 
Upon  passengers,  see  Carriage  of  Passkn- 

UERS,   II,  4, 

_  —  by  strikers,  see  Strikes,  4. 

1.  WlHm  action  lies— Parties.— For 

an  assault  committed  by  an  agent  in  the 
line  of  his  duty  and  within  the  scope  of  his 
employment  the  ma-^ter  is  liable,  and  is  lia- 
ble in  exemplary  damages  in  a  proper  case. 
Hamilton  v.  Third  Ave,  R.  Co.,  13  Abb.  Pr. 
N.  S.  (N.  y.)  318. 

An  action  of  trespass  for  an  assault  and 
battery  can  be  maintained  against  a  cor- 
poration, and  in  such  action  an  individual 
can  be  joined  as  a  codefendant  with  the 
corporation.  Brokaw  v.  New  Jersey  R.  &■» 
T.  Co.,  32  N.J.  L.  328.— FoLi-owiNC  East- 
ern Counties  R.  Co.  v.  Broom,  6  Exch.  314; 
Chilton  V.  London  &  C  R.  Co.,  16  M.  &  W. 
212;  Roe  V.  Birkenhead,  L.  &  C.  J.  R.  Co., 
7  Exch.  36;  Seymour  v.  Greenwood,  6  H.  & 
N.  359;  Goff  V.  Great  Northern  R.  Co.,  3 
El.  &  El.  672 ;  Moore  v.  Fitchburg  R.  Corp., 
4  Gray  (Mass.)  465 ;  Evansville  &  C.  R.  Co. 
V.  Baum,  26  Ind.  70. 

What  was  termed  an  action  of  trespass 
before  the  adoption  of  the  Code  is  the 
proper  remedy  where  a  passenger  sues  for 
assault  and  battery  committed  on  him  by 
an  employ6  of  the  company ;  and  such 
action  will  be  barred  if  not  commenced  in 
two  years,  under  the  provision  of  the  Code 
providing  that  actions  for  libel,  slander, 
assault  and  battery,  or  false  imprisonment 
shall  be  commenced  within  two  years. 
Priest  V.  Hudson  River  R.  Co.,  40  How.  Pr. 
(N.  V.)  4S6. 

Where  an  employ6  of  a  railroad  company 
assaults  a  passenger,  a  joint  action  against 
the  employ^  and  the  company  may  be 
maintained  therefor,  or  either  may  be  sued 
separately.  Pries/  v.  Hudson  River  R.  Co., 
40  How.  Pr.  (N.  Y.)  456. 

An  agent  of  a  railroad  company  made  a 
complaint  to  a  trial  justice  against  plaintiff 
for  unlawfully  refusing  to  pay  his  fare,  and 
the  magistrate  issued  his  warrant  in  due 
form  for  his  arrest.  Neither  the  company 
nor  any  of  its  agents  did  anything  except 
to  enter  the  complaint.  The  complaint  was 
defective,  but  the  warrant  was  good  on  its 
face.  He/d,  that  an  arrest  under  it  was  an 
act  done  by  virtue  of  legal  authority,  and  did 


not  constitute  an  assault  for  which  the 
company  would  be  liable.  Langford  v. 
Boston  &*A.R.Co.,  30  Am.  &*  Eng.  R.  Cas. 
653,  144  Mass.  431,  4  A^.  Eng.  Rep.  209,  II 
A^.  E.  Rep.  697. 

2.  Liability  for  aHsaiiltN  upon  pass- 
engerH,  generally.* — A  railroad  com- 
pany is  liable  in  an  action  of  trespass 
(or  an  assault  and  battery  committed 
by  one  of  its  a!;ents.  St.  Louis,  A.  &* 
C.  R.  Co.  V.  Dalby,  19  ///.  353.  —  DlSAP- 
I'ROVINO  Orr  v.  Bank  of  United  States, 
I  Ohio  36.  Explaining  Vanderbilt  v. 
Richmond  Turnpike  Co.,  2  N.  Y.  479. 
Hanson  v.  European  St* N.  A.  R.  Co.,  62  Me. 
84.— Following  Goddard  v.  Grand  Trunk 
R,  Co.,  57  Me.  202.— Reviewed  in  Atchison, 
T.  &  S.  F.  R.  Co.  v.  Gants,  34  Am.  &  Eng. 
R.  Cas.  290,  38  Kan.  608.  Priest  v.  Hudson 
River  R.  Co.,  10  Abb.  Pr.  N.  S.  {N.  V.)  60, 
40  Huw.  Pr.  456,  2  Sweeney  595.  Eastern 
Counties  R.  Co.  v.  Broom,  (in  error)  6  ExcA. 
314,  \SJur.  2^y,2oL.J.  Exch.  ig6, 6  Rai/w. 
Cas  743.— Not  followed  in  Goff  v.  Great 
Northern  R.  Co.,  3  El.  &  El.  672,  30  L.  J. 
Q.  B.  148,  7  Jur.  N.  S.  286,  3  L.  T.  N.  S.  850.   ' 

It  is  settled  law  that  unwarrantable  as- 
saults on  passengers  by  the  carrier's  servants 
are  breaches  of  the  contract  of  carriage, 
and  as  such  impose  liability  upon  the  car- 
rier. Internationa/  &^  G.  N.  R.  Co.  v.  Ken- 
tie,  {Tex.)  16  Am.  &*  Eng.  R.  Cas.  337. 

A  passenger  who  is  assaulted  and  grossly 
insulted  in  a  railway  car  by  a  brakeman  em- 
ployed on  the  train  has  a  remedy  therefor 
against  the  company.  Goddard  v.  Grand 
Trunk  R:Co.,  57  Me.  202.— Quoted  in  Chi- 
cago &  E.  R.  Co.  V.  Flexman,  8  Am.  &  Eng. 
R.  Cas.  354,  103  III.  546. 

The  law  makes  it  the  duty  of  railroad 
companies  to  employ  competent,  safe,  and 
civil  men  as  conductors,  and  for  the  as- 

*  Liability  of  company  for  assaults  by  ser- 
vants, see  notes,  13  Am.  &  Eng.  R.  Cas.  4,  ij; 
Id.  149;  18  Id.  383,  30";  21  Id.  336;  26  Id.  256; 
34  Id.  380. 

Liability  of  company  to  passengers  for  torts  of 
trainmen,  ste  notes,  41  Am.  Rep.  340;  42  Id.  36. 

Liability  of  corporations  for  torts,  such  as  as-  ' 
sault  and  battery,  malicious  prosecution,  slander, 
etc.,  see  note,  34  Am.  Rep.  495. 

Liability  of  company  for  assaults  on  passen- 
gers by  servants,  see  notes,  32  Am.  St.  Rep.  95; 
14  L.  R.  a.  737- 

Assault  by  street -car  driver  on  passenger. 
Li  ibility  of  company  for,  where  contract  of  car- 
riafre  had  ceased,  see  41  Am.  &  Eng.  R.  Cas.  239, 
ahslr. 

Liability  01  company  for  assault  by  servant  on 
female  passenger,  see  note,  32  Am.  St.  Rep.  ioi. 


r 


ASSAULT,  CIVIL   ACTION    F(yR,  .'I,  4. 


467 


saults,  injuries,  and  wrongs  inflicted  on  a 
passenger  by  a  conductor  in  the  course  of 
his  employment  the  railroad  company  is 
res|)onsibic,  Gallcua  v.  Hot  Springs  li.  Co., 
4  AfcCriiry  (6^.  i'.)  371,  13  FeJ,  Rep.  1 16. 

If  u  conductor  wrongfully  accuses  a  pas- 
senger of  attempting  to  evade  the  payment 
of  his  fare,  and  the  insult  leads  to  an  assault 
and  battery  by  the  conductor,  the  company 
will  be  liable.  Randolph  v.  Hannibal  &*  St. 
J.  R.  Co.,  18  Mo.  App.  609. 

Where  a  conductor  attempts  to  seize  the 
property  of  a  passenger  to  enforce  payment 
of  his  fare.  :Mid  the  difficulty  leads  to  an 
assault  and  battery  by  the  conductor,  the 
railroad  company  will  be  liable.  Ramsden 
V.  lioston  &»  A.  R.  Co.,  104  Mass.  1 17.— Al'- 
PLIED  IN  Buck  v.  People's  St.  R.  El.  Light 
&  P.  Co.,  46  Mo.  App.  555 ;  Corbett  v. 
Twenty-third  St.  R.  Co..  42  Hun  (N.  Y.) 
587,  4  N.  Y.  S.  R.  535.  Quoted  in  Heen- 
rich  V.  Pullman  Palace  Car  Co.,  18  Am.  & 
Eng.  R.  Cas.  379,  20  Fed.  Rep.  100 ;  Hein- 
rich  V.  Pullman  Palace  Car  Co.,  10  Sawy. 
(U.  S.)  80;  Jeflersonvillc  R.  Co.  v.  Rogers, 
38  Ind.  116. 

A  passenger  on  a  steamboat  interfered  \n 
a  proper  way  with  the  rude  treatment  of  a 
relative  of  his,  who  was  also  a  passenger,  by 
the  steward  and  table  waiters,  which  led  to 
an  assault.  Held,  that  the  owners  of  the 
vessel  were  liable.  Byrant  v.  Ri  h,  106 
Mass.  180.— Referring  TO  Philadelphia  & 
R.  R.  Co.  v.  Derby,  14  How.  (U.  S.)  468. 

A  railroad  company  that  maintains  an 
eating-house  at  a  station  may  prevent  a 
person  who  runs  a  rival  house  from  riding 
on  its  trains  for  the  purpose  of  drumming 
for  his  house,  though  he  pays  his  fare  as  a 
passenger;  but  the  remedy  of  the  company 
is  to  eject  him  if  he  persists  in  it;  and  if  a 
conductor  who  knows  that  the  party  ha: 
drummed  on  former  occasions,  upon  seeing 
him  enter  a  car  with  papers  in  his  hand 
which  he  believes  are  intended  to  circulate 
among  the  passengers  for  the  purpose  of 
drumming,  assaults  such  person,  not  for  the 
purpose  of  putting  him  off  the  train,  but 
for  the  purpose  of  keeping  him  in  one  seat 
and  preventing  him  from  drumming  among 
the  passengers,  the  company  will  be  liable. 
Texas  6-  P.  R.  Co.  v.  Pearl,  3  Tex.  App. 
{Civ.  Cas.)  19. 

A  conductor  on  passing  a  station  was 
warned  by  a  watchman  that  he  thought  that 
three  persons  who  entered  the  car  were 
doing  so  for  the  purpose  of  robbing  a  pas- 


senger. During  the  route  the  conductor, 
mistaking  plaintiff  for  one  of  the  three  sus- 
]>icious  persons,  assaulted  him,  as  he 
thought,  for  the  purpose  of  preventing  him 
committing  the  robbery.  Held,  that  the 
mistake  of  the  conductor  did  not  exempt 
the  company  from  liability  for  the  actual 
damage  resulting  from  the  act,  and  that 
%'zuQO  was  not  <■.  <  cssive.  Texas  ^  P.  R, 
Co.  V.  Graves,  2  I )  x.  Unrep.  Cas.  306. 

Plaintiff  bought  a  through  limited  ticket, 
and  after  ')■  had  b(  nght  it  wns  infomed  that 
the  regui;  '  irain  had  gono,  ^lut  that  a  special 
train  iiad  been  nv  'Ic  up  for  him  and  others 
who  had  not  flep.M'.id  on  the  regular  train. 
This  train,  liowe\  er,  did  not  run  to  the  end 
of  plaintiff's  journey,  and  at  a  station  where 
he  was  required  10  change  cars  the  gate- 
keeper refused  to  allow  him  ti,  1  ass  the  gate, 
saying  his  ticket  was  not  good,  and  assaulted 
him  and  violently  pushed  him  back.  Held, 
in  an  action  for  this  assault,  that  the  com- 
pany was  liable.  It  was  its  duty  to  inform 
its  agents  along  the  routf*  of  the  status  of 
plaintiff,  and  that  his  ticket  must  be  hon- 
ored. Wat  kins  v.  Pennsylvania  R.  Co.,  {D. 
C.)  52  Am.  (&^  Eng.  R.  Cas.  1 59. 

3. by  rtmHoii  of  ratifivatiuii.— 

An  assault  by  a  servant  of  a  railway  com- 
pany who  imprisons  a  passenger  to  compel 
iiim  to  pay  his  fare  may  be  ratified  by  the 
company.  Eastern  Counties  R.  Co.  v. 
Broom  {in  error),  6  Excli.  314,  15  Jur.  297, 
20  L.  J.  Exch.  1 96,  6  Riu'lw.  Cas.  743. — Nor 
FOLLOWED  IN  Goff  V.  Great  Northern  R. 
Co.,  3  El.  &  El.  672,  30  L.  J.  Q.  B.  148,  7 
Jur.  N.  S.  286,  3  L,  T.  850. 

Where  a  railway  company  ratifies  an  act 
of  its  agent  in  committing  an  assault  on  its 
behalf  and  for  its  benefit,  it  is  liable  to  an 
action  therefor.  Eastern  Counties  R.  Co.  v. 
Broom  {in  error),  6  Exc/i.  314,  6Rail7V.  Cas. 
743,  x^Jur.  297,  20  L.J.  Exch.  196.— Not 
FOLLOWED  IN  Goff  V.  Great  Northern  R. 
Co.,  3  El.  &  El.  672,  30  L.  J.  Q.  B.  148,  7  Jur. 
N.  S.  286.  3  L.  T.  850. 

Retaining  a  conductor  in  the  service  of 
the  company  after  it  has  notice  that  he  has 
committed  an  assault  upon  a  passenger  is 
sufficient  ratification  of  his  act  by  the  com- 
pany as  to  authorize  a  jury  to  give  exeni- 
plary  damages.  Bass  v.  Chicago  &*  N.  //'. 
R.  Co.,  39  Wis.  636. 

4.  Wanton  and  inalicions  assault,''. 
—  (1)  Company  liable.— \  railroad  coinpaiy 
is  liable  in  damages  for  a  wanton  and  nia!'- 
cious  assault  by  one  of  its  .scr\aiUs  nti  a 


•4 


468 


ASSAULT,  CIVIL  ACTION    FOR,  4. 


§ 


Ss 


passenger.  Williams  v.  Pullman  Palace 
Car  Co.,  33  Am.  &*  Eng.  R.  Cas.  414,  40  La. 
Ann.  417,  4  So.  Rep.  85.— Quoting  Keene 
V.  Lizard  i,  5  La.  433. 

The  company  is  liable  for  the  wilful  as- 
sault of  a  brakeman  upon  a  passenger  who 
is  lawfully  on  the  train.  Chicago  &^  E.  I. 
R.  Co.  V.  Flexman,  9  ///.  App.  250. 

It  is  the  duty  of  railroad  companies  to 
protect  their  passengers  against  outrage  and 
insult;  and  a  company  will  be  liable  for  an 
assault  by  a  conductor  upon  a  passenger, 
though  it  be  malicious  and  outside  of  the 
conductor's  line  of  duty.  Dillingham  v. 
Anthony,  yj  Am.  &•  Eng.  R.  Cas.  i ,  73  Tex. 
47.  3  L.  R.  A.  634,  II  5.  W.  Rep.  139. 

A  railroad  company  is  responsible  to  a 
passenger  for  a  battery  by  the  conductor, 
committed  first  on  the  car,  and  repeated 
shortly  afterward  at  the  office  of  the  com- 
pany, whither  the  passenger  had  gone  to 
make  complaint  to  the  superintendent. 
Savannah  Si.  &^  R.  R.  Co.  v.  Bryan,  86  Ga. 
312,  12  S.E.  Rep.  307. 

No  degree  of  carelessness  or  negligence 
on  the  part  of  a  passenger  will  excuse  a 
wanton  and  malicious  attack  on  him  by  the 
conductor  or  other  servant  of  the  railroad 
company.  No  matter  how  negligent  a  pas- 
senger may  be  for  his  safety,  that  will  not 
warrant  the  infliction  of  a  wilful  injury  by  a 
railroad  employe.  Wabash,  St.  L.  &>  P. 
A'.  Co.  V.  Rector,  9  Am.  &*  Eng.  R.  Cas.  264, 
104///.  296. 

(2)  Company  not  liable. — For  a  wilful  and 
malicious  trespass  by  a  servant,  not  com- 
manded or  ratified  by  the  master,  but  per- 
petrated to  gratify  the  private  malice  of  the 
servant,  under  mere  color  of  discharging 
the  duty  which  he  has  undertaken  for  his 
master,  no  action  will  lie  against  the  mas- 
ter. Evansville  &*  C.  R.  Co.  v.  Baum,  26 
Ind.  70.— Disapproving  Pennsylvania  R. 
Co.  V,  Vandiver,  42  Pa.  St.  365  ;  Seymour  z/. 
Greenwood,  30  L.  J.  Exch.  189. — Distin- 
guished IN  Indianapoli.s  P.  &  C.  R.  Co. 
V.  Anthony  43  Ind.  183.  Followed  in 
Brokaw  v.  New  Jersey  R.  &  T.  Co.,  32  N. 
J.  L.  328. 

But  if  the  act  of  the  servant  was  neces- 
sary to  accomplish  the  purpose  of  his  em- 
ployment, and  was  intended  for  that  pur- 
pose, then  it  was  implied  in  the  employ- 
ment, and  the  master  is  liable,  though  the 
servant  may  have  executed  it  wilfully  and 
maliciously.  Evansiiille  &*  C.  R.  Co.  v. 
Baum,  26  Ind.  70. 


A  railway  company  is  not  liable  for  dam- 
ages resulting  from  a  wilful  and  malicious 
trespass  committed  upon  a  stranger  to  the 
company  by  its  engineer  or  conductor,  out- 
sif'e  of  and  beyond  the  scope  of  his  au- 
thority or  line  of  duty.  New  Orleans,  J.  <S- 
G.  N.  R.  Co.  V.  Harrison,  48  Miss.  ;  1 2. — 
Distinguishing  Brown  v.  New  York  C. 
R.  Co.,  32  N.  Y.  597  ;  Lalor  v.  Chicago,  B. 
<S-Q.  R.  Co.,  52  111.  401. 

(2)  Illustrations. — A  brakeman  became 
angry  at  a  passenger  who  had  refused  to 
pay  him  for  watering  hogs,  and  dashed  a 
jet  of  water  on  him.  Held,  that  the  com- 
pany was  liable.  Terre  Haute  &*  I.  R.  Co.  v. 
Jackson,  6  Am.  <S-  Eng.  R.  Cas.  178,  81  Ind. 
19.— Approved  in  Louisville,  N.  A.  &  C. 
R.  Co.  V.  Wood,  113  Ind.  544. 

PlaintiflF,  while  a  passenger  on  one  of  the 
de  endant's  street  cars,  was  unjustifiably  at- 
tacked and  beaten  by  the  driver,  who  also 
acted  as  conductor.  In  an  action  to  recover 
damages — held,  that  the  defendant  was  lia- 
ble. Stewart  v.  Brooklyn  6-  C.  T.R.  Co.,  12 
Am.  St*  Eng.  R.  Cas.  1 27,  90  N.  Y.  588, 43  Am. 
Rep.  185.— Reviewing  Goddard  v.  Grand 
Trunk  R.  Co.,  57  Me.  202,2  Am.  Rep.  39; 
Day  V.  Owen,  5  Mich.  520;  Nieto  v.  Clark, 
I  Clifl.  (U.  S.)  145;  Flint  v.  Norwich  &  N.  Y. 
Transp.  Co.,  34  Conn.  554;  Craker  v.  Chi- 
cago &  N.  W.  R.  Co.,  36  Wis.  657,  17  Am. 
Rep.  504. — Applied  in  Dwindle  v.  New 
York  C.  &  H.  R.  R,  Co.,  44  Am.  &  Eng.  R. 
Cas.  384,  120  N.  Y.  117,  24  N.  E.  Rep.  319, 
30  N.  Y.  S.  R.  578,  8  L.  R.  A.  224;  Rown  v. 
Christopher  &  T.  S.  R.  Co.,  34  Hun  (N.  Y.) 
471.  Followed  in  Lvons  z/.  Broadway  & 
S.  A.  R.  Co.,  32  N.  Y.'S.  R.  232,  10  N.  Y. 
Supp.  237.  Reviewed  in  Hepworth  v. 
Union  Ferry  Co..  41  N.  Y.  S.  R.  783,  16 
N.  Y.  Supp.  692. 

Plaintiff  got  on  the  platform  of  a  baggage 
car  without  the  knowledge  of  the  conductor, 
and  rode  for  some  distance,  and,  being  dit;- 
covered,  went  into  a  smoker  and  sat  down, 
where  he  was  assaulted  by  the  conductor 
without  any  demand  for  his  fare  or  without 
any  opportunity  to  pay  it  after  entering  the 
car,  and  there  was  not  evidence  to  show  that 
the  party  was  trying  to  evade  payment  of 
the  fare.  Held,  that  the  conductor  was 
acting  in  the  line  of  his  employment,  and 
that  the  company  was  liable.  Fordyce  v. 
Beecher,  2  Tex.  Civ.  App.  29.  21  S.  W.  Rep. 
179. 

Where  a  physician  and  surgeon  employed 
by  a  railway  company  to  attend   the  sick 


ASSAULT,  CIVIL   ACTION    KOR.  5,  6. 


46!) 


C. 
B. 


and  injured  persons  committed  to  his  charge 
is  alleged  to  have  wilfully  and  maliciously 
assaulted  an  assistant,  it  is  presumptively 
an  independent  tort,  for  which  the  master 
is  not  liable ;  and  a  bare  statement  or  allega- 
tion that  it  was  done  in  the  course  of  his 
employment  and  while  in  the  discharge  of 
liis  duty  is  insufficient,  by  itself,  to  charge 
the  master  with  liability.  Campbell  v. 
Northern  Pac.  R.  Co.,  51  Minn.  488,  53  N. 
W.  Rep.  768. 

A  drunken  man  came  aboard  a  passenger 
car  and  was  using  insulting  language  toward 
ladies.  Plaintiff's  intestate,  a  gentleman 
who  was  travelling  with  the  ladies,  appealed 
to  the  conductor  to  make  him  be  quiet. 
The  man  sat  down  near  intestate,  and, 
having  taken  offense,  used  abusive  and 
threatening  language,  but  not  in  a  tone  to 
be  heard  by  the  conductor.  In  a  short  time 
the  intestate  left  the  cars  at  his  station, 
whereupon  the  drunken  man  jumped  off, 
assaulted,  and  killed  him.  Held,  that  there 
was  nothing  to  show  want  of  proper  care 
on  the  part  of  the  servants  of  the  company, 
and  it  was  therefore  not  liable.  Putnam 
V.  Broadway  &•  S.  A.  R.  Co.,  55  N,  Y.  108, 
15  Abb.  Pr.  N.  S.  383,  6  Am.  Ry.  Rep.  40; 
reversing  4 /.  <S-  i".  195.— APPLYING  Pitts- 
burgh, Ft.  Vv .  &  C.  R.  Co.  V.  Hinds,  53  Pa. 
St.  512. 

Plaintiff  sued  for  an  assault  committed 
on  him  by  a  brakeman.  Held,  that  if  the 
brakeman,  stanching  upon  the  car  platform, 
assaulted  the  plaintiff,  who  was  making  no 
attempt  to  board  the  train,  and  thereby 
caused  the  injury,  the  company  was  not 
liable,  because  the  act  was  both  wilful  and 
intentional,  and  outside  the  limits  of  his 
duties  and  the  purpose  for  which  he  was 
employed ;  but  otherwise,  if  he  assaults  a 
person  attempting  to  get  on  the  train.  Molloy 
V.  New  York  C.  &*  H.  R.  R.  Co.,  10  Daly 
(N.  Y.)  453.— Applying  Hoffman  v.  New 
York  C.  &  H.  R.  R.  Co.,  S7  N.  Y.  25. 
Reviewing  Rounds  v.  Delaware,  L.  &  W. 
R.  Co.,64N.  Y.  129.— Applied  in  Shultz 
V.  Third  Ave.  R.  Co.,  15  Daly  (N.  Y.)  95,  2 
N.  Y.  Supp.  693,  19  N.  Y.  S.  R.  917. 

5.  Assaults  upon  licensees,  -Where 
a  passenger,  on  arriving  at  the  pkce  to 
which  he  had  paid  his  faie,  missed  his 
watch, and,  supposing  it  to  have  been  stolen, 
refused  to  leave  the  train  until  he  should 
recover  his  watch,  and  the  conductor  con- 
sented that  he  might  remain  on  the  train 
until  it  readied  another  station ;  and,  after 


the  train  had  started  and  a  partial  search 
had  been  made  a  passenger  asked  who  he 
thought  had  his  watch,  when  he  replied, 
"That  fellow,"  pointing  to  a  brakeman, 
who  immediately  struck  him  in_  the  face 
with  a  lantern— //fM  that  the  facts  showed 
a  right  of  action  against  the  railroad  com- 
pany for  the  injury  inflicted  by  its  servant, 
and  that  the  company  occupied  the  same 
position  towards  the  passenger  as  if  he  had 
paid  his  fare  to  such  other  station.  Chicago 
&^  E.  R.  Co.  V.  Flexman,  8  Am.  &*  Eng.  R. 
Cas.  354,  103  ///.  546. — Quoting  Goddard 
V.  Grand  Trunk  R.  Co.,  57  Me.  202;  Craker 
V.  Chicago  &  N.  W.  R.  Co.,  36  Wis.  657. 

O.  Who  is  an  employe,  within  tlio 
rule.— A  person  left  by  the  regular  ticket 
agent  in  charge  of  the  ticket  office  during 
the  absence  of  the  latter  is  a  servant  of  the 
railroad  company  for  the  issuing  of  tickets, 
and  the  company  is  liable  for  an  assault 
committed  by  him  during  an  altercation 
regarding  the  making  of  change  on  the  sale 
of  a  ticket.  Pick  v.  Chicago  &*  N.  IV.  R. 
Co.,  34  Am.  &•  Eng.  R.  Cas.  378,  68  IVis. 
469,  32  A^.  W.  Rep.  527. 

A  lessee  or  licensee  of  the  exclusive  privi- 
lege of  entering  railroad  cars,  or  upon  the 
right  of  way  to  sell  or  supply  lunches,  is 
not  a  servant  or  agent  of  he  corporation 
so  as  to  render  it  liable  for  an  assault 
and  battery  committed  by  such  lessee  or 
licensee  upon  a  competitor  who  seeks  law- 
fully, on  his  own  premises,  to  obtain  tlie 
patronage  of  passengers.  Fluker  v.  Georgia 
R.  Sf  B.Co ,  38  Atn.  <S-  Eng.  R.  Cas.  yjg, 
81   Ga.  461,  8  S.  E.  Rep.  529,  2  L.  R.  A. 

843- 

Where  a  flagman,  whose  duties  are  con- 
fined to  a  highway  crossing,  leaves  the 
highway  and  goes  upon  the  company's 
right  of  way.  he  is  not  in  the  discharge  of 
duty  so  as  to  make  the  company  liable  for 
an  assault  committed  on  a  person  there. 
niinois  C.  R.  Co.  v.  Ross,  31  HI.  App.  170.— 
Distinguishing  Northwestern  R.  Co.  v. 
Hack,  66  111.  238. 

It  appeared  that  plaintifT,  while  standing 
upon  the  platform  of  one  of  the  cars  of  a 
train,  which  he  was  about  to  enter  as  a  pas- 
senger, was  knocked  off  and  robbed,  just  as 
the  train  started,  by  a  person  holding  a  lan- 
tern in  one  hand  and  a  club  in  the  other. 
It  did  not  appear  that  the  person  commit- 
ting the  assault  and  robbery  was  an  employ^ 
of  the  railroad  company,  otherwise  than  that 
he  carried  a  lantern  with  letters  on  it  and 


•J      ■llL ., 


470 


ASSAULT,  CIVIL   ACTION    FOR,  7-J). 


wore  a  cap  with  a  badge  upon  it;  or  that 
the  assault  was  made  in  ejecting  or  attempt- 
ing to  eject  the  plaintiff  from  the  cars,  by 
anyone  connected  with  the  operation  of  the 
train,  or  having  any  charge  of  the  depot,  its 
grounds,  or  the  road ;  but,  on  the  contrary, 
that  the  alleged  assault  was  wholly  discon- 
nected with  any  service  in  which  any  em- 
pIoy6  of  the  company  was  engaged.  Held, 
that  the  company  operating  the  train  was 
not  responsible  for  the  wrongful  acts  com- 
mitted upon  the  plaintiff,  under  a  petition 
charging  that  the  plaintiff  was  assaulted  and 
injured  by  the  servants  and  employes  oper- 
ating and  controlling  a  train  of  the  com- 
pany. Sac/irowt'tzv.  Atchison,  T.&*  S.  F.  K. 
Co.,  34  Am.  &*  Eng.  R.  Cas.  382,  37  Kan.  212, 
1 5  Pac.  Rep.  242. 

7.  Assaults  by  station  agents.— 
Where  it  appeared  that  plaintiff  was  author- 
ized to  receive  freight  for  certain  parties, 
and  in  pursuance  thereof  went  to  the  depot 
of  defendant  and  demanded  the  same  of  the 
iigent  who  was  in  charge  of  the  depot  and 
was  authorized  to  receive  and  deliver  freight, 
and  while  so  demanding  it  the  said  agent 
made  an  assault  upon  him,  and  it  did  not 
appear  that  said  assault  was  made  in  eject- 
ing or  attempting  to  eject  plaintiff  from 
the  depot,  or  in  preventing  or  attempting  to 
prevent  him  ft  im  committing  any  injury  to 
the  property  of  the  defendant,  or  from  trans- 
gressing any  rules  for  the  regulation  of  its 
depot  and  the  transaction  of  Its  business — 
held,  that  the  company  was  not  liable  for  the 
assault,  and  that  only  the  agent  who  actually 
made  it  was  liable.  Hudson  v.  Missouri,  K. 
(S-  T.R.  Co.,  16  Kan.  470. 

A  railway  station  keeper  aSoaulted  a  pas- 
senger for  not  leaving  the  waiting-room 
when  ordered,  the  passenger  having  enraged 
him  by  spitting  on  the  floor.  Held,  that  in 
defending  an  action  for  the  assault  and  bat- 
tery, a  question  as  to  the  plaintiff's  smoking 
was  irrelevant,  where  his  smoking  had  not 
been  objected  to.  People  v.  McKay,  8  Am. 
&•  Eng.  R.  Cas.  205,  46  Mick.  439,  9  N.  IV. 
Rep.  486. 

8.  Assaults  upon  intending  pas- 
sPiisers.*  —  Where  it  is  customary  for 
persons  to  enter  cars  without  a  ticket  and 
to  pay  on  the  train,  it  is  not  necessary  that 
a  ticket  be  procured  in  advance  to  consti- 

*  Regulations  of  companies  concerning  gates 
and  gatekeepers  at  entrance  to  trains.  Assaults 
on  passenger:  by  gatekeepers,  see  5a  Am.  & 
Eng.  R.  Cas.  \fxiabstr. 


tute  the  party  a  passenger.  So  where  one 
enters  a  car  without  a  ticket  and  sits  down, 
intending  to  take  passage,  and  is  assaulted 
by  one  of  the  company's  employes,  the  com- 
pany cannot  avoid  liability  by  saying  he  did 
not  occupy  the  relation  of  a  passenger.  Il- 
linois C.  R.  Co.  V.  Slieehan,  29  ///.  App.  90. 

Defendant  placed  an  agent  at  the  entrance 
to  its  passenger-cars,  with  instructions  to 
refuse  admission  to  any  one  not  having  a 
ticket,  provided  there  was  sufficient  time  to 
procure  a  ticket  before  the  train  left;  and 
tickets  were  required  to  be  produced  and 
were  punched  by  the  agent.  Plaintiff  at- 
tempted to  enter  a  car  without  a  ticket,  but 
was  stopped  by  the  agent,  who  asked  for 
his  ticket,  and  on  being  advised  that  plain- 
tiff had  no  ticket  told  him  he  could  not 
enter  without  one.  There  was  time  enough 
to  procure  one  before  the  departure  of  the 
train.  Plaintiff  persisted  in  his  attempt  to 
enter  the  car,  when,  as  he  testified,  the 
agent  struck  him  and  pulled  him  from  the 
car,  doing  the  injuries  complained  of.  Held 
(DwiGHT  and  Earl,  C  C,  dissenting),  thai 
the  cause  of  action  was  for  assault  and  bat- 
tery substantially  alleged  to  have  been  com- 
mitted by  the  defendant,  and  as  no  evidence 
was  given  tending  to  prove  that  defendant 
in  any  way  directed  or  sanctioned  the  acts 
of  assault  and  battery,  the  defendant  was 
not  liable.  Priest  v.  Hudson  River  R.  Co., 
65  N.  V.  589. 

O.  Assault  by  one  passenger  upon 
another.* — It  is  the  duty  of  carriers  of 
passengers  to  protect  one  passenger  against 
the  assaults  of  others;  so  where  plaintiff 
was  injured  by  the  discharge  of  a  gun 
dropped  by  a  soldier  while  engaged  in  a 
contest  with  another  soldier,  the  carrier  is 
liable  for  the  injury,  and  he  cannot  avoid  it 
by  showing  that  he  was  compelled  by  the 
government  to  carry  the  soldiers;  especially 
is  this  so  where  the  injured  passenger  enters 
after  the  soldiers  are  already  aboard,  and 
without  any  notice  of  their  enforced  pres- 
ence. Flint  v.  Norwich  &»  N.  V.  Transp. 
Co.,  34  Conn.  554.— Applied  in  Putnam  v. 
Broadway  &  S.  A.  R.  Co.,  55  N.  Y.  108. 
Followed  in  Carpenter  v.  Boston  &  A.  R. 
Co.,  21  Am.  &  Eng.  R.  Cas.  331,  97  N.  V. 

*  Duty  of  carrier  to  protect  passenger  from 
assault  of  fellow-passenger,  s'-e  note,  16  L.  R. 
A.  627. 

Liability  of  carrier  for  assault  upon  passenger 
by  a  fellow-passenger,  see  notes,  52  Am.  &  Eng. 
R.  Cas.  446 ;  32  Am.  St.  Rep.  90. 


ii^i 


m 


r 


ASSAULT,  CIVIL   ACTION   FOR,  10-13. 


471 


494, 49  Am.  Rep..  540.  Quoted  in  Putnam 
V.  Broadway.  &  S.  A.  R.  Co.,  15  Abb.  Pr.  N. 
S.  (N.  Y.)  383.  Reviewed  in  Goddard  v. 
Grand  Trunk  R.  Co.,  57  Me.  202 ;  Stewarts. 
Brooklyn  &  C.  T.  R.  Co.,  90  N.  Y.  588.  43 
Am.  Rep.  185. 

The  employes  of  a  railroad  company  con- 
stitute the  police  of  the  train,  and  the  pas- 
senger, from  the  moment  he  enters  the  car, 
is  entitled  to  look  to  them  for  protection  in 
cases  of  assault  growing  out  of  the  disor- 
derly conduct  of  another  passenger  or  pas- 
sengers. Flannery  v.  Baltimore  &•  O.  R. 
Co.,  4  Mac  key  {D.  C.)  in. 

A  passenger  may  be  liable  for  entering  a 
car  and  forcibly  ejecting  a  fellow-passenger. 
Murphy  \.  Western  Sf  A.  R.  Co.,  21  Am.  &* 
Eng.  R.  Cas.  258,  23  Feti.  Rep.  637. 

A  common  carrier  of  passengers  is  net 
liable  for  an  assault  by  one  passenger  upon 
another,  which  is  committed  in  the  absence 
of  the  conductor  and  without  his  knowl- 
edge. Royston  v.  Illinois  C.  R.  Co.,  67  Miss. 
376,  7  So.  Rep.  320. — Reviewing  New  Or- 
leans, St.  L.&C.  R.  Co.v.  Burke,  §3  Miss.  200. 

A  person  who  had  incurred  the  ill-will  of 
a  certain  class  of  men  by  evicting  them 
from  their  homes  took  passage  on  a  train. 
When  he  bought  the  ticket  the  company's 
servants  had  no  notice  that  he  was  exposed 
to  danger  at  the  hands  of  these  men,  but  be- 
fore the  journey  commenced  he  was  threat- 
ened in  the  presence  of  the  servants,  and 
toolc  refuge  in  the  guard's  van  for  safety, 
but  was  removed  and  placed  in  a  third-rate 
car  by  servants  who  knew  that  he  was 
threarened.  The  angry  men  crowded  into 
his  compartment  and  assaulted  and  injured 
him,  and  at  the  next  and  several  other  suc- 
ceeding stations  the  men  would  get  ofl  and 
others  get  on  and  repeat  the  assault.  The 
guard  and  other  employes,  when  appealed 
to,  did  nothing  to  secure  his  safety.  Held, 
that  there  was  no  proof  of  a  breach  by  the 
company  of  any  d  uty  growing  out  of  the  con- 
tract of  carriage,  and  that  it  was  not  liable. 
Pounder  v.  North  Eastern  R.  Co.,  52  Am.  &* 
Eng.  R.  Cas.  433,  [1892]  i  Q.  B.  385.— Ap- 
plying Readhead  v.  Midland  R.  Co.,  L.  R. 
2  Q.  B.  412,  L.  R.  4  Q.  B.  379;  Daniel  v. 
Metropolitan  R.  Co.,  L.  R.  5  H.  L.  45.  Dis- 
tinguishing Metropolitan  R.  Co.  v.  Jack- 
son, 3  App.  Cas.  193. 

10.  Assaults  by  strangrers.* — A  com- 

*  Liability  of  company  for  assaults  on  pas- 
sengers by  third  persons,  see  notes,  34  Am.  & 
Eng.  R.  Cas.  386;  28  Am.  IIep.  112. 


pany  during  the  time  of  a  strike  of  laborers 
upon  its  road  stopped  at  a  place  not  a 
regular  station  and  took  on  laborers  against 
whom  the  strikers  were  incensed.  At  the 
next  station  the  train  was  captured  by  a  mob 
which  broke  into  the  cars,  and  in  the  diffi- 
culty that  ensued  between  the  two  classes  of 
laborers  other  passengers  were  injured. 
Held,  that  as  it  did  not  appear  that  the 
company  had  exercised  proper  diligence  in  . 
stopping  and  taking  the  laborers  on,  and 
putting  them  in  cars  with  passengers,  it  was 
liable  for  the  injury.  (Sheldon,  Ch.  J.,  and 
Magruder,  J.,  dissent.)  Chicago  &•  A.  R. 
Co.  V.  Pillsbury,  31  Am.  <&*  Eng.  R.  Cas.  24, 
123  ///.  9,  14  N.  E.  Rep.  22, 1 1  West.  Rep.  757. 

11.  Assaults  upon  persons  not  pas- 
sengers.— A  railroad  company  is  not  liable 
for  an  assault  committed  by  its  employes, 
who  are  engaged  in  running  a  train,  upon  a 
person  who  is  not  a  passenger,  nor  in  any 
way  connected  with  the  road.  Porter  v. 
Chicago,  R.  I.  &*  P.  R.  Co.,  41  Iowa  358.— 
Approving  Allen  v.  London  &  S.  W.  R. 
Co.,  L.  R.  6  Q.  B.  65  ;  Little  Miami  R.  Co. 
7'.  Wetmore,  19  Ohio  St.  no;  Thames 
Steamboat  Co.  v.  Housatonic  R.  Co.,  24 
Conn.  40,  54;  Elkins  v.  Boston  &  M.  R. '"  • 
23  N.  H.  275;  Pennsylvania  R.  Co.  v.  Zug, 
47  Pa.  St.  480.  Following  DeCamp  v. 
Mississippi  &  M.  R.  Co.,  12  Iowa  348;  Cooke 
V.  Illinois  C.  R.  Co.,  30  Iowa  202. 

12.  Matters  of  defense,  generally. 
— A  railway  company  is  not  liable  for  an  in- 
jury to  a  passenger  caused  by  his  being 
shot  by  the  conductor,  if  the  conductor 
acted  in  the  reasonable  belief  that  the 
passenger  was  about  to  assault  him,  and 
that  the  shooting  was  necessary  to  pre- 
vent great  bodily  harm.  New  Orleans  &* 
N.  E.  R.  Co.  v.  /opes,  52  Am.  <&*  Eng.  R. 
Cas.  44.7,  142  [/.  S.  18, 12  Sup.  Ct.  Rep.  109.— 
Applied  in  Smith  v.  Manhattan  R.  Co.,  45 
N.  Y.  S.  R.  865. 

If  a  passenger  persists  in  violating  the 
reasonable  rules  of  the  company,  after  notice 
and  a  request  not  to  further  violate  them, 
the  carrier  has  a  right  to  rescind  the  con- 
tract for  further  conveyance  and  put  him 
off,  but  not  the  right  to  maltreat  him  while 
continuing  to  perform  the  contract  for  his 
conveyance.  Hanson  v.  European  &•  N,  A. 
R.  Co.,  62  Me.  84. 

In  the  trial  of  an  action  for  an  assault 
and  battery  brought  against  the  superin- 
tendent of  a  railroad  depot  for  expelling  the 
plaintiflf    from    the  depot   for  a  supposed 


Mi 


H 


472 


ASSAULT,  CIVIL    ACTION    FOR,   i;j. 


violation  of  one  of  the  regulations  estab- 
lished by  the  railroad  corporation,  the  de- 
fendant cannot  give  in  evidence  former 
violations  by  the  plaintiff  of  other  regula- 
tions established  by  the  corporation.  Hall 
V.  Pffiver,  12  Met.  {Mass.')  482. 

In  an  action  for  an  assault  and  battery 
committed  while  entering,  against  plaintiff's 
consent,  and  to  overcome  her  resistance  to 
such  entry,  upon  premises  occupied  by  her, 
it  cannot  be  shown,  in  mitigation  of  dam- 
ages, that  the  defendants  were  acting  under 
the  authority  of  a  railroad  company,  and 
that  proceedings  by  it  were  still  pending 
for  condemnation  of  the  premises.  Colvill 
V.  Langdon,  22  Minn.  565. 

When  sued  for  an  assault  and  battery  in 
forcibly  ejecting  a  passenger  from  a  train,  a 
conductor  cannot  prove  the  existence  of 
certain  regulations  of  the  company,  and  that 
in  committing  the  act  complained  of  he  was 
acting  in  obedience  to  such  regulations,  un- 
less such  matter  has  been  set  up  as  a  de- 
fense in  the  answer.  Pier  v.  Finch,  29  Barb. 
(N.  V.)  170, 

Plaintiff  sued  a  railroad  company  for  an 
assault  made  upon  him  by  a  brakeman,  who 
was  armed  with  a  billet,  on  th^:  train  on 
which  he  was  a  passenger.  At  the  trial  the 
company  offered  to  show,  as  a  reason  why 
the  brakeman  was  so  armed,  thp.c  on  previous 
occasions  the  train  in  that  locality  had  been 
boarded  by  roughs  ».r.d  confidence  men, 
who  had  attacked  the  brakeman.  Held, 
that  such  evidence  should  have  been  ad- 
mitted, where  the  plaintiff  was  seeking  to 
recover  exemplary  damages,  as  it  tended  to 
show  that  the  armi  )g  of  the  brakeman  was 
not  wilful.  Chicago,  B.  6f  Q.  N.  Co.  v., 
Boger,  I  ///.  App.  472. 

13.  Provocation. — Where  a  passenger 
provokes  a  difficulty  with  a  conductor, 
which  causes  him  to  draw  a  pistol  on  the 
passenger  and  to  use  unbecoming  language, 
as  calling  him  a  coward  in  the  presence  of 
other  passengers,  the  company  is  not  liable. 
Harrison  v.  Fink,  42  Fed.  Rep.  787.— Quot- 
ing Peavy  v.  Georgia  R.  &  B.  Co.,  81  Ga. 
48s,  8  S.  E.  Rep.  70. 

Where  a  passenger  provokes  a  difficulty 
with  the  driver  of  a  street  car,  which  leads 
to  an  assault  by  the  driver,  the  company  is 
not  civilly  liable,  though  the  act  might  not 
be  justifiable,  criminally,  on  the  part  of  the 
driver.  Scott  v.  Central  Park,  N.  Sr*  E.  R. 
R.  Co.,  53  Hun  (N.  Y.)  414,  24  N.  Y.  S.  R. 
754,  6  N.  Y.  Supp.  382. 


If  a  disorderly  passenger  defies  a  conduc- 
tor, draws  a  pistol,  and  thereby  Induces  the 
conductor  to  arm  in  order  to  expel  him  from 
the  train ;  and  if,  after  expulsion,  he  still 
uses  grossly  obscene  and  profane  language, 
reeking  with  insult,  on  whicli  a  mutual  com- 
bat with  pistols  ensues,  the  railway  com- 
pany is  not  liable  for  the  consequences, 
though  the  expelled  passenger  be  wounded 
in  the  conflict,  even  if  the  conductor,  ex- 
cited  by  danger  and  irritated  by  insult,  be 
not  fully  excusable  for  the  shooting.  Peavy 
v.  Georgia  R.  &•  B.  Co.,  37  Am.  &*  Eng.  R. 
Cas.  114,  81  (7^.485,  8  S.  E.  Rep.  70.— 
Quoted  in  Harrison  v.  Fink,  42  Fed.  Rep. 
787. 

If  an  employe  of  a  railroad  is  first  assaulted 
by  a  passenger  he  may  defend  himself,  and, 
if  he  be  resisted  in  the  performance  of  any 
duty  he  may  use  force  enough  to  overcome 
the  resistance  ;  but,  the  assault  being  over, 
or  the  resistance  ended,  he  cannot  pursue 
and  punish  the  wrongdoer,  and,  if  he  does, 
both  he  and  the  company  will  be  liable. 
Hanson  v.  European  &^  N.  A.  R.  Co.,  62  Me, 
84. 

A  charge  of  the  court,  to  the  effect  that 
sneers,  looks,  and  contemptuous  gestures 
will  not  justify  an  assault  by  a  conductor 
upon  a  passenger,  and  that  a  railroad  com- 
pany is  not  released  from  its  contract  guar- 
anteeing polite  and  courteous  treatment  to 
a  passenger,  because  the  passenger  does  not 
smile  upon  the  conductor  or  because  he 
wears  a  frown,  is  not  erroneous.  Failure  to 
charge  that  such  conduct  of  the  passenger 
could  be  considered  in  mitigation  of  the 
damages  is  no  cause  for  a  new  trial,  when 
no  request  to  so  charge  was  made.  East 
Tenn.,  V.  &*  G.  R.  Co.  v.  Fleetwood,  90  Ga. 
23,  x^S.E.Rep.  778. 

Where  a  railroad  conductor,  without  ap- 
parent provocation,  rudely  assaulted  a  pas- 
senger, used  to  him  opprobrious  and  insult- 
ing language,  caught  hold  of  him  roughly 
and  pulled  him  to  the  end  of  the  car, 
threatened  to  kill  him,  appeared  about  to 
diaw  a  pistol  upon  him,  and  spat  tobacco- 
juice  in  his  face,  the  company  is  liable  for 
punitive  damages,  and  will  not  be  permitted 
to  prove,  in  mitigation  thereof,  that  on  some 
previous  occasion  the  passenger  had  used 
slanderous  and  indecent  language  about  the 
conductor's  sister-in-law,  and  that  this  was 
the  reason  of  the  conductor's  conduct,  it 
being  the  first  meeting  between  them  since 
the  alleged  language  of  the  passenger  had 


ASSAULT,  CIVIL   ACTION    I'OK,   14-17. 


473 


been  communicated  to  the  conductor,  wlien 
it  does  not  appear  how  long  before  the  as- 
sault the  passenger  had  spoken  the  words 
ascribed  to  him,  or  how  long  the  conductor 
had  been  informed  thereof.  If  such  facts 
could  be  received  at  all  in  mitigation  of 
damiiges,  their  occurrence  must  have  been 
so  recent  as  to  indicate  that  the  conductor 
acted  under  the  immediate  provocation 
thereof,  and  had  not  had  time  to  control 
the  passion  produced  thereby.  East  Tenn., 
V.  &*  G.  R.  Co.  V.  Fleetwood,  90  Ga.  23,  1 5  S. 
E.  Rep.  778. 

14.  Variance. — A  complaint  alleged 
that  plaintiff  was  a  passenger  on  defendant's 
train,  and  that  the  agents  of  defendant  in 
charge  of  the  train  wilfully,  maliciously, 
forcibly,  and  violently,  and  while  the  train 
was  running  at  a  rapid  rate  of  speed,  kicked 
and  ejected  him  from  the  steps  of  the  car 
onto  the  ground  and  under  the  cars,  whereby 
he  sustained  personal  injuries,  for  which  he 
seeks  damages.  Held,  that  the  cause  of 
action  thus  pleaded  was  one  in  tort,  the 
gravamen  of  the  complaint  being  an  inten- 
tional and  personal  assault  and  battery ; 
and  the  fact  that  the  evidence  showed  that 
plaintifl  was  a  trespasser  and  not  a  passenger 
on  the  train  (the  wrongful  assault  being 
proved  as  alleged)  constituted  neither  a 
failure  of  proof  nor  a  material  variance  be- 
tween the  complaint  and  the  evidence. 
Mykleby  v.  Chicago,  St.  P.,  M.  Gr'  O.  R.  Co., 
34  Am.  (So  Eftg.  R.  Cas.  387,  39  Minn.  54,  38 
N.  W.  Rep.  763. 

15.  QiieMtioiis  for  jury.— Where  a 
company  is  sued  for  an  assault  and  battery 
committed  by  an  employe  in  removing  a  pas- 
senger from  a  car,  and  it  appears  that  the 
employ6  had  a  right  to  expel  him,  it  is  a 
question  for  the  jury  whether  there  was 
more  force  used  than  was  necessary  to  ex- 
pel him  and  to  overcome  his  resistance. 
Coleman  v.  New  York  &*  N.  H.  R.  Co.,  106 
Mass.  160,  6  Am.  Ry.  Rep,  306. 

Plaintiff  sued  for  assault  and  battery  com- 
mitted on  him  in  expelling  him  from  de- 
fendant's cars.  It  appeared  that  he  received 
blows  on  the  head,  but  claimed  that  it  ag- 
gravated hernia,  with  which  he  was  afnicted. 
Held,  that  the  question  whether  blows  on 
the  head  could  aggravate  such  a  trouble  was 
for  the  jury.  Coleman  v.  New  York  &*  N, 
H.  R.  Co.,  106  Mass.  160,  6  Am.  Ry.  Rep.  306. 

Plaintiff  entered  a  sleeping-car  in  the 
absence  of  the  conductor  and  purchased  a 
section  from  the  porter.    Before  the  journey 


was  completed  the  train  was  stopped  by  a 
washout.  The  porter  transferred  plaintiff  to 
another  train,  but,  finding  the  sleeping-cars 
filled,  took  him  into  a  common  car.  Plain- 
tiff requested  the  porter  to  furnish  him  a 
sleeping-car  section  or  give  him  something 
to  show  that  he  was  entitled  to  it,  which  he 
refused  to  do.  Upon  attempting  to  leave 
the  car  plaintiff  touched  him  upon  the  arm, 
saying  that  he  must  not  leave  without  satis- 
faction, whereupon  the  porter  struck  plain- 
tiff with  considerable  violence.  Held,  that 
the  question  whether  the  porter  was  engaged 
in  the  performance  of  his  duties  as  defend- 
ant's servant  at  the  time  of  inflicting  the 
blow  should  have  been  submitted  to  the 
jury.  Dwindle  v.  New  York  C.  &-  H.  R.  R. 
Co.,  44  Am.  &••  Eng.  R.  Cas.  384,  120  N.  Y. 
117,  24  A'.  E.  Rep.  319.  30  N.  Y.  S.  R.  578, 
8  L.  R.  A.  224;  reTersing  45  Hun  139,  9  A^. 
Y.  S.  R.  838. 

16.  Verdict.— Where  both  the  company 
and  a  conductor  are  sued  jointly  for  an  as- 
sault committed  by  the  conductor,  the 
question  whether  the  act  was  justifiable  or 
not  determines  the  innocence  or  guilt  of 
both  defendants;  and  a  jury  is  not  justified 
in  acquitting  the  conductor  and  finding  the 
company  guilty.  Hyatt  v.  AVw  York  C. 
6-  H  R.  R.  Co.,  6  Hun  {N.  Y.)  306. 

17.  Damages  recoverable,  gen- 
erally.—A  railroad  company  is  liable  to  a 
passenger  who  is  assaulted  by  a  conductor 
in  compensatory  damages,  including  com- 
pensation for  the  insult,  indignity,  and 
wounded  feelings,  as  well  as  bodily  pain  and 
injury.  Randolph  v.  Hannibal  &•  St.  J.  R. 
Co.,  18  Mo.  App.  609.— Quoting  Smith  v, 
Pittsburg,  Ft.  W.  &.  C.  R.  Co.,  23  Ohio  St. 
10;  Craker  7A  Chicago  &  N.  W.  R.  Co.,  36 
Wis.  675.  Reviewing  McKinley  v.  Chicago 
&  N.  W.  R.  Co.,  44  Iowa  314. 

Where  suit  is  brought  to  recover  for  an 
assault,  plaintiff  cannot  recover  for  loss  of 
time  in  the  absence  of  evidence  to  show  what 
the  time  lost  was  worth.  Kane  v.  Man- 
hattan R.  Co.,  3  A^.  Y.  S.  R.  145. 

A  female  passenger  sued  a  sleeping-car 
company  for  an  indecent  assault  upon  her 
by  one  of  its  porters.  Held,  that  she  had  a 
right  to  recover  for  all  injuries,  temporary 
or  permanent,  to  her  health,  person,  and 
strength  by  the  wrong  done  her,  including 
compensation  for  pain  and  suffering,  mental 
and  physical,  which  had  been  caused,  or 
might  thereafter  be  caused,  by  reason  of  the 
wrong,  which  would  include  a  miscarriage, 


CL 


Hi" 


m. 


474 


ASSAULT,  CIVIL   ACTION   FOR,  18,10. 


£ 


if  the  jury  believed  it  resulted  fiom  the  in- 
jury. Campbell  v.  Pullman  Palace  Car  Co., 
42  Fed.  Rep.  484. 

18.  Exemplary  daniaEres,  when  re- 
eovernble.— An  excessive  battery  is  a 
complete  answer  to  a  plea  of  son  assault  de- 
mesne, and,  if  wantonly  and  maliciously  in- 
flicted, subjects  the  party  making  it  to  the 
same  liability  to  exemplary  damages  as  if  he 
had  been  the  original  wrongdoer.  Phila- 
delphia, W.  &»  B.  R.  Co.  V.  Larkin,  47  Md. 
155,  18  Am.  Ry.  Rep.  536. 

If  a  brakeman  employed  on  a  railway  pas- 
senger train  assaults  and  grossly  insults  a 
passenger  thereon,  and  the  company  retains 
the  offending  servant  in  its  service  after 
his  misconduct  is  known  to  it,  it  will  be 
liable  to  exemplary  damages.  (Tapley, 
J.,  dissenting.)  Goddard  v.  Grand  Trunk R, 
Co ,  57  Me.  202.— Approved  in  Cobb  v, 
Columbia  &  G.  R.  Co.,  37  So.  Car.  194. 
Followed  in  Hanson  v.  European  &  N.  A. 
R.  Co.,  62  Me.  84.  Quoted  in  Haley  v. 
Mobile  &  O.  R.  Co.,  7  Baxt.  (Tenn.)  239. 
Reviewed  in  Rouse  v.  Metropolitan  St. 
R.  Co.,  41  Mo.  App.  298;  Stewart  v.  Brook- 
lyn &  C.  T.  R.  Co..  90  N.  Y.  588,  43  Am. 
Rep.  185;  Palmer  v.  Charlotte,  C.  &  A.  R. 
Co.,  3  So.  Car.  580. 

The  plaintiff,  a  highly  respectable  citizen, 
and  a  passenger  in  the  defendant's  railway 
car,  on  request  surrendered  his  ticket  to  a 
brakeman  authorized  to  demand  and  re- 
ceive it.  Shortly  after,  the  brakeman,  with- 
out provocation,  approached  the  plaintifi  in 
his  seat,  and  accosting  him  in  a  loud  voice, 
denied,  in  the  presence  of  the  other  passen- 
gers, that  he  had  seen  or  received  the  plain- 
tiff's ticket,  and  in  language  coarse,  profane, 
and  grossly  insulting  called  the  plaintiff  a 
liar,  charged  him  with  then  attempting  to 
evade  the  payment  of  his  fare,  and  with 
having  done  so  before;  and,  leaning  over 
the  plaintiff,  then  in  feeble  health  and  par- 
tially reclining  in  his  seat,  and  bringing  his 
fist  down  close  to  his  face,  violently  shook 
it  there  and  threatened  to  split  the  plain- 
tiff's head  open  and  spill  his  brains  right 
there  on  the  spot,  with  much  more  to  the 
same  effect.  The  defendant,  although  well 
knowing  the  brakeman's  misconduct,  did 
not  discharge  him,  but  retained  him  in  his 
place,  which  he  continued  to  occupy  at  the 
time  of  the  trial.  The  jury  were  instructed 
that  the  case  was  a  proper  one  for  exem- 
plary damages,  and  they  returned  a  verdict 
for  $.,S  jo,  which  the  court  declined  to  set 


aside.  Goddard  v.  Grand  Trunk  R.  Co.,  57 
Me.  202.— Distinguished  in  Missouri,  K. 
&  T.  R.  Co.  V.  Weaver,  16  Kan.  456. 
Quoted  in  McGinnis  v.  Missouri  Pac.  R. 
Co.,  21  Mo.  App.  399. 

19. when  not  recoverable.— In 

New  Hampshire,  damages  recoverable  in  a 
civil  action  even  for  a  wilful  tort,  such  as 
assault  and  battery,  must  be  founded  on  the 
idea  of  compensation  for  the  injury.  The 
jury  may  allow  for  injury  to  the  feelings  as 
well  as  to  the  person.  But  to  go  beyond  all 
elements  of  injury  to  the  plaintiff,  and  give 
what  are  literally  punitive  damages — that  is, 
a  fine  awarded  by  way  of  punishment  and 
for  the  protection  of  the  public — is  not  al- 
lowable. Fay  V.  Parker,  53  N.  H.  342.— 
Not  following  Towle  v.  Blake,  48  N.  H 
92.  Quoting  Holyoke  v.  Grand  Trunk  K. 
Co..  48  N.  H.  541.  Reviewing  Hopkins  v. 
Atlantic  &  St.  L.  R.  Co.,  36  N.  H.  9;  Taylor 
V.  Grand  Trunk  R.  Co.,  48  N.  H.  303 ;  Bel- 
knap V.  Boston  &  M.  R.  Co.,  49  N.  H.  358 ; 
Detroit  Daily  Post  Co.  v.  McArthur,  16 
Mich.  447. 

In  New  York,  a  carrier  corporation  is  not 
liable  in  punitive  damages  for  an  assault 
and  battery  by  its  servant  on  a  passenger 
unless  the  corporation  authorize  or  ratify 
the  tort,  or  wrongfully  further  employ  or 
retain  the  servant.  Donivan  v.  Manhattan 
R.  Co.,  I  Misc.  {N.  v.)  368.  49  N.  Y.  S.  R. 
722,  21  A'^,  Y.  Supp.  457.— Quoting  Ricketts 
V.  Chesapeake  &  O.  R.  Co.,  33  VV.  Va.  433, 
25  Am.  St.  Rep.  901. 

In  Texas, a  company  is  not  liable  in  puni- 
tive damages  for  a  wanton  and  malicio\is 
assault  committed  by  a  conductor,  though 
the  company  retains  the  conductor  in  its 
service  thereafter,  such  act  being  in  no 
way  connected  with  the  discharge  of  his 
duties.  Dillingham  v.  Anthony,  yj  Am.  &* 
Eng.  R.  Cas.  i,  73  Tex.  47,  3  L.  R.  A.  634, 
II  S.  W.  Rep.  139.— Approving  Galves- 
ton, H.  &  S.  A.  R.  Co.  V.  Donahoe,  56  Tex. 
162.  Quoting  Hays  v.  Houston  G.  N.  R. 
Co.,  46  Tex.  272. 

Plaintiff  was  caught  in  the  press  of  a 
crowd  while  waiting  to  take  passage  in  a 
ferry-boat,  and  was  forced  by  the  crowd 
through  the  gate  that  was  intended  only  for 
vehicles,  and  was  forcibly  removed  there- 
from by  the  servants  of  the  ferry  company, 
after  offering  to  pay  regular  ferry  charges. 
Held,  that,  in  the  absence  of  anything  to 
show  malice  or  ill-will,  he  was  not  entitled 
to  punitive  damages,  and  that  a  verdict  for 


ASSAULT,  CIVIL   ACTION    FOR,  t»0,  iil.- ASSIGNMENT,  1.      475 


$1500  should  be  set  aside  as  excessive. 
Doran  v.  Brooklyn  &*  N.  Y.  F.  Co.,  46  A'. 
Y.  S.  y?.  310. 

20.  Excessive  damages.  —  Plaintiff 
was  assaulted  by  an  employe  for  entering  a 
ladies'  car,  where  his  ticket  did  not  admit 
him,  and  in  the  ditTiculty  which  followed 
his  cane  and  a  ring  were  broken,  which  cut 
his  finger  to  the  bone ;  the  back  of  one  of 
his  hands  was  lacerated  and  one  of  his  arms 
somewhat  bruised,  so  that  he  suffered  for 
three  weeks  thereafter.  The  assault  was  in 
the  presence  of  a  number  of  persons.  The 
court  instructed  the  jury  that  they  could 
not  allow  exemplary  damages.  Held,  that 
a  verdict  for  $4500  was  excessive.  Bass  v. 
Chicago  Sr*  N.  W.  R.  Co.,  39  Wis.  636,  13 
Am.  A>.  Rep.  414.— Reviewed  in  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Gants,  34  Am.  &  Eng.. 
R.  Cas.  290,  38  Kan.  608. 

21.  Kecoverics  held  not  excessive. 
— The  passenger  having  been  badly  beaten, 
kicked,  cut  with  a  knife,  and  had  his  arm 
broken,  a  verdict  for  $2000  is  not  excessive. 
Savannah  St.  &*  R,  R.  Co.  v.  Bryan,  86  Ga. 
312,  12  5.  jE'.  Rep.  307. 

A  verdict  of  $4000  where  punitive  dam- 
ages were  authorized  is  not  so  excessive  as 
to  demand  a  reversal,  where  the  action  was 
by  a  passenger  for  being  assaulted  by  a 
brakenian  with  an  iron  poker,  from  which 
he  received  a  fracture  of  the  skull  and  was 
threatened  with  paralysis  of  the  optic  nerve. 
Hanson  v.  European  &*  N.  A.  R.  Co.,  62 
Me.  84.  —  Following  Goddard  v.  Grand 
Trunk  R.  Co.,  57  Me.  202. 

A  female  passenger  sued  for  improper 
familiarities  taken  with  her  by  a  conductor. 
It  appeared  that  she  was  a  school-teacher  of 
considerable  refinement  and  capable  of 
keenly  feeling  such  indignities.  Held,  that 
a  verdict  for  $1000  in  her  favor  was  not  ex- 
cessive. Craker  v.  Chicago  &*  N.  W.  R.  Co., 
36  Wis.  657, 9  Am.  Ry.  Rep.  1 18.— Followed 
IN  Hinckley  v,  Chicago,  M.  &  St.  P.  R.  Co., 
38  Wis.  194. 

ASSENT. 
Estoppel  by.  see  Estoppel,  IV,  3. 

ASSESSMENTS. 

For  drainage,  see  Drains,  7. 

—  local  improTements,  see  Streets  and  High- 
ways V,  5 ;  Street  Rah  ways,  VIII,  3. 

Of  damages,  see  Damages,  III. 

for  land  taken,  see  Eminent  Domain,  XI, 

3-7;  XV.  5. 


—  taxes,  see  Taxaiio.n,  VII. 

upon  street  railways,  see  Street  Rail- 
ways, VIII. 

On  stock  subscriptions,  see  Subscriptions  to 
SrocK,  II. 


I 


ASSESSORS. 
Boards  of,  see  Taxation,  VII,  4,  5. 


ASSETS. 

Administration  of,  in  equity,  see  Equity,  O. 
Marshalling,  see  Insolvency,  5. 
What   are,    see    Executors    and    Adminis- 
trators, 7« 


ASSIGNEE. 

Generally,  rights  and  remedies  of,  see  As- 
signmknt,  17-24:. 

Of  bankrupt,  rights  and  powers  of,  see  Bank- 
ruptcy, 0-9. 

Right  of  assignee  of  cause  of  action  to  sue 
see  Animals,  Injuries  to,  318. 


ASSIGNMENT. 
Of  claims  for  wages,  see  Employes,  11. 

—  dower  in  railroad  stock,  see  Dower,  2> 

—  errors,  see  Appeal,  135. 

—  franchises,  see  Franchises.  4. 

—  lease,  see  Landlord  and  Tenant,  5. 

—  laborer's  lien,  see  Liens,  III,  4. 

—  patent  rights,  see  Patents  for  Inventions, 

III. 

—  stocks,  see  Stock,  V. 

—  warehouse  receipt,  see  Warehousemen,  3. 

I.  WHAT  IS  ASSIGNABLE 475 

n.  WHO  HAT  ASSIGN,  AND  HOW 478 

m.  VALIDITY,  INTEBPBETATION,  AND 

EFFECT 478 

IV.  BIGHTS   AND    BEMEDIES    OF  THE 

ASSIGNEE 480 

V.  EaVITABLE  ASSIGNMENT 481 

I.  WHAT  IS  ASSIGNABLE. 

1.  In  general.— A  contract  between  a 
railroad  company  and  individuals,  that  the 
company  will  construct  a  depot  at  a  certain 
place,  and  that  upon  its  construction  the  in- 
dividuals will  pay  to  the  company  a  certain 
sum  of  money,  is  negotiable  by  indorse- 
ment so  as  to  vest  the  title  thereof  in  each 
indorsee  successively.  Vannoy  v.  Duprez, 
72  Ind.  26. 

One  who  has  a  right  of  action  against  a 
railway  company  for  damages  to  his  city  lot 
on  account  of  the  building  of  a  road  on  the 


: 


n 


476 


ASSIGN  Ml' NT,  '2,:i. 


I 


in- 

'■Hf  , 

''act 


adjacent  street,  does  not  transfer  his  right 
o(  action  by  conveying  the  lot  to  another 
by  warranty  deed  after  the  road  is  built 
and  in  operation,  /'ra//  v.  JMi  AToines  N. 
VV.  J\\  Co.,  32  Afft.  &*  /fw;'.  A*.  Ccts.  236,  72 
/own  249,  33  N.  IV.  Rep.  666. — DiSTlN- 
UUISHKD  IN  Merchants'  llnion  Barb-Wire 
Co.  V.  Chicago.  R.  I.  &  P.  K.  Co.,  43  Am. 
&  Eng.  R.  Cas.  121,  79  Iowa  613.  FoL- 
LOWKu  IN  Jolly  V.  Des  Moines  N.  W.  R. 
Co.,  72  Iowa  759. 

The  mere  naked  right  to  sue,  unaccom- 
panied by  a  conveyance  of  the  property 
itself,  is  not  assignable.  Graham  v.  La 
Crosse  <&-  M.  R.  Co.,  1  Am.  6-  Eng.  R.  Cas. 
416,  102  U.  S.  148. 

A  railroad  company  entered  into  a  con- 
tract with  certain  parties  for  the  transfer  of 
their  passengers  and  freight  across  a  river. 
Held,  that  such  contract  was  assignable  with 
the  consent  of  the  company,  and  that  the 
assignment  was  good  consideration  for  a 
note  given  therefor ;  but  that  where  the  note 
was  afterward  sued  on  the  makers  might  se. 
up  as  a  defense  that  the  company  had  re- 
pudiated the  assignment :  but  where  such 
defense  is  denied  by  a  replication,  it  is  error 
to  take  judgment  without  proofs.  Early  v. 
Kced,  60  Mo.  528. 

Where  a  contract  provides  that  payments 
equal  to  eighty-live  per  cent  of  the  contract 
value  of  the  work  to  be  done  were  to  be 
made  monthly,  and  that  fifteen  per  cent  of 
the  contract  value  of  the  work  done  each 
month  was  to  be  retained  and  paid  within 
ninety  days  after  the  entire  completion  of 
the  work — held,  that  the  retained  percent- 
age became  a  separate  and  distinct  demand 
which  could  be  assigned.  Adler  v.  Kansas 
City,  S.  &*  M.  R.  Co.,  92  Mo.  242,  10  West. 
Rep.  333,  4  •§■.  W.  Rep.  917. — Applying 
Union  R.  &  T.  Co.  v.  Traube,  59  Mo.  363. 

2.  Causes  of  action  on  contract.* — 

A  right  of  action  against  a  common  car- 
rier for  injury  to  goods  while  in  course  of 
transportation  is  assignable.  Norfolk  &* 
VV.  R.  Co.  v.  Read,  87  Va.  185, 12  S.  E.  Rep. 

395- 

A  claim  against  a  common  carrier  for  loss 
of  goods  in  transit  is  a  cause  of  action  aris 
ing  on  contract,  and  is  assignable.     Watson 
V.  Hoosac  Tunnel  Line  Co.,  \  3  Mo.  App.  263. 

The  right  of  action  against  a  railroad 
company,  as  a  common  carrier,  for  negli- 

*Assignment  of  right  of  action  against  carrier 
for  injury  to  goods,  see  45  Am.  &.  Eng.  R.  Cas. 
373  abstr. 


gence  in  failing  to  safely  carry  or  deliver 
goods  is  assignable,  and  the  assignee  may 
sue  in  his  own  name,  the  action  being  in  the 
nature  of  one  for  the  conversion  of  personal 
property.  Smith  v.  Ne^v  York  &*  A'.  H. 
R.  Co.,  28  Barb.  {N.  K.)  605,  16  Ho^v.  Pr. 
277. 

A  right  of  action  against  a  common  car- 
rier to  recover  tlie  value  of  property  en- 
trusted to  him  is  assignable,  and  the  as- 
signee may  sue  in  his  own  name.  Merrill 
V.  Grinnell,  30  N.  Y.  594. 

3.  Causes  of  action  in  tort,*— A  right 
of  action  arising  from  a  tort  to  property 
is  assignable  under  the  Code.  Snyder  v. 
Wabash,  St.  L.  <3-  P.  R.  Co.,  29  Am.  (S- 
Eng.  R.  Cas.  237,  86  Mo.  613.— Reviewing 
Butler  V.  New  York  &  E.  R.  Co.,  22  Barb. 
(N.  Y.)  no.  Distinguishing  Cable  v. 
Marine  R.  &  D.  Co..  21  Mo.  133;  Burnett 
V.  Crandall,  63  Mo.  410.— Followed  in 
Doering  v.  Kenamore,  86  Mo.  588. 

The  provision  of  the  act  of  Congress  of 
1875,  to  the  effect : "  Nor  shall  any  circuit  or 
district  court  have  cognizance  of  any  suit 
founded  on  contract  in  favor  of  an  assignee, 
unless  the  suit  might  have  been  prosecuted 
in  such  court  to  recover  therecjn,  if  no  as- 
signment had  been  made,  except  in  cases  of 
promissory  notes,  negotiable  by  the  law 
merchant  and  bills  of  exchange,"  does  not 
change  the  common-law  rule  as  to  the  as- 
signment of  causes  of  action  based  upon 
torts.  Northern  Ins.  Co.  v.  St.  Louis  &•  S.  F. 
R.  Co.,  5  McCrary  (U.  S.)  126,  15  Fed.  Rep. 
840. 

All  such  rights  of  action  for  a  tort  as 
would  survive  to  the  personal  representa- 
tives of  the  party  may  be  assigned  so  as  to 
pass  an  interest  to  the  assignee,  which  he 
can  assert  in  his  own  name  in  a  civil  action 
under  the  Code,  as  he  formerly  might  do  in 
the  name  of  the  assignor  at  law.  Applied 
to  an  action  for  killing  an  ox.  Butler  v. 
Ne7v  York  &*  E.  R.  Co.,  22  Barb.  {N.  Y.)  1 10. 
—Approved  in  Galveston  H.  &  S.  A.  R. 
Co.  V.  Freeman,  57  Tex.  1 56.  Reviewed  in 
Snyder  v.  Wabash,  St.  L.  &  P.  R.  Co.,  29 
Am.  &  Eng.  R.  Cas.  237,  86  Mo.  613. 

Under  the  New  York  statute  the  right  of 
action  against  a  corporation  for  personal 
injuries  is  not  assignable,  unless  it  is  where 
the  injury  affects  the  estate  of  the  party 
rather  than  the  person.    Hodgman  v.  West- 

''^  Assignability  of  cause  of  action  for  personal 
torts,  see  note,  14  L.  R.  A.  512. 


m 


ASSIGNMENT,  4,5. 


477 


ern  X.  Corp.  7  Hcnv,  Pr.  (N.  V.)  492-— 
Quoted  in  Galveston,  H.  &  S.  A.  R.  C6.  v. 
Freeman,  57  Tex.  156. 

The  rule  of  law  that  a  cause  of  action 
founded  on  injuries  to  the  person  is  not 
assignable  has  not  been  altered  by  the  Code 
of  New  York.  Purple  v.  Hudson  River  R. 
Co.,  \  Abb.  Pr.  {N.   Y.)  33.  4  Duer  74. 

A  right  of  action  for  an  unliquidated,  un- 
recognized claim,  arising  ex  delicto,  such  as 
a  claim  against  an  express  company  for  loss 
of  goods  intrusted  to  it,  is  not  assignable  so 
as  to  enable  the  assignee  to  sue  in  his  own 
name.  Thurman  v.  IVclls,  18  Barb.  (N.  Y.) 
500. 

The  right  of  action  against  a  railroad 
company  for  killing  stock  may  be  assigned, 
and  the  assignee  may  sue  in  his  own 
name.  (McFarland,  J.,  dissenting.)  East 
Tenn.,  G.  &•  V.  R.  Co.  v.  Henderson,  i  Lea 
{Tenn.)  i. 

A  right  of  action  against  a  railroad  com- 
pany, under  the  Indiana  statute,  for  killing 
stock  where  the  road  is  not  fenced,  is  as- 
signable, though  the  statute  says  that  the 
"  owner  "  must  make  complaint,  and  that 
the  "owner"  may  sue,  etc.  Louisville,  N. 
A.  &*  C.  R.  Co  V.  Goodbar,  13  Am.  6-  Eng. 
R.  Cas.  599,  88  Ind.  213. 

Under  Iowa  Code,  §  1289,  a  claim  against 
a  railroad  company  for  killing  stock  on  its 
track  is  assignable,  and,  if  not  paid  within 
thirty  days  after  notice  by  the  assignee,  as 
required  by  statute,  he  may  recover  double 
damages,  just  as  his  assignor  might  have 
done.  (Reed,  J.,  dissenting.)  Everett  v. 
Central  Iowa  R.  Co.,  31  Atn.  6^  Eng.  R.  Cas. 
550,  73  Iowa  442,  35  N.  IV.  Rep.  609. 

A  right  of  action  against  a  railroad  com- 
pany for  negligently  starting  a  fire  and  de- 
stroying property  is  assignable.  Fried  v. 
New  York  C.  R.  Co.,  25  How.  Pr.  (A^.  K) 
285,  I  Shelden  i. 

A  right  of  action  in  a  pending  suit  against 
a  railroad  company  for  negligently  setting 
fire  to  plaintiff's  property  may  be  assigned 
in  whole  or  in  part,  and  the  suit  continued 
to  be  prosecuted  in  assignor's  name  for 
benefit  of  assignee.  Tyler  v.  Ricamore,  87 
Fa.  466,  \2S.E.  Rep.  799. 

An  employe  sued  a  railroad  company  to 
recover  for  personal  injuries,  and  compro- 
mised the  suit  before  judgment  and  signed 
a  release ;  whereupon  his  attorneys  inter- 
vened, claiming  that  they  were  prosecuting 
the  suit  for  an  interest  in  the  damages, 
which  had  been  assigned  to  them,  and  deny- 


ing the  right  of  their  client  to  release  their 
portic  1.  //(f/ir/,  that  the  cliciit'.s  unliquidated 
claim  for  dan^agcs  could  nov  be  assigned. 
Stewart  v.  Houston  &^  T.  C.  R.  t^o.,62  Tex. 
246.— Following  Galveston,  H.  &  S.  A.  R. 
Co.  V.  Freeman,  57  Tox.  156. 

4.  Ciaiiiis  of  laborers.— A  railroad 
laborer  cannot  assign  wages  which  are  not 
then  earned,  northc  contract  of  service  then 
made.  Lehigh  Valley  R.  Co.  v.  W'oodring, 
116  Pa.  St.  513.  f)Atl.  Rep.  58.— FOLLOWING 
Jermyn  v.  Moflitt,  75  Pa.  St.  402. 

Under  Maiisf.  Ark.  Dig.  §  473,  making  all 
agreements  and  contracts  in  writing  for 
the  payment  of  money  assignable,  a  mere 
memorandum  of  accounts  given  to  railroad 
laborers,  and  only  intended  as  information 
to  theroad-master  in  auditing  such  accounts, 
cannot  be  said  to  be  a  written  agreement,  and 
therefore  is  not  assignable.  St.  Louis,  I.  M. 
&*  S.  R.  Co.  V.  Camden  Bank,  {ArJb.)  i.S.  fV. 
Rep.  704. 

An  assignment  of  a  portion  of  the  wages 
of  a  railway  employe  may  be  made,  and  the 
courts  will  recognize  and  protect  the  equit- 
able interest  of  the  assignee.  L>ean  v.  St. 
Paul  &•  D.  R.  Co.,  53  Minn.  504,  55  N.  W. 
Rep.  628. 

The  N.  Y.  act  of  1871,  ch.  609,  §  4,  made 
it  the  duty  of  railroad  companies  to  station 
flagmen  at  certain  highway  crossings,  and 
upon  a  failure  of  the  company  to  employ 
such  flagmen  it  became  the  duty  of  the 
highway  commissioners  to  appoint  them, 
their  compensation  to  be  paid  by  the  com- 
pany. Held,  that  the  compensation  or  wages 
earned  by  such  flagmen,  appointed  by  such 
commissioners,  is  assignable.  Stoothoff  v. 
Long  Island  R.  Co..  32  Hun  (N.  K)  437. 

Time-checks  issued  to  laborers  by  a  con- 
tractor for  labor  in  building  a  railroad  are 
assignable,  and  carry  witli  them  the  statu- 
tory lien  on  the  road,  which  msiy  be  enforced 
against  the  same.  Texas  &»  P.  R.  Co.  v. 
McMullen,  i  Tex.  App.  (Civ.  Cas.)  64. 

5.  Corporate  bonds. — The  bond  of  a 
corporation,  made  payable  to  the  obligee  or 
his  assigns,  is  not  negotiable  so  as  to  enable 
the  holder  to  sue  at  law  in  his  own  name, 
without  an  assignment,  under  the  Pa.  act  of 
May  28,  1715,  providing  that  assignments  of 
bonds  payable  to  order  or  assigns  shall  be 
under  hand  and  seal,  and  before  two  wit- 
nesses. Bunting  v.  Camden  Gr'  A.  R.  Co.,  81 
Pa.  St.  254,  15  Am.  Ry.  Rep.  370.— DISTIN- 
GUISHING Licey  7/.  Licey,  7  Pa.  St.  251 ;  Carr 
7'.  Le  Fevre,  27  Pa.  St.  413. 


! 


478 


ASSIGNMENT,  0-13. 


6.  Corporate  franchlf-e.— The  provi- 
sion of  tlic  California  constitution  that 
"corporations  may  be  formed  under  general 
laws,  but  sliall  not  be  created  by  special  act," 
does  not  prevent  a  legally  organized  corpo- 
ration from  assigning  its  franchise.  People 
ex  rel.  v.  Stanford,  77  Cat.  360,  18  Pac,  Rep. 
85,  19  Pac.  Rep.  693. 

7.  Kailroad  tickets.*— A  commutation 
mileage  ticket  is  not  an  "  instrument,"  with- 
in the  meaning  of  Iowa  Code,  §  3086,  provid- 
ing that  wlien  "  by  the  terms  of  an  in- 
strument its  assignment  is  prohibited,  an 
assignment  of  it  shall,  nevertheless,  be 
valid  ; "  and  where  such  ticket  is  issued  "  not 
transferable,"  on  its  face,  a  person  riding 
on  it,  not  the  one  to  whom  it  is  issued,  does 
not  sustain  the  relation  of  a  passenger  so  as 
to  entitle  him  to  recover  for  injuries.  Way 
V.  Chicago,  R.  I.  &*  P.  R.  Co., 64.  Iowa  48,  52 
Am.  Rep.  431,  19  A^.  W.  Rep.  828. 

8.  Subscriptions  to  stock.— A  cor- 
poration may  assign  a  subscription  to  its 
capital  stock,  or  the  amount  unpaid  thereon. 
Racine  County  Bank  v.  Ayres,  12  IVis.  512. — 
Following  Downie  v.  Hoover,  12  Wis. 
174;  Downie  z'.  White,  12  Wis.  176. 

O.  Verdicts  and  judgnicntSt  —  A 
judgment  recovered  in  an  action  for  a  tort 
against  a  railroad  for  a  personal  injury  is 
not  assignable  before  it  has  been  rendered 
or  entered  up,  although  a  verdict  has  been 
returned  upon  which  judgment  can  be  and 
is  afterwards  signed.  The  plaintiff  acquires 
title,  not  by  the  verdict,  but  by  the  judg- 
ment, and  until  its  rendition  he  has  no 
title  to  assign  ;  until  then  his  action  for  the 
tort  is  not  terminated,  but  is  still  pending 
and  in  progress.  Gamble  v.  Central  R.  &• 
B.  Co.,  80  Ga.  595,  7  S.£.  Rep.  315. 

II.  WHO  MAT  ASSIGN,  AND  HOW. 

10.  Corporate  ofiScers. — The  power 
of  a  corporation  to  assign  a  cause  of  action 
cannot  be  questioned  by  the  defendant  in 
an  action  thereon  by  the  assignee.  Small  v. 
Chicago,  R.  I.  &•  P.  R.  Co.,  55  Iowa  582,  8 
A'^,  W.  Rep.  i^yj. 

A  writing  recited,  "  for  value  received  we 
assign  to  M.  any  claim  or  cause  of  action  we 
may  have  *  *  *  under  the  contract  with  "  a 
certain  railroad  named,  and  was  signed  by 
the  president  and  secretary  of  the  company 
as  such,  and    had   the  corporate  seal  at- 

*  Assignability  of  railroad  tickets,  see  note  18 
L.  R.  A.  55, 


tached.  Held,  that,  notwithstanding  the  use 
of  the  word  "we,"  it  sufficiently  appeared 
that  the  officers  were  acting  for  the  cor- 
poration, and  that  the  writing  was  its  deed. 
Musser  v.  Johnson,  42  Mo.  74, 

11.  Consolidated  company.  —  A 
plaintiff  who  declaies  upon  an  assignment 
of  his  claim  to  him  by  a  consolidated  rail- 
road company  must  fail  if  lie  does  not  show 
that  the  statutory  conditions  to  consolida- 
tion were  substantially  observed.  Rodgers 
V.  IVells,  44  Mich.  4ri,  6  A'.  IV.  Rep.  860. 

One  who  declares  upon  a  claim  held  under 
an  assignment  from  a  consolidated  company 
cannot  recover  on  proof  merely  that  it  was 
assigned  by  one  of  the  constituent  com- 
panies to  his  assignor.  Rodgers  V.  IVells,  4^ 
Mich.  411,  6  N.  IV.  Rep.  860. 

12.  Assignment  by  delivery  of  snb- 
ject-matter.— Certain  parties  interested 
in  procuring  a  railroad  entered  into  an  agree- 
ment that  they  would  pay  certain  specified 
sums  to  any  company  that  would  build  a 
railroad,  and  placed  this  agreement  in  the 
hands  of  their  agents  to  negotiate  with,  and 
deliver  the  samelo,  any  com|  any  that  might 
undertake  to  build  the  road.  Held,  that  the 
interest  in  such  contract  passed  by  a  deliv- 
ery to  a  company  agreeing  to  build  the  road, 
and  that  no  formal  assignment  was  neces- 
sary to  enable  such  company  to  sue  thereon. 
Cedar  Rapids  &•  St.  P.  R.  Co.  v.  Stewart,  25 
Iowa  115. 

m.  VALIDITT,  INTEBFBETATIOH,  AND 
EFFECT. 

13.  Validity.— An  agreement  by  a  rail- 
road company  to  pay  for  work  in  bonds 
issued  for  stock  subscribed  by  a  county, 
where  the  persons  agreeing  to  receive  them 
have  full  knowledge  of  the  terms  upon  which 
they  were  issued,  is  not  an  assignment  of  the 
bonds,  or  placing  them  in  the  hands  of  third 
parties,  so  as  to  prevent  an  order  declaring 
them  cancelled.  Mercer  County  v.  Pitts- 
burgh 6^  E.  R.  Co.,  27  Pa.  St.  389. 

Where  a  claim  for  damages  for  personal 
injuries  caused  by  the  negligence  of  a  rail- 
road was  assigned,  the  court,  without  decid- 
ing whether  the  assignment  and  a  collateral 
agreement  were  champertous,  held  tl  at, 
even  were  they  champertous,  the  defendant 
company  could  not  plead  that  fact  to  defeat 
the  action,  it  being  a  stranger  to  the  con- 
tract and  not  injuriously  affected  by  it. 
Vimont  v.  Chicago  &*  N.  IV.  R.  Co.,  19  Am. 


' 


ASSIGNMET^T,  14-1«. 


479 


6*  Ettg.  R.  Cas.  213,  69  Iowa  296,  22  A'.  IV. 
Jiep.  y)6,  28  A^.  W.  Rep.  613. 

An  employ^  of  a  railroad  company  as- 
signed his  wages,  using  a  printed  form  in 
which  the  names,  amounts,  and  dates  were 
left  blank,  with  an  agreement  that  the  as- 
signee should  fill  the  blanks  whenever  nec- 
essary. Held,  that  the  assignment  of  the 
wages  and  the  authority  to  till  in  the  blanks 
constituted  a  valid  assignment  and  contract 
within  the  statute  of  frauds,  and  that  the 
assignee  could  recover  said  wages.  Cole  v. 
New  York.  L.  E.  (S-  W.  R.  Co.,  37  Hun  {N. 

y-)  394. 

The  appellant,  who  had  sustained  bodily 
injuries  in  a  collision  on  a  railroad,  assigned 
his  claim  for  damages  therefor  to  an  attor- 
ney for  $330,  who  was  to  prosecute  the  claim, 
and  did  so  successfully.  The  amount  event- 
ually recovered  against  the  railroad  com- 
pany was  $4000.  Held,  (i)  that  the  assign- 
ment, as  to  the  excess  beyond  reasonable 
compensation  to  the  attorney  for  his  services, 
was  void  as  to  appellant's  antecedent  judg- 
ment-creditors ;  (2)  that  a  receiver  appointed 
under  an  unsatisfied  execution  issued  on  the 
judgment  of  such  creditors  could  maintain 
a  suit  in  chancery  to  avoid  the  assignment. 
Colgan  v.  Jones,  44  N.  J.  Eq.  274,  18  Atl. 
Rep.  55. 

14.  How  construed. —  A  contractor, 
entitled  to  money  under  a  contract  with  the 
S.  &  M.  R.  Co.,  made  an  assignment  of  the 
same  by  a  written  notice  and  statement  ad- 
dressed to  "  George  H.  Nettleton,  president 
and  manager  of  K.  C,  S.  &  M.  R.  R."  It 
appeared  that  Nettleton  was  the  president 
of  both  corporations,  and  that  the  S.  &  M. 
Railroad  was  known  by  the  name  of  the 
Kansas  City,  S.  &  M.  Railroad,  as  well  as  by 
its  own  name,  and  was  managed  by  the  same 
chief  officers.  Held,  that  it  was  competent 
for  the  trial  court  to  apply  the  assignment 
to  its  proper  subject-matter  by  disregarding 
the  letters  "  K.  C."  in  the  description  of 
Nettleton's  office.  Adler  v.  Kansas  City,  S. 
&»  M,  R.  Co.,  92  Mo.  242,  10  West.  Rep.  333, 
45.  W.  Rep.  917. 

15.  What  will  pass  by  an  assigrn- 
ineut. — Where  goods  while  in  transit  are 
damaged  and  sold  by  the  carrier,  the  assignor 
may  assign  all  his  interests  in  the  goods,  and 
such  assignr:"**nt  will  convey  a  valid  right  of 
action  to  the  assignee.  Waldron  v.  Willard, 
17  N.  Y.  466. 

Whether  an  assignment  of  the  accruing 
profits  of  a  railroad  attached  to  an  incorpo- 


rated railroad  and  banking  company,  by  the 
corporation,  be  not  also  an  assignment  of 
the  estate  on  which  the  road  is  built,  to  the 
4.  :tent  of  the  assignment  of  the  profits  of  the 
roal,  quaref  Arthur  v.  Commercial  &*  R. 
U  'Ilk,  17  Aliss.  394. 

PlaintitI  sued  as  assignee  of  a  passenger 
whose  baggage  was  lost  while  travelling  on 
a  through  ticket.  The  assignment  was  of 
all  his  claim  against  one  of  the  intermediate 
lines.  The  suit  was  against  the  initial  car- 
rier. Held,  that  the  assignment  would  not 
support  the  action.  Talcott  v.  Wabash  R. 
Co.,  50  N.  Y.  S.  R.  423,  66  Hun  456,  2i  N.Y. 
Supp.  318. 

10.  EflPect.— Where  a  party  conveys  a 
part  of  Ills  land,  after  a  railroad  is  located 
over  it,  the  right  to  the  whole  damages  is  in 
him  ;  and  where  his  deeds  contain  covenants 
against  incumbrances,  the  remedy  of  his 
vendees  is  by  action  of  covenant  under  the 
deed,  and  persons  taking  an  assignment  of 
only  the  right  that  the  vendees  have  to 
damages  for  land  taken  by  the  railroad 
cannot  maintain  an  action  against  the  vendor 
to  recover  a  part  of  the  damages  that  have 
been  awarded  to  him.  NewYork&*  N.E.R. 
Co.  V.  Drury,  10  Am.  &^  Eng.  R,  Cas.  518, 
133  Mass.  167. 

It  will  hardly  do  to  affirm  that  a  railroad, 
a  citizen  of  Iowa,  may  enter  into  a  contract 
with  a  citizen  of  New  York,  and,  after  in- 
curring liability  thereunder,  may,  for  the 
purpose  of  defeating  the  jurisdiction  of  the 
federal  courts,  assign  such  contract,  or  his 
right  of  action  thereon,  to  another  citizen 
of  New  York,  with  an  agreement  that  the 
latter  shall  prosecute  the  suit  to  judgment, 
pay  the  costs  and  expenses,  and  theiv  pay 
the  balance  to  the  assignor,  who  is  to  remain 
the  real  litigant.  Goodno70  v.  Litchfield,  4 
McCrary  {U.  S.)  215. 

A  ferry  company  contracted  with  a  railroad 
company  to  furnish  the  latter  with  grounds 
for  a  depot,  in  consideration  that  it  would 
give  the  ferry  company  the  ferrying  of  all 
goods  required  to  be  transported  across  a 
river  at  that  point.  There  was  a  provision 
in  the  contract  authorizing  its  assignment 
to  another  company,  and  stipulating  that  all 
its  covenants  should  be  binding  on  the 
assignee,  it  being  understood  at  the  time 
that  it  was  procured  with  a  view  to  such 
assignment.  Held,  that  the  assignee  was 
bound  by  the  stipulation,  and  was  liable  to 
be  sued  for  a  breach  of  stich  covenants. 
Wiggins  Ferry  Co.  v.  Chicago  &*  A.  R.  Co., 


1 


ifif 


480 


ASSIGNMENT,  17-20. 


5  Atn,  &*  Eng.  A'.  Cos.  i,  73  Mo.  389,  39/lw. 
Hep.  519;  revtrsing  5  /l/o.  /4//.  347, 

IV.   BIOHTS    AND    BEMEDIIB   OF    THE 
ASSIGNEE. 

17.  ItlKlitH  ut'  UNHigaue,  generally. 

— The  assifjnec  of  a  judgment  against  a 
railroad  company  acquires  only  the  right  of 
tlie  judgmenl-crediior  as  against  tlie  com- 
pany. Butler  V.  Rahm,  46  Md.  541,  i8  Am. 
Ky.  Rep.  86. 

18.  ot'aNHigiict;  of  labor  claiiiiH. 

— The  assignment  of  labor  claims  invests 
the  assignee  with  all  the  rights  the  labor 
"rlaimants  themselves  would  have  had  if 
their  claims  had  not  been  sold  and  assigned. 
Huntingdon  »S-  B.  T.  R.  Co.'s  Appeal,  (Pa.) 

6  Atl.  Rep.  383. 

10.  Notiuo  to  debtor  of  the  assigii- 
iiieiit. — The  assignee  of  an  employe  of  a 
railroad  company  presented  an  assignment 
of  wages  to  the  head  officer  of  the  trans- 
portation and  freight  department  of  the 
company  at  one  end  of  the  line  where  the 
en)ploy6  was  hired  but  not  paid.  When 
presented,  said  officer  told  the  assignee  that 
if  the  claim  was  sent  to  the  head  office  the 
employ^  would  lose  his  position,  whereupon 
the  assignee  took  the  claim  away.  Held, 
that  it  was  error  to  instruct  the  jury,  in  an 
action  on  the  assignment,  that  these  facts 
constituted  actual  notice  to  the  company  of 
the  assignment  as  a  matter  of  law.  Corbett 
V.  Fitchburg  R.  Co.,  wo  Mass.  204. 

20.  When  assignee  may  sue  in  his 
own  name.— The  assignee  or  equitable 
owner  of  a  chose  in  action  may  sue  in  his 
own  name.  Galveston,  H.  &*  S.  A.  R.  Co.  v. 
FreenKin,  57  Tex.  156.— Reviewing  Sublett 
V.  McKinney,  19  Tex.  438.— Followed  in 
Stewart  v.  Houston  &  T.  C.  R.  Co.,  62  Tex. 
246. 

The  assignee  of  a  claim  against  the  re- 
ceiver of  a  railway  company,  having  ob- 
tained permission  from  the  proper  court, 
may,  under  the  Code,  bring  suit  in  his  own 
name,  and  though  the  assignment  be  in- 
dorsed to  another,  he  may  still  maintain  the 
action  in  his  own  name  so  long  as  he  retains 
possession  of  the  instrument  of  assignment, 
and  may  cause  ■  the  record  to  be  amended 
by  adding  the  name  of  the  indorsee  as  the 
use  party,  who  will  thereafter  be  entitled  to 
control  the  proceedings,  and  will  be  bound 
by  the  judgment.  Jackson  v.  Hamm,  14 
Colo.  58,  23  Pac.  Rep.  88. 

The  assignee  of  a  claim  for  damages  for 


por.sonal  injury  may  maintain  an  action 
thereon.  Hawley  v.  Chicago,  li.  &*  Q.  R. 
Co.,  71  /owa  717,  29  N.  \V.  Rep.  787.— Foi,- 
LOWING  Viniont  v.  Chicago  &  N.  W.  R.  Co., 
64  Iowa  513,  69  Iowa  296. 

A  party  to  whom  a  claim  for  damages  for 
personal  injuries  caused  by  the  negligence 
of  a  railroad  company  in  Iowa  has  been  as- 
signed, may  maintain  an  action  thereon  in 
the  courts  of  this  state,  although  such 
assignment  was  executed  and  delivered  in 
another  state,  by  the  law  of  which  it  would 
be  void.  Viinont  v.  Chicago  Sf  N.  W.  R. 
Co.,  19  Am.  &^  Eng.  R.  Cas.  213,69  /owa 
296,  22  A'.  W.  Rep.  906,  28  N.  VV.  Rep.  612. 

Where  the  judgment  superseded  was  as- 
signed, with  an  agreement  that  the  proceeds 
should  be  paid  to  several  parties,  and  the 
assignee  has  a  beneficial  interest  in  the  judg- 
ment, he  may,  when  a  liability  arises  on  the 
undertaking,  bring  an  action  thereon  in  his 
own  name,  without  joining  with  him  all  the 
parties  who  are  to  receive  a  part  of  the  pro- 
ceeds of  the  judgment,  and  for  whose  benefit 
the  action  is  in  part  prosecuted.  IValburn 
v.  Chenault,  43  Kan.  352,  23  Pac.  Rep.  657. 
—Reviewing  St.  Louis,  Ft.  S.  &  W.  R.  Co. 
V.  Tiernan,  37  Kan.  606. 

The  assignee  of  a  claim  against  a  railroad 
company  for  negligently  killing  a  horse  may 
maintain  an  action  in  his  own  name  under 
Miss.  Code  1880,  §  1507,  providing  that  an 
assignee  of  a  chose  in  action  may  sue  in  his 
own  name.  Chicago,  St.  L.  iS-  A'.  O.  R.  Co. 
v.  Packwood,  7  Am.  &•  Eng.  R.  Cas.  584,  59 
Miss.  280. 

If  the  interest  of  one  of  a  company  which 
has  contracted  to  do  a  work  for  hire  be  as- 
signed, with  the  assent  and  concurrence  of 
the  company,  to  another,  to  whom  also  a 
portion  of  the  work  and  of  the  expected 
compensation  is  by  them  allotted,  and  upon 
the  completion  of  the  work  the  stipulated 
price  is  paid  to  the  company,  it  is  liable 
to  such  assignee  in  an  action  for  money  had 
and  received;  and  it  is  the  same  whether 
the  assignee  derives  his  interest  in  the  con- 
tract directly  from  the  original  party  or 
through  a  mesne  assignee.  Frost  v.  Reed,  30 
N.  H.  17. 

Under  such  circumstances  he  may  main- 
tain the  action  without  first  exhibiting  the 
written  assignment,  although  requested  to 
exhibit  it,  n:  ciaim  having  been  made  by 
the  intp.mtdiate  assignee.  Frost  v.  Reed, 
30  N.  .:-{.  17. 

Actions  for  damages  which  survive  to  the 


) 


ASSIGNMENT,  21-26. 


481 


r  ' 


personal  representative  arc  assignable.  So 
an  assignee  is  tiic  n-ui  party  in  interest,  and 
it  is  immaterial  wlietljcr  or  not  any  consid- 
eration was  paid  for  the  assignment,  or 
wlictlier  or  not  tlic  assignment  was  merely 
for  the  purpose  of  bringing  a  suit.  Wines 
V,  Rio  Grande  \V,  R.  Co.,  9  UiaA  228,  33 
Pdc:  Rep.  1042. 

The  assignee  of  a  railway  bond  is  the 
proper  party  to  sue  thereon  under  Com- 
panies Clauses  Act,  8  A  9  Vict.  c.  16,  §  46, 
Vertue\.  lui.st  Ani^lian  R.  Co.,  G  Railiv.  Cas. 
252,  5  Exch.  208,  I  L,  M.  &*  /',  302,  19  L. 
J.  Exclt.  235. 

Claims  against  a  railroad  company,  ^rising 
under  the  Missouri  act  of  Feb.  24,  1853,  en- 
titled "  An  act  to  authori/c  the  formiition  of 
railroad  associations  and  to  regulate  the 
same,"  were  assigned  with  power  to  the  as- 
signee to  collect  them  in  his  own  name. 
The  assignee  was  to  pay  all  costs,  re- 
ceive one-fourth  of  the  amount  of  the 
claims,  and  pay  the  remainder  to  the  as- 
signor. Held,  that  the  assignee  might  sue 
on  the  claims  in  his  own  name.  Peters  v. 
St.  Louis  &*  I.  M.  R.  Co.,  24  Mo.  586. 

A  cause  of  action  for  the  obstruction  of  a 
navigable  river  was  assigned  absolutely  in 
consideration  of  the  assignee  applying  the 
net  proceeds  of  the  claim  to  the  payment  of 
certain  debts  of  the  assignors,  and  paying 
any  overplus  to  such  assignors.  Held,  that 
the  assignee  might  maintain  the  action  in 
his  own  name.  Gates  v.  Northern  Pac.  R. 
Co.,  64  Wis.  64,  24  N.  W.  Rep.  494. 

21.  Assiffiiur,  wlicn  a  necessary 
party. — Where  a  claim  against  a  railroad 
for  personal  injuries  is  assigned  without 
recourse,  the  assignor  has  no  further  in- 
terest in  the  matter,  and  is  not  a  necessary 
party  in  a  suit  thereon.  Vimont  v.  Chicago 
6r*  N.  W.  R.  Co..  13  Am.  &>  Eng.  R.  Cas. 
176,  19  Am.  &*  Eng.  R.  Cas.  215,  64  Iowa 
513.  21  N.  W.  Rep.  9. 

22.  Pleading  in  suits  by  assignees. 
— A  complaint,  against  a  railroad  company, 
which  alleges  that  the  company's  contractors 
issued  checks  to  their  workmen,  which  plain- 
tiff cashed  and  took  an  assignment  of  at  the 
special  instance  and  request  of  the  com- 
pany, and  upon  a  promise  that  it  would  re- 
nay  plaintiff  the  money,  shows  a  good  cause 
of  action.  Ware  v.  Galveston,  H.  6^  S.  A. 
R.  Co.,  2  Tex.  App.  {Civ.  Cas.')  648.— Dis- 
tinguishing Austin  &  N.  W.  R.  Co.  v. 
Rucker,  59  Tex.  587. 

Plaintiff  bought  property  after  a  railroad 
I  D.  R.  D.— 31. 


had  been  built  in  the  .street  adjoining  it,  and 
sued  as  assignee  to  recover  damages  to  the 
property  caused  by  the  erection  and  opera- 
tion of  the  road  before  liis  purchase,  and 
united  a  further  claim  for  damages  after  the 
purchase.  //<•/(/,  that  under  the  Ohio  Code 
he  could  sue  as  assignee  in  his  own  name, 
and  unite  the  claims;  but  that  as  there  were 
two  causes  of  action,  each  must  be  set  out 
in  a  separate  count.  Hall  v.  Cincinnnti, 
H.  &•  D.  R.  Co.,  I  Disn.  (Ohio)  58. 

2;).  Wlieii  asHlKnccN  ronieily  is 
agniiist  aNHignor  only.  -A  construction 
company  assigned,  wit';  the  consent  of  the 
railway  company,  its  contract  to  build  the 
road,  The  assignee  was  protected  by  cer- 
tain 6  percent  mortgage  bonds  of  the  rail- 
way cf)mpany  deposited  with  a  trust  com- 
pany. There  was  a  stipulation  that  the  6 
per  cent  bonds  should  not  be  paid  until 
certain  7  per  cent  bonds  of  a  prior  issue  had 
been  paid  by  the  railway  company.  This 
the  company  failed  to  do.  Held,  that  the 
remedy  of  the  assignee,  if  any,  was  against 
the  assignor.  Appeal  of  Kelly,  {Pa)  12  Atl. 
Rep.  256. 

24.  Extent  of  aN.si|;iiec'8  recovery. 
— Insured  cotton  was  lost  by  the  negligence 
of  a  railroad  company  while  in  its  hands, 
and  the  owners  assigned  their  interest  to  the 
insurance  company.  Held,  that  the  insur- 
ance company,  as  against  the  carrier,  was 
entitled  to  recover  the  value  of  the  cotton 
at  the  time  of  the  loss,  with  interest  from 
the  time  it  should  have  been  delivered  if 
properly  carried.  North  American  Ins.  Co. 
V.  St.  Louis,  I  M.  &*  S.  R.  Co.,  3  McCrary 
{U.  S.)  233,  II  Eed.  Rep.  380. 

V.  EQUITABLE  A88IORHENT. 

25.  What  amounts  to  an  equitable 
assignment.— The  keeper  of  a  boarding- 
house  for  railroad  employfes  made  an  agree- 
ment with  the  railroad  company  whereby 
the  boarding  dues  of  each  employ^  were 
deducted  from  his  pay  and  forwarded  in 
the  form  of  a  check  to  the  boarding-house 
keeper  each  month.  Subsequently  he  pro- 
cured an  advance  of  money  from  a  bank  on 
the  credit  of  the  amounts  which  were  to  fall 
due  on  the  following  pay-day,  and  by 
promising  to  turn  such  amounts  over  to  the 
bank.  The  railroad  company  consented  to 
transfer  such  payments  to  the  bank.  Held, 
that  this  constituted  an  equitable  assign- 
ment of  such  sums,  so  as  to  vest  title  in  the 
bank  as  against  a  creditor  of  the  boarding- 


il'ii*" 

m 


482 


ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS,  1. 


I 

k 
9 


I 


house  keeper,  who  garnished  the  same  in 
the  hands  of  the  railroad  company.  Cham- 
ber lin  V.  Gilinan,  lo  Colo.  94,  14  Pac.  Hep. 
107. 

Subsequent  declarations  of  the  boarding- 
house  keeper,  indicative  of  an  intention  to 
set  apart  such  sums  to  the  payment  of  his 
debt  to  plainiifl  in  garnishment,  are  not  ad- 
missible in  evidence  to  impeach  the  title 
vested  by  prior  assignment.  Chamberlin  v. 
Gilman,  10  Colo.  94,  \^Pac.  Rep.  107. 

The  mere  fact  that  the  railroad  company, 
after  it  had  consented  to  the  transfer  of  the 
indebtedness  to  the  bank,  continued  to 
draw  its  check  in  favor  of  the  boarding- 
house  keeper  was  held  not  to  divest  the  bank 
of  the  title  acquired  under  the  equitable  as- 
signment. Chamberlin  v.  Gilman,  10  Colo. 
94, 14  Pac.  Rep.  107. 

Whether  the  railroad  company  had  notice 
of  such  assii^nment  in  no  way  affects  the 
rights  of  plaintiff  in  garnishment,  and  there- 
fore the  admission  of  evidence  of  such  notice 
is  not  prejudicial  error.  Chamberlin  v.  Gil- 
man,  10  Colo.  94,  14  Pac.  Rep.  107. 

A.  J.  A.  was  a  subcontractor  under  J.  F. 
to  build  certain  sections  of  a  railroad,  which 
work  he  again  sublet  to  H.,  L.  &  L.,  who 
were  performing  said  work.  Upon  the 
completion  of  said  contract  said  J.  F.  would 
be  indebted  to  A.  J.  A.  $2413.27.  H.,  L.  & 
L.  filed  a  statutory  lien  on  said  railroad  for 
their  work  and  labor  in  building  said  sec- 
tions thereof.  W.  R.  C,  in  the  presence 
of  A.  J.  A.,  presented  for  acceptance  and 
payment  to  J.  F.  a  draft  or  order  drawn  by 
A.  J.  A.  on  J.  F.,  in  favor  of  and  payable  to 
W.  R.  C,  for  the  sum  of  $1041.50  in  full  of 
all  claims.  Whereupon  J.  F.  stated  to  A.  J. 
^.,  in  the  presence  of  W.  R.  C,  that  he 
would  not  pay  it  until  all  the  liens  for  la- 
bor on  said  se'^t ions  were  settled  and  paid 
off.  N.  G.  O.  C.  sued  out  an  attachment 
against  A.  J.  A.  and  garnished  J.  F.  Held, 
that  there  was  an  equitable  assignment  and 
appropriation  of  the  money  payable  from 
J.  F.  to  A.  J.  A.,  to  W.  R.  C. ,  to  the  amount 
called  for  in  said  draft  or  order,  subject  to 
the  said  statutory  liens.  Code  v.  Carlton,  18 
Neb.  328. 

The  judgment-debtor,  through  his  sub- 
contractors, delivered  to  the  garnishees  cer- 
tain railway  ties,  and  gave  the  subcontrac- 
tors an  order  on  the  garnishees  for  all 
money  coming  to  him  therefor.  Subse- 
quent to  this,  but  before  the  garnishees 
had  any  notice  of  the  above  order,  they 


were  served  with  the'aitaching  order  in  this 
case.  Held,  that  the  order  in  favor  of 
the  subcontractors  operated  as  an  assign- 
ment of  the  fund'  to  tiiem,  although  there 
was  no  notice  of-  it  to  the  garnishees,  they 
not  having  been  led  by  the  want  of  notice 
to  alter  their  position  so  as  to  make  it  in- 
equitable as  against  them  to  enforce  the  as- 
signment. Brown  v.  McGuffin,  5  Prac. 
(Ont.)  231. — Quoting  Pickering  v.  Ilfra- 
combe  R.  Co.,  L.  R.  3  C.  P,  235. 

20.  What  does  not.— In  order  to  con- 
stitute an  equitable  assignment  by  a  debtor 
to  his  creditor  of  a  sum  due  to  the  debtor 
from  a  third  person,  it  is  not  enough  that 
there  be  an  agreement  to  pay  the  creditor 
out  of  the  particular  fund,  but  there  must 
be  an  appropriation  of  the  fund,  either  by 
giving  an  order  upon  it  or  by  transferring 
it  in  such  a  manner  that  the  holder  would 
be  authorized  to  pay  it  to  the  creditor 
directly,  without  the  further  intervention  of 
the  debtor.  Hoyt  v.  Story,  3  Barb.  (N.  V.) 
262. 

Where  a  railway  company  and  its  con- 
tractors agreed  with  a  subcontractor  that, 
in  consideration  of  his  furnishing  laborers' 
board,  the  amount  due  for  their  board 
should  be  taken  out  of  their  wages  and  be 
due  to  the  subcontractor  and  should  con- 
stitute a  lien  upon  the  road,  the  laborers 
not  being  parties  to  such  an  agreement, 
there  was  not  such  an  assignment  of  the 
claim  as  would  give  the  subcontractor  a 
laborer's  lien.  Texas  &>  St.  L.  R.  Co.  v. 
McCatighey,  62  Tex.  271. 

To  show  that  the  subcontractor  was  sub- 
rogated to  the  rights  of  the  laborers  there 
must  appear  to  have  been  an  extinguish- 
ment of  the  original  debt ;  and  to  create  an 
equitable  assignment  in  this  case  the  debt 
must  have  been  purchased  of  the  laborers 
for  a  consideration  satisfactory  to  them. 
Texas  &•  St.  L.  R.  Co.  v.  McCaughey,  62 
Tex.  271. 


ASSIGNMENT     FOR    BENEFIT     OF 
CREDITORS. 

See  also  Bankruptcy,  Insolvency,  Receivers. 

1.  What  constitutes  an  assignment 
for  creditors— Recording. — The  lease 
of  a  railroad  reserving  rent  in  trust  for  the 
benefit  of  the  creditors  of  the  lessors  is  an 
assignment,  within  the  meaning  of  the  act 
of  March  24,  18 18,  and  must  be  recorded 


l\ 


ASSIGNMENT  P'OR  BENEFIT  OF  CREr3ITORS,  2-4. 


483 


/  ', 


J\ 


within  thirty  days  in  the  proper  county. 
Lucas  ".  Sunbury  &*  E.  R.  Co.,  32  Pa.  St. 
458.— UIST.INGUISHJNG  Guy  V.  Mcllree,  26 
Pa.  St.  92.— Distinguished  in  Gratz  v, 
Pennsylvania  R.  Co..  41  Pa.  St.  447. 

An  assignment  by  a  railroad  company  of 
unpaid  instalments  due  on  subscriptions'to 
capital  stock  to  an  indorser,  to  secure  him. 
against  loss  by  reason  of  his  indorsement 
for  the  company,  is  not  an  assignment  in 
trust  for  creditors,  and  therefore  is  not  in- 
valid because  not  recorded,  nor  an  inventory 
filed  wi' bin  thirty  days  thereafter.  Mc- 
Broom's  Appeal,  44  Pa.  St.  92. 

2.  Preler'cnces.  —  One  railroad  com- 
pany made  a  lease  to  another  which  was 
declared  but  an  assi!»nment  for  the  benefit 
of  creditors,  with  preferences.  A  preferred 
creditor  who  had  a  claim  against  the  road 
.'or  rolling  stock  continued  to  work  for  the 
assignee  company  upon  the  promise  of  its 
president  to  pay  him,  and  upon  its  failure 
to  do  so  brought  his  action  of  assumpsit, 
claiming  that  the  company  had  received 
profits  enough  to  pay  his  claim.  Held,  that 
as  the  promise  of  the  president  was  nothing 
more  than  to  carry  out  the  preferences 
made  in  the  lease,  which  was  void  under 
the  law,  his  action  could  not  be  maintained. 
Bittenbender  v.  Sunbury  &*  E.  R.  Co.,  40  Pa. 
St.  269. 

3.  Validity,  generally  Though  the 
act  incorporating  the  New  York  and  Erie 
Railroad  Company,  §  18,  expressly  refers  to 
and  adopts  the  provisions  of  the  Rev.  St. 
ch.  18,  title  3,  pt.  I,  it  is  not  to  be  construed 
as  exeiT^pting  the  company  from  the  provi- 
sions of  the  same  chapter,  title  4 ;  therefore 
an  assignment  by  the  company  of  its  prop- 
erty in  contemplation  of  insolvency  is  void. 
Bowen  v.  Lease,  5  Hill  (N.  Y.)  221. 

Subcontractors  who  had  no  claim  against 
the  company  until  nearly  a  year  after  the 
assignment  was  made  cannot  allege  that  it 
is  invalid,  under  the  act  of  21st  Jan.,  1843, 
providing  that  no  public  internal  improve- 
ment company  shall  make  an  assignment, 
etc.,  of  real  or  personal  estate,  while  debts 
or  liabilities  to  contractors,  laborers,  and 
workmen  remain  unpaid,  without  first  ob- 
tainmg  their  written  consent.  McBroom's 
Appeal,  44  Pa.  St.  92. 

Where  an  assignment  was  made  by  an  in- 
corporated railroad  and  banking  company 
of  all  Its  efTects,  real  and  personal,  to  trustees, 
for  the  purpose,  first,  of  enabling  them  to 
borrow  money  to  complete  the  road  ;  and, 


second,  out  of  the  profits  of  the  road  when 
completed,  to  pay,  first,  the  money  borrowed, 
then  the  salaries  of  the  assignees,  the 
expenses  of  the  trust,  the  bank,  and  the 
railroad,  and  the  residue  to  the  general 
creditors  who  might  come  in  under  the 
assignment  -  the  leading  object  of  the  as- 
signment being  to  save  the  forfeiture  of  the 
charter  of  incorporation,  which  provided 
that  the  act  of  incorporation  should  be  null 
and  void  if  the  road  were  not  built  in  a  lim- 
ited time.  Held,  that  if  the  assignment 
were  otherwise  obnoxious  to  the  law  this 
motive  would  not  avail  to  sustain  it,  as  the 
charter  of  incorporation,  by  a  failure  to 
erect  the  road  in  the  limited  period,  would 
not  ipso  facto  have  been  avoided,  nor  until 
the  state,  by  proper  judicial  proceeding,  had 
obtained  a  judgment  of  forfeiture.  Arthur 
v.  Commercial  &•  R.  Bank,  1 7  Miss.  394. 

4.  When  void  for  fraud.— An  assign- 
ment by  a  railroad  in  trust  to  sell  part  of 
the  property  assigned  to  pay  for  advances, 
and  to  retain  part  of  it,  subject  to  the  future 
order  of  the  assignor,  is  intended  only  as  a 
cover  to  keep  of!  execution  creditors,  and 
has  premeditated  fraud  on  its  face.  Hart 
v.  McFarland,  13  Pa.  St.  182. 

An  assignment,  by  a  railroad  corporation 
actually  insolvent,  of  all  its  estate  for  the  se- 
curity of  certain  bonds  to  be  afterward  issued 
for  the  purpose  of  raising  money  to  put  a 
portion  oi  the  road  in  use,  is  not  \o\dkper  se, 
although  it  provides  that  the  estate  shall  be 
retained  by  the  corporation  until  maturity  of 
the  bonds,  and  then  sold  in  case  of  default 
for  the  benefit  of  the  holders  of  the  bonds, 
and  afterward  of  its  creditors  generally, 
who  shall  prove  their  demands,  etc.;  but  the 
deed  is  imperative  as  a  security,  unless  the 
bonds  are  actually  issued  to  bona-fide  cred- 
itors before  the  lien  of  other  creditors  at- 
taches or  the  property  is  conveyed  either  by 
judgment  or  execution,  as  the  estate  is  real 
or  personal.  Allen  v.  Montgomery  R.  Co.,\i 
Ala.  437. 

The  circumstances  that  the  corporation  is 
actually  insolvent  at  the  time  of  making 
such  a  deed,  and  that  all  the  estate  conveyed 
by  it  is  afterward  sold  in  a  lump  by  the 
trn.stee  and  does  not  produce  a  sum  suffi- 
cient to  p:iy  the  bondholders,  is  not  suffi- 
cient proof  of  fraud  to  avoid  the  deed ;  nor 
does  the  fact  that  the  deed  reserves  the  prop- 
erty from  sale  prevent  any  execution  creditor 
from  sellmg  the  reversionary  interest  of  the 
corporation  at  any  time  previous  to  the  liiw 


% 


k 


484 


ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS,  5,  6. 


I 


h 


day  of  the  deed.  A/Zen  v.  Montgomery  R. 
Co.,  1 1  Ala.  437.— Followed  in  Pollard  v. 
Maddox.  28  Ala.  321. 

A  company  organized  to  do  a  railroad 
and  banking  business  made  an  assignment 
of  ail  its  bank  effects,  directing  the  trustees 
to  borrow  $250,000  to  complete  the  road 
and  to  collect  all  claims,  and  from  the 
assets  in  their  hands  to  pay  first  the  loan  of 
$250,000.  If  there  were  not  assets  remaining 
sufficient  to  pay  the  bank  creditors  they 
were  to  be  paid  pro  rata  from  dividends  of 
the  railroad  after  its  completion.  Held, 
that  the  assignment  was  fraudulent  and 
void  as  to  creditors  not  assenting  thereto. 
Bodleys.  Goodrich,  7  How.  {U.  S.)  277. 

Where  an  incorporated  railroad  and  bank- 
ing company,  in  failing  circumstances,  made 
an  assignment  of  a  very  large  amount  of  real 
and  person.il  estate  and  choses  in  action,  in- 
cluding the  railroad,  and  imposed  thereby 
various  onerous  and  responsible  duties  on 
the  assignees,  and  provided  in  the  deed  of 
assignment  that  each  assignee  should,  out 
of  the  property  assigned,  receive  an  annual 
salary  of  eight  thousand  dollars,  it  was  held 
that  the  amount  of  salary,  though  very  large, 
and  calculated  to  excite  suspicion,  was  not 
necessarily  fraudulent  on  the  face  of  the 
assignment,  but  was  a  subject  to  be  inquired 
into  by  proof.  Arthur  v.  Commercial  <&*  R. 
Bank,  17  Miss.  394. 

Where  an  incorporated  railroad  and  bank- 
ing company,  being  in  failing  circumstances, 
and  by  its  charter  owning  in  fee  simple  the 
site  of  the  railroad  and  other  buildings  and 
lots  attached  to  it,  assigned  by  deed  all  its 
real  and  personal  estate  to  assignees  to  pay 
therewith  and  out  of  the  profits  of  the  rail- 
road, when  completed — it  being  then  unfin- 
ished— a  certain  debt  to  be  contracted  by  the 
assignees  for  the  completion  of  the  road, 
and  all  the  expenses  of  the  trust  and  of  the 
corporation,  and  then  the  debts  of  the  cor- 
poration; and  no  provision  whatever  was 
madf  for  the  sale  of  the  fee  simple  of  the 
corporation  in  the  site  of  the  road  and  in  the 
buildings  and  lots  attached  to  it,  and  the  as- 
signment of  the  profits  of  the  road  was  in- 
definite in  its  duration,  except  that  it  was  to 
last  until  the  debts  were  paid,  when  the  fee, 
with  the  road,  was  to  revert  to  the  corpora- 
tion— held,  that  the  tendency  of  the  assign- 
ment was  to  lock  up  the  estate  indefinitely, 
to  create  a  perpetuity,  to  hinder  and  delay 
creditors  unreasonably,  and  to  secure  an 
ultimate  and  permanent  advantage  to  the 


corporation,  and  that  the  assignment  was 
therefore  void.  Arthur  v.  Commercial  &*  R, 
Bank,  17  Miss.  394. — Approving  Fellows  v. 
Commercial  &  R.  Bank,  6  Rob.  (La.)  246. 

5.  Effect  of  the  nssignnieiit,  and 
what  will  pass  thereby.— A  claim 
against  a  railroad  corporation  for  injury  to 
the  person  does  not,  before  the  recovery  of 
judgment,  pass  by  an  assignment  of  the 
estate  of  the  injured  person  under  the  in- 
solvent laws.  Stone  v.  Boston  &•  M.  R.  Co., 
7  Gray  (Mass.)  539. 

An  assignment  by  one  who  holds  certifi- 
cates of  stock  in  a  railroad  company,  "of 
all  his  estate  and  effects,"  for  the  benefit  of 
creditors,  is  an  assignment  of  everything  he 
owns,  and  includes  the  certificates  of  stock. 
Haldeman  v.  Hillsborough  &^  C.  R.  Co.,  2 
Handy  (Ohio)  loi. 

The  assignee  under  a  deed  of  assignment 
for  the  benefit  of  creditors,  conveying, 
among  other  things,  stock  in  a  railroad  com- 
pany, will  be  preferred  to  subsequent  attach- 
ing creditors,  though  there  is  no  transfer  of 
the  certificates  to  the  assignee  on  the  com- 
pany's books.  Haldeman  v.  Hillsborough  &» 
C.  R.  Co.,  2  Handy  {Ohio)  loi. 

An  uncompleted  contract  for  the  construc- 
tion of  a  railroad  was  assigned  to  creditors. 
The  assignor  then  made  an  agreement  with 
the  plaintiff  that  he  should  complete  the 
contract  at  his  own  expense  and  receive  a 
certain  compensation,  The  creditors  drew 
an  order  on  theassignt^  in  favor  of  plaintiff 
for  the  amount  expended  by  him  on  the 
work,  and  for  a  certain  sum  for  his  trouble. 
The  work  having  been  completed  by  the 
plaintiff — held,  that  the  order  became  irrevo- 
cable, whether  drawn  before  or  after  perform- 
ance of  the  work ;  and  that  one  of  the  cred- 
itors receiving  a  dividend  out  of  the  fund 
from  the  assignee  was  liable  to  the  plaintif! 
in  an  action  for  money  had  and  received. 
Cunningham  v.  Garvin,  10  Pa.  St.  366. 

A  mining  company  which  has  entered 
into  an  agreement  with  a  railway  company 
to  furnish  daily,  for  the  period  of  one  year,  a 
specified  quantity  of  coal  taken  from  a  par- 
ticular vein  cannot  assign  the  contract.  If 
the  mining  company  fails,  its  assignees  in  in- 
solvency cannot  compel  the  railway  com- 
pany to  complete  the  contract.  Warden  v. 
Chicago  6-  N.  W.  R.  Co.,  82  /oa/a  735,  48 
N.  W.  Rep.  71. 

6.  Sale  by  assignee  and  ri^^hts  of 
purchasers. —The  Montgomery  R.  Co., 
having  made  a  valid  assignment  of  its  road 


ASSUMPSIT,  1-3. 


485 


was 


and  all  its  effects,  the  purchasers  at  the  trus- 
tee sale,  who  were  afterwards  incorporated 
under  a  new  name,  acquired  and  succeeded 
to  all  the  rights  which  the  old  company  had 
under  a  deed  conveying  the  right  of  way  for 
tiie  construction  of  the  road.  Pollard  v. 
Maddox,  28  Ala.  321.— Following  Allen  v, 
Montgomery  R.  Co.,  1 1  Ala.  437. 


ASSISTANT  CONDUGTOB. 
See  Conductor,  15. 


ASSUMPSIT. 

Ag^ainst  conductor  for  not  collecting  fares, 
see  Conductor,  8. 

1.  When  assumpsit  will  lie.— Where 
a  party  agrees  to  do  certain  work  in  the  con- 
struction of  a  railroad,  to  be  paid  partly  in 
cash  and  partly  in  stock  of  the  company, 
and  does  extra  work  for  which  he  is  entitled 
to  be  paid,  the  whole  of  the  payment  for  the 
extra  work  is  to  be  paid  in  money  as  upon 
an  implied  assumpsit.  Childs  v.  Somerset  &• 
K.  R.  Co.,  Brunner  Col.  Cas.  {U.  S.)  593. 

Where  a  right  of  way  is  conveyed  to  a 
company  on  condition  that  it  will  erect  and 
maintain  necessary  crossings  and  fences,  an 
acceptance  of  the  deed  and  entering  upon 
the  land  raises  an  implied  contract,  and  upon 
the  failure  of  the  company  to  carry  out  the 
conditions  of  the  deed  the  injured  party 
may  maintain  assumpsit.  Wtllenborg  v. 
Illinois  C.  R.  Co.,  ix  III.  App.  298. 

Where  a  debtor  abandons  his  contract,  and 
the  owner,  being  indebted  to  the  contractor 
for  work  done,  pays  the  laborers,  deducting 
what  they  owe  A.,  then  pays  A.,  deducting 
what  he  owes  B.,  all  parties  thus  paid  acced- 
ing to  the  arrangement,  there  is  an  implied 
undertaking  on  the  part  of  the  owner  to  pay 
B.  the  amounts  thus  retained,  and  B.  has  a 
right  of  action  therefor  upon  the  implied 
promise  thus  made  for  his  benefit.  Gibson 
V.  St.  Louis,  K.  C.  <S-  N.  R.  Co.,  76  Mo.  549; 
affirming  7  Afo.  App.  586. 

Assumpsit  will  not  lie  for  labor  performed 
and  materials  furnished  to  a  railroad  com- 
pany under  a  contract  under  seal.  Porter  v. 
Androscoggin  &•  K.  R.  Co. ,  37  Me.  349.  See 
also  Gately  v.  Kniss,  64  Iowa  537,  21  N.  W. 
Rep.  21. 

The.  relation  of  trustee  and  cestui  que 
trust  exists  in  a  qualified  sense  as  between 
the  directrrs  and  the  stockholders,  and  the 
funds  in  the  hands  of  the  former  in  which 


the  latter  have  an  interest  cannot  be  sued 
for  in  an  injunction  of  general  indebitatus 
assumpsit,  unless  a  dividend  has  been  de- 
clared. State  v.  Baltimore  &*  O.  R.  Co.,  6 
Gill  (Md.)  363. 

A  civil  engineer,  on  settlement  of  his 
account  with  a  railway,  was  induced  to  ac- 
cept bonds  of  the  company  in  payment,  on 
the  representations  of  the  president  that  the 
bonds  were  worth  eighty-five  cents  on  a 
dollar  and  that  the  railroad  had,  up  to  that 
time,  paid  all  expenses  of  operation  and 
interest  on  indebtedness,  aiid  it  afterwards 
appeared  that  the  company  had  not  paid 
expenses  and  interest  from  the  earnings  of 
the  road,  and  it  was  not  shown  that  the 
president  had  knowledge  of  this  fact,  or  of 
the  value  of  the  bonds  at  the  time,  but  that 
some  three  months  afterward  they  were  of 
little  value.  Held,  not  such  fraud  as  to 
authorize  an  opening  of  the  settlement  and 
a  suit  to  recover  for  the  services.  St.  Louis 
&-  S.  IV.  R.  Co.  V.  Rice,  85  ///.  406. 

2.  Election  between  this  and  other 
forms  of  action. — Where  a  street-car 
company,  under  its  charter,  is  required  to 
pave  between  tracks,  and  fails  to  do  so,  the 
proper  remedy  of  the  city  to  recover  for  the 
cost  of  the  paving  is  an  action  of  assumpsit, 
not  of  debt.  District  of  Columbia  v.  Wash- 
ington 6^  G,  R.  Co.,  4  Am.  &-  Eng.  R.  Cas. 
i6i,  I  Mackey  {D.  C.)  36r.— Reviewing 
Pennsylvania  R.  Co.  v.  Duquesne  Borough, 
46  Pa.  St.  224 ;  Oconto  v.  Chicago  &  N.  W. 
R.  Co.,  44  Wis.  238. 

3.  Common  counts. — A  recovery  may 
be  had  upon  the  common  counts  for  an 
instalment  due  from  a  stockholder  upon  a 
call  of  an  incorporated  company.  Gayle  v. 
Cahawba  6-  M.  R.  Co.,  8  Ala.  586. 

A  railroad  aid  note  conditioned  on  the 
completion  of  the  road  to  a  certain  point 
may  be  sued  on  by  the  payee,  when  absolutely 
payable,  in  an  action  on  the  common  counts. 
Port  Huron  <&-  S.  IV.  R.  Co.  v.  Potter,  55 
Mich.  627,  22  N.  W.  Rep.  70. 

Plaintiffs  and  defendant  entered  into  a 
special  contract  by  which  the  plaintiffs 
were  to  make  certain  sections  of  defendant's 
railroad  in  a  special  manner,  under  the 
supervision  and  control  of  the  defendant's 
engineers,  to  be  completed  by  a  specified 
time  and  at  a  specified  price ;  estimates 
were  to  be  made  by  the  engineers,  and 
acquittances  executed  by  the  plaintiffs. 
Much  of  the  work  was  done  under  the 
contract,  and  the  road  partly  finished  and 


486 


ASSUMPSIT,  4. 


partly  paid  for,  but  the  plaintiffs  failing  lo 
complete  tiie  work  in  the  time  specified, 
they  continued  it,  with  the  consent  of  the 
defendant,  until  it  was  completed,  or  ac- 
cepted as  completed  by  the  defendant's 
engineers  having  tlie  supervision  and  con- 
trol of  it,  and  final  estimates  were  made  and 
rendered.  Held,  that  the  plaintiffs  could  re- 
cover in  assumpsit  under  the  common 
counts.  Baltimore  i&»  O.  R.  Co.  v.  Lafferty, 
2  W.   Va.  104. 

4.  Money  had  and  received.— (i) 
General  rules. — Whenever  the  defendant  has 
received  money  which  is  the  property  of 
the  plaintiff,  and  which  the  defendant  is 
obliged,  by  the  ties  of  natural  justice  and 
equity,  to  refund,  the  action  for  money  had 
and  received  maybe  maintained.  Missouri 
Pac.  R.  Co.  v.  McLiney,  32  Mo.  App.  166. 
Wells  v.  American  Exp.  Co.,  49  IVis.  224,  5 
iV.  W.  Rep.  333. 

Where  a  town  has  issued  bonds  in  aid  of 
a  railroad,  taxes  assessed  upon  the  road  in 
the  town  should  be  paid  to  the  town,  to  be 
applied  to  the  payment  of  such  bonds,  under 
the  New  York  statute ;  and  such  taxes  hav- 
ing been  collected  and  paid  to  the  county 
treasurer,  who  has  paid  them  out  for  general 
puri)oses,  including  state  taxes,  the  town 
supervisor  may  maintain  an  action  against 
the  treasurer  for  money  had  and  received. 
Strough  V.  Supervisors  of  Jefferson  County, 
119  N.  V.  212,  23  N.  E.  Rep.  552,  28  A'.  Y. 
S.  R.  967 ;  affirming  Jo  Hun  54,  3  A^.  Y. 
Stipp.  no,  23  A^.  Y.  S.R.  940.— Following 
Bridges  v.  Supervisors  of  Sullivan  Co.,  92 
N.  Y.  570. 

A  railroad  company  may  recover  in  gen- 
eral assumpsit  from  its  treasurer  the  money 
which  he  has  received  from  the  sale  of 
its  stock  fraudulently  overissued  by  him, 
where  such  spurious  stock  has  become  so 
intermingled  with  the  genuine  as  to  be  in- 
distinguishable, and  the  company  has  been 
compelled  to  treat  it  as  genuine.  Rutland 
R.  Co.  v.  Haven,  62  Vt.  39,  igAtl.  Rep.  769. 
—Following  State  v.  St.  Johnsbury,  59 
Vt.  332. 

Although  the  stock,  when  issued,  may 
have  been  absolutely  void,  and  the  issuing 
of  it  a  crime,  the  treasurer  cannot  allege  the 
illegality  of  his  act  as  a  reason  why  he 
should  not  pay  over  the  money.  Rutland 
R.  Co.  V.  Haven,  62  Vt.  39,  19  At  I.  Rep.  769. 

Although  the  person  representing  the 
company  had  no  authority  under  the  char- 
ter or  by-laws  to  make  the  agreement  sued 


on,  yet  if  he  and  the  plaintiff  acted  under 
a  mutual  mistake  as  to  his  power,  the  law- 
raises  ari  implied  promise  on  the  part  of 
the  company  to  pay  back  the  money  and  in- 
terest. IVeeden  v.  Lake  Erie  &>  M.  R.  R. 
Co.,  14  Ohio  563. 

Assumpsit  for  money  had  and  received 
will  not  lie  to  recover  from  a  railroad  com- 
pany an  amount  paid  by  plaintiff  for  freight 
on  goods  in  excess  of  the  rates  the  com- 
pany were  by  law  entitled  to  exact;  the 
payment  having  been  made  after  the  goods 
had  been  carried  and  delivered,  and  withi  ut 
objection,  protest,  or  notice  of  discontent. 
Kenneth  v.  South  Carolina  R.  Co.,  1 5  Rich. 
(S.Car.)  284. 

(2)  Illustrations.  —  \  railroad  company, 
of  which  both  plaintiff  and  defendant  were 
directors,  transferred  to  the  former,  by  reso- 
lution of  the  board  of  directors,  a  quarter's 
pay  due  from  the  Post-office  Department  on 
a  contract  for  carrying  the  mail  (which  con- 
tract was  in  defendant's  name),  as  collateral 
security  for  his  indorsement  of  a  note  for 
the  benefit  of  the  company,  which  he  subse- 
quently paid ;  and  afterward,  by  another 
resolution,  transferred  the  same  quarter's 
pay  to  defendant  for  the  purpose  of  paying 
other  debts,  which  defendant  accordingly 
paid.  Held,  that  plaintiff  might  maintain 
assumpsit  for  money  had  and  received 
against  the  defendant,  to  the  amount  paid 
on  the  note.  Sherrod  v.  Hampton,  25  Ala, 
652. 

Plaintiffs  paid  their  note  to  a  railroad 
company  before  maturity  in  railroad  bonds, 
but  by  an  oversight  failed  to  take  up  the 
note,  which  was  negotiated  before  maturity, 
and  they  were  compelled  to  pay  it.  After 
suit  was  brought  against  them  and  before 
judgment  they  instituted  suit  against  the 
company  for  money  paid  and  money  had 
and  received.  Held,  that,  as  the  bonds  were 
taken  the  same  as  cash  in  payment  of  the 
note,  the  action  could  be  maintained.  Con- 
necticut &*  P.  R.  R.  Co.  V.  Newell,  31    Vt. 

364- 

The  paymaster  of  a  railroad  paid  the  salary 
of  one  employe  to  another  upon  an  order  in 
favor  of  the  party  receiving  the  money,  but 
he  afterward  discovered  that  lie  had  paid 
the  same  salary  to  the  employe  earning  it  at 
another  place.  Held,  that  the  money  could 
be  recovered  from  the  person  holding  the 
order,  although  the  order  was  given  before 
the  payment  to  the  person  giving  it,  but 
where  the  company  had   no   notice   of  it 


ASSUIylPSIT,  5,  6. 


487 


lulcr 
:  law 
rt  of 
d  in- 
A".  A\ 


until  after  such  payment.  Stebbins  v.  Union 
Pacific  R.  Co.,  2   IVyom.  71. 

Plaintif!  loaned  money  to  the  treasurer  of 
a  corporation,  for  the  corporation,  under  the 
belief  that  he  was  authorized  to  borrow,  but 
it  appeared  that  under  the  by-laws  of  the 
company  he  and  the  president  were  author- 
ized to  borrow  and  sign  notes  in  the  name 
of  the  company.  The  money  borrowed  was 
used  in  paying  the  debts  of  the  corporation, 
but  it  appeared  that  the  treasurer  was  a 
defaulter  at  the  time,  and  that  the  money 
was  used  to  cover  up  his  defalcation  by 
paying  company  debts  created  by  reason  of 
his  former  embezzlement.  Held,  that  an 
action  for  money  had  and  -'■"•ived  would 
not  lie  against  the  corporation.  Craft  v. 
South  Boston  R.  Co.,  28  Am.  &*  Eng  Corp. 
Cas.  579,  150  Mass.  207,  2  B^g.  L.  /.  276,  5 
L.  R.  A.  641,  22  N.  E.  Rep.  920. 

5.  Pleading  and  evidence.— PlaintiiT 
sued  to  recover  for  services  under  a  contract 
employing  him  as  the  general  agent  of  de- 
fendant company  for  at  least  six  months,  or 
until  a  contract  made  on  the  same  day  by 
the  defendant  company  with  another  rail- 
road company  should  be  rescinded.  Held, 
that  it  was  not  necessary  for  plaintiff  to  al- 
lege that  the  contract  with  the  other  com- 
pany still  remained  in  force,  such  matters 
being  proper  for  the  defense.  Kitchen  v. 
Cape  Girar dealt  &*  S.  L.  R.  Co.,  59  Mo.  514, 
8  Am.  Ry.  Rep.  481. 

A  railroad  company  appointed  plaintifT 
their  "permanent  land  com  lissioner"  and 
notified  him  of  his  appointment  by  letter 
with  the  corporate  seal  attached.  He  after- 
ward sued  in  assumpsit  for  a  wrongful  dis- 
missal. Held,  that  he  could  not  set  up 
the  hiring  as  under  seal  in  that  form  of 
action.  Belch  v.  Manitoba  &*  N.  IV.  R.  Co., 
4  Man.  198. 

In  assumpsit  upon  a  promissory  note,  al- 
leged to  have  been  made  by  the  W.  I.  R.  W. 
&  C.  Co. ,  payable  to  defendants,  and  indorsed 
by  them  to  plaintiffs,  a  plea  that  the  writing 
sued  on  is  an  instrument  under  the  seal  of 
the  company  and  not  a  promissory  note,  or 
negotiable  as  such,  is  good  on  demurrer. 
The  declaration  is  also  good,  as  the  court 
could  not  assume  that  the  company  was 
not  authorized  to  make  notes.  Merritt  v. 
Maxwell,  14  U.C.  Q.  B.  50. 

Where  a  party  declares  in  assumpsit 
against  a  common  carrier  or  bailee  for  hire, 
without  regard  to  the  bills  of  lading  which 
he  receives  from  the  carrier  for  the  trans- 
portation of  goods,  and  which  appear  from 


their  face  to  be  special  contracts,  to  the 
stipulations  whereof  both  parties  are 
equally  bound,  he  cannot  introduce  the  bills 
in  evidence,  they  not  being  applicable  to 
any  of  the  counts  in  the  declaration.  Balti- 
more Qr'O.R.  Co.  V.  Rathbone,  i  W.  Va.  87. 
—Quoted  in  Kline  v.  McLain,  33  W.  Va., 

32. 

An  action  was  brought  against  a  railroad 
company  to  recover  for  services  rendered. 
The  plaintifT  had  been  engaged  in  obtaining 
a  loan  for  an  investment  company.  The 
defendant  sought  to  prove  that  the  invest- 
ment company  was  the  real  owner  of  the 
railroad  and  that  the  plaintiff  was  estopped, 
by  his  representations  to  it,  from  making 
any  claim  for  his  services.  Held,  that  as  the 
investment  company  was  not  a  party  to  the 
action,  the  evidence  was  inadmissible.  Ten 
Eyck  V.  Pontiac,  O.  &•  P.  A.  R.  Co.,  37  Am. 
&•  Eng.  R,  Cas.  273,  74  Mich.  226,  41  A'.  W. 
Kep.  905,  3  L.  R.  A.  378. 

Plaintiff  sued  to  recover  for  services  ren- 
dered under  a  contract  with  defendant  cor- 
poration appointing  him  as  its  general 
agent.  Held,  that,  after  plaintiff  had  shown 
a  contract  to  employ  and  pay  him.  it  was  not 
necessary  for  Iiim  to  prove  a  subsequent 
contract  or  agreement  to  pay  him  ;  and  that, 
after  he  had  proven  that  he  had  once  noti- 
fied the  company  of  his  constant  readiness 
to  perform  the  services  contracted  for,  it 
was  not  necessary  for  him  to  show  that  from 
lime  to  time  he  gave  further  notice  of  his 
address  and  where  notice  would  reach  him. 
Kitchen  v.  Cape  Girardeau  &*  S.  L.  R.  Co. , 
59  Mo.  514,  8  Am.  Ry.  Rep.  481. 

O.  Quantum  meruit.— In  an  action  of 
quantum  meruit  for  services  rendered  a  re- 
covery is  not  warranted  in  the  absence  of 
evidence  either  of  the  reasonable  value  of 
the  services  or  of  a  special  contract  fixing 
the  rate  of  compensation.  Sanfordw.  Cape 
Girardeau  &•  S.  W.  R.  Co.,  40  Mo.  App.  15. 

When,  in  the  performance  of  a  contract  for 
work,  its  stipulations  are  deviated  from  by 
mutual  agreement,  the  contract  prices  gov- 
ern, if  applicable;  but  if  the  deviation  re- 
lates to  extra  work  not  provided  for  in  the 
contract,  the  party  performing  the  work  may 
recover  on  a  quantum  meruit.  Houston,  E. 
6-  W.  T.  R.  Co.  V.  Snelling,  59  Te.v.  116. 

One  who  performs  services  for  a  railway 
company,  under  a  special  agreement  that  he 
siiould  receive  therefor  an  annual  pass  over 
defendant's  road,  may,  upon  refusal  of  de- 
fendant to  give  the  pass,  recover  upon  a 
quantum  meruit  for    his    services,  as  the 


' 


488 


ASSUMPSIT,  7,8. 


I 

a 


1 1 

'1    1 


k       * 


value  of  such  pass  is  impossible  of  proof  or 
of  estimation  as  a  measure  of  damages. 
Brown  v.  St.  Paul,  M.  &>•  M.  /?.  Co.,  36 
Minn.  236,  31  A''.  IV.  Rep.  941. 

7.  Use  and  occupation.— (i)  When 
action  will  lie. — Where  a  corporation  has 
actually  used  and  occupied  land  for  a  cor- 
porate purpose,  by  permission  of  the  owner, 
it  is  liable  for  use  and  occupation,  though 
there  is  no  contract  under  seal.  Lowe  v. 
London  &* N.  IV.  R.  Co.,  tSQ.B.  632,17  Jur. 
375,  21  L.J.  Q.  B.  361,  7  Railw.  Cas.  524. 

Where  a  corporation  occupying  premises 
was  a  railway  company,  within  the  provision 
of  8  &  9  Vic.  c.  16,  Companies  Clauses 
Act,  §  97,  authorizing  parol  contracts  by 
the  directors  of  a  company,  a  parol  contract 
may  be  presumed  against  the  company  in 
an  action  for  use  and  occupation  in  the  ab- 
sence of  direct  evidence  to  the  contrary. 
Lowe  V.  London  &*  N.  W.  R.  Co.,  18  Q.  B. 
632,  17  Jur.  375,  21  Z.  /.  Q.  B.  361,  7 
Railw.  Cas.  524. 

Although  a  corporation  may  be  liable  for 
use  and  occupation  of  premises,  it  can  only 
be  so  for  the  period  of  actual  occupation ; 
and  a  continuous  occupation  for  several 
years  will  not  render  it  a  tenant  from  year 
to  year.  Finlay  v.  Bristol  R.  Co.,  7  Exch. 
409,  7  Railw.  Cas.  449,  21  L./.  Exch.  1 17. 

Where  the  tenancy  was  not  for  any 
definite  period,  the  fact  that  the  landlord 
commenced  proceedings  against  the  tenant 
railroad  company  to  compel  it  to  pay  for 
the  lot,  which  proceedings  resulted  in  a  sur- 
render of  the  possession  to  him,  will  not 
prevent  his  recovering  for  the  use  and  occu- 
pation prior  to  the  commencement  of  those 
proceedings.  Vt'ittman  v.  Milwaukee,  L.  S. 
6-  :-  ^  ..51  Wit.  89,  8  N.  W.  Rep.  6. 
:iiv.'<  will  not  lie. — An  action 
-psit  will  not  lie  for  use  and 
.'  -'.J^\.  of  way  over  the  plain- 
.oad  when  such  holding 
has  been  autrtiie.  McLendon  v.  Atlanta  &* 
W.  P.  R.  Co.,  54  Ga.  293. 

Where  there  is  a  lease  under  seal,  an  aic- 
tion  for  use  and  occupation  cannot  be 
maintained,  either  against  the  lessee  or  his 
assignee;  the  action  must  be  upon  the 
demise  to  recover  the  rent  reserved.  JCter- 
sted  V.  Orange  <S-  A.  R.  Co.,  69  N.  Y.  343, 
reversing  54  How.  Pr,  29. 

Assumpsit  for  the  use  and  occupation  of 
land  can  only  be  maintained  where  the  rela- 
tion of  landlord  and  tenant  exists ;  so  where 
a  railroad  company  enters  upon  the  land  of 
another  under  an  agreement  to  purcliaso. 


V      J 

;  i'  i€  ■ 

.-•  V.' 

-i  .e-j «. 

0';ci\^ 

;'-uii 

tills 

tiie  action  will  not  lie  against  it  for  a  subse- 
quent failure  to  comply  with  the  agreement. 
Stacy  V.  Vermont  C.  R.  Co.,  32  Vt.  551. — 
Quoted  in  Adams  County  v.  Burlington 
&  M.  R.  R.  Co.,  55  Iowa  94. 

8.  Amount  recoverable.  —  Where 
plaintiff  sues  in  assumpsit  to  recover  for 
water  furnished  to  a  railroad  company,  which 
he  would  not  have  used  himself,  the  true 
measure  of  damages  is  the  value  of  the 
water  to  the  company ;  and  it  is  i;o  defense 
that  plaintiff  would  not  have  used  the  water 
himself.  Chicago  &•  R.  I.  R.  Co.  v.  AWth- 
ern  L,  C.  &•  /.  Co.,  36  ///.  60. 

There  was  a  dispute  between  plaintiff  and 
others  as  to  their  right  to  use  a  railroad 
which  belonged  to  plaintiff.  Before  the 
suit  was  commenced  plaintiff  informed  them 
that  if  they  continued  to  use  the  road  they 
must  pay  him  a  specified  sum.  Held,  that, 
notwithstanding  such  notice,  he  could  only 
recover  a  reasonable  sum  as  compensation 
for  the  use  of  the  road.  Kittredge  v.  Peaslee, 
3  Allen  {Mass.)  235. 


In- 


ASSUMPTION. 

Of  facts  in  instructions,   see    Animals, 
JURIES  TO,  570;  Appeal,  43,  78. 

—  risk  by  owner  of  private  car,  see  Private 
Cars,  2. 

— employes,  see  Employes.     Injuries 

TO,  II. 


ATTACHMENT;  GARNISHMENT; 

TRUSTEE  PROCESS. 

1.  JXTBISDICTIOK 489 

n.  THE  BIGHT  OF  ACTION.    WHO  HAT 

SUE 489 

m.  WHO  MATBE8UED 490 

1.  As  Principal  Debtor 490 

2.  As  Garnishee  or  Trustee. . .     491 
IV.  WHAT  MAT  BE  BEACHED.    EXEMP- 
TIONS   494 

1.  What  Property  or  Interests 

May  be  Reached 494 

2.  Exemptions 499 

▼.  PBOCEDXJBE 502 

1.  Suing  Out  the  Writ 502 

2.  Service,  Levy,  and  Custody 

of  the  Property 503 

3.  Quashing   or  Vacating 505 

4.  Fixing  the  Liability  of  the 

Garnishee  or  Trustee ....    506 

5.  Claims   of   Third  Persons; 

Priority;  Intervention . . .  509 

6.  The  Judgment ;    How  En- 

forced and  How  Reviewed.  510 


ATTACHMENT;   GARNISHMENT;   TRUSTEE    PROCESS,  1-6.    489 


I.   JURISDICTION. 

1.  In  general  —  l^xisteuce  of  equi- 
table remedy.— The  statutory  remedy  by 
garnishment  is  a  legal  one,  and  ordinarily 
contemplates  only  such  rights,  credits,  and 
effects  as  are  of  a  legal  nature,  and  are 
not  encumbered  with  the  embarrassments 
tiirown  around  trust  estates ;  if  they  are  thus 
involved,  a  proceeding  in  equity  is  the  more 
appropriate  remedy.  Galveston,  H.  &*  S.A. 
Ji.  Co.  V.  McDonald,  53  Tex.  510. — Reviewed 
IN  Galveston,  H.  &  S.  A.  R.  Co.  v.  Butler,  9 
Am.  &  Eng.  R.  Cas.  552,  56  Tex.  506. 

Though,  as  a  general  rule,  when  a  third 
person  is  indebted  to  the  judgment-debtor, 
or  has  in  his  possession  property  or  effects 
of  such  debtor,  the  law  affords  an  adequate 
remedy  by  garnishment,  yet  that  remedy 
has  especial  application  to  legal  right-. 
When  the  right  to  recover  is  embarrassed 
by  questions  growing  out  of  trusts,  fraudu- 
lent conspiracy,  and  the  like,  a  proceeding 
in  equity  affords  a  more  appropriate  remedy. 
Galveston,  H.  &*  S.  A.  R.  Co.  v.  Hume,  59  Tex. 
47.— Following  Galveston,  H.  &  S.  A.  R. 
Co.  V.  Butler,  9  Am.  &  Eng.  R.  Cas.  552,  56 
Tex.  506. 

2.  Debt  coutracted  and  payable  in 
another  state.* — Where  a  debt  was  con- 
tracted in  another  state  and  is  there  pay- 
able by  the  terms  of  the  contract,  the  courts 
of  Missouri  have  no  jurisdiction  to  proceed 
to  judgment  in  garnishment  on  account  of 
such  an  indebtedness.  Todd  v.  Missouri 
Pac.  R.  Co.,  33  Mo.  App.  1 10. 

3.  Torts  coniuiitted  in  another 
state. —Courts  of  general  jurisdiction  in 
Wisconsin  entertain  actions  for  personal  in- 
juries where  the  act  complained  of  is  com- 
mitted in  another  state;  therefore,  where 
the  action  is  against  a  foreign  railroad  com- 
pany, jurisdiction  may  be  obtained  by  attacli- 
ment  in  Wisconsin  and  service  of  process,  as 
required  by  statute.  Curtis  v.  Bradford,  33 
Wis.  190. 

4.  Effect  of  suit  pending  in  an- 
other jurisdiction.t- In  an  action  to 
recover  money  due  by  a  railroad  on  con- 
tract, it  is  a  sufficient  defense  to  show  that 
the  money  sought  to  be  recovered  has  been 
attached  by  process  of  garnishment  duly 
issued  by  a  court  of  a  sister  state,  in  an  ac- 
tion there  prosecuted  against  the  plaintiff 
by  his  creditors,  although  it  appear  that  the 

*  See  also /oj/,  154. 

f  See  also  Abatement,  2. 


plaintiff  and  sucii  creditors  arc  all  residents 
of  this  state.  Baltimore  6r»  0.  R.  Co.  v.  May, 
25  Ohio  St.  347,  10  Am.  Ry.  Rep.  155.— FOL- 
LOWED IN  Moore  v.  Chicago,  R.  I.  &  P.  R, 
Co.,  43  Iowa  385.  Reconciled  in  Missouri 
Pac.  R.  Co.  V.  Shariti,  44  Am,  &  Eng.  R. 
Cas.  657,  43  Kan.  375. 

Where  a  South  Carolina  railroad  enters 
the  state  of  Georgia,  the  pendency  of  a  bill 
to  foreclose  a  mortgage  on  the  road  and  for 
the  appointment  of  a  receiver  in  a  federal 
court  in  South  Carolina  will  not  prevent 
the  attachment  of  the  company's  property 
in  Georgia,  where  the  bill  in  the  foreclosure 
suit  is  not  a  general  creditor's  bill,  though 
some  of  the  plaintiffs  in  the  attachment 
were  defendants  tlierein  before  any  levy  was 
made,  and  others  were  made  so  afterward. 
South  Carolina  R.  Co.  v.  People's  Sav.  Inst., 
12  Am.  &*  Eng.  R.  Cas.  432,  64  Ga.  18. 

5.  Conflicting:  attachments  — One 
first  served  good. — A  creditor  of  a  rail- 
road company  began  an  action  at  law  in  a 
United  States  circuit  court,  and  attached 
several  cars.  The  mortgagees  of  the  road 
replevied  the  cars  in  a  suit  in  a  state  court, 
and  took  them  out  of  the  marshal's  hands 
by  the  sheriff.  The  marshal  defended  the 
replevin  suit,  and  set  up  the  authority  by 
which  he  held  the  property.  Held,  that  the 
question  which  authority  or  jurisdiction 
should  prevail  depended  upon  which  had 
first  seized  the  property,  and  not  upon  the 
respective  rights  of  the  parties  to  the  prop- 
erty. Freeman  v.  Howe,  24  How.  {U.  S.) 
450. 

II.  THE  RIGHT  OF  ACTION  ;  WHO  MAT  SUE. 

6.  When  attachment  is  proper  rem- 
edy.—An  action  to  enforce  a  laborer's 
lien  on  cord-wood,  under  Wis.  Rev.  St.  ch. 
143,  as  amended,  is  a  legal  proceeding,  and 
garnishment  may  be  resorted  to  in  aid 
thereof.  O'Reilly  v.  Milwaukee  &»  N.  W. 
R.  Co.,  68  Wis.  212,  31  A^  W.  Rip.  485. 

Under  N.  Y.  Code  Civ.  Proc.  §  635,  au- 
thorizing an  attachment  in  actions  to  recover 
a  sum  of  money  only,  for  breach  of  contract, 
whether  express  or  implied,  other  than  a 
contract  of  marriage,  an  attachment  may  be 
issued  against  a  railroad  corporation  to  re- 
cover the  amount  of  certain  coupons  and 
scrip  certificates  issued  by  the  company,  and 
payable  out  of  its  net  income.  Seeley  v.  Mis- 
souri, K.  df  T.  R.  Co.,  39  Fed.  Rep.  252. 

A  merchant  and  shipper,  after  several 
years    in    business,   secretly    changed    the 


m 


iB 


;,tiS,' 


40O    ATTACHMENT;   GARNISHMENT;   TRUSTEE    PROCESS,  7-0. 


I 


iff 


w 


business  from  his  own  right  to  that  of  agent, 
and  gave  checits  to  a  common  carrier  for 
freights,  which  were  protested  for  want  of 
funds.  He/d,  good  grounds  for  an  attach- 
ment for  conveying  or  assigning  property 
to  hinder  and  delay  creditors.  Barrett  v. 
Spaids,  70  ///.  408. 

7.  Right  of  uon-residciit  to  8iie.— 
A  non-resident  may  proceed  by  attachment 
against  his  debtor,  and  garnishee  a  railroad 
of  another  state  doing  business  in  Illinois. 
A  court  of  equity  has  not  jurisdiction  to  en- 
join such  a  proceeding.  Missouri  Pac.  R. 
Co.  V.  Flannigan,  47  ///.  App.  322. — FOL- 
LOWiNO  Wabash  R.  Co.  v.  Dougan,  41 
111.  App.  543. 

Under  N.  Y.  Code,  §  427,  allowing  an  ac- 
tion in  certain  New  York  courts  against 
foreign  corporations  by  "a  resident  of  New 
York  for  any  cause  of  action,"  or  "  by  a 
plaintiff  not  a  resident  of  said  state  wlien 
the  cause  of  action  shall  have  arisen,  or  the 
subject  of  the  action  shall  be  situated  within 
this  state,"  a  noti-resident  plaintiff,  claiming 
damages  for  breach  of  a  contract  not  made 
in  the  state,  cannot  maintain  an  attachment 
against  such  foreign  corporation.  In  such 
case  "the  subject  of  the  action,"  within  the 
meaning  of  the  statute,  is  the  claim  asserted 
by  the  plaintiff,  and  not  the  property  against 
which  he  attempts  to  enforce  the  claim. 
Whitehead  v.  Buffalo  <S<*  L.  H.  R.  Co.,  18 
How.  Pr.  (N.  y.)  218. 

As  under  So.  Car.  Code,  §  423,  a  non-resi- 
dent can  sue  a  foreign  corporation  only  in 
case  the  cause  arose  or  the  subject  is  situated 
within  the  state,  he  cannot  under  any  other 
circumstances  obtain  an  attachment.  Cen- 
tra/ R.  &-  B.  Co.  V.  Georgia  C.  &*  /,  Co.,  32 
So.  Car.  319,  II  S.  E.  Rep.  192,  638. 

The  property  upon  which  attachments  are 
levied  is  not  the  subject  of  the  action  in  aid  of 
which  the  attachments  are  issued,  within  the 
meaning  of  So.  Car.  Code,  §  423,  providing 
that  an  action  against  a  foreign  corporation 
may  be  brought  by  a  plaintiff  not  a  resident 
of  the  state  when  the  subject  of  the  action 
is  situated  within  the  state.  Central  R.  &* 
B.  Co.  V.  Georgia  C.  &->  I.  Co.,  32  So.  Car. 
319,  II  5.  £■.  Rep.  192,  638. 

Where  the  demand  for  which  the  action 
was  brought  arose  upon  written  contracts 
for  the  payment  of  money  made,  executed, 
delivered,  and  made  payable  in  Canada,  and 
all  the  labor  done  and  materials  furnished 
were,  under  those  contracts  and  upon  work 
located  in  Canada,  for  a  railroad  created  by 


the  laws  of  Canada  and  existing  there,  ex- 
cept a  small  part,  which  was  performed  in 
New  York  by  virtue  of  said  contracts — held, 
not  a  case  where  the  subject  of  the  action 
was  situated  in  New  York ;  and  although 
the  defendant  (the  forei.Tjn  corporation)  had 
property  in  this  state  liable  to  attachment, 
the  attachment  could  not  be  sustained  by 
a  non-resident  plaintiff.  Campbell  v.  Cham- 
plain  &•  St.  L.  R.  Co.,  18  How.  Pr.  {N.  Y.) 
412. 

III.  WHO  MAY  BE  SUED. 

I .  As  principal  debtor. 

8.  In  general. — In  an  action  to  recover 
the  sum  of  $45,000  and  interest,  as  damages 
for  the  breach  of  an  alleged  contract  to  de- 
liver to  plaintiff  certain  town  bonds,  an  at- 
tachment may  properly  issue  agiiinst  a  non- 
resident defendant.  Clews  v.  Rockford,  R.  I. 
&•  St.  L.  R.  Co.,  2  Hun  (N.  V.)  379, 4  3".  <S-  C. 
669. 

A  corporation  cannot  be  attached,  but  can 
only  be  made  a  party  to  a  suit  by  sumnjons 
and  distringas.  Glaizev.  South  Carolina  R. 
Co.,  I  Strobh.  (So.  Car.)  70. 

Under  Tay.  Wis.  St.  1 566,  §  103,  a  gar- 
nishment proceeding  may  be  maintained 
against  a  debtor  corporation.  Everdell  v. 
Sheboygan  &•  F.  du  L.  R.  Co.,  41  Wis.  395. 
— Following  Ballston  Spa  Bank  7/.  Marine 
Bank,  18  Wis.  490;  Pierce  z*.  Milwaukee  C. 
Co.,  38  Wis.  253. 

Under  the  Attachment  Act,  37  Vic.  c.  7,  § 
I,  providing  that  attachment  may  issue 
against  "the  property,  real  or  personal, 
within  this  province,  of  any  defendant, 
which  by  law  is  liable  to  be  taken  in  execu- 
tion," an  attachment  may  issue  against  the 
property  of  a  railroad  corporation.  The 
duty  it  owes  to  the  public  to  run  cars  will 
not  exempt  it  from  the  operation  of  the 
statute.  Kitchen  v.  Chatham  B.  R.  Co.,  17 
A''^w.ffr««.  215.— Distinguishing  Gardiner 
V.  London,  C.  &  D.  R.  Co.,  L.  R.  2  Ch.  201. 

9.  Xoii -resident  corporations. — A 
statute  allowing  a  non  -  resident  railroad 
company  to  extend  its  line  into  the  state  of 
Georgia,  and  making  it  liable  to  be  sued  in 
the  courts  of  the  state,  does  not  prevent  an 
attachment  against  it  as  a  foreign  corpora- 
tion. The  remedy  under  the  act  admitting 
it  to  the  state  is  merely  cumulative.  South 
Carolina  R.  Co.  v.  People's  Sai'.  Inst.,  12 
Am.  Sf  Eng.  R.  Cas.  432,  64  Ga.  18. 

A   foreign  corporation    admitted  to  do 


1 


ATTACHMKNT;   CARMSHMliNT;   TRL'STIiK  PROCESS,  lO,  11.  -191 


'A 


business  in  Illinuit,  aiui  liaving  property 
there,  may  be  gariiishid  without  a  previous 
demand.  Hannibal  <S>»  5/.  /.  K.  Co.  v.  Crane, 
102  ///.  249,40  Am.  Rep.  581.— Followed 
IN  Fairbaiik  v.  Cincinnati,  N.  O.  &  T.  P.  R. 
Co.,  54  Fed.  Rep.  420,9  U.  S.  App.  212,  4  C. 
C.  A.  403;  Wai)ash  R.  Co.  v.  Dougan,  142 
III.  248. 

A  foreign  corporation  admitted  to  do 
business  in  the  state  of  New  Jersey,  and 
owning  property  there,  is  not  Uable  to  at- 
taciiment.  PhilUpsburg  Bank  v.  Lacka- 
wanna K.  Co.,  27  N.J.  L.  206. 

In  the  absence  of  a  statute  giving  the 
courts  jurisdiction  generally,  a  foreign  cor- 
poration can  be  sued  in  Massachusetts  only 
by  attachment,  Andrews  v.  Michigan  C.R. 
Co.,  99  Afass.  534. 

Under  the  Missouri  Attachment  Act  of 
1855  foreign  corporations  can  only  be  pro- 
ceeded against  by  attachment  where  their 
chief  office  or  place  of  business  is  out  of  the 
state.  An  attachment  will  not  lie  against  a 
corporation  that  has  its  chief  office  or  place 
of  business  in  the  state.  Farnsworth  v. 
Terre  Haute,  A.  Cf  St.  L.  R.  Co.,  29  Mo.  75. 
—Reviewed  in  Robb  v.  Chicago  &  A.  R. 
Co.,  47  Mo.  540. 

The  Mobile  and  O.  R.  Co.,  a  corporation 
created  by  the  state  of  Alabama,  by  "an 
act  to  authorize  the  Mobile  &  O.  R.  Co.  to 
extend  their  railroad  from  the  south  bound- 
ary line  of  the  state  of  Kentucky  to  the 
Mississippi  or  Ohio  river,"  passed  by  the 
general  assembly  of  Kentucky,  and  ap- 
proved Feb.  26,  1846  (Sess.  Acts,  1847-8,  p. 
344-5),  had  conferred  on  said  corporation 
the  right  of  extending  the  road  through 
Kentucky;  and  the  said  act  further  pro- 
vided that  said  corporation  "shall  be  en- 
titled to  all  the  privileges,  rights,  and  im- 
munities, and  subject  to  all  such  restrictions 
as  are  granted,  made,  and  prescribed  for  the 
benefit,  government,  and  direction  of  said 
company  as  is  conferred  on  it  by  the  act  of 
incorporation  passed  by  the  legislature  of 
Alabama."  In  a  suit  in  the  Hickman  cir- 
cuit court,  in  Kentucky,  against  said  cor- 
poration to  coerce  the  payment  of  some 
bonds  issued  by  it,  the  plaintiff  sued  out  an 
attachment  against  the  defendant  on  the 
ground  that  it  was  a  foreign  corporation. 
The  circuit  court  dismissed  the  attachment. 
On  this  appeal  that  judgment  was  affirmed. 
Martin  v.  Mobile  <S-  O.  R.  Co.,  7  Bush  {Ky.) 
116.— Distinguishing  Ohio  &  M.  R.  Co. 
V.  Wheeler,  i  Black  (U.  S.)  295. 


10.  Noii-ruHideiit  leNMcv  ol'  road.— 

A  non-residont  who  leases  w  railroad  in 
.  Georgia  may  be  proceeded  against  by  at- 
tachment as  other  non-residents,  though  he 
is  liable  to  be  sued  the  same  as  the  railrcwd 
company  might  be.  Breed  v.  Mitchell,  48 
Ga.  533. 

2.  As  garnishee  or  trustee. 

11.  In  general.— A  corporation  is  sub- 
ject to  be  made  garnishee  under  the  laws  of 
Iowa.  Taylor  v.  Burlington  &*  M.  R.  R. 
Co.,  5  Iowa  114. 

The  same  considerations  of  public  policy 
which  exempt  other  public  officers  and 
agents  in  the  discharge  of  their  official 
duties  from  the  operation  of  garnishment 
laws  extend  to  common  carriers,  whenever 
the  application  of  the  statute  would  mani- 
festly and  necessarily  interfere  with  the 
proper  discharge  on  the  part  of  the  carrier 
of  its  public  duties  and  functions.  Michi- 
gan C.  R.  Co.  v.  Chicago  6-  M.  L.  S.  R.  Co., 
I  ///.  App.  399. 

Where  railroads,  canals,  or  other  com- 
panies for  transportation  of  freight  or  pas- 
sengers have  mutual  dealings  for  the  pro- 
motion of  their  business  or  public  conven- 
ience, the  relation  of  debtor  and  creditor 
must  depend  upon  the  course  of  such  deal- 
ings; and  the  liability  of  one  to  garnish- 
ment will  depend  on  the  nature  of  such 
dealings.  Baltimore  &*  O.  R.  Co.  v.  Wheeler, 
18  Md.  372. 

Where  goods  are  shipped  over  two  roads 
the  consignee  is  not  liable  in  attachment  as 
trustee  to  the  road  delivering  the  goods,  for 
the  freight  due  to  the  other  road.  Gould  v. 
Neit/buryport  R.  Co.,  14  Gray  {Mass.)  472. 

A  Massachusetts  railroad  that  has  an  ar- 
rangement with  other  lines  that  form  a  con- 
nection to  settle  and  pay  accounts  monthly 
with  the  company  whose  road  joins  it,  which 
payments  are  to  include  any  amounts  due 
the  roads  still  beyond,  is  not  liable  as  trustee 
in  foreign  attachment  to  the  corporation 
immediately  connecting  with  it  for  moneys 
due  the  other  corporations  under  the  agree- 
ment. Chapin  v.  Connecticut  River  R.  Co., 
16  Gray  (Mass.)  69. 

Under  the  Va.  Code,  ch.  151,  §  2,  which 
authorizes  a  plaintiff  in  an  action  at  law  to 
obtain  an  attachment  if  the  suit  be  to  re- 
cover money  for  a  claim,  or  damages  for  a 
wrong,  a  corporation  may  be  summoned  as 
garnishee.  Baltimore  &>  O.  R.  Co.  v.  Gal- 
lahue,  12  Gratt.  (Fa.)  655. 


■X 


49a     ATTACHMENT;   GARNISHMENT;   TRUSTEE  PROCESS,  12. 


I 

3 


i 


ill 


Under  Wisconsin  statutes  officers  <>{  a 
railroad  company  who  liave  money  or 
property  of  the  company  in  their  possession 
are  liable  to  garnishment.  Everdell  v.  She- 
boygan &*  F.dti  L,  R.  Co.,  41  Wis.  395. 

The  Boston  and  Maine  Railroad  is  a  cor- 
poration in  New  Hampshire,  amenable  to 
the  process  and  subject  to  the  jurisdiction 
of  the  courts  of  the  state,  and  answerable 
for  funds  collected  for  the  principal  defend- 
ants in  another  state,  without  any  express 
stipulation  as  to  the  place  of  their  payment. 
Smith  V.  Boston,  C.  &-  Af.  A\  Co.,  33  A'.  H. 
337.— Followed  in  Littleton  N.  Bank  t. 
Portland  &  O.  R.  Co.,  58  N.  H.  104. 

Where  a  railroad  company  contracts  with 
a  person  that  he  shall  furnish  at  a  given  sum 
per  mile  its  right  of  way  at  his  own  expense, 
purchasing  and  condemning  in  the  name  of 
the  company,  the  public  and  landowners  are 
not  bound  to  take  any  notice  of  the  inter- 
mediate contractor ;  as  to  them  the  com- 
pany is  the  only  responsible  party :  and 
where  a  right  of  way  had  been  condemned 
by  the  contractor  and  the  award  paid  to  the 
sheriff,  but  the  landowner  had  taken  an 
appeal,  and  the  company  had  been  gar- 
nished by  a  judgment-creditor  of  the  land- 
owner— hM,  that  the  contractor  was  bound 
to  take  notice  of  the  garnishment,  and  that 
his  payment  of  an  additional  sum  to  the 
landowner  in  settlement  of  the  appeal,  and 
for  a  deed  for  the  right  of  way  in  question,  did 
not  exonerate  the  company  from  liability,  as 
garnishee,  to  account  for  the  additional  sum 
so  admitted  to  be  due  to  the  landowner,  and 
that  judgment  in  this  case  had  been  properly 
rendered  against  it  as  garnishee  for  such 
sum.  Buchanan  County  Bank  v.  Cedar 
Rapids,  I.  F.  6-  N.  W.  R.  Co.,  20  Am.  6- 
En^.  R.  Cas.  417,  62  Iowa  494,  17  A^.  IV. 
Rep.  737. 

12.  Forelprii  Corporations.— A  rail- 
road company  incorporated  under  the  laws 
of  another  state,  operating  a  railroad  in 
Ohio  with  the  assent  of  the  legislature,  is 
liable  to  the  process  of  garnishment  pre- 
scribed by  the  Ohio  Civil  Code,  §  200;  and 
such  process  may  be  served  as  upon  domes- 
tic corporations.  Pennsylvania  R.  Co.  v. 
Peoples,  31  Ohio  St.  537.— REVIEWING  Mc- 
Gregor 7/.  Erie  R.  Co.,  35  N.  J.  L.  118. 

A  corporation  created  by  the  laws  of 
another  state,  but  having  an  office  in  Massa- 
chusetts for  its  president  and  treasurer, 
where  the  principal  business  of  the  company 
relating  to  such  offices  is  transacted,  is  lia- 


ble to  be  garnished,  under  the  act  of  1870, 
ch,  194,  providing  that  non-rcsid'  ts  and 
corporations  established  by  the  laws  of 
another  state  may  be  summoned  as  trus- 
tees if  they  have  their  usual  place  of  busi- 
ness in  this  commonwealth.  National  Bank 
of    Commerce    v.    Huntington,    129    Mass. 

444. 

The  fact  of  a  receiver  of  a  railway  cor- 
poration being  non-resident  is  immaterial, 
where  the  receiver  is  operat^ng  a  portion  of 
the  railway  within  the  jurisdiction  of  the 
court  issuing  the  garnishee  process,  and 
where  the  sum  due  the  judgment  debtor  is 
payable.    Phelan  v.  Ganebin,  5  Colo.  14. 

A  foreign  railroad  corporation  coming 
into  Kansas  and  leasing  and  operating  a 
line  of  railroad  there  may  be  garnished  for 
a  debt  due  to  one  of  its  employes,  although 
such  employ6  is  not  a  resident  of  this  state, 
and  although  the  debt  was  contracted  out- 
side of  the  state.  Burlington  &*  M.  R.  R.  Co. 
V.  Thompson,  16  Am.  (S>«  Eng.  R.  Cas.  480, 
31  Aa«.  180,  47  Am.  Rep.  497,  i  Pac.  Rep. 
622.— Approved  in  Carson  v.  Memphis  & 
C.  R.  Co.,  88  Tenn.  646. 

A  foreign  railroad  corporation  that  has 
accepted  the  privilege  of  extending  its  works 
through  New  York  state,  upon  the  condi- 
tion that  it  keeps  at  least  one  manager  or 
other  officer  resident  within  the  state,  on 
whom  process  in  actions  against  the  com- 
pany may  be  served,  may  be  made  gar- 
nishee in  an  attachment  execution,  in  respect 
to  a  debt  owing  by  it  to  a  non-resident. 
Fithian  v.  New  York  &*  E.  R.  Co.,  31  Pa. 
5/.  114. 

A  foreign  corporation  having  no  property 
of  the  debtor  in  Nebraska,  nor  owing  money 
to  him  payable  therei:.,  is  not  subject  to 
garnishment  in  that  state.  Wright  v. 
Chicago,  B.  6-  Q.  R.  Co..  25  Am.  <&-  Eng.  R. 
Cas.  427,  19  Nell.  175,  27  A'.  JV.  Rep.  90. 

Where  a  debt  is  contracted  in  Iowa,  the 
parties  residing  there,  and  a  creditor  of  the 
debtor  is  not  subject  to  garnishment  in  that 
state,  the  exemption  will  continue  in  New 
Hampshire  in  case  an  action  is  brought  on 
the  claim.  Wright  v.  Chicago,  B.  &•  Q.  R. 
Co.,  25  Am.&*Eng.  R.  Cas.  427,  19  Neb.  175, 
27  A^.  W.  Rep.  90. 

A  foreign  corporation  cannot  be  charged 
by  trustee  process  where  it  has  no  existence 
in  Massachusetts  except  in  the  operation  of 
leased  roads.  Gold  v.  Housatonic  R.  Co.,  i 
Gray  {Mass.)  424. — Following  Danforth 
V.  Penny,  3  Met.  (Mass.)  564. 


ATTACHMENT;   GARNISHMENT;   TRUSTEE  PROCESS,  13-10.  493 


^;i 


13.  Uallway  coniimny  chartered  in 
two  states. — A  railway  cuinpaiiy  doing 
business  in  Illinois  und  another  state  may 
be  garnished  in  Illinois  by  a  resident  of 
such  other  state  for  a  debt  owing  by  such 
company  to  another  resident  of  that  state  ; 
and  the  motives  of  the  garnishing  cred- 
itor seeking  the  collection  of  a  just  debt  by 
means  of  remedies  in  Illinois  are  wholly 
immaterial.  Wabash  A\  Co.  v.  Dougan,  142 
///.  248,  31  N.  E.  Rep.  594;  affirming  41 
///.  App.  543. — Following  Hannibal  «S£  St. 
J.  R.  Co.  V.  Crane,  102  111.  249;  Mineral 
Point  R.  Co.  V.  Barron,  83  111.  365.  Re- 
viewing Drake  w.  Lake  Shore  &  M.  S.  R. 
Co.,  69  Mich.  168. 

A  railroad  corporation  that  owns  and 
operates  under  one  management  a  continu- 
ous line  through  Tennessee  and  two  other 
states,  having  separate  charters  from  each 
of  the  three  states, — that  obtained  in  Ten- 
nessee being  the  youngest,— is  a  resident 
and  domestic  corporation  of  Tennessee,  and 
subject,  as  such,  to  be  made  garnishee  in  the 
courts  of  that  state.  Mobile  6-  O.  R.  Co.  v. 
Barnhill,  50  Am.  &*  Eiig.  R.  Cas.  646,  91 
Tefift.  395,  19  S.  W.  Rep.  21.  Holland  v. 
Mobile  &*  O.  R.  Co.,  16  Lea  (Tenn.)  414. 

Such  corporation  is  subject  to  garnish- 
ment, by  a  citizen  of  Tennessee,  in  the  courts 
of  that  state,  although  the  debt  sought  to  be 
reached  is  due  to  a  non-resident,  and  was 
contracted  in  one  of  the  other  states  where 
the  company  is  chartered.  Mobile  <S-  0.  R. 
Co.  V.  Barnhill,  50  Am.  &•  Ettg.  R.  Cas.  646, 
91  Tenn.  395,  19  5.  IV.  Rep.  21. 

14.  Carrier  lioldiiig  goods  after 
transit  is  completed.* — A  railway  com- 
pany, after  the  termination  of  the  transporta- 
tion of  property,  and  while  it  is  holding  the 
same  only  as  a  warehouseman,  is  liable  to  gar- 
nishment in  respect  to  such  property.  Such 
a  garnishment,  at  the  suit  of  a  stranger  to 
the  contract  of  carriage,  while  it  remains  in 
force,  excuses  the  company  from  delivering 
the  property  to  the  shipper  or  consignee. 
Cooley  V.  Minnesota  Transfer  Co.,  55  Am.  &* 
Eng.  R.  Cas.  616,  53  Minn.  327,  55  N.  W. 
Rep;  141. 

15.  Person  employed  to  secure 
subscriptions  to  stock.— Where  B.  was 
employed  to  secure  subscriptions  to  railroad 
stock,  his  compensation  "  to  be  paid  as  the 
subscriptions  to  its  stock  shall  be  paid  in," 
and  a  large  amount  of  stock  was  afterwards 

*  See  also  post,  25. 


forfeited  for  nonpayment,  including  the 
subscriptions  procured  by  B.,  the  company 
not  having  remitted  the  forfeitures  nor  at- 
tempted to  sell  the  forfeited  slock,  nor  even 
instituted  actions  to  recover  the  subscrip- 
tions—//^/c/,  that  B.  had  no  credits  in  the 
company's  hands  with  respect  to  such  for- 
feited shares,  which  were  subject  to  attacli- 
ment.  Maryland  Agric'l  College  v.  Haiti- 
more  &•  /'.  R.  Co. ,  43  Md.  434, 

10.  Cashier  or  treasurer.— The  treas- 
urer of  a  railroad  company  cannot  be  gar- 
nished as  such  as  to  the  funds  of  the  com- 
pany in  his  hands.  McGraiv  v.  Memphis 
&"  O.  R.  Co.,  5  Cohhv.  {Tenn.)  434. 

A  cashier  and  auditor  of  a  railway  con- 
struction company,  who  had  certain  funds 
under  his  control  at  the  time  he  was  gar- 
nished, surrendered  the  key  of  the  safe, 
after  service  of  process,  to  another  employe, 
who  took  the  funds  from  the  safe  while 
acting  for  the  company,  /{eld,  that  the 
cashier  was  liable  as  garnishee.  First  A'at. 
Bank  v.  Davenport  &•  St.  /'.  R.  Co.,  45  /owa 
120. 

17.  Public  agents.  — The  superinten- 
dent of  the  Western  &  Atlantic  Railroad  is  a 
public  agent  of  the  state,  and  is  not  liable, 
,i;i  such,  to  the  process  of  garnish mcnt. 
Dobbins  v.  Orange  Sf  A.  R.  Co.,  37  Ga.  240. 

A  post-office  inspector  who  holds  a  check 
ibsued  by  the  postmaster-general,  payable  to 
the  assistant-superintendent  of  a  railway, 
to  pay  the  indebtedness  of  the  govern- 
ment to  the  company,  is  not  liable  to  trustee 
process  in  a  suit  against  the  company.  Ruel 
V.  Consolidated  European  &*  N,  A.  R.  Co.,  16 
New  Brun.  481. 

18.  Station  agents. — A  station  agent 
of  a  railroad  company,  in  a  suit  against  it, 
is  chargeable  as  trustee  for  money  collected 
from  the  sale  of  passenger  tickets  and  for 
freight  carried.  Littleton  Nat.  Bank  v.  Port- 
land <&*  0.  R.  Co.,  58  N.  H.  104.— Follow- 
ing Smith  V.  Boston,  C.  &  M.  R.  Co.,  33  N. 

H.  337- 

19.  Trustees  under  railway  mort- 
gage.— The  principle  that  a  party  who  ob- 
tains possession  of  a  definite  sum  of  money 
belonging  to  another,  which  he  has  no  right 
in  justice  or  equity  to  retain,  may  be  gar- 
nished as  his  debtor  for  such  sum  by  a 
creditor  of  the  latter — held,  to  apply  to  the 
net  earnings  of  trustees  in  possession  of  a 
railroad  under  a  power  in  the  mortgage. 
De  Graff  w.  Thompson,  24  Afinn.  4^2.— Foh- 
LOWING  Galveston,  H.  &  H.  R.  Co.  v.  Cow- 


•liiii 


■  iir.':f 


4U4  ATTACHMEN'i  ;   GAKNISIIMHN  1  ;   TRUSTKli    I'KOCliSS,  20-22. 


drey,  ii  Wall.  (U.  S.)  459;  Oilman  t'.  Illi- 
nois &  M.  Tel.  Co.,  91  U.  S.  603 ;  American 
Bridge  Co.  v.  Heidelbach,  94  U.  S.  798. 

IV.  WHAT  MAT  BE  BEACHED.   EXEMPTIONS. 

I.  What  proptrty  or  intereits  »i»y  be 
reached. 

20.  In  neneral.— The  property  of  a  for- 
elRii  railroad  corporation  found  in  the  state 
of  Georgia  may  be  attached.  South  Caro- 
lina K.  Co.  V.  i\Ic Donald,  5  Ga.  531. 

The  property  of  a  corporation,  incorpo- 
rated by  any  other  stale,  situated  in  Massa- 
chusetts, may  be  attaciuid  by  trustee  pro- 
cess. Ocean  Ins.  Co,  v.  Portsmouth  M,  li, 
Co.,  3  Met.  {Mass.)  420. 

If  a  foreign  receiver  of  a  railroad  corpo- 
ration brings  property  of  the  company,  in 
the  course  of  business,  into  California,  it  is 
subject  to  attachment  by  a  creditor  of  the 
company  residing  in  that  state,  and  tiierc- 
after  the  rights  of  the  receiver  will  depend 
upon  the  comity  of  the  laws  of  California. 
(Thornton,  J.,  and  McFarlanu,  ).,  dis- 
senting.) Humphreys  v.  Hopkins,  81  Cal, 
551,  22  Pac.  Rep.  892. 

Property  under  attachment  by  garnishee 
process  at  the  suit  of  one  creditor  cannot 
l)c  attached  specially  by  another  creditor. 
Kcndrick  v.  Boston  &*  N.  Y.  C.  K.  Co.,  3  Ji. 

I-  235- 

A  statute  provided  that  the  state  should 
take  one-half  of  the  stock  of  railroad  com- 
panies and  should  have  a  lien  on  the  com- 
panies' property  to  secure  the  whole  of  the 
stock.  Held,  that  the  property  of  the  com 
pany  was  not  subject  to  attachment  until 
the  lien  of  the  state  was  extinguished. 
State  V.  Lagrange  &•  M.  R.  Co.,  4  Humph. 
(Tenn.)  488.— Distinguishing  Bank  of  the 
U.  S.  V.  Planter's  Bank  of  Ga.,  9  Wheat. 
(U.  S.)  904. 

A  railway  company  pledged  twenty-eight  of 
its  bonds  as  security  for  a  debt,  which  bonds 
were  included  in  a  subsequent  foreclosure 
decreed  in  a  suit  in  behalf  of  all  the  bond- 
holders, and  a  committee  of  certain  holders 
of  bonds  purchased  the  property,  for  the 
costs  of  the  suit,  for  the  benefit  of  the  bond- 
holders contributing  towards  the  payment 
of  the  costs,  not  including  the  company,  to 
whom  the  twenty-eight  bonds  had  been 
surrendered  by  the  bank,  and  upon  which 
bonds  no  assessment  had  been  paid  ;  and  a 
new  company  was  formed  by  the  persons  in- 
terested in  the  purchase.  Held,  that  the  orig- 


inal company  took  no  interest  in  the  pur. 
chase  as  a  holder  of  its  (jwn  bonds  .so  taken 
up,  and  had  no  projjerty  in  the  purchase 
liable  to  be  reached  by  garnishment,  lialena 
»S-  .V.  IV.  R.  Co.  V.  Stahl,  103  ///.  67. 

21.  Hnt;Kii(((>.  —  A  passenger's  route 
took  him  over  the  line  of  an  Alabama  rail- 
road, but  starting  from  a  point  in  (ieorgia 
and  running  through  Alabama  and  back 
into  (icorgia  in  a  county  dilTcrent  from  the 
•jne  where  he  started.  While  the  passenger 
was  en  route  in  Alabama  an  attachment  was 
served  upon  the  company's  agent  at  the 
startitig-point  in  Georgia,  attempting  to  at- 
tach the  passenger's  trunk.  It  did  not  ap- 
pear that  the  agent  upon  whom  the  process 
was  served  had  any  power  to  fli^posc  of  the 
trunk  at  the  terminus  of  the  route.  Held, 
that  the  attachment  did  not  bind  the  coni- 
panv.  (Jackson,  J.,  disscnti!l^,^)  Western 
R.  Co.  V.  Thornton,  60  (/(/.  300.  -Appro vkd 
IN  Bates  V.  Chicago,  M.  cSj  St.  P.  R.  Co.,  14 
Am.  &  Eng.  R.  Cas.  700,  60  Wis.  296. 

22.  BoiuIh.  —  Railroad  bonds  of  a 
debtor,  payable  to  bearer,  are  not  attachable 
by  process  of  foreign  attachment  in  the 
hands  of  a  third  party  holding  the  same ; 
and  where  certificates  of  stock  of  a  foreign 
railroad  corporation  an*  so  held,  the  stock 
cannot  be  reached  by  either  foreign  or  do- 
mestic attachment.  T^ueedy  v.  Bogart,  56 
Conn.  419,  15  Atl.  Rep.  374. 

Bonds  of  a  railroad  company,  not  sold 
and  negotiated,  but  merely  pledged  by  it 
as  collateral  security,  when  discharged  and 
surrendered  are  not  properly  of, the  com- 
pany liable  to  be  reached  by  garnishment 
against  an  officer  of  the  company  receipting 
for  the  same,  but  who  in  fact  never  received 
them.  Galena  6f  S.  W.  R.  Co.  v.  Stahl,  103 
///.  67. 

Where  the  revenues  and  property  of  a 
railroad  are  mortgaged  to  secure  outstand- 
ing bonds,  and  the  revenues  are  insufficient 
to  pay  the  interest  on  said  bonds,  they  can- 
not be  attached  at  the  suit  of  ordinary 
creditors;  and,  if  necessary,  attachment  or 
execution  thereon  will  be  restrained  by 
injunction.  Dunham  v.  Isett,  15  Iowa  284. 
— Not  followed  in  Smith  v.  Eastern  R. 
Co.,  124  Mass.  154. 

Bonds  of  a  foreign  corporation  in  the 
hands  of  an  agent  for  sale  are  not  liable  to 
attachment  against  the  corporation.  Cod- 
dington  V.  Gilbert,  17  N.  V.  489;  affirming 
2  Abb.  Pr.  242,  5  Duer  72. 

Where,  pending  the  forech^sure  of  a  rail- 


ATTACHMENT;  GAKNJSIIMENT;   TRUSTEE  PROCESS,  23-a«.  VXt 


way  mortga(;e,  a  contract  was  proposed 
whereby  ccrtiiin  bonds  were  to  be  distrib- 
uted among  the  stockholders  of  the  corpo- 
ration in  return  for  their  certiticutes  of 
stock,  which  contract  was  never  executed, 
but  a  declaration  of  trust  was  afterwards 
made  referring  to  the  contract,  and  propos- 
ing to  distribute  the  bonds  as  contemplated 
in  the  contract,  and  reciting  the  receipt  of 
the  certificates  of  stock  which  were  to  con- 
stitute the  consideration  for  said  bonds 
— Ml/,  that  the  bonds  were  held  by  the 
trustee  subject  to  the  debts  of  the  company, 
and  were  liable  to  garnishment  in  his  hands. 
WarrfH  v.  I>oot/t,  51  Imm  215.— ADHERED 
TO  IN  Warren  v.  Booth,  53  Iowa  742. 

23.  Coupons.— Coupons  j-ivon  for  the 
payment  of  mtercston  railroad  bonds,  being 
choses  in  action,  cannot  be  taken  by  trustee 
process  or  sold  on  execution.  One  holding 
such  coupons  as  collateral  security  does  not 
come  within  the  provisions  of  Me.  Rev.  St. 
1841,  ch.  119,  if  58,  as  that  section  applies 
only  to  property  not  exempt  from  attach- 
ment. Stnith  V.  Kennebec  &•  P.  A'.  Co.,  45 
Me.  547. 

24.  Eariiiiif^H  of  road.— The  earnings 
of  a  railroad  company  in  the  hands  of  a 
trustee,  as  receiver  of  a  connecting  road, 
are  attachable.  F/rs/  Nat.  Hank  v.  Port- 
land <S-  O.  K.  Co.,  2  Fed.  Rep.  831. 

The  earnings  of  a  railway  company  from 
the  operation  of  its  road,  though  mortgaged 
to  secure  the  payment  of  certain  bonds,  be- 
fore foreclosure  or  possession  taken  by  the 
trustee  may  be  reached  by  other  creditors 
of  the  company,  and  are  liable  to  garnish- 
ment when  the  mortgage  provides  that, 
until  default,  the  company  may  possess  and 
use  the  road,  etc.,  and  receive  the  rents, 
profits,  and  increase  arising  therefrom. 
Mississippi  V.  &*  W.  K.  Co.  v.  United  States 
Exp.  Co.,  81  ///.  534.  —  Distinguishing 
Galena  &  C.  U.  R.  Co.  v.  Menzies.  26  III. 
121.  Quoting  Gilman  v.  Illinois  &  M.  Tel. 
Co.,  91  U.  S.  603. 

Where  by  the  terms  of  a  contract  one- 
fourth  of  the  earnings  of  a  railroad  employ^ 
is  to  be  held  by  the  company  as  a  for- 
feiture if  the  contract  is  not  completed, 
such  reserved  fund  is  not  attachable  by 
trustee  process  so  long  as  the  contract  is 
incomplete.  Williams  v.  Androscoggin  <S» 
K.  R.  Co.,  36  Me.  201.— DiSAPl'ROVED  IN 
Elizabethtown  &  P.  R.  Co.  v.  Geoghegan,  9 
Bush  (Ky.)  56.  Quoted  in  Rickerz*.  Fair- 
banks, 40  Me.  43. 


2A.  Goo(1h  in  IiiindH  of  rnrrlcr.*— 

Common  carriers  cannot  be  held  as  gar- 
nishees for  properly  in  their  hands  foi  the 
purpose  of  transportation,  where  such  proj)- 
erty  is  in  actual  transit  at  the  time  of  ser* 
vice  of  garnishee  process,  /iates  v.  C/iicatio. 
M.  (S-  St.  r.  A'.  Co.,  14  /■/«/.  il^  Fng.  A'.  Cas, 
700,  60  Wis.  296,  19  A'.  W,  Kip.  72,  so  Am. 
Rep.  369. 

Property  placed  In  the  hands  of  a  railroad 
company  for  triinsportiition,  and  already  in 
transit  and  beyond  the  limits  of  the  county, 
cannot  be  garnished.  Illinois  C.  />'.  Co.  v. 
C(j/i^,  48 ///.  402.— QuoTKD  IN  Micliigan  C. 
R.  Co.  V.  Chicago  &  M.  I..  S.  R.  Co..  1  III. 
App.  399.  QUOTF.I)  AND  APPROVI'.D  IN 
Bates  V.  Chicago,  M.  &  St,  P.  R.  Co.,  14 
Am,  &  Eng.  R.  Cas.  700,  60  Wis.  296. 

A  carrier  who  receives  goods  under  an 
engagement  to  forward  them  to  the  con- 
signee cannot  hold  them  to  answer  an  at- 
tachment at  the  suit  of  a  creditor  of  the 
shipper,  previously  i^erved  upon  him  ;  nor  is 
he  liable  in  respect,  to  them  upon  the  at- 
tachment. Bingham  v.  Lamping,  26  Pa.  St. 
340. 

Con.  St.  c.  37,  §  65,  was  intended  for  the 
protection  of  carriers  against  actions  which 
might  be  brought  or  threatened  by  rival 
claimants  to  goods,  nnd  does  not  extend  to 
goods  in  the  possession  of  a  carrier  seized 
by  an  officer  under  legal  process.  Mer- 
chants' Bank  v.  Peters,  1  Man.  372. 

Persons  in  New  Orleans  ordered  goods 
manufactured  in  New  York  and  shipped  to 
them,  to  be  paid  for  on  delivery.  The  goods 
were  accordingly  manufactured  and  placed 
in  the  hands  of  a  carrier,  directed  to  the 
parties  ordering  them  at  New  Orleans. 
Held,  that  the  title  did  not  pass  to  the  con- 
signees until  the  delivery  of  the  goods  at 
place  of  consignment,  and  that  therefore 
they  were  not  attachable  in  a  suit  against 
the  consignees  while  they  were  still  in  New 
York.  Bates  v.  New  Orleans,  J.  &*  G.  N.  R. 
Co.,  4  Ad6.  Pr.  {N.  V.)  72,  13  How.  Pr.  516. 

26.  Judf^uients.— A  judgment  due  by 
a  foreign  railroad  company  doing  business 
in  Pennsylvania  is  subject  to  attachment  in 
the  courts  of  that  state.  Fithian  v.  Ne^v 
York  6-  E.  R.  Co.,  2  Phila.  {Pa.)  318. 

A  debt  established  by  judgment  may  be 
attached,  even  though  it  be  the  judgment 


J 

A 
-J 


M 


*  Attachment  of  ^nods  in  hands  of  carrier,  see 
note,  14  Am.  &  Enu.  R.  Cas.  709.  See  also 
ante,  14. 


490     ATTACHMENT;  GARNISHMENT;   TRUSTEE  PROCESS,  27. 


i 


'ft?-. 


of  the  court  of  another  state.  Jones  v.  New 
York  &0  E.  R.  Co.,  i  Grant  Cas.  (Pa.)  457. 
Fithian  v.  New  York  &*  E.  R.  G?.,  31  Pa. 
St.  114. 

A  judgment  obtained  by  a  husband  and 
wife  apiinst  a  railwry  company  for  injuries 
sustained  by  the  wife  cannot  be  attached  for 
a  debt  due  by  the  husband,  being  exempted 
from  execution  in  virtue  of  section  43  of 
article  3  of  the  constitution,  which  provides 
that  "  the  property  of  the  wife  shall  be  pro- 
tected from  the  debts  of  the  husband." 
Clark  V.  Wootton,  63  Md   113. 

27.  Money. — (i)  When  subject  to  al- 
/(ic/if/tent.— Money  collected  by  a  railroad 
company  through  its  agents  for  connecting 
lines,  as  their  share  of  the  business,  is  the 
money  of  the  company  collecting  it,  and  is 
liable  to  a  judgment  against  such  company. 
Ever  dell  v.  Sheboygan  &>  F.  du  L.  R.  Co., 
41  Wis.  395. 

Money  deposited  by  an  officer  of  a  rail- 
way company  with  private  bankers  in  his 
own  name,  but  which  is  known  to  be  the 
funds  of  the  company,  creates  the  relation 
of  debtor  and  creditor  between  :ne  com- 
pany and  the  banker,  and  the  funds  may  be 
attached  at  the  suit  of  a  creditor  of  the 
company.  Ruel  v.  Consolidated  European 
&*  N.  A.  R.  Co.,  16  New  Brun.  481. 

The  funds  of  an  insolvent  corporation  in 
the  hands  of  a  banker  are  liable  to  execution 
attachment  by  a  creditor  of  tht  corporation, 
and  it  is  no  defense  that  the  banker  is  also 
a  creditor  of  the  corporation  to  an  amount 
exeeeding  the  funds  in  his  hands.  Penrose 
V.  Erie  C.  Co.,  3  Phila.  {Pa.)  198. 

Under  the  ommon-Law  Procedure  Act, 
1864,  §6i,moi..ydue  to  a  railway  company  as 
rent  from  another  railway  company  may  be 
attached  by  judgment  creditors  in  the  hands 
of  the  latter  company.  Bouch  v.  Sevenoaks, 
M.  Sf  T.  R.  Co.,  L.  R.  4  Exch.  D.  1 33,  48  L.  J. 
Exch.  D.  338,  40  L.  T.  N.  S.  560,  27  W.  R. 
507. 

Under  38  Vic.  c.  5,  declaring  that  "  when 
any  action  is  commenced  in  respect  to  any 
cause  of  action  for  which  a  writ  of  attach- 
ment may  issue,  and  any  debt  or  sum  of 
money  is  due  or  owing  to  the  debtor  from 
any  other  party,  it  shall  be  lawful  for  the 
party  for  whom  such  first  cause  of  action 
subsists  to  attach  and  recover  any  debt  or 
sum  of  money  due  or  owing  to  his  debtor 
from  any  other  party,  or  sufficient  thereof 
to  satisfy  the  claim  of  the  primary  creditor," 
money  received  by  an  agent  of  a  railway 


company  is  liable  to  attachment  by  a  cred- 
itor of  the  company,  though  the  money  is 
received  by  him  in  the  course  of  his  em- 
ployment and  is  held  subject  to  the  orders 
of  the  company.  Ruel  v.  Consolidated  Euro- 
pean &^  N.  A.  R.  Co..  16  A^ew  Brun.  481. 

An  officer  of  a  railroad  company  depos- 
ited money  in  bank  to  his  own  credit,  but 
with  the  abbreviation  "  Supt."  after  his 
name.  Held,  that  where  it  fully  appeared 
that  the  depositor  was  the  company's  super- 
intendent, and  that  the  money  belonged  to 
the  company,  it  was  liable  to  garnishment 
as  the  property  of  the  company.  Gregg  v. 
Farmers'  &*  M.  Bank,  80  Mo.  251.— Dis- 
tinguishing McPherson  v.  Atlantic  &  P. 
R.  Co.,  66  Mo.  103. 

A  railroad  was  leased  to  another  road 
which  was  mortgaged.  The  trustee  in  the 
mortgage  took  possession  of  both  roads,  but 
notified  the  parties  interested  in  the  leased 
line  that  he  would  not  ratify  the  lease  and 
would  only  operate  the  road  temporarily. 
Held,  that  a  fund  coming  to  his  hands  while 
thus  operating  the  road  was  the  property  of 
the  leased  road  and  could  be  garnished  in 
his  hands  at  the  suit  of  one  of  the  cred- 
itors of  said  road.  Mihvaukee  <S«»  A^.  R.  Co. 
V.  Brooks  Locomotive  Works,  30  Am.  &• 
Eng.  R.  Cas.  499,  121  I/.  S.  430,  7  Sup.  Ct. 
Rep.  1094. 

(2)  When  not  subject  to  attachment. — 
Money  set  apart  before  it  is  earned,  for  the 
payment  of  interest  on  railroad  mortgage 
bonds  and  to  raise  a  sinking  fund  for  their 
redemption,  is  not  subject  to  garnishee  pro- 
cess at  the  suit  of  an  ordinary  creditor  of 
the  corporation.  Galena  <&^  C.  U.  R.  Co.  v. 
Menzies,  26  ///.  122. — DISTINGUISHED  IN 
Mississippi  V.  &  W.  R.  Co.  v.  United  States 
Exp.  Co.,  81  111.  534;  Smith  v.  Eastern  R. 
Co.,  124  Mass.  154. 

Money,  etc.,  belonging  to  a  railroad  com- 
pany cannot  be  attached  or  brought  under  a 
lien  by  a  judgment-creditor  of  the  company 
by  a  proceeding  under  §  474  of  the  Civil 
Code  and  the  service  of  a  summons  on  the 
president  of  the  company,  with  notice  in- 
dorsed thereon  of  the  object  of  the  action, 
as  provided  in  §  477.  Newport  &«•  C.  Br.  Co. 
V.  Douglass,  12  Bush  (A^.)  673,  18  Am.  Ry. 
Rep.  221. 

Funds  in  possession  of  the  president, 
officers,  and  agents  of  a  railroad  company 
are  in  the  possession  of  the  company,  and  are 
not  subject  to  garnishment  in  an  ordinary 
action  by  a  creditor  against  the  company. 


ATTACHMENT;  GARNISHMENT;  TRUSTEE  PROCESS,  28-30.  497 


The  appropriate  action  is  by  application  to 
a  court  of  equity,  seeking  a  discovery  as  to 
the  condition  of  the  company ;  and  upon  the 
failure  of  the  chief  officer  or  officers  of  the 
company  to  pay  when  directed  they  may  be 
imprisoned  for  contempt,  and  the  chan- 
cellor will  take  possession  of  the  road  by 
placing  it  in  the  hands  of  a  receiver,  and  will 
apply  the  net  income  or  any  surplus  fund 
to  the  payment  of  the  creditor's  claim.  By 
giving  the  creditor  the  income  of  the  road, 
retaining  enough  to  defray  the  necessary 
expenses  of  the  corporation,  the  chancellor 
gives  him  all  that  he  has  a  right  to  demand, 
and  at  the  same  time  preserves  the  corpo- 
rate property  for  private  and  public  use. 
This  ruling  does  not  prevent  a  corporation 
from  being  garnished  as  the  debtor  of  a 
third  party  whose  creditor  is  seeking  to 
recover  his  debt.  In  such  a  case,  however, 
the  court  will  require  payment  to  be  made 
in  the  same  manner  as  if  the  company  was 
the  real  debtor.  It  is  not  decided  that  a 
debt  due  to  the  corporation  cannot  be  at- 
tached or  garnished.  Wilder  v.  Shea,  13 
Bush  {K'y)  128,  17  Am.  Ky.  Rep.  57. 

A  conveyance  of  all  the  property  of  a 
railroad  company  to  trustees,  to  secure  the 
payment  of  certain  debts,  will  rover  funds  in 
the  hands  of  the  treasurer  at  the  time  of  the 
conveyance,  and  they  cannot  be  held  by  a 
creditor  of  the  company  by  attachment  as 
against  the  trustees,  though  the  trustees 
may  permit  the  company  to  manage  the 
road.  Woodman  v.  York  &^  C.  R.  Co.,  45 
Me.  207.  —  Not  followed  in  Smith  v. 
Eastern  R.  Co.,  124  Mass.  154. 

Money  in  the  hands  of  a  railroad  agent, 
collected  from  the  passenger  and  freight 
business  of  the  company,  cannot  be  tak^n 
under  trustee  process  in  a  suit  against  the 
company,  under  the  Maine  statutes  of  1821, 
ch.  61.  Pettingill  v.  Androscoggin  R.  Co., 
51  Me.yjo. 

An  attachment  execution  against  a  rail- 
road CO  .pauy  cannot  be  levied  on  money 
in  the  hands  of  its  ticket  agents,  arising 
from  the  sale  by  them  of  tickets  to  passen- 
gers. Fowler  v.  Pittsburgh,  Ft.  W.  &*  C.  R. 
Co.,  35  Pa.  St.  22.— Approved  in  McGraw 
V.  Memphis  &  O.  R.  Co.,  5  Coldw.  (Tenn.) 

434- 

Where,  after  notice  to  treat  by  a  railway 
company  to  a  landowner,  the  purchase- 
money  has  been  fixed  by  the  verdict  of  a 
jury  and  the  judgment  of  the  sheriff,  under 
?§  49  and  50  of  the  Lands  Clauses  Act,  such 
I  D.  R.  D.--32. 


purchase-money  cannot  be  attached  by  a 
garnishee  oruer  m':i  served  upon  the  rail- 
way company  by  the  judgment-creditor  of 
the  landowner  after  the  verdict  but  before 
execution  or  tender  of  a  conveyance.  How- 
ell V.  Metropolitan  D.  R.  Co.,  L.  R.  19  Ch. 
D.  508,  II  L.  /.  Ch.  D.  158,  45  Z.  T.  707, 
30  W.  R.  100. 

28.  Property  of  stockholders.  — 
The  private  property  of  stockholders  in 
corporations  created  after  February  16, 1836, 
excepting  banking  corporations,  is  not  made 
subject  to  attachment  on  a  writ  against  the 
corporation.  The  creditor  must  obtain 
judgment  against  the  corporation  before  he 
can  have  his  remedy  against  the  corporators. 
Drinkwater  v.  Portland  Marine  R.  Co.,  18 
Me.  35. 

29.  Rolling:  stock.^ — Railroad  cars, 
for  the  purpose  of  attachment,  are  regarded 
as  personal  property  under  Mass.  Pub.  St. 
ch.  161,  §§  38, 39.  Hall  V.  Carney,  140  Mass. 
131,  3  A^.  E.  Rep.  14. 

The  locomotive  engines  and  freight  and 
passenger  cars  of  a  railroad  corporation  are 
liable  to  attachment,  like  other  personal 
property,  when  not  in  actual  use.  Boston, 
C.  <S-  M.  R.  Co.  v.  Gilmore  R.  Co.,  37  A^.  H: 
410.— Distinguishing  Worcester  v.  West- 
ern R.  Corp.,  4  Met,  (Mass.)  564 ;  Pierce  v. 
Emery,  32  N.  H.  503  ;  Willink  v.  Morris  C> 
&  B.  Co. ,  4  N.  J.  Eq.  377.— Quoted  in  Coe  v. 
Columbus,  P.  &  I.  R.  Co.,  10  Ohio  St.  372  ; 
Hill  V.  La  Crosse  &  M.  R.  Co.,  11  Wis.  214. 
Reviewed  and  approved  in  Dinsmore  v. 
Racine  &  M.  R.  Co.,  12  Wis.  649. 

A  railroad  company  cannot  be  garnished 
for  the  debt  of  another  company  because  it 
has  in  its  possession  cars  of  the  debtor  com- 
pany, which  it  is  rsing  under  an  arrange- 
ment between  the  companies  for  a  mutual 
exchange  of  through  freight  cars,  instead  of 
unloading  and  transferring  the  freight  in 
the  cars  at  the  point  of  connection.  Michi- 
gan C.  R.  Co.  V.  Chicago  <S»  M.  L.  S.  R.  Co., 
I  ///.  App.  399.— Quoting  Illinois  C.  R. 
Co.  V.  Cobb,  48  111.  402. 

30.  Salaries  of  officers. — The  salary 
of  an  officer  of  a  railroad  company  which 
exceeds  five  hundred  dollars  per  annum  is 
subject  to  garnishment.  The  act  of  1850, 
which  declares  the  salaries  of  ail  officers  of 
all  corporations,  except  municipal  corpora- 

*  Cars  are  personal  property  for  the  purposes 
of  attachment,  see  25  Am.  &  Eno.  R,  Cas.  274 
abstr. 


f 


498  ATTACHMENT;  GARNISHMENT;   TRUSTEE  PROCESS,  31-34. 


tions,  where  the  salary  exceeds  five  hun- 
dred dollars,  to  be  subject  to  garnishment 
(Cobb's  Dig.  88),  has  not  been  repealed  by 
any  subsequent  act.  Bailie  v.  Mosher,  72 
Ga.  740. 

31.  Shares  of  stocks*— Shares  of  stock 
in  corporations  are  subject  to  execution  and 
sale  under  a  process  of  garnishment.  Baker 
V.  Wasson,  53  Tex.  150. 

The  shares  of  a  stockholder  in  a  railroad 
company  are  liable  to  attachment ;  and,  by 
virtue  thereof,  the  attaching  creditor  ac- 
quires a  claim  superior  to  that  of  a  subse- 
quent bona-fide  purchaser  of  those  shares 
for  value  without  notice  of  the  attachment. 
Shenandoah  Valley  R.  Co.  v.  Griffith,  i^Am. 
&'Eng.R.  Cas.  120,  76  Va.  913.— FOLLOW- 
ING Chesapeake  &  O.  R.  Co.  v.  Paine,  29 
Gratt.  (Va.)  502. 

The  shares  of  a  stockholder  in  a  joint 
stock  company  incorporated  by  and  con- 
ducting its  operations,  in  whole  or  in  part, 
in  the  state,  are  such  estate  as  is  liable  to  be 
attached  in  a  proceeding  instituted  for  that 
purpose  by  one  of  the  creditors  of  such 
stockholder ;  and,  for  the  purpose  of  such 
proceeding,  such  estate  may  properly  be  con- 
sidered as  in  the  possession  of  the  cor- 
poration. Chesapeake  &*  O.  R.  Co.  v.  Paine, 
29  Gratt.  (  Va.)  502. 

Of  such  a  proceeding  a  court  of  law  has 
jurisdiction  as  well  as  a  court  of  equity. 
Chesapeake  &*  0.  R.  Co.  v.  Paine,  29  Gratt. 
( Va.)  502. 

If,  in  such  a  proceeding,  the  stock  should 
appear  to  be  liable  to  the  lien  of  the  attach- 
ment, it  ought  to  be  sold  for  the  satisfac- 
tion of  the  same  under  an  order  of  the 
court  made  for  that  purpose  in  the  attach- 
ment proceeding;  but  it  is  error  for  the 
court  to  render  a  judgment  against  the  gar- 
nished corporation  for  the  value  of  the 
stock,  unless  it  appears  that  the  lien  of  the 
attaching  creditor  on  the  stock  was  lost  by 
the  act  of  the  corporation.  Chesapeakj  &• 
O.  R.  Co.  V.  Paine,  29  Gratt.  ( Va)  502. 

While  a  railroad  company  is  in  existence 
it  is  required  to  pay  its  stockholders  noth- 
ing but  dividends  on  the  stock ;  therefore 
the  stock  itself  cannot  be  garnisheed  in  the 
hands  of  the  company  for  the  debts  of  the 
stockholders.    Ross  v.  Ross,  25  Ga,  297. 

32.  Subscriptions  to  stock.— A  sub- 
scription for  stock  in  a  private  corporation, 

*  Attachment  of  shares  of  stock,  see  note,  13 
Am.  &  Eng.  R.  Cas.  128. 


payable  on  call  by  the  board  of  directors, 
and  for  which  no  call  has  been  made,  is  not 
subject  to  garnishment  at  law  at  the  suit  of 
a  creditor  of  the  corporation,  though  it  has 
become  insolvent  and  practically  dissolved. 
Teague  v.  Le  Grand,  85  Ala.  493,  5  So.  Rep. 
287. 

33.  Unliquidated  demands.  —  A 
claim  for  unascertained,  unliquidated  dam- 
ages ill  a  suit  for  breach  of  a  contract  for 
the  purchase  of  railroad  stock  is  not  sub- 
ject to  attachment  by  trustee  process. 
Rand  v.  White  Mountains  R.  Co.,  40  N.  H. 

79- 

Where  a  railroad  entered  upon  land  with- 
out making  compensation  or  giving  bond 
to  the  owner,  the  unliquidated  damages 
the  owner  may  be  adjudged  entitled  to  can- 
not be  attached  in  the  hands  of  the  company 
on  a  judgment  against  the  landowner.  Sel- 
heinier  v.  Elder,  98  Pa.  St.  1 54. 

Under  the  terms  of  an  agreement  between 
a  company  and  its  contractor,  the  estimates 
of  the  work  were  to  be  made  monthly,  by 
an  engineer,  on  the  20th  of  each  month,  pay- 
ment to  be  made  about  the  loth  of  the  fol- 
lowing month ;  but  it  was  provided  that 
these  estimates  might  be  forfeited  from 
month  to  month  for  various  causes  speci- 
fied. Held,  that  there  was  nothing  due  by 
the  company  on  the  14th  of  any  month  that 
could  be  attached.  Baltimore  &*  O.  R.  Co. 
V.  Gallahue,  14  Gratt.  ( Va.)  563. — Review- 
ing Baltimore  &  O.  R.  Co.  v.  McCullough, 
12  Gratt.  (Va.)  595.— Reviewed  in  Strauss 
V.  Chesapeake  &  O.  R.  Co.,  7  W.  Va.  368. 

The  garnishees  had  given  the  judgment- 
debtors  a  bond,  conditioned  that  one  A.,  a 
station  master  in  their  employment,  should 
duly  pay  over  all  moneys  received.  Held, 
that  the  liability  incurred  under  this  bond, 
if  established,  would  not  be  a  debt  which 
could  be  attached  under  the  194th  section, 
and  an  order  to  proceed  under  §  197  was  re- 
fused. Griswold  V.  Buffalo,  B.  &•  G.  R.  Co., 
2  Prac.  (Ont.)  178. 

34.  Wages  of  employes.*— (i)  When 
subject  to  attachment, — A  debt  due  to  a  me- 
chanic for  wages  may  be  attached  under 
S.  C.  Gen.  St.  §  252.  McKelvay  v.  South 
Carolina  R.  Co.,  6  So.  Car.  446. 

Wages  of  labor  earned  and  due  to  a  citi- 
zen of  Pennsylvania  may  be  attached  for  a 
debt  in  another  state  where  no  law  exists 
prohibiting  the  attachment  of  wages.   Bolton 

*  See  also  post.  30-39. 


J 


ATTACHMENT;  GARNISHMENT;   TRUSTEE  PROCESS,  35.     499 


V.  Pennsylvania  Co.,  88  Pa,  St.  261.— FOL- 
towiNG  Morgan  v.  Neville,  74  Pa.  St.  52. 

A  foreign  railroad  company,  leasing  prop- 
erty and  doing  business  in  Kansas,  may  be 
garnished  for  the  debt  of  a  non-resident 
employe  contracted  out  of  the  state.  Bur- 
lington &•  M,  R.  R.  Co.  V.  Thompson,  16 
A>n.  &*  Eng.  R.  Cas.  480,  31  Kan.  180,47 
Am.  Rep.  iffj,  I  Pac.  Rep,  622.— Distin- 
guished IN  Missouri  Pac.  R.  Co.  v.  Maltby, 
21;  Am.  &  Eng.  R.  Cas.  421,  34  Kan.  125; 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.  v.  Gough, 
35  Kan.  I ;  Missouri  Pac.  R.  Co.  v.  Sharitt, 
44  Am.  &  Eng.  R.  Cas.  657, 43  Kan.  375, 387. 

The  wages  of  an  employe  of  the  Union 
Pac.  R.  Co.,  a  corporation  organized  under 
the  laws  of  the  United  States,  wliere  the 
wages  are  earned  in  Nebraska,  and  both  the 
employ6  and  his  creditor  reside  there,  may 
be  garnished  in  Iowa;  and  the  court  will 
acquire  jurisdiction  by  personal  service  on 
the  railroad  company  in  Iowa.  Mooney  v. 
Union  Pac.  R.  Co.,  60  Iowa  346. — Approved 
IN  Carson  v.  Memphis  &  C.  R.  Co.,  88  Tenn. 
646.  Followed  in  Oberfelder  v.  Union 
Pac.  R.  Co.,  60  Iowa  755. 

Under  Me.  Rev.  St.,  ch.  86,  §  55,  provid- 
ing that  "  no  trustee  shall  be  charged  by 
reason  of  any  money  or  other  thing  due 
from  him  to  the  principal  defendant,  unless 
at  the  time  of  the  service  of  writ  upon 
liim  it  is  due  absolutely,  and  not  on  any 
contingency,"  the  price  of  labor  contracted 
to  be  paid  for  upon  estimates  being  made, 
fixing  its  amount  and  value,  is  not  exempt 
from  attachment,  as  no  such  contingency  as 
the  statute  contemplates  exists.  Ware  v. 
Gmven,  65  Me.  534. 

Under  the  terms  of  the  contract  between 
a  railroad  company  and  an  employe,  the  em- 
ploy6  was  to  be  paid  about  the  middle  of  one 
month  for  the  work  of  the  preceding;  month, 
on  an  estimate  and  certificate  of  the  com- 
pany's engineer.  On  the  4ih  of  a  month  the 
company  was  served  with  trustee  process, 
attaching  the  former  month's  wages,  but 
the  estimate  and  certificate  of  the  engineer 
were  not  completed  until  the  loth  of  the 
month,  after  such  process.  Held,  that  tlie 
debt  was  due  "  absolutely,"  within  the  mean- 
ing of  the  statute,  and  that  the  company  was 
therefore  chargeable  as  trustee.  Ware  v. 
Gffwen,  65  Me.  534. 

(2)  When  not  subject  to  attachment. — A 
debt  due  by  a  corporation  organized  under 
the  laws  of  Kentucky,  to  one  of  its  employes 
in  that  state,  cannot  be  reached  by  a  creditor 


in  Alabama  by  attachment  against  the  debtor 
and  garnishment  against  the  corporation. 
Louisville  &•  N.  R.  Co.  v.  Dooley,  78  Ala. 
524. 

Where  at  the  time  of  service  of  garnishee 
process  the  defendant  is  in  the  employ  of 
the  garnishee,  and  continues  thereafter  in 
such  employment,  the  garnishee  proceed- 
ings bind  only  the  amount  due  at  the  date 
of  the  service  of  process,  and  do  not  reach  to 
amounts  subsequently  earned,  even  under  a 
prior  contract  of  employment.  Burlington 
<S-  M.  R.  R.  Co.  V.  Thompson,  16  Am.  6- 
Eftg.  R.  Cas.  480,  31  Kan.  180,  47  Am.  Rep, 
497,  I  Pac.  Rep.  622. 

Where  by  the  terms  of  a  contract  the 
whole  month's  work  of  a  railroad  employ^ 
is  to  be  estimated  by  the  engineer  and  certi- 
fied after  the  end  of  the  month,  no  debt 
arises  that  is  attachable  during  the  month, 
and  such  earnings  cannot  be  garnished  in 
the  hands  of  the  company  by  serving  process 
before  the  end  of  a  month.  Williams  v. 
Androscoggin  &'  K.  R.  Co.,  36  Me.  201. 

Under  the  terms  of  an  agreement  between 
a  street  railway  company  and  a  conductor, 
the  latter  was  required  to  account  for  the 
tickets  instruste!  :ohim  for  sale  each  month, 
before  any  wages  were  due  him.  At  the  time 
when  a  trustee  process  was  served  on  the 
corporation  he  had  in  his  hands  money  and 
tickets  which  would  exceed  his  monthly  sal- 
ary. Held,  that  there  was  nothing  due  to  him 
"  absolutely  and  without  any  contingency," 
within  the  meaning  of  Mass.  Gen.  St.  ch. 
142,  §  24.    Fellows  v.  Smith,  131  Mass.  363. 

By  the  provisions  of  a  construction  con- 
tract the  monthly  estimate  was  to  be  paid  as 
agreed  upon  between  the  parties  and  where 
tlie  contractor  mi^ht  appoint.  There  were 
no  written  regulations,  but  by  the  method 
pursued  for  several  months  the  laborers 
were  paid  monthly,  under  the  supervision  of 
an  officer  of  the  company,  with  the  acquies- 
cence of  the  contractor.  Upon  the  company 
being  garnished  by  a  creditor  of  the  con- 
tractor— held,  that  the  creditor  was  bound  by 
the  method  of  payment  adopted,  and  could 
not  claim  that  payments  thereunder  to  the 
laborers  after  service  of  the  writ  were  un- 
authorized. Dawson  v.  Iron  Range  &*  H.  />'. 
R.  Co.,  97  Mich.  33,  56  .V.  W.  Rep.  106. 

2.  Exemptions. 

36.  Law  of  place.— Exemption  from 
garnishment  in  another  state  in  which  the 
debtor  resides  cannot  be  pleaded  by  a  gar- 


n 


t 


m 


m 


n 


m 


i 
1 


500     ATTACHMENT;   GARNISHMENT;   TRUSTEE  PROCESS,  36. 


,F.: 


nishee  in  this  state,  unless  the  amount  due  to 
the  debtor  from  the  garnishee  is  also  exempt 
by  the  laws  of  Iowa.  Leiber  v.  Union  Pac.  R. 
Co.,  49  Iffwa  688.— Distinguishing  Moore 
V.  Chicago,  R.  I.  &  P.  R.  Co.,  43  Iowa  385.— 
Approved  in  Missouri  Pac.  R.  Co.  v.  Malt- 
by,  25  Am.&  Eng.  R.  Cas.  421,  34  Kan.  125. 

It  is  the  settled  rule  that  in  a  garnishment 
proceeding  in  Iowa  the  exemption  laws  of 
another  state  or  territory  cannot  be  pleaded 
or  relied  on  as  a  defense  by  either  the  gar- 
nishee or  the  judgment-debtor.  Broadsireel 
V.  Clark,  65  Iowa  670,  22  N.  IV.  Rep.  919. 

Where  a  citizen  of  Kansas  attempts  by 
a  proceeding  in  garnishment  against  a  for- 
eign railroad  corporation  to  subject  to  the 
payment  of  his  claim  in  the  courts  of  that 
state  the  personal  earnings  of  a  citizen  of 
another  state,  which  personal  earnings  are, 
by  the  laws  of  Iowa  and  also  of  such  other 
state,  exempt  from  being  so  applied,  the 
earnings  of  such  debtor  are  exempt  from 
such  process.  Kansas  City,  St.  J.  <S^  C.  B. 
R.  Co.  V.  Gough,  35  Kan.  i,  lo  Pac.  Rep.  89. 
—Distinguishing  Burlington  &  M.  R.  R. 
Co.  V.  Thompson,  16  Am.  &  Eng.  R.  Cas. 
480,  31  Kan.  180. 

A  resident  of  Tennessee  cannot,  when  sued 
in  another  state,  obtain  the  benefit  of  exemp- 
tions secured  to  him  by  Tennessee  statutes, 
and  therefore  his  garnished  debtor  cannot, 
in  such  case,  obtain  such  exemptions  for 
him,  and  need  not  endeavor  to  do  so.  Car- 
ton V.  Memphis  &*  C.  R.  Co.,  88  Tenn.  646,  1 3 
S.  IV.  Rep.  588.— Approving  Burlington  & 
M.  R.  R.  Co.  V.  Thompson,  16  Am.  &  Eng. 
R.  Cas.  480,  31  Kan.  180;  Mooney  v.  Union 
Pac.  R.  Co.,  9  Am.  &  Eng.  R.  Cas.  131,  60 
Iowa  346 ;  Eichelburger  v.  Pittsburg,  C.  & 
St.  L.  R.  Co..  (Ohio)  9  Am.  &  Eng.  R.  Cas. 
158.  Disapproving  Pierce  v.  Chicago  & 
N.  W.  R.  Co.,  36  Wis.  288. 

In  a  proceeding  in  garnishment,  where  all 
the  parties  are  non-residents  of  Kansas 
and  residents  of  Missouri,  and  the  thing  at- 
tempted to  be  attached  by  the  garnisiiment 
proceedings  is  a  debt  created  and  payable  in 
Missouri,  but  the  garnishee  does  business  in 
Kansas,  and  is  liable  to  be  garnished  in  that 
state,  and  the  other  parties  come  tempo- 
rarily into  Kansas,  and,  while  in  Kansas,  the 
plaintiff,  who  is  a  creditor  of  the  defendant, 
who  is  a  creditor  of  the  garnishee,  com- 
mences an  action  in  Kansas  against  the  de- 
fendant, and  serves  a  garnishment  summons 
upon  the  garnishee,  and  the  debt  of  the 
garnishee  to  the  defendant  is  by  the  laws  of 


Missouri  exempt  from  garnishment  process, 
and  such  debt  also  seems  to  come  within 
the  exemption  provisions  contained  in  §  490 
of  the  Civil  Code  of  Kansas  and  §  157  of  the 
Justices'  Code  of  Kansas,  exempting  certain 
earnings  of  the  debtor  from  the  enforced 
payment  of  liis  debts,  such  debt  is  exempt 
from  garnishment  process  in  Kansas.  Mis- 
souri Pac.  R.  Co.  V.  Maltby,  25  Am.  &>  Eng. 
R.  Cas.  421,  34  Kan.  125,  8  Pac.  Rep.  235. — 
Approving  Leiber  v.  Union  Pac.  R.  Co.,  49 
Iowa  688.  Distinguishing  Burlington  «& 
M.  R.  R.  Co.  V.  Thompson,  16  Am.  &  Eng. 
R.  Cas.  480,  31  Kan.  180. 

36.  Wati^es,  when  exempt,  geuer- 
ally.— The  Md.  Code,  art.  10,  §  36,  em- 
bodies the  substance  of  the  acts  of  1852,  ch. 
340,  and  1854,  ch.  23,  by  exempting  from 
attachment  aU  wages  not  actually  due,  and 
of  wages  actually  due,  the  sum  of  $10. 
House  v.  Baltimore  St*  O.  R.  Co.,  48  Md.  130. 

In  the  act  of  1874,  ch.  45,  tiie  object  of 
which  was  only  to  increase  the  amount  of 
the  exemption,  the  proviso  does  not  enlarge 
the  class  of  wages  or  salary  subject  to  at- 
tachment, by  extending  the  effect  of  the  at- 
tachment to  wages  not  due ;  but  as  to  debts 
existing  prior  to  the  act  of  1874,  ch.  45,  it 
limits  the  exemption  to  $10,  as  under  the 
repealed  sec.  36  of  art.  10  of  the  Maryland 
Code.  House  v.  Baltimore  <S>»  O.  R.  Co.,  48 
Md.  130. 

Under  How.  Ann.  St.  (Mich.)  §  3423,  a 
railroad  company  may  withhold  payments 
for  the  protection  of  laborers  and  material- 
men as  against  a  garnishing  creditor  of  the 
contractor,  though  no  bill  of  items  of 
material  and  labor  has  been  furnished,  as 
provided  in  the  statute.  Dawson  v.  Iron 
Range  6m  H.  B.  R.  Co.,  97  Mich.  33,  56  N. 
W.  Rep.  106. — Distinguishing  Dudley  v. 
Toledo,  A.  A.  &  N.  M.  R.  Co.,  65  Mich.  655. 

The  wages  for  sixty  days'  services  of 
laborers,  mechanics,  or  clerks  who  are  heads 
of  families,  in  the  hands  of  those  by  whom 
such  laborers,  mechanics,  or  clerks  may  be 
employed,  are  exempt  from  execution,  at- 
tachment, or  garnishment,  whether  the  em- 
ploy6  is  a  resident  of  the  state  or  not.  Such 
wages  are  absolutely  exempt.  Wright  v. 
Chicago,  B.  &-  Q.  R.  Co.,  25  Am.  &*  Eng.  R. 
Cas.  426,  19  Neb.  175,  27  N.  IV.  Rep.  90. — 
Followed  in  Turner  v.  Sioux  City  &  P. 
R.  Co.,  19  Neb.  241. 

Wis.  Rev.  St.  1858,  ch.  79,  §  40,  exempt- 
ing railroad  employ6s  from  garnishment  in 
certain  cases,  was  repealed  by  implication  by 


I     i 


,  ^, 


ATTACHMENT;   GARNISHMENT;   TRUSTKI-:  PROCESS,  37-30.  501 


the  act  of  1S58,  ch.  148 ;  and  the  subsequent 
amendment  of  such  chapter  by  the  act  of 
1861,  ch.  280,  limiting  the  exemption  to 
married  persons,  makes  it  apply  to  railroad 
employes  the  same  as  to  all  other  persons. 
Bur  lander  v.  Milwaukee  &*  St.  P.  R,  Co. ,  26 
IVis.  76. 

37.  Wages  earued  in  foreign 
states. — Where  the  wages  of  a  railroad 
employe,  residing  in  another  state,  are  gar- 
nislieed  in  Illinois,  the  exemption  given  by 
the  laws  of  the  state  of  his  residence  has  no 
application,  but  he  will  be  allowed  the  same 
exemption  that  is  allowed  a  resident  of  II- 
linoij  by  the  laws  of  tliat  state.  Mineral 
Point  R.  Co.  V.  Barron,  83  ///.  365.— Fol- 
lowed IN  Wabash  R.  Co.  v.  Dougan,  142 
111.  248. 

Where  an  employe,  whose  w.-^ges  are  ex- 
empt in  Indiana,  does  no  act  whereby  he 
subjects  himself  to  the  jurisdiction  of  the 
courts  of  Michigan,  and  where  the  contract 
for  his  services  is  made  and  payable  in  In- 
diana, and  the  services  are  performed  there, 
and  no  jurisdiction  of  the  person  or  prop- 
erty of  the  employe  is  obtained  in  Michigan 
save  by  the  disclosure  of  the  garnishee,  and 
tlie  debt  of  the  employe  \  as  also  contracted 
in  Indiana,  proceedings  in  attachment  and 
garnishment  cannot  be  successfully  main- 
tained in  Michigan  by  an  assignee  of  the 
claim.  Drake  v.  Lake  Shore  &'  M.  S.  R.  Co., 
69  Mich.  168,  37  N.  W.  Rep.  70. 

Where  a  railroad  employe  is  entitled  to 
an  exemption  of  wages  under  the  laws  of 
Mississippi,  such  exemption  cannot  be  de- 
feated by  attaching  the  wages  in  the  hands 
of  the  company  in  another  state.  Where 
both  debtor  and  creditor  reside  in  Mississippi 
its  courts  will  give  effect  to  its  own  exemp- 
tion laws,  regardless  of  the  laws  of  another 
state.  Illinois  C.  R.  Co.  v.  Smith,  70  Miss. 
344, 12  So.  Rep.  461. 

A  railroad  company,  the  lines  of  which 
extended  throutjh  Ohio  and  West  Virginia, 
owed  one  month's  wages  to  a  brakeman 
resident  in  Ohio.  By  the  laws  of  Ohio  one 
month's  wages  art  sxempt  from  attachment 
and  execution.  A  creditor  of  the  brake- 
man  instituted  attachment  proceedings 
against  him  in  West  Virginia,  attaching  the 
wages  due  by  the  company.  The  brakeman 
had  notice  of  the  proceedings,  but  did  not 
appear,  and  the  company,  under  order  of 
the  West  Virginia  court,  paid  into  court  the 
amount  in  its  hands  as  satisfaction  of  the 
debt.    An  assignor  of  the  brakeman  subse- 


quently brought  suit  in  Oliio  against  the 
company,  for  the  amount  of  the  wages  due. 
Held,  that  the  exemption  law  of  Ohio  did 
not  extend  in  this  case  to  West  Virginia ; 
that  there  was  no  presumption  that  a  simi- 
lar law  existed  in  such  state,  that  even  if 
the  brakeman  could  have  set  up  such  ex- 
emption in  the  West  Virginia  court  it  did 
not  appear  that  the  company  defendant 
could  have  done  so;  that  the  company  did 
not  appear  to  liave  neglected  any  duty  in- 
cumbent upon  it ;  that  its  payment  of  the 
amount  of  the  wages  due  operated  as  a  dis- 
charge ;  and  that  tiierefore  plaintiff  was  not 
entitled  to  recover.  Eichelburger  v.  Pitts- 
burgh, C.  &*  St.  L.  R.  Co.,  {Ohio)  9  Am.  &- 
Eng.  R.  Cas.  158.— Distinguishing  Pierce 
V.  Chicago  &  N.  W.  R.  Co.,  36  Wis.  285 ; 
Chicago  &  A.  R.  Co.  v.  Ragland,  84  III.  375. 
—  Ai'PROVKD  IN  Carson  v.  Memphis &C.  R. 
Co.,  88  Ten n.  646. 

38.  Kffect  of  payment  of  wages 
by  ganiisliee  to  creditor.— If  a  gar- 
nishee pays  over  money  due  from  him  to  his 
employe  for  wages  which  are  exempt  from 
garnishee  process,  it  seems  that  he  cannot 
set  that  fact  up  in  defense  to  a  suit  brought 
by  such  employe  to  recover  such  wages. 
Chicago  &*  A.  R.  Co.  v.  Ragland,  84  ///.  375. 

Where  the  debt  due  from  a  railroad  gar- 
nishee to  the  defendant  in  the  garnishment 
is  exempt,  as,  for  instance,  wages  for  the  pre- 
vious thirty  days,  its  payment  under  order  of 
the  court  to  tlie  plaintiff  in  the  garnishment 
will  not  entitle  the  garnishee  to  subrogation. 
Dunn  V.  Missouri  Pac.  R.  Co.,  45  Mo.  App. 
29. 

39. or  failure  to  make  defense. 

— Where  wages  in  the  hands  of  a  railroad 
company  are  not  subject  to  garnishment  it 
is  the  duty  of  the  company  to  interpose  that 
defense,  and  if  it  fails  to  do  so  it  cannot 
have  credit  for  the  amount  thus  unneces- 
sarily paid  in  the  garnishment  proceeding 
in  an  action  by  its  employe.  Terre  Haute 
<S-  /.  R.  Co.  V.  Baker,  122  Ind.  433,  24  A^.  E. 
Rep.  83.  Chicago  &•  A.  R.  Co.  v.  Ragland, 
84  ///.  375.— Distinguished  in  Eichel- 
burger V.  Pittsburgh,  C.  &  St.  L.  R.  Co., 
(Ohio)  9  Am.  &  Eng.  R.  Cas.  \tfi.— Chi- 
cago. R.  I.  &^  P.  R.  Co.  V.  Mason,  1 1  ///. 
App.  525.— Following  Chicago  &  A.  R. 
Co.  V.  Ragland,  84  III.  375.— W^/Jf///  v. 
Chicago.  B.  Gf  Q.  R.  Co.,  25  Am.  <§>•  Eng.  R. 
Cas.  426,  19  Neb.  175,  27  N.  IV.  Rep.  90. 
Turner  v.  Sioux  City  &*  P.  R.  Co.,  19  Neb, 
241. — Following  Wright  v.  Chicago,  B.  & 


'■?*, 


50'^  ATTACIIMKNT;   GAKNiSILMENT;    TRUSTEL:  PROCESS,  40,41. 


Q.  R.  Co.,  19  Neb.  lyi.— Missouri  Pac.  K. 
Co.\.  Wh.ipsker,n  Tex.  14,  13  5.  ^.  Rep. 
639.  Pierce  v.  Chicago  &*  N.  IV.  A'.  Co.,  36 
IVis.  283.-  DiSAPPROVKD  IN  Moore  v.  Chi- 
cago, R.  I.  &  F.  R.  Co.,  43  Iowa  385 ;  Car- 
son V.  Memphis  &  C.  R.  Co.,  88  Tenn.  646. 
Distinguished  in  Eichelburger  v.  Pitts- 
burgh, C.  &  St.  L.  R.  Co.,  (Ohio)  9  Am.  & 
Eng.  R.  Cas.  158. 

A  railroad  company  is  not  bound  to  make 
a  defense  for  an  employe  in  proc  "dings 
against  him  in  another  sta  e  in  'le 

company  is  summoned  as  garnisi  n'x 

failure  to  do  so  will  not  render  it  1  .lLIl.  u>  me 
employe  for  wages  in  its  hands.  Chicago, 
St.  L.  &•  P.  R.  Co.  V.  Meyer,  117  t.nc'.  563,  19 
N.  E.  Rep.  320. 

A  Missouri  corporation  having  the  wages 
of  one  of  its  employes  garnished  in  its 
hands  in  Missouri,  the  wages  being  earned 
in  Iowa,  where  they  are  exempt  under  the 
laws  of  that  state,  is  not  bound  to  interpose 
the  defense  of  the  exemption  in  Iowa;  and 
a  judgment  against  it  in  Missouri  will  con- 
stitute a  good  defense  when  sued  in  Iowa  to 
recover  the  same  wages.  Moo^e  v.  Chicago, 
R.  I.&»P.  R.  Co.,  43  Iowa  385. — Disapprov- 
ing Pierce  v.  Chicago  &  N.  W.  R.  Co.,  36 
Wis.  283.  Following  Baltimore  &  O.  R. 
Co.  V.  May,  25  Ohio  St.  347.  —  Distin- 
guished IN  Leiber  w.  Union  Pac.  R.  Co.,49 
Iowa  688.  Reconciled  in  Missouri  Pac. 
R.  Co.  V.  Sharitt,  44  Am.  &  Eng.  R.  Cas. 
657,  43  Kan.  375,  387, 

Where  there  was  no  charge  of  bad  faith 
on  the  part  of  the  employer  in  failing  to 
state  in  the  answer  in  garnishment  that  the 
wages  were  exempt,  and  the  employer,  in 
pursuance  of  the  order  of  the  court,  paid  the 
money  into  court,  where  the  debtor  claimed 
it  as  exempt,  and  filed  a  motion  supported 
by  affidavits  for  its  delivery  to  him,  which 
motion  was  overruled,  the  debtor  will,  so  far 
as  the  garnishee  is  concerned,  be  concluded 
by  the  garnishment  proceedings,  and  can- 
not afterwards  bring  an  action  against  the 
garnishee  to  recover  the  debt.  Turner  v. 
Sioux  City  &'P.  R.  Co.,  19  Neb.  241,  27  N.  IV. 
Rep.  103. 

▼.  PBOOEDUBE. 

I.  Suing  out  the  Writ. 

40.  The  affidavit.— An  affidavit  for  an 
atuchment  under  §  3702,  Rev.  St.,  if  not 
made  by  the  plaintiff,  must  contain  a  sworn 
statement  that  it  is  made  on  his  behalf.     A 


mere  recital,  as  "  J.  K.,  on  behalf  of  I.  S., 
being  duly  sworn,"  etc.,  is  insufficient. 
Miller  v.  Chicago,  M.  <S  >  St.  P.  R.  Co.,  58 
IVis.  310,  17  ^V.  IV.  Rep.  130. 

An  affidavit  made  as  the  basis  of  an  at- 
tachment proceeding  against  a  railroad  cor- 
poration need  not  allege  the  corporate 
character  of  the  company.  Mississippi  C.  R. 
Co.  V.  Plant,  58  Ga.  167. 

The  title  of  the  act  incorporating  a  rail- 
road company  need  not  be  slated  in  an  affi- 
davit for  attachment  against  it ;  and  if  such 
statement  be  necessary,  its  omission  is  not  a 
jurisdictional  defect,  and  may  be  supplied  by 
amendment  either  before  or  after  judgment, 
Ruthe  V.  Green  Bay  &*  M.  R.  Co.  yj  Wis. 

the  i'  idiorityto  issue  an  attachment  rests 
on  iacts,  the  principal  of  which  is  the  obli- 
gation to  pay,  and  the  proof  of  which  would 
be  indispensable  before  a  judgment  could  be 
obtained  and  an  execution  fssued  ;  and  the 
affidavit  for  an  attachment  should  show  the 
libility  of  the  defendant  by  such  evidence  as 
would  make  out  a  prima-facie  case  at  the 
trial ;  so  where  the  facts  alleged  in  an  affi- 
davit and  complaint  are  made  upon  informa- 
tion and  belief,  but  there  is  nothing  stated 
to  show  the  source  of  the  information  or 
how  it  was  derived,  the  affidavit  and  com- 
plaint are  not  sufficient.  Pride  v.  Indian- 
apolis, D.  &*  W.  R.  Co.,  21  N.  V.  S.  ^.  261,  51 
Hun  {N.  v.)  640,  4  JV.  V.  Supp.  15. 

41.  Time  and  place  of  issue. — A 
railroad  cannot  be  required  to  answer  a 
summons  of  garnishment  in  any  other 
county  than  that  in  which  its  principal 
business  office  is  situated,  unless  it  appear 
from  the  record  that  the  debt  charged  is  one 
for  which,  by  statute,  it  may  be  sued  else- 
where.    Clark  V.  Chapman,  45  Ga.  486. 

A  railway  company  does  not,  within  the 
meaning  of  32  Vic.  ch.  23,  §  7,  O.,  providing 
where  garnishee  process  may  issue,  "live 
and  carry  on  business  "  at  any  other  place 
than  the  head  office  at  which  its  business  is 
carried  on.  Ahrens  v.  McGilligat,  23  U.  C. 
C.P.iji.  Westoverv.  Turner,  26  U.  C.  C. 
P.  Sio. 

The  fact  of  the  railway  company  having, 
in  addition  to  its  local  station,  a  factory  for 
the  making  and  repair  of  the  roUmg  stock 
used  on  the  road,  and  employing  a  number 
of  workmen  therein,  did  not  bring  such 
place  within  the  section.  IVestover  v.  TV/r- 
ner,  26  U.  C.  C.  P.  510. 

The  defendant,  a  railroad  comn-iny,  in  an 


ATTACHMENT;   GARNISHMENT;   TRUSTEE  PROCESS,  42-44.  uOU 


m 


action  (or  a  tort  is  not  subject  to  garnish- 
ment until  final  judgment  is  recovered.  A 
garnishment  issued  and  served  after  a  first 
verdict  for  the  plaintiff  in  the  action,  which 
verdict  is  subsequently  set  aside  and  a  new 
trial  granted,  and  answered  before  a  second 
trial  is  had,  the  answer  denying  any  indebt- 
edness, seizes  nothing,  and  forms  no  lien  on 
the  final  recovery.     Gamble  v.  Central  R.  &* 

B.  Co.,  80  Ga.  595,  7  S.  E.  Rep.  315. 

42.  Form  and  sufficiency  of  the 
writ.— The  C.  R.  Co.,  one  of  the  trustees 
named  in  the  writ,  is  a  foreign  corporation. 
The  process  alleged  that  said  company  "  has 
an  authorized  agent  resident  within  the  state 
of  Vermont  at  Bellows  Falls,  in  the  town  of 
R.  and  the  county  of  W.  and  said  state." 
Such  allegation  is  sufficient  to  give  the  court 
jurisdiction  when  legal  service  has  been 
made.  Chaffee  v.  Rutland  R.  Co.,  16  Am. 
&•  Eng.  R.  Cas.  408,  55  Vt.  no. 

An  attachment  against  the  estate  of  the 

C.  I.  Co.  summons  M.,  president  of  the  S.  V. 
R.  Co.,  garnishee,  to  answer  what  property 
of  the  C.  I.  Co.  he  has  in  hand,  and  a  judg- 
ment is  rendered  that  the  plaintiff  recover 
of  M.,  president  of  the  S.  V.  R.  Co.,  gar- 
nishee of  the  C.  I.  Co.,  a  sum  of  money,  are 
not  an  attachment  and  judgment  against  the 
S.  V.  R.  Co.  as  garnishee,  and  do  not  bind 
property  in  the  hands  of  the  latter  company 
belonging  to  the  C.  I.  Co.;  and  a  sale  of  the 
property  under  execution  upon  such  judg- 
ment does  not  pass  title  thereto,  or  bar  the 
C.  I.  Co.  from  setting  up  its  claim  to  such 
property  against  the  S.  V.  R.  Co.,  either 
under  the  general  law,  or  under  the  law  of 
Pennsylvania.  Fidelity  I.,  T.  &*  S.  D.  Co. 
v.  Shenandoah  Valley  R.  Co.,  43  Am.  6f*  Eng. 
R.  Cas.  356,  33  IV.  Va.  761,11  S.  E.  Refi.  58. 

Such  property  being  negotiable  mortgage 
bonds,  and  it  not  appearing  that  when  judg- 
ment was  rendered  they  had  been  so  exe- 
cuted as  to  be  considered  in  existence  as 
valid  mortgage  bonds,  a  sale  if  them  under 
such  proceeding  would  not  pass  title  thereto 
under  the  Pennsylvania  law.  Fidelity  /., 
T.  &*  S.  D.  Co.  V.  Shenandoah  Valley  R.  Co., 
j^ZAm.  &*  Eng.  R.  Cas.  356,  33  W.  Va.  761, 
II  S.  E.Rep.  58. 

2.  Service,  levy,  and  custody  of  the  property. 

43.  Notice  to  principal  defendant. 

— Where  the  property  of  a  non-resident  cor- 
poration is  attached,  it  is  necessary,  under 
the  14th  amendment  to  the  constitution  of 
the  United  States,  relating  to  "due  process 


of  law,"  to  give  the  company  notice  of  sonic 
kind.  Martin  v.\Central  Vt.  R.  Co.,  50  //un 
(N.  V.)  347,  20  N.  Y.  S.  R.  375,  3  A^.  Y. 
Supp.  82.— Reviewing  Gray  v.  Delaware  & 
H.  C.  Co.,  5  Abb.  N.  Cas.  131 ;  Towle  v. 
Wilder,  57  Vt.  622. 

44.  Service  upon  g^arnisliee— Who 
may  be  served. — A  judgment  nisi  in  pro- 
ceedings by  garnishment  against  a  railroad 
company,  and  a  judgment  final  thereon 
against  such  company,  cannot  be  sustained 
unless  they  show  in  the  record  of  such  judg- 
ments that  the  court  had  satisfactory  evi- 
dence that  the  person  upon  whom  such  gar- 
nishment and  notice  of  the  judgment  nisi 
were  served  was  the  president  of  such  rail- 
road company  at  the  time  of  such  service, 
when  there  is  no  appearance  on  behalf  of 
said  company.  Montgomery  &*  E.  R.  Co.  v. 
Hart'well,MAla.  508. 

Under  the  Georgia  statute  service  of  gar- 
nishment on  a  domestic  corporation  must  be 
upon  the  president,  if  he  is  in  tiie  state,  and 
the  temporary  absence  of  such  oflker  will 
not  justify  service  upon  a  subordinate  officer 
or  agent.  Steiner  v.  Central  R.  Co.,  60  Ga. 
552. 

Where  a  state  designates  the  officer  of  a 
corporation  upon  whom  process  may  be 
served,  service  cannot  be  upon  the  com- 
pany's attorney,  who  is  not  mentioned  as 
such  officer,  neither  can  he  accept  service 
for  the  corporation.  Northern  C.  R.  Co.  v. 
Rider,  45  Aid.  24. 

In  Michigan  garnishee  process  issued  by 
a  justice  of  the  peace  against  a  railroad 
company  must  be  served  on  the  company's 
general  agent  or  principal  officer ;  service 
on  a  local  agent  is  not  sufficient.  Detroit, 
H.  &*  I.  R.  Co.  V.  Younghaus,  2  Mich.  (N. 

P.)  143. 

Where  the  law  authorizes  service  of  gar- 
nishee process  upon  one  officer  of  a  corpo- 
ration, while  the  property  sought  to  be 
reached  is  in  the  actual  possession  of  an- 
other officer  or  employe,  if  the  latter  de- 
livers such  property  to  a  person  author- 
ized to  receive  the  same  before  such  other 
officer  or  employe  can,  with  reasonable  dili- 
gence on  the  part  of  the  officer  served,  be 
notified  by  the  latter  to  retain  possession 
thereof,  the  corporation  is  not  liable  as  gar- 
nishee. Bates  V.  Chicago,  M.  &>  St,  P.  R. 
Co.,  14  Am.  &*  Eng.  R.  Cas.  700,  60  Wis. 
296,  19  N.  IV.  Rep.  72,  50  Am.  Rep.  369.— 
Approved  in  Pennsylvania  R.  Co.  v.  Pen- 
nock,   51    Pa.  St.   244;  Western  R.  Co.  v. 


i| 


liiikL 


6U4  ATTACHMENT;  GAKMSIIMliNT;   TRUSTEK  l^KOCESS,  45-47. 


I 

a 


I 


Thornton,  60  Ga.  300;  Wheat  v.  Platte  City 
&Fi.  D.  M.  R.  Co., 4  Kan.  317;  Illinois  Cent. 
K.  Co.  V.  Cobb,  48  111.  402. 

46.  Place  of  service. — Where  a  judg- 
ment is  rendered  in  the  circuit  court,  pro- 
cess of  garnishment  can  be  sent  to  any 
county  in  the  state  where  the  garnishee 
may  be  found,  and  in  this  respect  there  is 
no  dirterence  between  natural  person'  and 
corporations.  Either  may  be  served  as  gar- 
nishee. Toledo,  W.  Sf  W.  R.  Co.  v.  Rey- 
nolds, 72  ///.  487. 

46.  Officer's  return  of  service.— 
The  service  of  a  garnishment  against  a 
railroad  company  returned  in  these  words; 
"  Served  on  the  Montgomery  &  Eufaula 
Railroad  Company,  the  garnishee,  by  leav- 
ing a  copy  of  the  garnishment  with  Lewis 
Owen,  president  of  said  road, '  is  insufficient 
to  authorize  a  judgment  nision  tailure  to  an- 
swer, against  said  company,  at  tlie  time  of 
said  service,  if  there  is  no  appearance  for  said 
company;  and  this  proof  must  be  made  a 
part  of  tlie  record  of  the  judgment.  Mont- 
gomery &•  E.  R.  Co.  V.  Hartwell,  43  Ala.  508. 

The  service  of  notice  of  such  judgment 
nisi  in  these  words,  "  Executed  by  leaving  a 
copy  of  the  within  with  Lewis  Owen,  presi- 
dent of  the  Montgomery  &  Eufaula  Rail- 
road Company,  this  4ih  day  of  May,  1868," 
is  insufficient  to  sustain  a  judgment  final  on 
said  judgment  nisi,  on  failure  to  answer, 
without  proof  that  Owen  was  such  presi- 
dent at  the  date  of  service.  Montgomery  <&- 
E.  R.  Co.  v.  Hartwell,  43  Ala.  508. 

By  the  act  of  October  i6th,  1885  (Ga. 
Acts  1884-5,  p.  99),  service  of  summons  of 
garnishment  may  be  made  upon  the  agent 
in  charge  of  the  office  or  business  of  a  cor- 
poration in  the  county  or  district  at  the 
time  of  the  service,  but  not  upon  any  other 
agent  of  the  corporation.  It  follows  that 
the  officer's  return  designating  the  person 
served  merely  as  "  agent,"  without  describ- 
ing him  as  the  agent  in  charge  of  the  office 
or  business  of  the  railroad  corporation  in 
the  county  or  district,  will  not  afford  a  basis 
for  taking  judgment  against  the  corporation 
for  failure  to  answer.  Hargis  v.  East  Tenn., 
V.  &*  G.  R.  Co.,  90  Ga.  42. 

Under  the  Maryland  statute  providing  that 
process  against  a  corporation  shall  be  served 
on  its  "  president  or  any  director,  manager, 
or  other  officer  of  the  company,"  it  is  neces- 
sary that  the  return  show  that  a  garnishee 
process  was  served  upon  an  officer  desig- 
nated by  the  statute,  and  a  return  merely 


that  it  was  servctl  upon  ilie  corporation  is 
not  sufficient.  Northern  C.  R.  Co.  v.  Rider, 
45  Md.  24. 

A  justice  does  not  acquire  jurisdiction  in 
garnishment  over  a  railroad  company  on 
return  of  service  upon  a  specified  person 
described  merely  as  "  agent  of  the  within- 
named  defendant,"  and  the  appearance  of 
some  person  of  a  different  name  describing 
himself  as  "ticket  agent  of  said  road." 
Lake  Shore  <S«  M,  S.  R.  Co.  v.  Hunt,  39 
Mich.  469, 

A  return  on  a  writ  of  attachment  which 
shows  nothing  more  than  that  the  officer 
summoned  a  garnishee  is  not  sufficient  to 
give  the  court  jurisdiction  over  the  res  or  to 
authorize  a  procedure  to  judj^mcnt  against 
the  defendant.  Such  an  irregularity  is  not 
aided  by  a  full  return  on  the  notice  of  gar- 
nishment, that  not  being  a  judicial  writ. 
Todd  V.  Missouri  Pac.  R.  Co.,  33  Mo.  App. 
no. 

Where  return  of  service  of  garnishment 
upon  a  railroad  corporation  fails  to  show 
that  service  was  had  upon  the  nearest 
freight  or  station  agent  of  such  company,  it 
authorizes  no  judgment  against  the  gar- 
nishee, and  constitutes  no  bar  to  the  pay- 
ment by  the  garnishee  of  the  debt  to  its 
debtor ;  and  a  payment  by  the  garnishee  to 
the  plaintiff  in  the  garnishment  under  the 
order  of  the  court  would  not  be  compulsory 
but  voluntary  in  its  character,  Dunn  v. 
Missouri  Pac.  R.  Co.,  45  Mo.  App.  29. 

A  sheriff's  return  on  an  attachment  of 
real  estate  described  the  land  as  a  certain 
tract  containing  150  acres,  more  or  less,  on 
which  is  located  the  town  of  M.,  in  L. 
county,  Texas,  along  the  line  of  a  railroad 
named,  including  all  the  right,  title,  and  in- 
terest of  said  railway  company  in  and  to 
any  and  all  town  lots  and  blocks  heretofore 
laid  off  upon  said  tract  of  land,  said  interest 
being  such  as  has  been  deeded,  sold,  re- 
leased, or  contracted  to  said  company,  less 
such  portion  of  said  interest  as  had  been 
disposed  of  by  them,  and  less  any  portion  of 
the  tract  which  had  been  set  apart  as  a  right 
of  way  and  for '  depot  purposes.  Held,  that 
the  return  was  insufficient  under  Tex.  Rev. 
St.,  art.  177,  requiring  the  sheriff's  return  to 
describe  the  attached  property  with  suffi- 
cient certainty  to  identify  it.  San  Antot-') 
6-  A.  P.  R.  Co.  V.  Harrison,  72  Tex.  478, 
10  S.  W.Rep.  556. 

47.  The  levy,  and  Its  effect. — By 
virtue  of  a  levy  of  attachment,  the  attaching 


ATTACHMENT;   GARNISHMENT;  TRUSTEE  PROCESS,  48-61.  505 


creditor  ublaiiis  no  higher  or  better  right  to 
the  property  than  the  debtor  had  at  the 
time  of  the  attachment;  and  this  was  held 
to  apply  to  railroad  stocks  which  the  debtor 
had  conveyed  by  assignment  before  the 
levy  of  attachment.  HaUieimin  v.  Hillsbor- 
ough '3^  C.  R.  Co.,  2  Handy  \Ohid)  loi. 

Levying  an  attachment  upon  the  property 
of  a  foreign  railroad  in  Georgia  does  not  of 
itself  render  the  attachment  illegal.  South 
Carolina  R.  Co.\.  Peoples'  Sav,  Inst.,  12  A»t. 
&*  Eng.  R.  Cas.  432,  64  Ga.  18. 

The  service  of  an  attachment  upon  a  rail- 
way company  creates  no  lien  upon  property 
not  within  the  county  at  the  time  it  is 
served.  Sutherland  v.  Second  Nat,  Bank,  6 
Am.  &>  ICng.  R.  Cas.  368,  78  A>.  250. 

48.  Necessity  tliut  ofHocr  take  act- 
ual possession. — Where  the  property  to  be 
attached  is  susceptible  of  seizure,  the  officer 
must  take  possession  in  order  to  bind  it. 
So  where  such  property  of  a  railroad  is  in 
another  county,  mere  service  of  garnishee 
process  upon  the  company  will  not  hold  it. 
Pennsylvania  R.  Co.  v.  Pennock,  51  Pa.  St. 
244. — Approved  in  Bates  v.  Chicago,  M. 
&  St.  P.  R.  Co..  14  Am.  &  Eng.  R.  Cas.  700, 
60  Wis.  296. 

To  constitute  a  valid  levy  of  attachment 
upon  railway  bonds  in  the  hands  of  a  de- 
positary, it  is  necessary  that  the  officer  take 
them  into  actual  custody ;  but  where  such 
depositary  refuses  to  surrender  them,  but  ex- 
poses them  to  the  officer,  who  takes  pos- 
session and  then  agrees  to  leave  them  with 
the  depositary  for  the  officer,  it  is  a  suffi- 
cient compliance  with  the  law.  Coffin  v. 
Northwestern  C.  Co.,  19  AM.  N.  Cas.  {N.  V.) 

383. 

Where  a  statute  provides  that  personal 
property  capable  of  manual  delivery  may  be 
attached  by  taking  it  into  custody,  goods  in 
the  hands  of  a  railroad  company  to  be 
shipped  are  not  properly  attached  by  service 
of  notice  upon  the  company  without  any 
manual  delivery;  and  upon  the  consignee 
becoming  insolvent  the  seller  may  claim 
them  under  his  right  of  stoppage  in  transitu 
as  against  the  attaching  creditor.  Kiesel  v. 
Union  Pac.  R.  Co.,  6  Utah  1 28, 2 1  Pac.Rep.  499. 

The  levy  of  an  attachment  upon  goods  in 
the  hands  of  a  railroad  for  transportation, 
by  tacking  a  copy  of  the  order  of  attach- 
ment upon  the  goods  and  notifying  an 
agent  of  the  road  thereof,  is  insufficient. 
Louisville  &*  N.  R.  Co.  v.  Spalding,  {Ky.)  22 
Am.  <S-  Eng.  R.  Cas.  418. 


Under  the  Ohio  Code  the  stock  of  non- 
resident stockholders  in  a  railroad  company 
is  taken  in  attachment  where  notice  of  gar- 
nishment is  served  upon  the  company.  Na- 
tional Bank  v.  Lake  Shore  &>  M.  S.  R.  Co., 
21  Ohio  St.  221. 

4».  Preveutiiid:  levy.— A  railroad 
company  is  not  liable  at  the  suit  of  an  at- 
taching plaintiff  because  one  of  its  agents 
prevented  the  officer  from  levying  the 
attachment  upon  goods  already  in  a  train, 
and  by  immediately  running  the  train  out 
of  the  state.  Western  R.  Co.  v.  Thomas,  60 
Ga.  313, 

3.  Quashing  or  vacating. 

50.  Gruiiuds  for  Quashing:.— Under 

Tex.  Rev.  St.  1879.  art.  183,  an  application 
for  a  writ  of  garnishment  in  a  suit  where  an 
original  attachment  was  issued  must  show 
that  an  original  attachment  was  issued  in 
the  suit,  and  a  failure  to  so  state  is  ground 
for  quashing  the  writ,  and  cannot  be  cured 
by  amendment.  Scurlock  v.  Gulf,  C.  &-  S. 
F.  R.  Co.,  77  Tex.  478.  14  S.  IV.  Rep.  148. 

An  attachment  in  a  suit  to  collect  interest 
coupons  detached  from  railroad  bonds  will 
not  be  dissolved  by  showing  that  the  plam- 
tiff  had  brought  a  prior  suit  in  equity  to 
compel  an  accounting  of  the  net  income  of 
the  road,  and  to  obtain  payment  of  the  same 
coupons,  which  suit  had  passed  to  an  inter- 
locutory decree  ordering  an  accounting. 
As  to  how  far  such  suit  would  constitute  a 
defense  must  be  determined  at  the  trial, 
but  it  is  not  ground  for  abatement  or  for 
quashing  the  attachment.  Seeley  v.  Missouri, 
K.  &•  T.  R.  Co.,  39  Fed  Rep.  252. 

51.  or  vacating.— Where  it  ap- 
pears, on  a  motion  to  vacate  an  attacnment, 
in  an  action  by  a  ncn-resident  against  a 
foreign  corporation,  that  the  plaintiff  has 
done  work  for  the  corporation  in  building 
its  road,  which  work  was  largely  in  South 
Carolina,  there  is  no  error  in  sustaining  the 
attachment  on  the  ground  that  the  cause 
of  action  arose  in  that  state,  at  least  to  such 
extent  as  the  plaintiff  might  show  at  the 
trial  that  it  did  arise  in  that  state.  Central 
R.  &^  B.  Co.  v.  Georgia,  C.  &■•  I.  Co.,  32  So. 
Car.  3ig,  II  S.E.  Rep.  192, 638. 

A  railroad  company  moved  to  set  aside 
an  attachment,  on  the  ground  that  the 
property  attached  was  not  the  property  of 
defendants,  being  subject  to  a  bill  of  sale  to 
the  Dominion  government.  Held,  that  the 
defendant  company  could  not  take  advan- 


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5UU  ATTACHMENT;   (JAKMSIIMIINT;   TKUSTi:!'    PROCKSS,  52-50. 


tage  of  llie  luct  that  llic  properly  hclonncd 
to  a  tliird  party.  Kitchen  v.  Ckntltam  li.  A. 
Co.,  17  A'ew  Unin.  215. 

4.  Fixing  the  liability  of  the  garnishee  or 
trustee. 

02.  Ill  i^enernl.  —  The  liability  of  a 
trustee  is  deterinined  by  the  state  of  facts 
existing  at  the  time  of  liis  disclosure  and 
set  forth  therein.  Smith  v.  Boston,  C.  <>*  M. 
R.  Co.,  33  A'.  //.  337. 

A  garnishee's  liability  is  determined  ordi- 
narily by  his  accountability  to  the  defendant, 
and  if  by  any  pre-existing  bona-Jide  contract 
that  accountability  has  been  removed  or 
modified,  the  garnishee's  liability  is  corre- 
spondingly affected.  Baltimore  &*  O.  R.  Co. 
V.   Wheeler,  18  Md.  372. 

53.  Wliut  del'eii8e8  are  open,  gen- 
erally.— It  is  no  defense  to  an  action  for 
a  debt  that  attaching  orders  have  been 
served  upon  defendant  for  the  claim,  or 
that  he  lias  been  ordered  to  pay  it  over, 
under  the  garnishment  clauses  of  the  C.  L. 
P.  A.  Tliere  must  be  payment  on  such 
orders,  or  execution  levied  on  defendant. 
Sykes  v.  Brockville  Sr*  O.  R.  Co.,  22  U.  C.  Q. 
B.  459. 

If  a  garnishee  duly  served  delivers  prop- 
erty to  the  receiver  of  the  principal  defen- 
dant appointed  in  another  suit  he  does  so  at 
his  own  risk,  but  he  will  be  allowed  to  show 
in  defense  that  the  receiver  was  entitled 
to  the  possession  of  the  property  as  against 
the  plaintiff  in  garnishment.  Crerar\. Mil- 
waukee &*  St.  P.  R.  Co.,  35  Wis.  67. 

In  a  garnishment  proceeding  against  a 
railroad  company  the  company  denied  hav- 
ing any  funds  or  owing  the  defendant,  but  ad- 
mitted that,  at  the  time  of  the  writ,  a  certain 
agent  of  theirs  held  certain  funds  belonging 
to  the  debtors,  which  had  been  paid  to  the 
creditor  in  the  garnishment  proceeding,  but 
that  such  funds  were  not  the  funds  of  the 
railroad  company.  Held,  that  the  company 
was  not  again  liable  to  the  creditor.  East 
Line  &*  R.  R.  R.  Co.  v.  Terry,  50  Tex.  1 29. 

64.  Payment  of  Judgment  in  an- 
other state.* — A  judgment  in  the  trustee 
process,  in  Massachusetts,  against  an  in- 
habitant of  the  state,  who  owes  a  debt  to  a 
corporation  established  in  another  state, 
will  protect  the  trustee  against  a  suit  brought 
in  that  state  by  such  corporation  to  recover 

*  See  also  ante,  2. 


such  debt,  Ocean  Ins.  Co.  v.  J\»  tsmouth 
Marine  R.  Co.,  3  Met.  {Mass.)  420. 

Where  a  debt  due  from  a  railroad  has 
been  garnished  in  its  hands  in  anotlier 
state,  payment  there  will  constitute  a  good 
defense  when  sued  in  New  York  for  the 
same  debt.  Duggan  v.  Lake  Shore  iS*  M.  S. 
R.  Co.,  I  Sheld.  (N.  V.)  399. 

Where  the  wages  of  a  railroad  employe 
have  been  garnisheed  in  the  hands  of  the 
company,  which  is  a  foreign  corporation,  in 
another  state,  payment  there  will  constitute 
a  good  defense  when  action  is  brought 
against  the  company  in  New  York.  J?eal- 
ing  V.  New  York,  N.  H.  «^  H.  R.  Co.,  8  A^. 
Y.  S.  R.  386.  Robarge  v.  Central  Vt.  R.  Co., 
1 8  Abb.  N.  Cas.  (N.  Y.)  363. 

In  an  action  by  an  employe  of  an  Ala- 
bama railroad  corporation,  whose  road  was 
also  partly  operated  in  Tennessee,  to  recover 
wages  or  compensation  for  work  done  here, 
plaintiff  being  then  and  still  a  resident  of 
Alabama,  a  judgment  rendered  against  the 
company  in  Tennessee,  under  a  garnishment 
issued  on  a  judgment  there  rendered  against 
the  plaintiff  on  personal  service,  and  pay- 
ment thereof  by  the  garnishee,  constitute 
no  defense,  in  the  absence  of  evidence  show- 
ing that,  by  the  statutes  of  Tennessee,  the 
court  there  had  acquired  jurisdiction  of  the 
debt  sought  to  be  reached  and  subjected. 
Alabama  G.  S.  R.  Co.  v.  Chumley,  92  Ala. 
317,  9  So.  Rep.  286.  —  Explaining  East 
Tenn.,  V.  &  G.  R.  Co.  v.  Kennedy,  83  Ala. 
462. 

55.  Effect  of  notice  to  garnishee  of 
assignment  of  debt. — If  a  railroad  com- 
pany answers  a  foreign  attachment  of  the 
wages  of  an  employ^,  after  it  has  notice 
that  such  wages  have  been  assigned,  admit- 
ting that  it  owes  the  amount  which  is  gar- 
nished in  its  hands,  a  judgment  in  such 
proceeding  is  not  a  good  defense  to  a  sub- 
sequent action  brought  by  the  assignee. 
Illinois  C.  R.  Co.  v.  Bryant,  70  Miss.  665,  1 2 
So.  Rep.  592. 

56.  Garnishee's  answer— Who  may 
malfe.— Where  a  railroad  company  is  gar- 
nisheed it  may  answer  by  its  proper  officer 
under  oath.  Oliver  v.  Chicago  &»  A.  R. 
Co.,  17  ///.  587. 

Where  a  corporation  is  garnished  it  may 
answer  by  its  chief  executive  officer  under 
the  seal  of  the  corporation,  but  the  answer 
must  be  sworn  to  by  some  proper  officer. 
Chicago,  R.  L  &*  I'.  R.  Co.  v.  Mason,  1 1  ///. 


. 


ATTACH. MI' NT;    (iAKNISIIMl'NT;   TKUSTliK  I'KOCliSS,  fl7,  58.  .".u; 


App,  525.--F0LUJWING  Oliver  v,  Chicago 
&  A.  K.  Co.,  17  III.  587. 

Where  a  corporation  is  garnished  any 
officer  having;  knowleilge  of  the  facts  may 
make  the  affidavit,  but  it  need  tujt  be  made 
by  the  same  officer  upon  whom  tlie  writ  was 
served.  Duke  v.  Rhode  Island  Locomotive 
Works,  11  R.  I.  599. 

Under  Ala,  Code,  §  3222,  an  answer  of  a 
corporation  as  garnishee  cannot  be  made 
by  any  person  unless  he  makes  affidavit 
that  he  is  the  duly  authorized  agent  of  such 
corporation  to  make  such  answer.  Memphis 
<S-  C.  R.  Co.  V.   Whorley,  74  Ala.  264. 

The  disclosure  of  a  railroad  company,  in  a 
garnishment  proceeding  in  a  justice's  court, 
purported  to  have  been  made  by  the  assist- 
ant-treasurer of  the  company.  He  testified 
that  he  was  such  officer,  and  that  he  made 
the  disclosure  in  behalf  of  the  company,  and 
that  he  had  knowledge  of  the  facts  therein 
stated.  }Ield,  that  sufficient  authority  is 
shown  to  make  such  disclosure.  Whit- 
worth  V.  Pelton,  81  Mich.  98.  45  A^.  W.  Rep. 
500. 

57.  Form,  filing,  and  service  of 
answer. — When  a  corporation  is  proceeded 
against  as  a  garnishee,  its  answer  is  to  be 
received  in  the  only  mode  in  which  a  corpo- 
ration can  answer — under  its  corporate  seal. 
Baltimore  &*  0.  R.  Co.  v.  Gallahue,  1 2  Gratt. 
( Va.)  655. 

There  is  nothing  in  Wis.  Rev.  St.  ch. 
130,  §49,  providing  that  "the  affidavit  for 
process  and  garnishment  shall  be  deemed 
the  complaint  in  the  action  against  the  gar- 
nishee, and  his  answer  taken  on  his  exami- 
nation shall  be  the  answer  in  such  action," 
forbidding  the  court  to  allow  the  filing  of 
an  amended  answer  by  the  garnishee  when 
it  will  be  in  furtherance  of  justice.  Crerar 
V.  Milwaukee  &*  St.  P.  R.  G?.,  35  Wis.  67. 

A  railroad  company  having  its  business 
office  in  the  city  of  Detroit,  and  being  pro- 
ceeded against  as  garnishee-defendant  before 
a  justice  of  the  peace  of  the  city  of  Grand 
Rapids,  may  transmit  its  sworn  disclosure 
by  mail,  under  act  No.  175,  Laws  of  1885. 
Whitworth  v.  Pelton,  81  Mich.  98,  45  A^.  W. 
Rep.  500. 

58.  Effect  of  garnishee's  answer. 
— The  answer  of  a  garnishee,  that  he  had 
been  informed  and  that  he  believed  that  the 
corporation  ceased  to  have  "  any  legal  ex- 
istence "  previous  to  the  issuing  of  the  gar- 
nishment, is  equivalent  to  the  assertion  that 
it  was  dissolved;  and,  if  not  negatived  in 


the  manner  prescribed  by  the  statute,  will 
be  taken  to  be  true.  Paschall  v.  Whitsett, 
1 1  Ala.  472. 

Under  the  Kansas  statute,  making  the 
possession  by  a  foreign  corporation  of  prop- 
erty or  debts  in  that  state  a  prerequisite  to 
service  thereon  by  publication,  no  jurisdic- 
tion is  acquired  by  garnishing  one  of  iis 
officers,  if  it  turns  out  upon  answer  that  he 
has  no  money  or  property  of  the  corpora- 
tion in  his  hands.  Wheal  \.  Platte  City  Sf 
Ft.  D.  M.  R.  Co.,  4  Kan.  370.— Disapprov- 
ing Childs  V.  Digby,  24  Fa.  St.  23,— Ap- 
proved IN  Bates  V.  Chicago,  M.  &  St.  P. 
R.  Co.,  14  Am.  &  Eng.  R.  Cas.  700,  60  Wis. 
296. 

A  corporation  is  not  liable  as  trustee  in 
attachment  for  a  balance  appearing  on  its 
books  as  due  the  debtor,  if  it  appears  from 
the  answer  that  the  balance  resulted  from 
fraudulent  or  erroneous  entries.  Bigelow 
V.  York  &•  C.  R.  Co.,  yj  Me.  320. 

Where  a  person  receiving  freight  from  a 
railroad  company  is  garnished  for  the 
amount  of  such  freight  for  a  debt  owing  by 
the  company  delivering  the  freight,  and  it 
appears  from  the  answer  that  the  freight 
was  carried  over  two  roads,  and  only  a  part 
of  the  whole  is  due  to  the  debtor  company, 
such  party  is  only  liable  as  trustee  for  such 
portion  of  the  freight  as  is  due  to  the  debtor 
company.  Bowler  v.  European  6f*  N.  A.  R. 
Co.,  67  Me.  395. 

An  attachment  was  issued  against  a  non- 
resident  debtor,  and  a  summons  of  garnish- 
ment was  served  on  the  East  Tennessee,  V. 
&  G.  R.  Co.  by  serving  a  staMon  agent  in 
Georgia.  The  answer  to  the  summons 
showed  that  the  corporation  acted  under 
charters  from  each  of  the  states  through 
which  its  road  passes  and  in  which  it  trans- 
acts business,  and  that  it  was  indebted  to 
the  defendant  in  attachment  for  wages  as  a 
day  laborer,  working  for  it  in  Tennessee, 
where  he  resided  and  where  it  conducted 
its  operations ;  that  by  the  laws  of  that  state 
the  amount  of  wages  due  to  him  was  exempt 
from  the  payment  of  his  debts;  that  he  had 
sued  it  for  this  amount  in  Tennessee,  and 
though  the  garnishment  was  pleaded  as  a 
defense,  had  recovered  judgment  against  it. 
The  answer  den  ied  any  indebted  ness  in  Geor- 
gia to  the  defendant,  or  that  he  had  ever 
rendered  any  service  to  the  corporation  in 
that  state,  or  that  it  had  any  effects  of  his,  etc. 
I/eld,  that,  under  this  answer,  the  debtor 
has  neither  effects  nor  a  debt  due  to  him 


I 


. 'J 

'  l.til 


n 


50H  ATTAClIMliNl-;    (iAKMSIlMliNT;    lUl.-.  ri;!'    I'KOCIISS,  ."Ml  «l. 


9 
a 


'i.   v 


from  the  Karnishti'  in  ficor^jia  ;  nor  lias  he 
any  cllccts  on  which  an  attachment  coulfl 
be  levied  or  to  wiiich  the  jurisdiction  of  llie 
courts  of  tliat  stati-  could  attach.  Wells  v. 
Juist  lenn.,  V.  &*  (/.  A".  Co..  74  Ga.  548. 

At  tiie  liiiiL'  of  service  of  trustee  process 
on  two  persons  constiiutinj^  a  firm,  it  ap- 
peared from  tiic  disclosure  that  they  were 
indeljted  to  the  defendant  railroad  company 
for  a  considerahle  sum,  and  that  prior  to  ser- 
vice one  of  the  firm  received  a  note  from 
the  company  for  a  smaller  sum  than  the 
amount  of  the  linn's  indebtedness,  which 
note  was  payable  after  service  of  trustee 
process,  hut  before  any  disclosure  was  made. 
Before  disclosure  the  note  \v;is  taken  up  and 
credited  on  the  firm's  indebtedness.  HtUi, 
that  the  firm  were  properly  chargeable  as 
trustees  for  the  whole  amount  of  their  in- 
debtedness, without  deducting  the  amount 
of  the  note.  Donnell  v.  Portland  &*  0.  A'. 
Co.,  76  Mi:  33. 

A  railway  company,  being  garnished,  dis- 
closed by  its  agent  that  as  common  carrier 
it  hud  in  its  possession  goods  consigned  to 
the  principal  defendant,  but  that  the  agent 
did  not  know  whether  they  belonged  to  such 
defendant  and  had  no  personal  knowledge 
of  his  business  or  of  other  consignments. 
//••/(/,  insuflTicient  to  make  the  company 
liable  as  garnishee  in  a  proceeding  before  a 
justice.  Walker  v.  Detroit,  G.  H.  &*  M.  li. 
Co.,  9  Am.  &*  Eng.  R.  Cas.  25 1 ,  49  Afi'c/t.  446, 
13  A^.   W.  Rep.  812. 

50.  Entry  of  jiidf^inent  on  answer. 
— Upon  the  salary  of  the  president  being 
garnished  in  the  hands  of  the  company, 
the  latter  answered,  stating  that  the  debtor 
was  its  president,  but  that  his  sahiry  had  not 
been  fixed  by  the  directors,  and  then  stating 
the  amount  that  former  presidents  had  been 
paid  for  the  same  services.  Held,  that  it 
was  proper  to  render  judgment  against  the 
company  as  garnishee  for  the  same  amount 
it  had  paid  former  presidents,  although  the 
answer  stated  that  its  president  had  large 
sums  of  money  belonging  to  the  company 
in  his  hands,  but  where  it  clearly  appeared 
that  he  was  not  in  default.  South  &*  N. 
Ala.  R.  Co.  V.  Falkner,  49  Ala.  1 1 5.— QUOTED 
IN  People  V.  Remington,  10  N.  Y.  S.  R.  310. 
GO.  Exam i  nat io n— I nterroisratories. 
— A  provision  of  the  Alabama  Cofle,  §  3293, 
providing  that  a  garnishee  may,  if  required 
by  plaintiff,  be  examined  orally  in  the  pres- 
ence of  the  court,  is  mandatory,  and,  by  § 
y^f^y,  is  made  expressly  applicable  to  cor- 


porations, which  chitngcs  ilic  common-law 
rule  and  makes  corporations  liable  to  be 
dfalt  with  ill  the  same  inaniKT  as  natural 
persons;  that  is,  tliiit  they  maybe  required 
to  answer  orally,  to  have  their  answer  re- 
jected if  they  refuse  to  answer  orally  when 
so  ordered,  and  to  have  judgment  rendered 
against  them  for  want  of  an  answer.  E.v 
parte  Cincinnati,  S.  Sn^  JA  R.  Co.,  78  Ala. 
258. 

Where  a  garnishee  answers,  admitting  an 
indebtedness  for  services  rendered  by  the 
defendant  under  a  continuing  contract,  to 
which  a  claim  of  exemption  is  thereupon 
interposed  by  the  defendant,  and  on  appeal, 
an  oral  explanation  being  required,  he  ad- 
mits a  further  indebtedness  which  has 
accrued  under  the  contract  since  his  first 
answer  was  filed,  this  indebtedness  is  not 
included  in  the  claim  of  exemptions  already 
filed,  and  is  liable  to  the  plaintiff's  demand 
unless  a  new  claim  is  interposed.  Cra/t  v. 
Louisiiille  &*  N.  R.  Co.,  93  Ala.  22.— Re- 
viF.WKD  IN  Young  V.  Louisville  &  N.  R.  Co., 
95  Ala.  454- 

Simple  denials  of  indebtedness  by  a  gar- 
nishee are  not  sufficient,  but  no  rule  can  be 
given  applicable  to  all  cases  as  to  how  far 
he  may  be  subjected  to  interrogatories,  but 
such  subjection  is  limited  to  good  faith  on 
the  part  of  the  plaintiff  as  well  as  the  gar- 
nishee in  making  a  full  but  pertinent  dis- 
closure. So  where  a  railroad  company 
was  garnished,  interrogatories  propounded 
which  tended  to  show  not  so  much  that 
money  was  in  the  hands  of  the  company  as 
that  by  proper  management  it  would  have 
been,  were  held  improper.  Rhine  v.  Dan- 
ville, H.  &•  W.  R.  Co.,  10 Phila.  (Pa.)  336.— 
Reviewing  Corbyn  u.  BoUman,  4  Watts  & 
S.  (Pa.)  342. 

61.  Evidence.— Where  suit  is  brought 
against  a  contractor  and  the  railroad  com- 
pany as  garnishee,  the  burden  is  on  the 
plaintiff  to  show  such  facts  as  would  enable 
the  contractor  himself  to  rec..:.  c,^^I..3t 
the  company,  Reagan  v.  Pacific  R.  Co.,  21 
Mo.  30. 

A  judgment  against  a  railroad  company, 
as  garnishee  of  one  of  its  employds,  cannot 
be  sustained  where  it  appears  that  the 
company  was  running  a  quarry  in  a  remote 
place  ;  that  it  had  established  a  boarding- 
house  and  store  for  its  employes,  the  com- 
pany being  answerable  for  their  bills,  and 
deducting  them  from  their  wages;  that  at 
the  time  of  the  garnishment  the  debtor  had 


ATTACHMliNT;   GARNISHMli  NT;   TRUSTI'l'   PROCKSS,  «a,  «:i.  500 


worked  for  llie  company  fifteen  days ;  and 
that  his  bill  for  supplies  and  board  exceeded 
the  amount  which  he  had  earned.  Such 
proof  fails  tn  show  atfirmatively.as  required 
by  law,  any  indebtedness  against  the  com- 
pany. (  'h/oh  I'ac,  A\  Co.  V.  Gibson,  1 5  Colo. 
299,  25  Pac.  Rep.  300. 

The  jurisdiction  of  the  court,  in  case  of 
the  garnishment  of  the  stock  of  a  non- 
resident stockholder,  is  complete  when  the 
notice  of  garnishment  has  been  served  upon 
the  corporation,  and  cannot  be  ousted  by 
the  subsequent  answer  of  the  garnishee 
denying  any  knowledge  of  such  property,  or 
by  denying  that  the  defendant  in  attachment 
is  a  stockholder  therein ;  but  in  such  case 
it  is  competent  for  the  court  to  hear  testi- 
mony, and,  having  found  in  favor  of  its 
jurisdiction,  a  final  judgment  and  order  in 
the  case  are  not  void.  National  Hank  v. 
Lake  Shore  &r-  M.  S.  R.  Co.,  ?.i  Ohio  St.  221. 

A  railroad  company  being  summoned  as 
a  garnishee,  and  a  jury  having  been  impi^n- 
elled  to  try  whether  it  has  made  a  fuH  tlis- 
closure  of  its  indebtedness  to  the  defendant 
in  the  action,  the  statements  of  a  division 
engineer  to  a  third  person  in  relation  to  the 
indebtedness  of  the  company  to  the  defend- 
ant are  not  competent  evidence,  it  not  ap- 
pearing that  said  engineer  was  the  agent  of 
the  company  having  any  authority  on  this 
subject,  or  that,  at  the  time  of  making  the 
statements,  he  was  engaged  as  agent  about 
the  business  referred  to,  so  as  to  make  his 
statements  part  of  the  transaction,  and  ex- 
plaining the  nature  thereof.  Baltimore  &^ 
O.  R.  Co.  V.  Gallahue,  12  Gratt.  {Va.)  655. 

62.  Discliargre  <>r  relcnNe  of  {gar- 
nishee.— The  existence  of  a  contingent 
liability  on  the  part  of  a  trustee  for  the 
principal  defendant  furnishes  no  valid 
ground  for  the  discharge  of  the  trustee ; 
nor  will  the  court,  after  disclosure  com- 
pleted, direct  a  suit  to  be  continued  to 
await  the  result  of  such  contingent  liability. 
Stnith  V.  Boston,  C.  <S-  Af.  R.  Co.,  33  A^.  //. 

337- 

A  railroad  garnishee  of  an  attachment 
defendant,  summoned  to  appear  before  a 
justice  of  the  peace,  is  released  from  the 
claims  of  such  defendant  if  he  pays  to  the 
constable  the  amount  due  from  him  to  such 
defendant,  in  conformity  with  Rev.  St.  Mo. 
1879,  §  2551,  and  the  exoneration  or  release 
of  the  garnishee  from  such  claims  is  not 
affected  by  the  subsequent  misapplication 
of  the  fund   by  the  constable.     Melton  v. 


Kansas  City,  Ft,  S.   fi-  M.   R.  Co.,  39  Mo, 
App.  194- 

IJoth  the  plaintiff  and  defendant  lesided 
in  the  state  of  New  York  ;  the  contract 
upon  which  the  suit  was  brouglit  and  the 
contract  upon  which  it  was  sought  to  charge 
the  trustee  were  made  in  that  stale;  the 
debt  was  for  .servi(  es  rciiflered  tii(  re,  and 
was  due  and  payable  there;  and  the  trustee 
was  a  body  corporate  existing  under  the  laws 
of  New  York,  operating  a  conlinuous  line 
of  railroad  from  Troy,  N.  Y.,  to  Kiitland, 
Vt.  Held,  on  these  facts  and  others  agreed 
to,  that  the  trustee  should  be  discharged. 
Tffwle  V.  U'/!,/er,  57  /'/.  622. — Rkvikwf.d 
IN  Martin  v.  (  entral  Vt.  U.  Co.,  50  Hun  (N. 
Y.)  347.  20  N.  V.  S.  R.  373,  3  N.  Y.  Supp.  82. 

5.  Claims  of  third  persons ;  Priority  ;  Inter- 
vention. 

6.1.  In  genornl.—  Wiicre  a  strip  of  land 
with  a  railroad  track  thereon  is  attached  by 
a  creditor  in  a  proceeding  against  a  foreign 
corporation,  with  no  charter  privilege  from 
the  state  (West  Virginia)  in  which  the  road 
is  situated,  and  it  does  not  appear  in  the 
record  that  any  railroad  chartered  in  that 
state  has  any  interest  therein,  the  court  will 
regard  the  strip  of  land  so  attached  as  ordi- 
nary real  estate ;  but  no  decree  with  refer- 
ence thereto  or  sale  of  the  land  thereunder 
can  affect  the  rights  of  any  railroad  chartered 
in  that  state,  or  any  interest  of  such  railroad 
in  such  land,  of  whatever  character  that  in- 
terest may  be,  such  road  not  being  a  party  to 
the  suit.  Chapman  v.  Pittsburgh  6-  S.  R.  Co., 
9  Am.  &*  Eng.  R.  Cas.  484,  18  W.  Va.  184. 

When  there  has  been  a  foreign  attach- 
ment suit  in  equity  and  an  ascertainment  of 
tlie  amount  of  the  indebtedness  due  from 
the  defendant  to  the  plaintiff,  and  the  debtor 
appeals  from  the  decree  so  ascertaining  the 
amount,  which  is  affirmed,  and  the  court 
below  is  proceeding  to  execute  the  decree 
by  selling  the  attached  property,  it  is  too 
late  for  a  claimant  of  the  property  to  dispute 
the  debt.  Chapman  v.  Pittsburg  <S-  S.  R. 
Co.,  26  W.  Va.  324. 

Because  pendente  lite  a  defendant  railroad 
company  has  taken  possession  of  a  strip  of 
land  attached, on  which  was  a  roadbed  and 
railroad  track  at  the  time  the  attachment 
was  levied,  it  has  no  right  to  insist  that  a 
section  of  a  railroad  cannot  be  sold.  It 
takes  the  property,  if  at  all,  cum  onere. 
Chapman  v.  Pittsburg  &^  S.  R.  Co.,  26  W. 
Va.  200. 


510  ATTACHMENT;   GAKNISHMENT;   TRUSTEE  PROCESS,  ol  07. 


I 


)■  I 


h 


:   L 


04.  Prlorit3".*--A  railroad  was  mort- 
gaged to  trustees  to  secure  bonds  of  the 
company,  and  subsequently,  under  a  vote 
of  the  directors,  a  further  deed  was  made 
surrendering  tlie  mortgaged  property  to 
the  trustees,  "  to  be  held  solely  for  the  use 
and  purposes  for  which  it  was  conveyed." 
Immediately  the  trustees  took  possession 
they  gave  notice  to  the  employes  and  to  all 
persons  having  any  of  the  company's  prop- 
erty in  their  possession.  NM,  that  this 
was  such  "  open,  visible,  and  exclusive  pos- 
session "  as  the  law  required  to  enable  them 
to  hold  it  against  subsequent  attaching 
creditors;  and  the  fact  that  the  employes 
were  retained  by  the  trustees  was  not  cal- 
culated to  so  deceive  the  public  as  to  affect 
tlie  validity  of  the  delivery.  Henshaw  v. 
Bank  of  Bellows  Falls,  lo  Gray  {Mass.)  568. 

A  creditor  of  a  railroad  company  at- 
tached its  property  and  receipted  to  the 
officer  for  the  same.  Subsequently  the 
company  executed  a  lease  of  its  property  to 
the  creditor,  with  a  provision  that  he  should 
hold  it  as  security  for  his  liability  as  re- 
ceiptor of  it,  and  he  took  possession  under 
the  lease.  Afterward  other  creditors  sued 
the  company  and  summoned  the  lessee  as 
trustee.  Still  later  other  creditors  sued  out 
executions  on  judgments  against  the  com- 
pany, and  the  officer  took  tlie  road  out  of 
the  lessee's  hands  and  sold  it  on  execution. 
The  question  made  on  a  bill  filed  was  as  to 
the  priority  of  the  different  claims,  and  as 
to  the  right  to  attach  the  property  under 
trustee  process.  Held,  that  the  trustee 
process  was  a  proper  remedy,  and  that  when 
prior  specific  attachments  had  been  satisfied 
by  the  sheriff  out  of  the  property  he  siiould 
restore  any  surplus  to  the  lessee,  who  might 
hold  it  subject  to  his  rights  as  lessee  and  his 
liability  as  trustee.  Bank  of  Middlebury  v. 
Edgerton,  30  Vt.  182. 

65.  Intervention. — Where  a  foreign 
corporation  extends  its  road  into  Georgia 
and  its  property  is  there  attached,  and  a  re- 
ceiver is  afterward  appointed  in  the  state 
where  the  corporation  is  created,  if  he 
wishes  to  defend  the  attachment  suits  he 
must  apply  to  the  court  where  they  are 
pending,  to  be  made  a  party;  it  is  not 
proper  to  petition  the  court  for  an  order 
discharging  the  property  from  the  levy  and 

*  Right  to  possession  of  property  as  between 
receiver  and  execution-  or  attachment-creditor, 
see  note,  20  L.  R.  A.  392. 


ordering  it  to  be  turned  over  to  the  rcccivLr. 
South  Carolina  K,  Co.  v.  People's  Sav.  Inst., 
12  Am.  6-*  Eng.  R.  Cas.  432,  64  Ga.  18. 

Where  other  creditors  have  made  them- 
selves parties  to  a  suit  in  which  an  attach- 
ment has  issued,  there  is  no  "  final  adjust- 
ment,"  within  the  meaning  of  Ind.  Rev.  St. 
1S81,  §  943,  until  all  the  pending  claims  have 
been  settled  by  judgment,  and  an  order  for 
tlie  sale  of  the  attached  property  has  been 
made,  and  until  then  other  creditors  may 
continue  to  come  in.  Lexington  &*  B.  S. 
Ji.  Co.  v.  Ford  Plate  Glass  Co.,  84  Ind.  516. — 
QuoiiNG  Cooper  v.  Metzger,  74  Ind.  544. 

60.  Interpleader.— The  wages  of  a 
minor,  his  father  being  dead,  belong  to  his 
mother;  and  where,  in  a  garnishment  pro- 
ceeding against  a  railroad  (the  employer  of 
the  minor)  in  favor  of  the  minor's  judgment- 
creditor,  the  mother  interpleads  for  the  wages 
in  question,  but  fails  to  prosecute  the  inter- 
plea,  and  an  order  is  made  to  pay  the  wayes 
into  court  for  such  judgment-creditor,  the 
minor  cannot  in  a  subsequent  action  recover 
such  wages  from  the  garnishee.  Dooley  v. 
Missouri  Pac.  R.  Co.,  45  Mo.  App.  308. 

6.   The  judgment :   how  enforced  and  hmv 
revietved. 

67.  Form  and  8u<Iiciency  of  the 
judgment. — In  an  action  at  law  against 
a  non  resident  railroad  company,  in  which 
an  attachment  has  been  sued  out,  if  the  ab- 
sent defendant  does  not  appear  in  the  case, 
and  has  not  been  served  with  process,  there 
should  not  be  a  personal  judgment  against 
him;  the  attached  effects  alone  are  sub- 
jected. But  if  he  does  appear  to  the  action 
there  may  be  a  personal  judgment  only 
against  him,  or  there  may  be  both  a  per- 
sonal judgment  and  an  order  and  judgment 
subjecting  the  attached  effects.  Mahany  v. 
Kephart,  1 5  W.   Va.  609. 

Where  an  attachment  is  sued  out  against 
a  non-resident  corporation  which  has  the 
equitable  title  to  real  estate  attached  in  the 
cause,  a  personal  decree  may  be  rendered 
against  such  non-resident  corporation  which 
appears  in  the  cause ;  but  the  attached  prop- 
erty will  not  be  sold  in  the  absence  of  trus- 
tees who  hold  the  legal  title ;  they  must 
either  le  served  with  process,  or,  if  non- 
residents, an  order  of  publication  must  issue 
against  them  and  be  duly  published.  Chap- 
man v.  Pittsburgh  &•  S.  R.  Co.,  9  Atn.  &* 
Eng.  R.  Cas.  484, 18  IV.  Va.  184. 

A  debt  due  to  a  contractor  by  a  passcnj^er 


' 


ATTORNEY-GENERAL,  1,  a. 


611 


railroad  company,  which  was  payable  in 
their  own  bonds,  was  attached  by  writ  of 
foreign  attachment  by  a  creditor  of  the  con- 
tractor. After  judgment,  upon  interroga- 
tories answers  were  filed  by  the  company 
admitting  a  much  larger  indebtedness  than 
plaintiff's  demand ;  afterward  th'  company 
settled  with  the  contractor,  paying  him  in 
bonds  as  agreed  upon,  and  retaining  enough 
of  them,  if  taken  at  par,  to  pay  plaintiff's 
claim,  which  facts  were  set  out  in  amended 
answers.  Judgment  being  entered  on  the 
answers  for  the  amount  of  the  claim  at  the 
time  of  the  attachrnent,  excluding  the  in- 
terest accrued,  pa'/ able  in  the  bonds  of  the 
company  at  par — held,  that  the  judgment  was 
erroneous ;  that,  as  the  company  had  ad- 
mitted that  there  was  enough  in  their  hands 
to  pay  the  claim  of  plaintiffs  which  they  had 
not  retained,  judgment  should  have  been 
against  them,  de  bonis  propriis,  for  the  full 
amount  of  the  claim  with  interest  and  costs. 
Frederick  v.  Easton,  ^oPa.  St.  419. 

68.  and  how  enforced. — When 

two  garnishment  suits  are  pending  against 
the  same  defendant  and  the  same  garnishee, 
but  in  favor  of  different  plaintiffs,  the  court 
will  not  look  to  the  record  of  one  case  on 
the  trial  of  the  other,  except  as  it  is  offered 
in  evidence ;  and  if  it  appears  that  the 
debtor  filed  a  claim  of  exemption  in  the  sec- 
ond case,  and  that  it  was  not  contested,  the 
plaintiff  in  that  case  cannot  complain  that 
the  court  ordered  the  older  judgment  to  be 
first  satisfied,  and  awarded  him  only  the  ad- 
mitted balance  remaining  in  the  hands  of 
the  garnishee.  Young  v.  Louisville  &•  N. 
Ji.Co.,^l  Ala.  454,  II  .^0.  Rep.  121.— Re- 
viewing Craft  V.  Louisville  &  N.  R.  Co.,  93 
Ala.  22. 

60.  Sale  and  rights  of  purchaser.— 
The  title  to  personal  property  passes  to  the 
purchaser  upon  a  sale  by  an  officer,  even 
before  the  purchase-money  is  paid.  So 
where  personal  property  of  an  express 
company  was  taken  on  mesne  process  and 
sold  by  the  sheriff,  but  was  seized  by  a  United 
States  collector  of  internal  revenue  for  the 
non-payment  of  taxes  before  the  purchasers 
had  obtained  possession  of  the  same,  or  paid 
the  purchase-price — it  was  held  to  belong 
to  the  purchasers  as  against  the  collector. 
Abbott  V.  McCartney,  i  Holmes  ( U.  S.)  80. 

70.  Writ  of  error.— In  a  suit  against 
a  garnishee  by  scire  facias,  and  judgment 
therein  by  default,  it  cannot  be  alleged  on 
error  that  the   writ  of  attachment,  as  ap- 


pears by  the  record  of  the  proceedings 
against  the  defendant  in  attachment,  was 
not  duly  served  on  such  garnishee.  The 
recital  in  the  scire  facias  that  the  writ  was 
duly  served  on  the  garnisliee  and  the 
judgment  by  default  are  conclusive  against 
him.  Young  \.  Delaware,  L.  &*  W.  K.  Co., 
38  A'. /.Z.  502. 

An  issue  in  a  garnishee  proceeding  against 
a  railroad  was  tried  by  a  jury  which  found 
a  verdict  for  the  creditor.  Before  judg- 
ment was  signed  the  railroad  company 
moved  to  expunge  the  judgment  and  to  ar- 
rest it,  which  motion  was  overruled  and  ex- 
ception taken.  No  bill  of  exceptions  was 
taken  in  regard  to  the  trial.  Held,  that  the 
action  of  the  court  in  overruling  the  motion 
in  arrest  of  judgment  could  not  be  reviewed 
on  a  writ  of  error.  Canal  &•  C.  St.  R.  Co.  v. 
Hart,  114  [/.  S.  654,  5  Sup.  Ci.  Rep.  11 27. 


ATT0RNE7-GENEBAL. 

Wlien  information  must  be  filed  by,  see  Quo 
Warranto,  5. 

1.  Power  to  proceed  against  cor- 
porations.— The  Illinois  statutes  do  not 
change  the  common-law  powers  and  duties 
of  an  attorney-general  to  institute  proceed- 
ings in  equity  to  abate  riuisanres,  etc.;  and  a 
bill  may  properly  be  filed  by  the  attorney- 
general  to  restrain  the  operation  of  cars 
upon  streets  of  a  large  city,  on  the  ground 
that  they  are  a  nuisance.  Hunt  v.  Chicago 
&•  D.  R.  Co.,  20  ///.  App.  282 ;  affirmed  in 
part  and  reversed  in  part  in  1 2 1  ///.  638. — 
Quoting  Attorney-General  v.  Chicago  & 
E.  R.  Co.,  112  111.  520. 

The  attorney-general  is  not  authorized  to 
maintain  a  suit  to  prevent  the  payment  of 
bonds  issued  by  a  railroad  company  with- 
out authority  where  public  interest  is  no 
further  involved  than  that  the  increase  of 
indebtedness  may  require  higher  charges 
for  passengers  and  freight,  by  §  22,  art.  4, 
Tex.  Const.,  giving  him  the  power  to  bring 
suit  to  prevent  the  exercise  of  unauthorized 
powers  by  corporations,  or  the  demanding  or 
collecting  of  any  species  of  tax,  tolls,  freight 
or  wharfage  not  authorized  by  law.  State 
V.  Farmers'  L.  <S>»  T.  Co.,  50  Am.  <&*  Eng. 
R.  Cas.  683,  81  Tex.  530,  \^  S.  IV.  Rep.  60.— 
Followed  in  State  7>.  Kennedy,  81   Tex. 

553- 

2.  Election  of  remedies.— Where  a 

railroad  company  is  charged  with  a  viola- 


Hisi 


fllM 


m 


m 


f! 


h 


513 


ATTORNEY-GENERAL,  3-6.-ATTORNEYS,  1. 


tion  of  legal  duty,  the  attorney-general  may 
proceed  against  it  either  by  an  information 
in  the  nature  of  a  guo  warranto  or  by  in- 
junction, but  he  cannot  proceed  by  both 
remedies.  Attorney-General  v.  Chicago  &* 
N.  W.  y?.  Co.,  35  Wis.  425. 

3.  Power  to  bind  state. — ^The  author- 
ity conferred  upon  the  attorney-general  by 
the  So.  Car.  act  of  1871,  authorizing  him  to 
institute  actior-  against  railroads  which 
were  in  default  in  paying  interest  on  their 
bonds  guaranteed  by  the  state,  to  bind  the 
state  by  appearing  in  an  action  against  a 
railroad  company,  must  be  confined  to  cases 
similar  to  those  which,  by  the  same  act,  he 
was  authorized  to  bring  against  railroad 
companies.     Ex  parte  Dunn,  %So.  Car.  207. 

Where  the  constitution  of  a  state  does  not 
make  it  liable  to  be  sued,  an  action  cannot 
be  maintained  against  it  except  as  provided 
by  the  constitution  of  the  United  States. 
The  mere  consent  of  the  attorney-general, 
by  appearing  to  the  action  and  answering 
the  complaint  in  the  name  of  the  state, 
does  not  bind  it.  Ex  parte  Dunn,  8  So.  Car, 
207. 

The  attorney  of  the  commonwealth  for 
the  county  of  Suffolk,  after  the  Massachu- 
setts act  of  1843,  ch.99,  abolishing  the  office 
of  attorney-general,  and  previous  to  that  of 
1849,  ch.  186,  re-establishing  that  office,  was 
authorized  by  law,  upon  the  requisition  of 
the  governor,  to  institute  proceedings  be- 
fore the  proper  tribunal,  for  the  recovery  of 
damages  su  stained  by  the  commonwealth 
for  land  taken  for  a  railroad,  and  to  prose- 
cute the  sap~e  to  their  final  termination ; 
and  such  attorney  had  a  right,  also,  with  the 
permission  of  the  court  or  tribunal  in  which 
the  proceedings  were  pending,  and  for  suf- 
ficient cause,  to  avail  himself  of  the  aid  of 
other  suitable  counsel,  in  conducting  and 
managing  the  same,  under  his  direction  and 
control  and  upon  his  responsibility.  Com- 
monwealth v.  Boston  &*  M.  R,  Co.,  3  Cush. 
(Mass.)  25. 

4.  Enforcement  of  penal  laws  by.— 
A  state's  attorney  should  not  be  permitted 
to  prosecute  actions,  in  the  name  of  the 
state,  for  his  own  benefit,  to  recover  the 
penalty  prescribed  by  111.  St.  ch.  114,  §§  63, 
64,  against  conductors  and  engineers  for 
leaving  cars  on  the  track  at  highway  cross- 
ings, to  be  prosecuted  for  in  the  name  of  the 
state  for  the  use  of  the  person  who  may  sue 
lor  the  same.  People  v.  IVabasli,  St.  L.  &• 
P.  R.  Co.,  12  ///.  App.  263.-QUOTING  Peo- 


ple ex  rel.  v.  North  Chicago  R.  Co.,  88  III. 

537. 

5.  Interveninj;  in  suits  against  cor- 
porations.—  The  attorney  -  general  was 
asked  to  intervene  in  an  application  for  an 
injunction  to  restrain  the  building  of  an 
electric  railway  through  the  Gettysburg 
battlefield  grounds.  Held,  that,  so  far  as 
the  question  involved  the  good  taste  or 
sentiment  in  building  a  road  through  such 
grounds,  the  attorney  -  general  would  not 
express  an  opinion.  Gettysburg  B.  F.Assoc. 
V.  Gettysburg  E.  R.  Co.,  2  Pa.  Dist.  659. 


ATTORNEYS. 

Advice  of,  as  a  defense,  see  Contempt,  6; 

Malicious  Prosecution,  13. 
Employment  of  physicians  by,  see  Medical 

Services,  4. 
Power  of  county  commissioners  t »  employ, 

see  Counties,  6. 

I.  EMPLOYMENT  OF  AND  SELATION 

WITH  CLIENT 512 

II.  AUTH0BIT7  AND  POWERS 513 

in.  COMPENSATION  AND  LIEN 515 

17.  PBiyiL£OEI>  COMMUNICATIONS. ...   521 

I.  EMPLOYMENT  OF  AND  RELATION  WITH 
CLIENT. 

1.  Power  to  appoint  and  how  ex- 
ercised.— The  power  to  employ  attorneys 
and  counsellors-at-law  is  among  the  implied 
powers  of  the  managing  officers  of  a  cor- 
poration, and  a  formal  resolution  authoriz- 
ing them  to  do  so  is  not  necessary.  South- 
gate  V.  Atlantic  <S-  P.  R.  Co..  61  Mo.  89. 

Where  a  local  attorney  is  appointed  for  a 
railroad  company  by  the  company's  general 
manager,  it  will  be  liable  for  his  services 
unless  he  knew,  or  by  the  exercise  of  ordi- 
nary diligence  might  have  known,  that  the 
general  manager  was  not  authorized  to  ap- 
point him.  St.  Louis,  Ft.  S.  &*  W.  R.  Co. 
V.  Grove,  39  Kan.  731.  i''  Pac  Rep.  958. 

The  appointment  of  an  attorney  to  a  rail- 
way company  under  the  charter  power  given 
to  the  directors  to  appoint  and  displace  any 
of  the  officers  need  not  be  under  seal. 
Reg,  V.  Cumberland  {Justices),  5  Railw, 
Cas.  332,  s  D.^-  L.  431,  12  /ur.  1025,  17  L. 
J.  Q.  B.  102. 

Plaintiff  was  general  attorney  for  the 
defendant  company,  and  in  that  capacity, 
but  under  specific  directions  from  its  presi- 
dent, he  rendered  services  in  several  suits 
and  was  paid  for  the  same.    After  he  ceased, 


J,m 


ATTORNEYS,  2-6. 


613 


512 
513 
S»S 

S2I 


by  a  tacit  understanding,  to  be  such  general 
attorney,  and  without  having  been  em- 
ployed as  a  special  attorney,  and  without 
knowledge  on  the  part  of  the  defendant's 
agents,  except  its  attorney,  who  had  no 
authority  to  employ  him,  he  also  ren- 
dered services  of  some  value  in  the  same 
suits,  //e/tf,  that  the  plaintiflf  was  dis- 
charged from  all  employment  in  the  suits, 
and  that  he  could  not  recover,  even  on  the 
ground  of  implied  assumpsit.  Safford  v. 
Vermont  &'  C.  R.  Co.,  60  Vt.  185,  6  N.  Eng. 
Rep.  510,  14  Ail.  Rep.  91. 

2.  Eligibility— Who  should  be  ap- 
pointed.— The  fact  that  an  attorney  who 
was  employed  by  and  rendered  service  for 
a  railroad  company  is  a  stockholder  of  the 
company  will  not  prevent  him  from  acting 
as  attorney,  or  from  recovering  for  services 
rendered ;  and  where  it  appears  that  he 
rendered  services  the  court  will  presume 
that  they  were  legal.  Barker  v.  Cairo  &*  F. 
R.  Co.,  3  r.&*C.  (N.  y.)  328. 

Where  a  foreclosure  suit  is  instituted 
against  a  railroad  company,  and  pending  it 
a  receiver  is  appointed,  an  attorney  who 
represents  the  plaintiti  should  not  be  author- 
ized to  act  as  legal  counsel  for  the  receiver. 
S/atr  v.  St.  Louis,  H.  fl-  K.  R.  Co.,  20  Fed. 
Rep.  348. 

Where  a  receiver  is  appointed  in  a  rail- 
road foreclosure  suit,  an  attorney  who  is 
related  to  the  receiver  and  who  comes  into 
the  circuit  and  becomes  a  member  of  the 
bar  for  the  purpose  of  securing  such  ap- 
pointment should  not  be  appointed  as  legal 
adviser  of  the  receiver.  Blair  v.  St.  Louis, 
H.  &*  K.  R.  Co.,  20  Fed.  Rep.  348. 

3.  Ratification  of  previous  em- 
ployment.— Where  an  attorney  is  em- 
ployed by  the  company's  managing  director 
without  authority  to  do  so,  acceptance  of 
his  services  will  bind  the  company  to  pay 
for  them.  Albert  R.  Co.  v.  Peck,  26  New 
Brun.  191. 

A  railroad  company  which  succeeds  to 
the  rights  of  another  company  under  a 
lease,  and  operates  the  roads  of  such  other 
company,  and  continues  to  receive  the 
services  of  attorneys  employed  by  it  and 
ratifies  such  employment,  becomes  liable  to 
pay  for  such  services.  International  &*  G. 
N.  R.  Co.  V.  Clark,  48  Am.  (S-  Etig.  R.  Cas. 
81.  81  Tex.  48,  16  S.  W.  Rep.  631. 

4.  Relation  with  client  and  third 
persons.— The  purchase  of  railroad  piop- 
crt\'  at  a  foreclosure  sale  by  the  solicitor  of 

I  D.  R.  D.— 33. 


the  company  for  the  benefit  of  the  bond- 
holders will  be  closely  scrutinized,  but  is 
not,  of  itself,  void,  but  will  be  allowed  to 
stand  until  impeached.  Pacific  R.  Co.  v. 
Keichum,  loi  U.  S.  289. 

An  attorney  acting  through  fraud  and 
with  the  intention  of  defrauding  a  third 
party  cannot  deny  his  liability  for  loss  sus- 
tained by  his  wrong  act  under  his  privileges 
as  an  attorney-at-law.  Nor  can  he  deny  his 
liability  as  an  agent,  for  as  such  he  is  not 
justified  in  knowingly  committing  wilful 
and  premeditated  fraud  upon  another. 
Poole  v.  Houston  &>  T.  C.  R.  Co.,  9  Am.  &* 
Eng.  R.  Cas.  197,  58  Tex.  134. 

II.  ATTTHOBITT  AND  FOWEBS. 

5.  In  general.— Where  an  attorney  is 
employed  to  attend  to  a  suit  he  has  the  im- 
plied power  to  do  anything  necessary  in  the 
suit,  which  would  include  the  suing  out  of  a 
commission  to  take  depositions  and  the 
employment  of  competent  persons  to  exe- 
cute the  same.  Fairchild  v.  Michigan  C. 
R.Co.,Zni.  App.  591. 

An  attorney-at-law  employed  to  prosecute 
a  suit  is  impliealy  authorized  to  collect  the 
judgment  therein.  Conway  County  v.  Little 
Rock  &*  Ft.  S.  R.  Co.,  39  Ark.  50. 

A  notice  to  the  general  attorney  of  a  rail- 
road company  relating  to  matters  connected 
with  its  land  department,  before  the  institu- 
tion of  any  action  against  the  company,  is 
not  notice  to  the  company's  land  depart- 
ment, unless  the  general  attorney  has  been 
given  special  charge  of  the  subject-matter. 
Atchison,  T.  &*  S.  F.  R.  Co.  v.  Benton,  42 
J^an.  698,  22  Pac.  Rep.  698. 

Neither  the  Pennsylvania  act  of  May  25, 
1887,  giving  plaintiff's  attorney,  in  an  action 
of  trespass,  power  to  sign  the  statement,  nor 
Court  Rule  xxxi,  authorizes  the  attorney  to 
swear  to  the  statement.  Warner  v.  Rail- 
road Co.,  I  Pa.  Dist.  247. 

6.  Authority  to  appear  in  suits.— 
A  corporation  is  bound  by  the  acts  of  an 
attorney  who  has  appeared  for  it  to  the 
knowledge  of  the  directors,  although  the 
attorney's  authority  has  not  been  given 
under  the  seal  of  the  corporation.  Faviell 
V.  Eastern  Counties  R.  Co.,  2  Exch.  344,  6 
D.  &»  L.  54,  17  L.  J.  Exch.  297,  17  L.J. 
Exch.  223. 

The  appearance  of  counsel  specially  for  a 
railroad,  and  his  moving  to  dismiss  a  petition 
by  a  creditor  for  the  appointment  of  a  re- 


l! 


'''..,. 


m 


514 


ATTORNEYS,  7-10. 


■^ 


^«'' 


m 


ceiver  of  its  property,  do  not  preclude  him 
from  subsequently  appearing  for  the  mort- 
gage trustee  in  a  proceeding  to  foreclose  a 
mortgage  of  the  company.  S/taw  v.  £ii/,  95 
I/.  S.  10. 

7.  Power  to  bind  client,  {generally. 
—  An  attorney  employed  by  a  railroad  com- 
pany merely  to  represent  it  in  a  condemna- 
tion proceeding  for  right  of  way  across  cer- 
tain land,  has  no  authority  to  bind  the 
railroad  by  an  agreement  for  the  payment 
of  damages  to  a  person  not  a  party^to  the 
suit,  on  account  of  interference  with  a  log- 
ging road  operated  by  him  across  such  pro- 
posed right  of  way.  Haynes  v.  Taconta,  O. 
6-  G.  H.  R.  Co.,  7  Wash.  211,  34  Pac.  Rep. 
922. 

In  treating  with  the  owner  of  lands  for 
the  right  to  cross  the  same  by  a  railway, 
or  in  proceedings  before  arbitrators  ap- 
pointed between  him  and  the  company, 
with  a  view  to  ascertain  the  amount  of  com- 
pensation, the  solicitor  acting  for  the  com- 
pany at  the  arbitration  is  not  qualified  to 
enter  into  any  special  agreement  binding 
the  company  to  construct  and  maintain  a 
crossing.  IVood  v.  Hamilton  &*  N,  W.  R. 
Co.,  25  Grant  Ch.  {Ont.)  135. 

Plaintiff  brought  suit  against  a  railroad 
company  to  recover  the  value  of  certain 
wool  which  was  claimed  to  have  been  de- 
stroyed by  fire  while  in  the  defendant's 
warehouse.  After  the  company  had 
answered,  plaintiff  served  upon  the  at- 
torney for  the  defendant  a  demand,  under 
Cal.  Civ.  Code,  §  1838,  to  be  informed  of  the 
circumstances  under  which  the  loss  oc- 
curred. Held,  that  the  attorney  was  not 
authorized  by  virtue  of  his  employment  to 
give  such  information  or  to  make  in  pais 
admissions  or  statements  in  respect  to  the 
circumstances  under  which  the  loss  oc- 
curred, and  that  his  answer  was  therefore 
not  admissible  in  evidence  against  the  com- 
pany. Wilson  V.  Southern  Pac.  R.  Co.,  53 
Cal.  735- 

Plaintiff,  a  female  passenger,  sued  a  rail- 
road compHny  for  the  loss  of  her  trunk,  and 
in  giving  her  deposition  the  company's  at- 
torney put  a  cross-interrogatory  to  her 
which  she  claimed  was  libellous,  and  by  an 
amendment  she  set  it  up  as  additional  claim 
for  damages.  Held,  that,  in  the  absence  of 
anything  to  show  that  the  act  of  the  attor- 
ney was  directed  or  approved  by  the  com- 
pany, the  latter  would  not  be  bound  by  his 
act,  even  if  the  interrogatory  was  libellous. 


Galveston,  H.  &-  S.  A.  R.  Co.  v.  Smith,  81 
Tex.  479,  17  S.  W.  Rep.  133. 

8. by  admissions.— An  admission 

of  service  of  process,  signed  by  the  attorney 
of  a  railroad  company,  and  returned  with  the 
writ,  must  be  construed  as  a  waiver  of  ser- 
vice on  the  company,  and  a  consent  by  him 
to  appear  voluntarily  in  the  cause  for  the 
garnishee.  The  authority  of  tlie  attorney  to 
waive  service  and  give  such  consent  will  be 
presumed.  Northern  C.  R.  Co.  v.  Rider,  45 
Md.  24. 

Where  a  railroad  company  is  sued  for 
damages,  an  admission  by  the  company's 
attorney  as  to  the  amount  of  plaintiff's  dam- 
ages, in  case  he  was  entitled  to  recover  at 
all,  is  not  binding  on  the  company  at  a 
second  trial.  Weisbrod  v.  Chicago  6»  N.  W. 
R.  Co.,  20  Wis.  419. 

9. by  .stipulations.— Where  a  client 

intrusts  the  management  of  a  suit  to  his 
attorney,  that  management  is  exclusive,  and 
neither  the  client  himself  nor  his  agent  can 
sign  a  stipulation  for  a  continuance.  Night- 
ingale v.  Oregon  C.  R.  Co.,  2  Sawy.  { U.  S.) 

338. 

An  attorney  employed  by  a  railway  com- 
pany to  procure  a  condemnation  of  land 
for  a  right  of  way  cannot  bind  the  peti- 
tioner by  his  agreement  or  stipulation  as  to 
the  plan  of  constructing  the  road,  in  the 
absence  of  special  authority  to  do  so. 
Wabash,  St.  L.  &*  P.  R.  Co.  v.  McDougall, 
36  Am.  6-  Eng.  R.  Cas.  597,  126  ///.  in,  18 
N.  E.  Rep.  291,  I  L.  R.  A.  207. 

10.  Power  to  make  compromises. 
— Pending  a  suit  against  a  railroad  company 
for  personal  injuries,  plaintiff's  attorney, 
acting  under  a  mistake  of  fact  as  to  his 
authority,  entered  into  an  executory  agree- 
ment with  the  company  for  a  compromise  of 
the  suit,  which  was  not  entered  of  record. 
Held,  that  the  company  could  not  specifi- 
cally enforce  the  agreement  against  the 
plaintiff.  New  York,  N.  H.  C  H.  R.  Co.  v. 
Martin,  158  Mass.  313,  33  A^.  E.  Rep.  578. 
—Quoting  and  following  Moulton  v. 
Bowker,  1 1 5  Mass.  36. 

An  attorney-at-law  cannot  bind  his  client 
by  an  unauthorized  agreement  to  compro- 
mise a  damage  suit  against  a  railroad  com- 
pany, and  where  seasonable  application  is 
made  the  court  has  power  to  vacate  a 
judgment  entered  upon  such  agreement, 
and  to  place  the  parties  in  statu  quo.  Dal- 
ton  v.  West  End  St.  R.Co.,  1 59  Mass.  221,  34 
A'.  E.  Rep.  261.— Approving  New  York, 


ATTORNEYS,  11,  12. 


515 


N.  H.  &  H.  R.  Co.  V.  Martin,  158  Mass. 

3«3. 

An  attorney  for  a  railway  company  has  no 
authority,  when  acting  under  general  au- 
thority as  sucli,  in  defending  a  suit  insti- 
tuted against  tiie  company  by  an  employe 
for  damages,  to  compromise  the  suit  on 
terms  which  involve  the  permanent  future 
eniploymeni  y  the  company  of  the  plaintiff. 
Such  a  contract  can  only  be  valid  when 
made  in  pursuance  of  special  authority. 
Jiast  Line  <S-  /?.  R.  R.  Co.  v.  Scott,  38  Am. 
&>  Eng.  R.  Cas.  16,  72  Tex.  70,  10  S.  W. 
Rep.  99,  298. 

Ill  an  action  for  damages  for  breach  of  a 
contract  to  employ  the  plaintiff,  evidence 
that  the  defendant's  attorney  agreed  to  a 
compromise  judgment  in  a  suit  at  plaintiff's 
instance,  that  the  judgment  was  paid  by  de- 
fendant, and  that  the  attorney  had  charge 
of  other  suits  arising  out  of  the  r-ame  acci- 
dent and  endeavored  to  compromise  them, 
is  sufficient  to  warrant  the  jury  in  finding 
that  he  had  authority  to  make  the  compro- 
mise upon  which  the  action  is  founded,  and, 
as  part  thereof,  to  agree  to  give  the  plain- 
tiff employment.  East  Line  &*  R.  R.  R.  Co. 
V.  Scott,  38  Am.  &*  Eng.  R.  Ctts.  16,  72  TV.r. 
70,  10  S.  W.  Rep.^%  298. 

11.  Proof  of  authority,  and  when 
presiiiiiefl.— An  offer  to  show  that  the 
solicitor  of  a  company  had  control  of  its 
legal  business  is  not  sufficient  proof  of  his 
authority  to  accept  the  surrender  of  a  lease 
or  an  abandonment  of  the  premises.  James- 
town &*  F.  R.  Co.  V.  Egbert,  1 52  Pa.  St.  53, 
2^Atl.  Rep.  151. 

Where  a  suit  for  a  tort  is  instituted  against 
a  railroad  company,  and  a  notice  is  served 
on  the  company,  which  is  signed  by  an  at- 
torney for  the  plaintiff,  and  the  same  attor- 
ney signs  the  declaration  and  appears  in 
the  suit  for  the  plaintiff,  in  the  absence  of 
anything  to  the  contrary  the  court  will  pre- 
sume that  the  attorney  had  authority  to 
sign  the  notice.  Steffe  v.  Old  Colony  R.  Co., 
156  Mass.  262,  30  N.  E.  Rep.  1137. 

ni.  ooMPnriATiov  ahd  lieh. 

12.  Ckimpensation,  generally.*  — 

Where  a  railroad  company  contracts  to  pay 
an  attorney  reasonable  fers  for  assisting  in 
"  trials  in  cases  against  the  company,"  the 
right  of  the  attorney  to  compensation  is  not 

*  .\ttorney's  fees  in   stock-killing  cases,  see 
note,  20  Am.  &  Eng.  R.  Cas.  491. 
See  also  Animals,  Injuries  to,  O. 


limited  to  trials  in  the  narrowest  technical 
meaning  of  the  word,  but  he  is  entitled  to 
pay  for  services  rendered  in  actions  where 
no  issues  of  fact  were  tried.  Louisville,  N. 
A.  &•  C.  R.  Co.  V.  Reynolds,  118  /«</.  170,  20 
N.E.  Rep.  711. 

Where  a  prosecuting  attorney  appears  be- 
fore a  magistrate  at  the  request  of  a  rail- 
road company,  and  prosecutes  one  charged 
with  the  commission  of  a  felony,  preparing 
the  papers  necessary  for  such  purpose, 
there  is  no  implied  contract  that  such  com- 
pany will  pay  him  for  such  services.  Cin- 
cinnati, S.  &•  C.  R.  Co.  V.  Lee,  37  OAio  St. 

479- 

The  fact  tiiat  a  solicitor  in  promoting  a 
railway  induced  persons  to  sign  the  sub- 
scription contract  by  assurances  that  they 
would  incur  no  liability  if  the  line  were  not 
made,  does  not  prevent  such  solicitor,  after 
the  undertaking  was  abandoned  and  the 
company  ordered  to  be  wound  up,  from 
proving  a  claim  as  creditor  for  professional 
services  in  obtaining  the  act  of  incorpora- 
tion. Brampton  &*  L.  R.  Co.,  in  re  Shaw's 
Claim,  L.R.io  Cli.  177,  44  L.  J.  Ch.  670,  23 
W.  R.  813,  33  L.  r.  5:  affirming  44  L.  J. 
Ch.  537,  L.  R.  20  Eq.  620,  24  W.  R.  113,32 
L.  T.  592. 

It  is  competent  for  a  railroad  company  to 
agree  to  pay  its  solicitors  a  yearly  salary  in- 
stead of  paying  fees  for  actual  services  ren- 
dered, whether  such  contract  be  for  past  or 
future  services.  Falkiner  v.  Grand  Junc- 
tion R.  Co.,  16  Am.  <S-  Eng.  R.  Cas.  591,  4 
Ont.  350. 

Attorneys  for  petitioners,  where  a  railroad 
company  is  in  the  hands  of  a  receiver,  will 
not  be  required  to  go  without  any  compen- 
sation during  the  pendency  of  the  suit,  but 
intermediate  allowances  will  be  small,  and 
will  not  be  allowed  as  a  determination  as  to 
what  the  services  up  to  that  time  are  really 
worth,  or  what  they  would  be  worth  at  the 
final  disposition  of  the  case.  Central  Trust 
Co.  V.  Wabash,  St.  L.  &*  P.  R.  Co.,  23  Fed. 
Rep.  675.— Followed  in  Bound  v.  South 
Carolina  R.  Co.,  43  Fed.  Rep.  404. 

Plaintiff,  an  attorney-at-law,  applied  for 
the  position  of  local  attorney  to  a  railroad 
company,  but  on  being  informed  that  he 
would  not  be  exclusive  attorney  for  the 
county  he  said  he  would  not  accept  the  posi- 
tion. He  was  afterward  appointed,  and  he 
accepted  the  position  supposing  that  he  was 
the  exclusive  local  attorney,  but  the  company 
did  not  so   understand   it.     Acting  under 


l»-; 


516 


ATTORNEYS,  13-16. 


n 


the  belief  that  he  was  the  exclusive  attor- 
ney for  the  county,  he  appeared  in  good 
faith  in  an  action  against  the  company,  and 
rendered  certain  services,  when  another  at- 
torney was  sent  to  taice  charge  of  the  case. 
He/t/,  that,  the  appearance  and  services 
being  in  good  faith,  he  sliould  be  allowed 
compensation  therefor.  Boyd  v.  Chicago  &* 
A.N.  Co.,%\Mo.  615. 

13.  Agreenienls  for  coiitiugciit 
fees— Champerty.*— It  is  not  error  to 
exclude  testimony  showing  whether  or  not 
the  attorney  for  a  piaintifl  in  a  negligence 
case  has  taken  the  case  to  prosecute  on  a 
percentage,  and  whetlier  or  not  he  is  bear- 
ing the  expenses  of  the  litigation.  Palmer 
v.  Michigan  C.  K.  Co.,  93  Mich.  363,  53  A^. 
IV.  Rep.  397. 

Advancing  money  needed  to  carry  on  a 
suit  is  within  2  N.  Y.  Rev.  St.  288,  §§  71,  72, 
prohibiting  attorneys  from  buying  claims 
or  making  advances ;  but  an  attorney  is  not 
prohibited  from  agreeing  upon  any  com- 
pensation with  his  client,  whether  fixed  or 
contingent.  Said  sections  are  not  repealed 
by  §  303  of  the  Code.  Coughlin  v.  New 
York  C.  <S-  H.  R.  R.  Co.,  71  -'V.  V.  443,  27 
Am.  Rep.  75  /  reversittg  8  Hun  136. 

By  contract  between  a  plaintif!  in  an 
action  and  his  attorney  therein  the  former 
agreed  to  pay  the  latter  for  his  services  a 
certain  sum  if  he  won  the  cause,  and  noth- 
ing if  he  failed  to  do  so.  The  contract  con- 
tained this  further  stipulation  respecting 
the  agreed  compensation  :  "  I  hereby  agree 
that  he  [the  attorney]  shall  receiva  said 
money  from  the  Minneapolis  &  St.  Louis  R. 
R.  out  of  the  amount  due  me  from  said  rail- 
road company  for  running  through  my  land, 
to  be  paid  when  said  suit  is  settled."  Held, 
that  the  agreement  was  not  champertous  or 
illegal.  Canty  v.  Latternar,  1 5  Am.  &*  Eng. 
R.  Cas.  380.  31  Minn.  239, 17  N.W.  Rep.  385. 

A  contract,  construed  as  an  equitable 
assignment  of  a  portion  of  n  chose  in  action, 
entitled  the  attorney  to  receive  the  same 
specifically,  the  condition  respecting  pay- 
ment having  been  fulfilled.  Canty  v.  Lat- 
ternar, 1 5  Am.  Sf  Eng.  R.  Cas.  380,  31  Minn. 
239,  ly  N.  W.  Rep.  385. 

The  railroad  company  having,  before  the 
contract  was  made,  but  without  the  knowl- 
edge of  the  parties,  deposited  in  court  tiie 

*  Illegal  contracts  with  attorneys,  see  note, 
15  Am.  &  Eng.  R.  Cas.  382. 

Law  of  maintenance  and  champerty,  see  note, 
II  Am.  &  Eno.  R.  Cas.  11. 


amount  of  the  debt  referred  to,  pursuant  to 
statute,  it  is  considered  that  the  attorney 
had  a  right,  by  force  of  the  contract  and 
without  a  reformation  of  it,  to  recover  out 
of  the  fund  in  court  the  stipulated  sum. 
Canty  v.  Latternar,  1 5  Am.  &>  Eng.  R.  Cas. 
380,  31  Minn.  239,  17  N.  W.  Rep.  385. 

14.  A{;reeiiieiit!4  for  Hliare  in  siib- 
ject-inatter  of  litigntioii.— The  right 
of  attorneysat-law  to  contract  in  good  faith 
for  a  contingent  interest  in  the  subject- 
matter  of  the  litigation,  by  way  of  compen- 
."ation  for  professional  services,  is  now  recog- 
nized. Stewart  v.  Houston  6-  T.  C.  R.  Co., 
62  Tex.  246. 

An  agreement  between  an  attorney  and 
his  client  that  the  former  will,  for  a  certain 
share  of  the  damages,  prosecute  a  suit 
against  a  railroad  company  to  recover  for 
personal  injuries  is  not  void  as  champertous. 
McDonald  v.  Chicago  &>  N.  W.  R.  Co.,  29 
Iowa  170.— Distinguishing  Boardman  v. 
Thompson,  25  Iowa  487. — Followed  in 
Winslow  V.  Central  Iowa  R.  Co.,  71  Iowa 
197. 

The  above  rule,  applied  where  the  attorney 
was  to  pay  no  costs  or  expenses  except  his 
own  personal  expenses,  is  not  champertous. 
Winslow  V.' Central  Iowa  R.  Co.,  J I  Iowa  197, 
32  N.  W.  Rep.  330. — Following  McDonald 
V.  Chicago  &  N.  W.  R.  Co.,  29  Iowa  170; 
Jewel  V.  Neidy,  61  Iowa  299. 

A  claim  by  a  father  and  mother  against  a 
railroad  company  for  negligently  killing 
their  child  does  not  survive  to  their  legal 
representative ;  and  as  only  claims  which 
survive  are  assignable,  an  attorney  cannot 
take  an  assignment  of  a  one-half  interest  in 
a  claim  against  a  railroad  company  which 
he  is  prosecuting  to  recover  for  the  death  of 
a  child,  and  therefore  cannot  acquire  such 
an  interest  in  the  claim  as  would  prevent  a 
compromise  between  the  railroad  company 
and  his  clients,  and  the  payment  of  the 
whole  sum  to  the  clients.  Texas  Mex.  R.  Co. 
V.  Showalter,  3  Tex.  App.  (Civ.  Cas^  92. 

15.  Compensation  out  of  trust 
ftinds  or  jussets.— The  rule  that  a  neces- 
sary expens  J  of  the  legal  management  of  a 
trust  fund,  whether  incurred  by  the  trustee 
or  the  beneficiary,  may  be  charged  upon  the 
fund  by  a  decree  in  equity,  is  applicable  to 
the  property  of  a  business  corporation. 
Burke  v.  Concord  R.  Co.,  62  A'.  H.  531. 

Though  suit  may  be  brought  by  second- 
mortgage  bondholders  for  the  appointment 
of  a  receiver  of  a  railroad,  if  a  receiver  is  ap- 


and 


- 


/  ^ 


ATTORNEYS,  lO,  17. 


5r 


pointed  by  the  consent  of  all  parties  inter- 
ested, services  rendered  by  the  attorneys  for 
the  plaintiffs,  being  for  the  common  good, 
should  oe  paid  for  out  of  the  common  assets 
of  the  company.  Bound  v.  South  Carolina 
A'.  Co.,  43  /•></.  Jfep.  404.-— Following  Cen- 
trral  Trust  Co.  7'.  Wabash,  St.  L.  &  P.  R. 
Co.,  23  Fed.  Rep.  675. 

Where  an  attorney  and  counsellor-at-law, 
employed  by  trustees  of  certain  mortgaged 
property  to  foreclose  the  mortgages,  upcn  a 
stipulated  retaining  fee  entered  upon  such 
retiiiner,  commenced  the  suit,  prosecuted  it 
until  prevented  by  the  civil  war,  and,  after 
the  termination  of  the  war  offered  to  go 
on  with  the  suit;  but  in  the  meantime  the 
trustees  having  died,  a  new  suit  was  com- 
menced and  prosecuted,  without  his  assist- 
ance, by  the  bondholders  (for  whose  security 
the  mortgages  were  executed)  to  foreclose  the 
same  mortgages,  in  which  suit  a  receiver 
was  appointed — /leM,  that  his  claim  for  his 
fee  was  chargeable  against  the  funds  ob- 
tained by  the  receiver  for  the  mortgaged 
property.  Cowdrey  v.  Galveston,  H.  &'  H. 
R.  Co.,  93  U.  S.  352,  9  Am.  Ry.  Rep.  361.— 
Quoted  in  Lyman  v.  Central  Vt.  R.  Co.,  59 
Vt.  167. 

In  a  proceeding  against  an  insolvent  rail- 
road company  there  were  two  sets  of  mort- 
gafje  bonds,  one  drawing  6  per  cent  interest 
and  the  other  7  per  cent.  The  former  was 
adjudged  to  constitute  a  prior  lien.  An 
attorney  for  a  stockholder  appeared  in  the 
action  and  successfully  resisted  the  payment 
of  certain  taxes  claimed  from  the  company, 
and,  acting  under  directions  from  the  re- 
ceiver, defeated  a  claim  against  certain 
lands  belonging  to  the  company.  Another 
attorney  appeared,  representing  the  7  per 
cent  bonds,  and  rendered  services  on  behalf 
of  the  company.  Held,  that  neither  was 
entitled  to  be  paid  from  the  funds  belonging 
to  the  6  per  cent  bondholders.  Hand  v. 
Savannah  &*  C.  R.  Co.,  21  So.  Car.  162. 
'  A  receiver  of  a  railroad  comprny  em- 
ployed an  attorney  to  bring  suit  against 
persons  holding  lands  adversely  which  be- 
longed to  the  company,  agreeing  to  pay  him 
one-half  of  the  recovery  for  his  services. 
He  recovered  the  land,  which  was  sold  with 
the  other  property  of  the  company.  Held, 
that  the  attorney  was  entitled  to  compensa- 
tion out  of  the  fund  in  the  receiver's  hands. 
Hand  v.  Savannah  &*  C.  R.  Co.,  21  So.  Car. 
162. 
A  holder  of  coupons  of  6  per  cent  bonds 


of  a  railroad  (Company  tiled  a  bill  against 
the  company  to  obtain  payment,  on  behalf 
of  himself  and  all  others  holding  like  cou- 
pons. Subsequently  holders  of  7  per  cent 
bonds  intervened  and  made  one  of  the  6  per 
cent  bondholders  a  defendant  in  behalf  of 
himself  and  all  other  holders  of  such  bonds, 
who  employed  counsel ;  and  all  creditors  of 
the  company  were  called  in  by  advertise- 
ment. The  6  per  cent  bondholders  were 
adjudged  to  have  the  prior  lien,  and  the 
property  was  sold  for  an  amount  not  suffi- 
cient to  pay  their  lien.  Held,  tiiat,  as  the 
defendant  in  the  intervention  suit  was  made 
the  representative  of  all  the  6  per  cent 
bondholders,  only  fees  to  attorneys  em- 
ployed by  him  should  be  allowed,  though 
other  attorneys  for  the  6  per  cent  bond- 
holders rendered  valuable  services.  Hand 
V.  Savannah  &*  C  R.  Co.,  21  So.  Car.  162. 
— Followed  in  Finance  Co.  of  Pa.  v. 
Charleston,  C.  &  C.  R.  Co.,  52  Fed.  Rep. 
678.  Quoted  in  Bound  v.  South  Carolina 
R.  Co.,  51  Fed.  Rep.  58. 

In  such  case  counsel  for  plaintiiT  should 
be  allowed  compensation  from  the  common 
fund,  so  far  as  payable  on  the  6  per  cent 
bondholders'  coupons.  Hand  v.  Savannah 
&*  C.  R.  Co.,  21  So.  Car.  162. 

16.  The  attorney's  lien,  generally. 
— The  right  to  a  lien  on  money  due  to  his 
client  in  the  hands  of  the  adverse  party, 
given  to  an  attorney  by  subdivision  3  of  §  21 5 
of  the  Code,  is  not  confined  to  actions  on 
contract,  but  exists  in  all  actions  where 
there  is  a  money  liability  from,  the  adverse 
party  to  his  client.  Siit/th  v.  Chicago,  R.  I. 
&•  P.  R.  Co.,  56  Iowa  720,  10  N.  IV.  Rep. 
244.  —  Distinguishing  Coughlin  v.  New 
York  C.  &  H.  R.  R.  Co..  71  N.  Y.  443.  Quot- 
ing Kansas  Pac.  R.  Co.  v.  Thacher,  17  Kan. 
92. 

Where  two  or  more  attorneys  render 
legal  services  for  a  plaintiff,  each  one  is 
equally  entitled  to  a  lien  upon  the  judgment 
recovered  for  such  services,  and  if  one  has 
obtained  an  assignment  of  the  whole  of 
it  it  cannot  be  disturbed  in  favor  of  the 
others.  Massachusetts  &'  S.  C.  Co.  v.  Gill's 
Creek  Tp.,  48  Fed.  Rep.  145. 

17.  Upon  what  the  lien  attaches.— 
An  attorney  for  a  railroad  company  may  re- 
tain papers  of  the  company  in  his  hands 
under  his  lien  for  services  rendered  and  for 
money  advanced  to  the  company.  Finance 
Co.  of  Pa.  v.  Charleston,  C.  &*  C.  R.  Co.,  52 
Fed.  Rep.  526. 


%'-i 


518 


ATTORNEYS,  18,  11). 


I 

a 


All  attorney  who,  acting  for  u  railroud 
company,  has  negotiated  various  convey- 
ances and  donations  of  property  for  rigiit  of 
way,  and  taken  deeds  therefor  has  a  lien  on 
the  papers  for  his  expenses  and  salary,  and 
may  retain  them  until  paid  ;  but  wiien  such 
salary  and  expenses  are  to  be  paid  through 
a  foreclosure  suit,  the  lien  will  not  extend 
to  the  corpus  of  the  company's  property, 
nor  constitute  a  prior  lien  in  preference  to 
the  mortgage  bondholders.  Finance  Co.  of 
Pa.  V.  CAarleston,  C.  &•  C.  R.  Co.,  46  Fed. 
Rep.  426. 

Certain  unsecured  creditors  of  a  railroad 
instituted  proceedings,  on  behalf  of  them- 
selves and  all  others  of  the  same  class  who 
might  come  in  and  contribute  to  the  ex- 
pense of  the  suit,  to  have  their  claims  made 
liens  on  the  property,  which  were  successful, 
but  pending  a  reference  to  ascertain  the 
liens  the  company  settled^with  the  creditors 
of  that  class.  The  attorneys  for  complain- 
ants then  asked  for  a  reasonable  ^^llowance 
in  respect  to  all  claims  settled  except  their 
immediate  clients,  and  to  have  it  declared  a 
lien  on  the  property.  Held,  following  the 
rule  of  the  state  law,  that  the  claim  was  a 
proper  allowance,  and  that  it  was  proper  to 
make  it  a  lien  on  the  property.  Central 
R.  <S-  B.  Co.  V.  Pettus,  113  t/.  5,  116,  5 
Sup.  Ct.  Rep.  387.— Following  Trustees  v. 
Greenough,  105  U.  S.  527.— Followed  in 
Chicago.  M.  &  St.  P.  R.  Co.  v.  Third  Nat. 
Bank,  134  U.  S.  276,  10  Sup.  Ct.  Rep.  550. 

An  attorney  who  had  a  lien  on  papers  of 
a  railroad  company  for  legal  services  ren- 
dered, refused  to  deliver  them  until  his  ser- 
vices were  paid  for,  whereupon  the  company 
moved  that  he  be  required  to  deliver  them 
up,  on  the  ground  that  he  was  retained  to 
bring  suits  against  the  company  on  causes 
of  action  arising  out  of  matters  to  which 
the  papers  related,  and  that  the  possession 
of  such  papers  by  him  would  give  him  an 
undue  advantage.  No  particular  suits  were 
specified,  and  the  attorney  denied  that  he 
was  prosecuting  any  such  suits.  Held,  that 
the  order  for  delivery  should  be  denied. 
Finance  Co.  of  Pa.  v.  Charleston,  C.  &*  C.  R, 
Co.,  48  Fed.  Rep.  45. 

18.  Notice  of  lien  to  adverse  party. 
Under  Kan.  Gen.  St.  p.  no,  §  8,  giving  an 
attorney  a  lien  for  a  general  balance  of  com- 
pensation upon  money  due  to  his  client  in 
the  hands  of  the  adverse  party,  upon  giving 
police  to  the  adverse  party  a  lien  may  be 
created  in  an  action  for  personal  injuries 


before  verdict  or  judgment ;  but  to  create 
such  lien  a  written  notice  must  be  served 
upon  the  adverse  party  personally  or  on  his 
attorney ;  and  where  the  adverse  party  is  a 
railroad  company  it  is  not  sufficient  to  give 
such  notice  to  a  depot  agent.  Kansas  Pac. 
R.  Co.  V.  Thacher,  17  Kan.  92.— Quoted  in 
Smith  V.  Chicago,  R.  I.  &  P.  R.  Co.,  56 
Iowa  720. 

Where  an  attorney  is  prosecuting  a  suit 
against  a  railroad  company,  under  an  iigree- 
ment  that  he  shall  have  one-half  of  the 
damages  recovered  for  his  services,  an 
agreement  between  the  company  and  the 
client  to  settle  the  action  is  binding  on  the 
attorney  when  it  is  made  in  good  faith,  and 
the  company  has  no  notice  of  the  agree- 
ment between  tiie  plaintiff  and  his  attorney. 
Walsh  V.  Flathush,  N.  S.  &*  C.  R.  Co.,  1 1 
Hun{N.  Y.)  190.— Distinguishing  Cough- 
lin  V.  New  York  C.  &  H.  R.  R.  Co.,  8  Hun 
'36. 

Where,  after  a  judgment  has  been  pro- 
cured for  the  plaintifT  in  an  action,  his  at- 
torneys enter  upon  the  judgment  docket 
notice  of  their  claim  for  a  lien  for  their  fees 
in  the  case,  such  notice  creates  a  lien  not 
only  upon  the  judgment  but  upon  any 
money  due  the  plaintifT  from  the  defendant 
in  that  action.  And  so,  even  where  the 
judgment  is  reversed  on  appeal,  the  defend- 
ant may  not  settle  with  piaintiflf  and  pay 
him  the  amount  agreed  on,  and  thus  defeat 
the  lien  of  his  attorneys.  And  in  this  case, 
where  a  defendant  did  so  settle  and  pay — 
held,  that  it  was  still  liable  to  the  attorneys 
for  their  fees.  Winslow  v.  Central  Iowa  R. 
Co.,  71  Iowa  197,  32  A^.  IV.  Rep.  330. 

10.  Lien  :  how  affected  by  compro- 
mises and  settlements  with  client.* — 
The  court  will  extend  its  aid  to  an  attor- 
ney to  prevent  his  being  defrauded  of  his 
reasonable  compensation  by  any  collusive 
action  between  the  parties  to  a  suit;  but  he 
is  called  upon  to  invoke  its  aid  with  due 
diligence,  and  great  and  unreasonable  de- 
lays and  laches  on  his  part  m  asserting  his 
rights  will  be  as  fatal  to  his  claim  as  it 
would  be  to  theclaim  of  any  ordinary  suitor. 
In  enforcing  such  a  claim  the  court  will  be 
governed  by  the  analogy  of  the  statute  of 
limitations.  Richardson  v.  Brooklyn  City 
S"  N.  R.  Co.,  7  Hun  (N.  K)  69. 

A  party  having  a  cause  of  action  against 

*  Settling  cause  without  consent  of  plaintiff's 
attorney,  see  note,  15  Am.  ft  Eng.  R.  Cas.  390. 


ATTORNEYS,  20,  21. 


619 


suit 


an 

the 
the 
and 
gree- 
rney. 
>.,  II 
ugh- 
Hun 


a  railroad  company  for  damages  caused  by 
negligence  cannot  by  any  agreement  before 
judgment  give  his  attorney  any  such  inter- 
est therein  as  will  defeat  a  settlement  of 
the  suit  by  the  parties  themselves.  Cough- 
lin  V.  New  York  C.  &•  H.  R.  R.  Co.,  71  A^. 
Y.  443,  27  Am,  Rep.  75 ;  reversing  8  Hun 
136.— Distinguished  in  Smith  v.  Chicago, 
R.  I.  &  P.  R.  Co.,  56  Iowa  720.  Reviewed 
IN  Lamont  z/.  Washington  &  G.  R.  Co.,  15 
Am.  &  Eng.  R.  Cas.  383,  2  Mackey  (D.  C.) 
502. 

In  Texas  an  attorney  has  no  lien  for  his 
fee  except  the  common-law  lien,  which  does 
not  attach  to  anything  which  is  not  in  his 
possession  ;  therefore  an  attorney  who  has 
agreed  to  prosecute  a  damage  suit  against 
a  railroad,  for  one-half  the  damages  re- 
covered, has  no  lien  against  the  railroad 
company  where  his  clients  compromise  the 
suit  and  receive  the  whole  of  the  money, 
though  the  company  knew  of  the  contract 
at  the  time,  and  knew  that  the  clients  were 
insolvent.  Texas  Mex.  R.  Co.  v.  Shcrwalter, 
3  Tex.  A  pp.  {Civ.  Cas)  92. 

20.  Eiiforccnieiit  of  lien  by  con- 
tinuance of  litigation.  —  Where  a 
plaintiff,  in  an  action  against  a  railroad  for 
personal  injuries,  proposes  a  compromise, 
which  is  effected,  .n  the  absence  of  any- 
thing to  show  collusion  leave  will  not  be 
granted  to  the  plaintiff's  attorneys  to  prose- 
cute the  action,  regardless  of  the  settle- 
ment. Stuanson  v.  Chicago,  St.  P.  6>»  K.  C. 
R.  Co.,  35  Fed.  Rep.  638. 

Where  there  is  an  agreement  between  the 
person  suing  for  personal  injuries  and  the 
company  for  a  compromise,  which  is  subse- 
quently set  aside,  and  the  case  is  brought 
to  trial,  payment  by  the  defendant  of  the 
amount  which  had  been  agreed  upon  does 
not  establish  the  cause  of  action  so  as  to 
dispense  with  evidence  of  negligence  at  a 
trial  by  the  attorney  to  enforce  his  lien. 
Casucci  v.  Alleghany  &*  K.  R.  Co. ,  29  Abb. 
N.   Cas.   (N.    Y.)  '252,    20   N.    Y.    Supp. 

343- 

Where  an  attorney  for  a  railroad  company 
has  prosecuted  a  suit  for  it  to  judgment, 
and  has  a  lien  thereon  for  his  costs,  a  re- 
ceiver of  the  company  subsequently  ap- 
pointed is  not  entitled  to  the  amount  of 
the  judgment ;  and  if  the  judgment-debtor 
pays  it  to  the  receiver,  with  notice  of  the 
attorney'  s  lien,  he  is  not  protected,  and 
execution  m<iy  issue  against  him  on  the 
judgment  at  the  instance  of  the  attorney. 


In  re  Bailey,  31  Hun  {N.  K)  608,  66  Hmv. 
Pr.  64. 

An  attorney  in  a  suit  against  a  railroad 
company  for  personal  injuries,  who  had  a 
lien  on  the  damages  that  might  be  recov- 
ered, had  a  settlement  between  his  client 
and  tlie  company  set  aside  as  to  his  interest, 
with  leave  to  prosecute  the  case  to  recover 
the  amount  of  his  lien.  The  settlement 
had  been  made  after  issues  had  been  joined. 
Held,  that  the  attorney  could  not  recover 
without  proofs  to  establish  the  issues. 
Casucci  V.  Alleghany  &•  K.  R.  Co.,  48  N.  Y. 
S.  R.  52,  65  Hun  452,  20  A'.  Y.  Supp.  343,  29 
Abb.  N.  Cas.  252. 

Plaintiff  brought  an  action  of  tort  to  re- 
cover damages  for  injuries  received.  Pend- 
ing the  suit,  plaintiff  and  defendant,  with- 
out the  knowledge  of  plaintiff's  attorneys, 
settled  the  case.  Plaintiff  then  gave  de- 
fendant an  order  on  the  clerk  of  tlie  court 
to  dismiss  the  suit,  which  being  filed,  plain- 
tiff's attorneys  moved  the  court  to  set  the 
cause  down  for  trial  notwithstanding,  on 
the  ground  that  the  settlement  was  collusive 
and  had  been  made  with  knowledge  on  the 
part  of  the  defendant  that  the  plaintiff's  at- 
torneys were  interested  in  the  case  to  the 
extent  of  their  fees  for  services.  An  affi- 
davit accompanied  the  motion  showing  that 
the  plaintiff  had  agreed  to  pay  his  attorney 
a  contingent  fee  of  thirty-three  per  cent  of 
the  amount  that  should  be  recovered.  The 
court  thereupon  passed  an  order  that  de- 
fendant should  pay  to  plaintiff's  attorneys 
one-third  of  the  sum  for  which  the  case  had 
been  settled,  and  that  in  default  thereof  the 
entry  of  dismissal  should  be  struck  out  and 
the  cause  set  down  for  trial.  On  appeal 
this  court  reversed  the  order,— holding,  that 
the  court  will  not  interfere  to  enforce  in 
a  summary  way,  through  the  original  suit, 
the  collateral  engagement  of  a  client  for  the 
compensation  of  his  attorney,  but  will  leave 
the  latter  to  his  common-law  remedy.  La- 
mont  v.  Washington  &■*  G.  R.  Co.,  15  Am.  &* 
Eng.  R.  Cas.  383,  2  Mackey  {D.  C.)  502. — 
Reviewing  Pulver  v.  Harris,  52  N.  Y.  73 ; 
Coughlin  V.  New  York  C.  &  H.  R.  R.  Co., 
71  N.  Y.  443.  Quoting  People  v.  Tioga 
C.  P.,  19  Wend.  (N.  Y.)  73. 

21.  Actions  for  compensation. — 
(i)  General  rules.  —  Where  the  plaintiff, 
an  attorney,  renders  legal  services  for  a 
defendant  railway  corporation  during  a  cer- 
tain year,  he  is  entitled  to  recover  for  the 
value  of  the  same,  notwithstanding  the  fact 


(I 


i'i:> 


520 


ATTOKNI'VS,  ai. 


t}. 

h 

11 

I 


!' 


k 


f 

tliat  during  suid  period  the  defendunt  com- 
pany carried  the  plaintifT  on  its  said  rail- 
road free  of  charge  on  an  annual  pass  issued 
to  him  by  the  receiver  of  the  company. 
Ohio  &*  M.  R.  Co.  V.  Smith,  5  Ind.  App.  36, 
31  iV.  £•.  Kep.  371. 

An  instruction  that  "  no  greater  fee  would 
be  reasonable  against  a  wealthy  man  or  cor- 
poration than  a  poor  man  for  the  same  ser- 
vices "  was  properly  refused,  in  an  action  by 
an  attorney  to  recover  counsel  fees  from  u 
corporation,  where  tliere  was  no  evidence 
as  to  the  wealth  of  the  parties  and  no  such 
issue  was  made.  International  6-  G.  N.  R. 
Co.  V.  Clark,  48  Am.  <S-  En^r.  Ji.  Cas.  81,81 
7V-r.  48,  16  5.  iV.  Rep.  631— Reviewing 
Hamman  v.  Willis,  62  Tex.  507. 

Where  the  details  of  the  services  rendered 
were  before  the  jury,  and  the  court  charged 
that  the  verdict  should  be  rendered  upon  all 
the  evidence,  it  was  not  error  to  refuse  to 
charge  that  the  jury  were  not  bound  by  the 
opinions  of  expert  witnesses,  unless,  in  view 
of  all  the  circumstances,  they  thought  such 
opinions  were  correct.  International  &*  G, 
N.  R,  Co.  V.  Clark,  48  Am.  &^  Eng.  R.  Cas. 
81,  81  Tex.  48.  16  S.  IV.  Rep.  631. 

The  solicitor  obtaining  a  special  act  in- 
corporating a  railway  company  may  recover 
from  it  in  an  action  of  debt  for  the  expenses 
incurred  in  so  doing.  Hitchins  v.  Kilkenny 
R.  Co.,  9  C.  B.  536. 

(2)  Illustrations. — Attorneys  agreed  to 
prosecute  a  suit  for  a  railroad  company  to 
recover  certain  land,  and,  if  successful,  they 
were  to  be  paid  what  their  services  were 
worth,  but  if  not  successful  they  were  to  re- 
ceive only  thei  r  expenses.  They  brought  suit 
and  obtained  judgment  declaring  the  fee  of 
the  land  to  be  in  the  company,  but  a  further 
proceeding  was  necessary  against  persons 
who  were  holding  the  land  adversely,  and 
in  this  the  decision  was  against  the  com- 
pany. At  first  the  company  refused  to  ap- 
peal this  decision,  and  paid  the  attorneys 
their  expenses,  but  afterward  employed 
other  attorneys  and  appealed  the  case  and 
obtained  a  favorable  judgment.  Held,  that 
the  attorneys  first  employed  could  maintain 
an  action  to  recover  the  value  of  their  ser- 
vices, which  should  be  determined  by  as- 
certaining the  full  value  of  all  services, 
including  the  appeal,  and  deducting  there- 
from the  amount  paid  counsel  in  the  appeal. 
St.  Louis,  I.  M.  <S-  S.  R.  Co.  v.  Clark,  51 
Fed.  Rep.  483,  2  C.  C.  A.  331. 

Attorneys  for  a  railroad  company  brought 


suit  to  recover  several  items  for  legal  services 
rendered.  At  the  time  suit  was  brought  a 
suit  was  still  pending  in  which  they  repre- 
sented the  company,  and  just  before  trial 
plaintifTs  informed  the  defendant's  attorney 
that  unless  their  claim  was  paid  they  would 
abandon  the  suit  in  whicli  they  represented 
the  confpany  and  add  their  fee  therein  to 
their  claim  sued  on.  Ihld,  that,  as  the  ser- 
vices were  not  complete  in  the  pending  suit, 
they  were  not  authorized  to  demand  the 
whole  of  the  fee.  Neither  were  they  justified 
in  refusing  to  further  prosecute  the  suit 
because  their  fees  in  other  cases  had  not 
been  paid.  Cairo  &*  St.  L.  R.  Co.  v.  Koerner, 
3  ///.  App.  248. 

Where  a  railroad  company  sent  the  plain< 
tiff  an  annual  pass  as  compensation  for  the 
legal  services  he  might  render  the  company 
in  his  county  during  "the  current  year" 
(1885),  and  the  pass  was  accepted  upon  the 
terms  stated,  the  plaintifT  may,  nevertheless, 
recover  for  the  value  of  his  services  in  a 
case  in  which  he  was  employed  by  the 
general  counsel  of  the  company,  who  stated 
to  him  that  the  case  was  a  very  important 
one,  and  that  while  the  company  could  not 
pay  large  fees,  it  ought  to  pay  plaintifT  a 
reasonable  fee  for  defending  the  suit,  to 
which  plaintifT  replied  that  he  would  help 
to  defend  the  case  and  would  leave  the  mat- 
ter of  his  compensation  to  his  colleague  in 
the  case  and  to  the  general  counsel  of  the 
company,  and  the  general  counsel  replied 
that  there  would  be  no  trouble  about  that, 
and  for  him  to  go  ahead  and  hunt  up  the 
evidence,  etc.  Ohio  <S>»  M.  R.  Co.  v.  Smithy 
5  Ind.  App.  36,  31  A^.  E.  Rep.  371. 

An  attorney-at-law  sued  a  railroad  com- 
pany for  professional  services  based  upon 
the  following  account : 

To  services  in  raising  subsidy  at  W f  1,000 

Examination  of  charter  and  correction  of 
same 100 

Drawing  subscription  contract  in  June, 
1889 100 

Drawing  bond  for  $40,000  R.  R.  Co.  to 
directors  and  Commercial  Club 350 

Various  questions  under  law  of  corpora- 
tions and  tlie  Texas  R.  \\ .  act  during 
July,  Aug.,  and  Sept.,  1889 500 

•1.950 

Held,  that  the  account  was  not  sufficiently 
explicit  to  require  the  company  to  plead 
thereto.  Weatherford,  M.  W.  &*  N.  IV.  R. 
Co.  V.  Granger,  ( Tex.  Civ.  App.)  22  S.  W. 
Rep.  70. 


ATTOKNliYS,  ati,  L':{.— AUXILIARY  C(  ).Ml'ANIi:s,   1. -BAGGAGE,  bil 


IV.  FBIVILEOED     COMMUNICATIONS. 

22.  What  cuiiiniiiiilcutioiiH  are 
privileged.— An  attorney  is  not  obliged 
to  produce  ii  writing  intrusted  to  liim  by  his 
client,  or  to  disclose  its  contents,  without 
his  consent ;  but  he  may  be  required  to  state 
whether  he  has  it  in  his  possession,  for  the 
purpose  of  uuliiorizing  the  adverse  party  to 
Xive  parol  evidence  of  its  contents.  Stokoe 
V.  St.  Paul.  M.  &*  M.  A\  Co.,  40  A/inn.  545. 
42  A'.  IV.  Rep.  482. 

23.  Wlitit  arc  not.— The  protection 
which  tlic  law  gives  to  communications  be- 
tween attorneys  and  clients  does  not  extend 
to  matters  openly  communicated  ordisclosed 
in  the  presence  of  third  parties.  So  held, 
where  an  attorney  for  a  railroad  company 
was  required  to  disclose  what  company  had 
employed  and  paid  him  in  certain  litigation. 
Mobile  &*  M.  K.  Co.  v.  Yeates,  67  Ala.  164. 


To  employ  physician,  sec  Mkdkai.  Sbrvicu, 

a.  4. 


I 


ATTORNETS'  FEES. 

When  allowed,  generally,  see  Costs,  I. 

Constitutionality  of  statutes  allowing,  see 
Animals,  Injuries  to,  1>. 

Demand  for,  in  bill  of  particulars,  see  Ani- 
mals, Injukiesto,  027. 

In  stock-killing  cases,  see  Animals,  Injuries 
to,  584. 


I  AUTHORITY. 

Of  attorneys,  see  Attoknkys,  1-11. 

—  conductor,  see  Conductor,  1,  12. 

—  president  of  company,  see  President,  1-4. 

—  railway  commissioners,  see  Railway  Com- 

missioners, III. 

—  referee,  see  Reference,  3. 

—  station  agents,  see  Station  Aoents,  3-8. 
To  construct  tramways,  see  Tramways,  2. 


AUXILIARY  COMPANIES. 

1.  Wlio  litiblc  lor  negligence  of.— 

Where  aj,'reat  railroad  company,  opcratinga 
long  line  of  road  in  the  state,  aids,  as  stock- 
holder or  bondholder,  or  as  the  guarantor 
of  bonds,  another  railroad  company  in  con- 
structing its  road,  under  the  provisions  of 
chapter  105,  Laws  of  1873,  si;ch  auxiliary 
company  docs  not  become,  on  account  of 
such  aid,  the  servant  or  agent  of  the  parent 
company;  and  the  parent  company  is  not, 
on  account  of  being  such  stockholder  or 
bondholder,  or  guarantor  of  bonds,  respon- 
sible for  the  negligence  or  other  default  of 
the  auxiliary  company  in  constructing  its 
road  in  its  own  name.  Atc/iisoti,  T.  &-•  S.  F. 
R.  Co.  V.  Diwis,  34  Kan.  209, 8  J'ac.  Rep.  ^30 ; 
rerersiiig  25  Am.  &•  Eng.  R.  Cas.  30,,  34  h'att. 
199,  8  Pac.  Rep.  146.  —  DlSTiNOUiSMiNt; 
Newport  &  C.  B.  Co.  v.  Woolley,  78  Ky. 
523.— Explained  in  Solomon  R.  Co.  v. 
Jones,  34  Kan.  443.  Foi.i.owK.n  in  South- 
ern Kansas  &  P.  R.  Co.  7>.  Towner,  41  Kan. 
72,21  Pac.  Rep.  221.  Quoted  IN  Atchison, 
T.  &  S.  F.  R.  Co.  V.  Cochran,  41  Am.  tV 
Eng.  R.Cas.  48,  43  Kan.  225,  7  L.  R.  A.  414, 
23  Pac.  Rep.  151. 


AWARD. 

In  condemnation  proceedings,  when  raises 

estoppel,  see  Estoppel,  II,  2. 

Of  damages  for  land  tnken,  see  Eminent  Do- 
main, XI,  14,  16. 

Validity  and  eilfect,  generally,  see  Arbitra- 
tion and  Award,  III. 

See  also  Reference. 


B 


BAOOAOE. 

When  subject  to  attachment,  see  Attach- 
ment, ETC.,  21. 

I.  LIABILITY  AS  CABBIEB8  07,  OEN- 

EBALLT. 522 

1.  Wlien  Liable  as  Common 

Carriers 522 

2.  Extent  and  Limits  of  the 

Liability 523 

3.  Baggage  on    One    Train, 

Owner  on  Another 525 

4.  Connecting  Lines 526 


n.  WHAT  -VvILL  BE  DEEMED  TO  BE 

BAOOAGE 533 

m.  COMMENCEMENT  AND  TEBMINA- 

TION  OF  THE  LIABILITY 541 

1.  Delivery  to    Company,  of 

Checks  for  Baggage 541 

2.  Delivery  by  Company 546 

3.  Duty  of  Oivner  to  Call  for 

Baggage 548 

4.  Company  when  Liable  as 

Warehouseman  Only 551 

5.  Transfer  Companies 554 


Ml 


BAGGAGE,  1-3. 


Il 

a 


i 


k   • 


nr.  CUSTODY  of  bagoaoe,  etc.,  by 

PAUEXOEB 5S4 

T.  DISOLOSUBE     Oil     COHCEALMINT 

or  VALVE  or  comteii ts 558 

TL  THE  OABBIER'8  LIXH  UPON  BAG- 

OAOB 560 

VII.  LIMITATION  or  LIABILITY 561 

Vin.  ACTIONS  FOR  LOSS  or  BAOOAOX. . .   566 
IX.  CLOAK  ROOMS,  PARCEL  ROOMS. ...  57$ 

I.  LIABILITY  AS  CARRIERS  Or,  GENERALLY. 

I .  JVAen  Liiible  as  Common  Carriers, 

1.  Ill  g«iiurttl.*  -A  common  carrier  is 
liable  as  such  for  the  personal  ba^'ga^jc  of 
a  passenger  delivered  to  and  received  by  it 
solely  for  transportation  and  not  for  stor- 
age, although,  for  the  convenience  of  the 
carrier,  the  passenger  consents  to  some  de- 
lay i  11  the  transportation.  S/iaw  v.  Northern 
Pac.  R,  Co.,i,u  Minn.  144, 41  A'.  W^. Rep.  548. 

As  regards  the  passengers'  baggage,  rail- 
road companies,  stage  proprietors,  steam- 
boat owners,  and  omnibus  proprietors,  who 
carry  passengers  for  hire,  are,  like  common 
carriers,  liable  for  its  loss,  unless  caused  by 
the  act  of  God  or  the  public  enemy.  Dibble 
V.  Brown,  12  Ga.  217. 

A  carrier  of  passengers,  by  the  sale  of  a 
passenger  ticket,  as  incident  to  the  contract, 
without  any  specific  agreement  or  separate 
compensation,  becomes  obligated  to  carry 
t  he  baggage  of  the  passenger  to  a  reasonable 
amount,  and  to  deliver  it  at  the  end  of 
the  route  to  the  passenger  or  his  duly 
authorized  agent.  Isaacson  v.  New  York 
C.  <S-  H.  R.  R.  Co..\6  Am.  6m  Eng.  R.  Cas. 
188,  94  A^.  Y.  278,  46  Am.  Rep.  142 ;  revers- 
ing 25  Hun  350.— Reviewed  in  Hyman  v. 
Central  Vt.  R.  Co.,  49  N.  Y.  S.  R.  313,  66 
Hun  (N.  Y.)  202,  21  N.  Y.  Supp.  119. 

Where  it  is  the  custom  of  common  carriers 
to  allow  the  baggage  of  passengers  to  be 
taken  in  charge  by  servants  in  their  employ, 
to  be  delivered  by  them  at  a  certain  place 
and  in  a  certain  manner,  they  will  be  liable 
for  the  loss  of  baggage  arising  from  the 
neglect  of  their  employes  to  make  the  de- 
livery accordingto  custom.  Fisher  \'.  Geddes, 
1 5  Lm.  Ann.  14. 

A  railway  company  has  no  authority  to 
make  a  by-law  that  it  will  not  be  responsi- 
ble for  the  care  of  luggage  unless  booked 

•  Liability  of  carrier  for  loss  of  baggage,  see 
note,  3  L   R  A.  345. 

Liability  of  sleeping-car  companies  for  bag- 
gage, see  note,  26  Am.  St.  Rep.  337. 


and  the  carriage  paid,  where  by  its  charter 
it  is  rcq>'ired,  without  extra  charge,  to  carr)* 
personal  luggage  of  certain  weight  and  di- 
mensions. Williams  v.  Great  Western  R, 
Co.,  10  Exch.  15. 

2.  'When  liable  an  liiNiirerN.— Car- 
riers of  passengers  are  responsible  for  the 
carriage  and  safe  delivery  of  such  baggage 
as  by  custom  and  usage  Is  ordinarily  carried 
by  travellers,  and  the  payment  of  the  usual 
fare  includes  in  legal  contemplation  a  com- 
pensation for  the  conveyance  of  such  bag- 
gage. They  are  insurers  of  such  baggage  in 
tlic  same  manner  and  to  the  same  extent  as 
for  goods  or  freight.  Oa/^es  v.  Northern  Pac. 
R.  Co.,  47  Am.  Sr*  Eng.  R.  Cas.  437,  20  Oreg. 
392, 26  Pac.  Rep.  230.  Merrill  v.  Grinnell,  30 
A'.  Y.  594. 

The  usual  contract  of  a  carrier  of  passen- 
gers includes  an  undertaking  to  receive  and 
transport  their  baggage,  though  nothing  be 
said  about  it ;  and  if  it  be  lost,  even  witliout 
the  fault  of  the  carrier,  he  is  responsible. 
Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  586.— 
Quoted  in  Hopkins  v.  Westcott,6  Blatchf. 
(U.  S.)  64.  Reviewed  in  Cohen  v.  Frost,  a 
Duer  (N.  Y.)  335. 

A  company  using  steamboats  and  railroads 
for  the  transportation  of  passengers  and 
their  baggage  is  liable  as  a  common  carrier 
for  damages  happening  to  the  baggage  of 
passengers  from  a  defect  in  the  vehicles  or 
machinery  used,  although  the  company  is  not 
chargeable  with  actual  negligence  or  want 
of  skill,  or  with  want  of  care  in  securing  th»* 
safety  of  the  baggage;  if  injury  happens 
it,  nothing  will  excuse  the  company  bi 
inevitable  accident  arising  from  superhu- 
man cr.'  ses,  or  from  the  acts  of  the  enemies 
of  the  country.  Camden  6-  A.  R.  &*  T.  Co. 
V.Burke,  13  Wend.  (N.  Y.)  611.— Quoted 
IN  Sager  v.  Portsmouth,  S.  &  P.  &  E.  R.  Co., 
31  Me.  228, 

The  same  rule  does  not  apply  if  injury 
happens  to  the  persons  of  the  passengers. 
In  such  cases,  if  the  company  has  done  all 
that  human  foresight  and  care  can  do  to 
insure  the  safety  of  the  passengers  it  is 
not  liable  to  respond  in  damages.  Camden 
&-A.R.&'  T.  Co.  V.  Burke,  13  Wend.  {N.  Y.) 
6i!.— Criticised  in  Galena  &  C.  U.  R. Co. 
V.  Yarwood,  17  111.  509. 

3.  liiability  when  that  of  carriers 
of  goods.* — It  is  now  well  settled   that 

*  Liability  of  a  carrier  of  passengers  for  loss 
of  merchandise  intrusted  to  it  by  passenger,  sea 
note,  14  L.  R.  A.  515. 


\     < 


I 


BAGGAGE,  4,  5. 


523 


in  the  curriugc  of  a  pusscriKcr's  l)a(;gage 
the  carrier  incurs  the  full  rcs|)onsiliility  of 
the  common  carrier  of  ^;oocls,  Louisville, 
N.  A.  &*  C.  R.  Co.  V.  NichoUii,  4  Ind.  App. 
1 19,  30  A'.  E.  Rep.  424.  Dill  v.  South  Ctiro' 
Una  A'.  Co.,  y  Rich.  (So.  Car.)  158. 

Where  a  railroad  company  receives  for 
transportation,  in  cars  which  accompany  its 
passenger  trains,  property  of  a  passenger 
other  than  his  baggage,  in  relation  to  which 
no  fraud  or  concealment  is  practised  or  at- 
tempted upon  its  employes,  it  assumes,  with 
reference  to  the  property,  the  liability  of  a 
common  carrier  of  merchandise.  Hannibal 
&•  St.  J.  R.  Co.  V.  Swift,  1 2  Wall.  ( U.  S.)  262, 
I  Aw.  Ry.  Rep.  434.— Disapproved  in  Hum- 
phreys V.  Perry,  148  U.  S.  627.  UlsilN- 
fJUisHED  IN  Ffister  I/.  Central  Pac.  R.  Co., 
70  Cal.  169.  FoLLOWKD  IN  Metz  v.  Cali- 
fornia Southern  R.  Co.,  44  Am.  &  Eng.  K. 
Cas.  433,  85  Cal.  329.  Quoted  in  Waldron 
V.  Chicago  &  N.  W.  R.  Co.,  i  Dak.  351. 
Reconciled  in  Roderick  v.  Baltimore  & 
O.  R.  Co.,  7  W.  Va.  54.  Reviewed  in 
Blumantle  v.  Fitchburg  R.  Co.,  127  Mass. 
322. 

If  proprietors  of  railroads,  steamboats, 
stage  coaches,  and  omnibuses,  etc.,  who  are 
engaged  in  the  business  of  transporting 
passengers,  holding  themselves  out  to  the 
world  as  persons  exercising  a  public  em- 
ployment, and  as  being  ready  to  carry  goods 
for  hire,  receive  goods  or  extra  baggage,  to 
be  carried  for  compensation,  they  are,  as  to 
such  extra  baggage  and  goods,  liable  as 
common  carriers.  Dibble  \.  Brown,  12  Ga. 
217. 

4.  Liability  of  steamboat  com- 
panies.'*'— The  provisions  of  §  7  of  the  R. 
&  C.  Tr.  Act,  1854,  are  by  §  16  of  the  Regu- 
lation of  Railways  Act,  1868,  extended  to 
the  c(  .iveyance  by  water  of  luggage  by  rail- 
way companies  using  steam  vessels  for  the 
purpose  of  carrying  on  a  communication 
between  any  towns  or  ports.  Cohen  v.  South 
Eastern  R.  Co.,  2  Ex.  D.  (C.  A.)  253.  46  Z./. 
(Ap,      Ex.  417,  3  Ry.  *»  C.  T.  Cas.  xxv. 

The  question  whether  a  steamboat  com- 
pany is  liable  as  a  common  carrier  of  bag- 
gage was  not  decided  by  an  evenly  divided 
court.  McKee  v.  Owen,  15  Mich.  115. — 
Reviewed  in  LafTreyz/.Grummond,37  Am. 
&  Eng.  R.  Cas.  235,  74  Mich.  186. 

2,  Extent  and  Limits  of  the  Liability. 

5.  In  g^eneral.— A  carrier  of  passengers 

*  See  a\so  pott,  81. 


and  their  baggage  is  ans\ver;ihlc  for  the  bag- 
gage if  lost,  though  no  distinct  price  is  paid 
for  tr.msporting  it,  it  being  included  in  the 
ciirr  of  the  passenger.  Orange  County  Bank 
v.  Brown,  9  H'eml.  (A".  )'.)  85. 

It  is  not  nfcessary  to  pay  passage-money 
in  advance  to  render  the  carrier  liable  for 
loss  cf  baggage ;  and  it  matters  not  whether 
the  passenger  pays  for  the  transportation 
himself  or  whether  others  pay  it  for  him. 
Van  Horn  v.  Kermit,  4  E.  D.  Smith  (A'.   K.) 

453- 

A  railroad  company  is  liable  for  baggage 
which  is  lost  through  the  mistake  of  one  of 
its  agents  in  sending  it  over  a  wrong  route. 
Isaacson  v.  A'cw  York  C.  &*H.  R.  R.  Co.,  16 
Am.  6-  Eng.  R.  Cis.  188,  94  A'.  V.  278,  46 
Am.  Rep.  142;  reversing  25  Hun  350. — Rec- 
onciled in  Talcott  V.  Wabash  K.  Co.,  50 
N.  Y.  S.  R.  423.  Reviewed  in  Poole  v. 
Delaware,  L.  &  W.  R.  Co..  35  Hun  (N.  Y.)  29. 

A  railroad  company  is  not  liable  for  goods 
of  a  third  party  shipped  in  a  trunk  of  a  pas- 
senger as  baggage,  where  it  had  no  knowl- 
edge ol  such  ownership.  Gurney  v.  Grand 
Trunk  R.  Co.,  37  A^.  K  S.  R.  155,  14  A^.  K. 
Supp.  321,  59  Hun  625. 

The  fact  that  a  passenger  pays  extra  fare 
on  a  trunk  and  informs  the  baggage-master 
of  its  contents,  but  does  not  inform  him  that 
certain  articles  in  it  belong  to  another  per- 
son, is  not  sufficient  to  constitute  an  im- 
plied contract  that  the  company  will  carry 
such  articles  as  freight,  so  as  to  render  the 
carrier  liable  to  the  owner  in  case  of  loss. 
Talcott  V.  tVabash  R.  Co.,  50  A'.  K.  .S".  R. 
423,  66  Hun  456,  21  A'.  V.  Supp.  318.— Re- 
viewing Stoneman  v.  Erie  R.  Co.,  52  N.Y. 
429 ;  Sloman  v.  Great  Western  R.  Co.,  67 
N.Y.  211. 

If  a  common  carrier  of  passengers  and 
of  goods  and  merchandise  has  reasonable 
ground  for  refusing  to  receive  or  carry 
passengers  applying  for  passage,  and  their 
baggage  and  other  property,  he  is  bound  to 
insist,  at  the  time,  upon  such  ground,  if  de- 
sirous of  avoiding  responsibility.  If,  not 
thus  insisting,  he  receives  the  baggage  and 
other  property,  his  liability  is  the  same  as 
though  no  ground  for  refusal  existed.  Han- 
nibal <S-  St.  J.  R.  Co.  V.  Swift,  12  Wall. 
(U.  S.)  262,  I  Am.  Ry.  Rep.  434. 

Section  7  of  the  Railway  and  Canal  Traflic 
Act,  1854,  which  regulates  the  liabilities  of 
railway  companies  as  to  "  any  articles,  goods, 
or  things  in  the  receiving,  forwarding,  or 
delivering  thereof,"  applies  to  passengers' 


524 


BAGGAGE,  «-8. 


^■■. 


I 

a 


'    .1 


I 


k  ' 


luggage ;  and  the  provisions  of  that  section 
are.  by  the  Regfulation  of  Railways  Act,  1868, 
§  16,  extended  to  the  conveyance  by  water 
of  such  luggage  by  companies  using  steam 
vessels.  Co/un  v.  South-Eastern  R.  Co., 
L.  X.  2  Exch.  D:  253,  46  L.J.  Exch.  D.  417, 

36  L.  T.  130,  25  W.  R.  475;  affirming 
L.  R.  I  Exch.  D.  217,  24  W.  R.  522.  45 
L.  J.  Exch.  D.  298,  35  L.  T.  N.  S.  213. 
—Approved  in  Doolan  v.  Midland  R.  Co,, 

37  L.  T.  317,  L.  R.  2  App.  Cas.  792. 

O.  Presniiiptiou  against  carrier  in 
case  of  loss. — Where  personal  property  is 
received  by  a  railroad  company  to  be  trans- 
ported as  baggage,  and  while  it  is  in  the  pos- 
session of  the  railroad  company,  to  be  so 
transported,  it  is  lost  or  stolen,  the  railroad 
company  is  responsible  to  the  owner  thereof 
for  its  loss.  Chicago,  R.  I.  &>  P.  R.  Co.  v. 
Conklin,  16  Am.  6-  Eng.  R.  Cas.  1 16,  32 
Kan.  55,  3  Pac.  Rep.  762. 

TI.o  failure  of  a  carrier  to  deliver  baggage 
to  the  owner  on  demand,  prima  facie  es- 
tablishes negligence  and  want  of  due  care, 
and  casts  the  onus  of  accounting  for  it  on 
the  carrier.  Burnell  v.  New  York  C.  R.  Co., 
45  A',  y.  184,  6  Am.  Rep.  61.— DISTIN- 
GUISHED IN  Magnin  v.  Dinsmore,  3  J.  &  S. 
(N.  Y.)  182. 

If  no  explanation  is  given  of  the  disap- 
pearance of  baggage  before  delivery,  the 
carrier  is  liable  for  the  value.  Pelland  v. 
Canadian  Pac.  R.  Co.,  7  .\font.  L.  R.  {Sup. 
Ct.)  131. 

The  proof  showed  that  plaintiff's  baggage 
was  delivered  to  the  defendant  company  in 
good  condition ;  that  it  carried  it  over  its 
road  and  delivered  it  to  a  connecting  line, 
which  delivered  it  to  plaintiff  damaged  from 
having  been  wet.  It  was  raining  at  the  time 
it  was  delivered  to  defendant,  and  the  bag- 
gage remained  for  some  time  in  a  shed  not 
well  covered,  and  the  mould  on  the  articles 
indicated  that  they  could  not  have  gotten 
wet  later  than  the  delivery  to  the  second 
carrier.  Held,  that  there  was  sufficient  evi- 
dence to  justify  a  finding  that  it  was  dam- 
aged while  in  defendant's  hands.  Estes  v. 
St.  Paul,  M.  &*  M.  R.  Co.,  27  N.  Y.  S.  R. 
594,  55  Hun  605,  7  A'.  Y.  Supp.  863. 

7.  Law  of  place.* — Where  baggage  is 
delivered  to  a  company  in  Pennsylvania  to 
be  carried  into  New  York,  if  the  company 
fails  to  deliver  in  New  York  its  liability  will 
be  determined  by  the  law  of  that  state  and 

•  See  also  post,  101. 


not  by  the  law  of  Pennsylvania.     Curtix  /. 
Delaware,  L.  6-  W.  R.  Co.,  74  N.  Y.  1 16. 

The  liability  of  a  New  Jersey  railroad  for 
loss  of  baggage  between  Philadelphia  and 
a  point  in  New  Jersey  is  measured  by  the 
law  of  New  Jersey;  and  this  though  the 
baggage  is  carried  across  the  Delaware  river, 
the  common  line  between  the  two  states, 
where  both  exercise  equ»l  jurisdiction. 
Brown  v.  Camden  &*  A.  R.  Co.,  83  Pa.  Si. 
316,  15  Am.  Ry.  Rep.  421. 

8.  Conversion  by  carrier.— A  com- 
mon carrier  who  has  received  the  baggage 
of  a  passenger  for  transportation  and  re- 
fuses to  deliver  it  at  the  place  of  destina- 
tion, cannot  relieve  himself  of  liability  for 
its  loss  by  tendering  the  baggage  more  than 
a  year  after  the  demand  therefor  was  made. 
Lake  Shore  &*  M.  S.  R.  Co.  v.  Warren,  21 
Am.  &»  Eng,  R.  Cas.  302,  3  Wyom.  134,  6 
Pac.  Rep.  724. 

A  conductor  took  up  a  satchel,  belonging 
to  a  passenger,  which  had  been  left  in  a  car 
and  delivered  it  to  the  receiver  of  the  road, 
who  delivered  it  to  the  wrong  person .  Held, 
that  the  company  was  liable  as  for  a  con- 
version. Morris  v.  Third  Ave.  R.  Co.,  t 
Daly  (N.  Y.)  202,  23  How.  Pr.  345. 

A  passenger  who  was  travelling  with  his 
family  asked  the  baggage-master  at  the 
place  of  starting  to  check  several  trunks  as 
baggage.  Th.''  baggage-master  claimed  an 
extra  charge  .  nich  the  passenger  refused 
to  pay,  and  demanded  his  trunks,  which 
were  refused,  the  baggage-master  claiming 
that  they  were  already  in  the  car  and  that  he 
could  not  get  them  out  before  time  for  the 
train  to  start,  but  on  this  point  there  was  a 
conflict  of  evidence.  The  passenger  did 
not  leave  on  the  train,  but  went  to  the  pres- 
ident of  the  company  and  obtained  an  order 
directing  a  delivery  of  the  trunks  at  an  in- 
termediate station.  The  day  following  he 
went  to  the  intermediate  station  and  de- 
manded his  trunks,  but  was  informed  that 
they  had  gone  on.  The  company  claimed 
that  the  passenger  assented  to  this,  but  on 
this  point  also  there  was  a  conflict  of  evi- 
dence. Before  the  passenger  reached  the 
end  of  the  route  the  trunks  had  been  re- 
ceived and  placed  in  the  baggage-room, 
where  they  were  destroyed  by  fire.  Held, 
that  there  was  a  conversion  at  the  starting- 
point,  and  that  the  passenger  had  not  so  far 
authorized  or  approved  of  the  transporta- 
tion of  the  trunks  to  the  place  where  they 
were  destroyed  as  to  prevent  his  recover- 


BAGGAGE,  9-13. 


525 


ing  full  damages.  McCormick  v.  Pennsyl- 
vania C.  R.  Co.,  21  Am.  <&*  Eng.  R.  Cas.  296, 
99  A^.  Y.  65,  I  A^.  E.  Rep.  99,  52  Am.  Rep.  6; 
terming  30  Hun  87,  w;««.  But  see  former 
appeal,  where  it  was  held  on  slightly  different 
evidence  that  the  passenger  had  so  far  as- 
sumed control  of  the  baggage  as  to  prevc  nt 
a  recovery  of  more  than  nominal  damages 
for  the  original  conversion.  McCormick  v. 
Pennsylvania  C.  R.  Co.,  80  N.  Y.  353.— DIS- 
TINGUISHING McCorn'ick  v.  Pennsylvania 
C.  R,  Co.,  49  N.  Y.  303.  Revifwing  Hiort 
V.  London  &  N.  W.  R.  Co.,  48  L.  J.  Exch. 

545- 

O.  liiability  for  ba^{;age  carried 
free. — Where  a  common  carrier  undertakes 
to  carry  baggage  without  reward  it  is  liable 
only  as  a  gratuitous  bailee  for  bad  faith  or 
gross  negligence.  Rice  v.  Illinois  C.  R. 
Co.,  22  ///.  App.  643.— Reviewing  Steers  v. 
Liverpool,  N.  Y.  &  P.  S.  Co..  57  N.  Y.  1. 

But  the  rule  is  different  as  to  carriers  of 
free  passengers.  Flint  &*  P.  M.  R.  Co.  v. 
Weir,  yj  Mich,  in.— Distinguished  in 
Way  v.  Chicago,  R.  I.  &  P.  R.  Co.,  64  Iowa 
48,  52  Am.  Rep.  431. 

10.  Delay  or  detention  of  bae- 
ga|;e. — The  act  of  the  13th  Gen.  Assembly 
of  Iowa,  ch.  165,  providing  "that  for  every 
day's  detention  to  travellers  in  consequence 
of  damage  for  delay  of  baggage  and  neces- 
sary delay  in  suit  for  same,  common  carriers 
shall  pay  to  the  person  so  delayed  not  less 
than  $3,  which  shall  be  added  to  the  judg- 
ment for  damage  to  property,  should  the 
action  be  sustained,"  does  not  authorize  a 
recovery  for  delay  caused  to  a  traveller  by 
the  mere  detention  of  baggage,  but  only  for 
such  delay  as  results  from  damage  to  the 
baggage.  Anderson  v.  Toledo,  W.  &•  IV.  R. 
Co.,  32  Iowa  86,  10  Am.  Ry.  Rep.  16. 

11.  Effect  of  non-compliance  with 
carrier's  rules  by  passenger.— A  car- 
rier is  not  liable  for  the  loss  of  baggage 
which  occurs  through  the  failure  of  a  pas- 
senger to  comply  with  a  reasonable  regula- 
tion of  the  carrier.  Gleason  v.  Goodrich 
Tramp.  Co.,  yi  W^/j. 85.— Quoting  Macklin 
v.  New  Jersey  Steamboat  Co.,  7  Abb.  Pr.  N. 
S.  (N.  Y.)  241,  9  Am.  Law  Reg.  N.  S.  239. 

A  common  carrier  will  not  be  relieved 
from  liability  for  loss  of  baggage  on  the 
ground  that  the  passenger  neglected  or  re- 
fused to  comply  with  a  reasonable  regulation 
of  the  carrier,  unless  it  appears  that  the  pas- 
senger had  knowledge  of  such  regulation,  or 
that  it  was  so  notorious  and  universally 


known  that  he  ought  to  have  known  of  it. 
Macklin  v.  A'ezv  Jersey  Steamboat  Co.,j  Abb. 
Pr.  N.  S.  (^N.  K.)  229. 

12.  Sudden  and  uuforMcen  acci- 
dents.—It  is  a  complete  defense  to  an  action 
against  a  common  carrier  for  loss  of  baggage 
to  show  that  the  baggage  was  destroyed  by 
a  flood  of  such  unprecedented  character  as 
could  neither  have  been  anticipated  nor  ))r(> 
vided  against,  and  which  amounted  to  an  act 
of  God.  Long  v.  Pennsylvania  R.  Co.  147 
Pa.  St.  343,  23  Atl.  Rep.  459. 

Where  an  accident,  b'  vhich  baggage  is 
lost  in  the  hands  of  w  omnion  carrier,  is 
not  due  to  the  failure  o\  any  of  the  appli- 
ances of  transportation,  but  to  flood,  amount- 
ing to  an  act  of  God,  there  is  no  presumption 
of  negligence  which  will  shift  the  burden  of 
proof  upon  the  carrier  to  show  that  he  was 
not  negligent,  l^ong  v.  Pennsylvania  R.  Co., 
H7  Pa.  St.  343,  23  Atl.  Rep.  459.— D1.STIN- 
GUISHING  Spear  z*.  Philadelphia,  W.&  B.  R. 
Co.,  119  Pa.  St.  61.  Following  Laing  v. 
Colder,  8  Pa.  St.  482  ;  Pennsylvania  R.  Co. 
V.  MacKinney,  124  Pa.  St.  462. 

In  such  a  case,  where  there  is  no  evidence 
of  want  of  care  on  the  part  of  the  employes 
of  the  common  carrier,  it  is  proper  for  the 
court  to  give  binding  instructions  for  the 
defendant.  Long  v.  Pennsylvania  R.  Co., 
147  Pa.  St.  343,  23  Atl.  Rep.  459. 

Trunks  containing  samples  were  received 
at  a  depot  and  checked  for  transportation, 
but  before  they  had  departed  the  depot  was 
flooded  by  the  sudden  rise  of  a  river,  and 
the  samples  were  injured.  Held,  that  the 
owner's  right  to  recover  depended  upon 
whether  the  rise  of  the  river  was  so  sudden 
that  the  trunks  could  not  have  been  moved 
by  the  exercise  of  reasonable  and  proper  dili- 
gence ;  but  that,  having  been  received  with 
knowledge  of  their  contents,  if  the  owner 
was  entitled  to  recover  at  all  he  might  re- 
cover the  value  of  the  samples.  Stroussv. 
IVabas/i,  St.  L.&*P.  R.  Co.,  17  Fed.  Rep.  209. 

3.  Baggage  on  One  Train,  Owner  on  Another. 

13.  Company  not  liable  where 
owner  and  baggaKe  are  on  different 
trains. — A  ticket  entitles  a  passenger  to 
safe  transportation  of  himself  and  bagpage 
on  the  same  train,  and  nothing  more.  />///• 
menthal  v.  Maine  C.  R.  Co.,  34  Am.  &• 
Eng.  R.  Cas.  247,  79  Me.  550,  5  N.  Eng.  Rep. 
355,  II  Atl.  Rep.  605. 

The  owner  of  a  portmanteau,  who  allows 
his  servant  to  carry  it  hy  train  as  his  own 


I 


a 


626 


BAGGAGE,  14-17. 


personal  luggage,  the  servant  taking  and 
paying  for  his  ticket,  and  the  owner  travel- 
ling  by  a  later  train,  cannot  maintain  an  ac- 
tion against  the  company  for  the  loss  of  the 
portmanteau.  Becker  v.  Great  Eastern  R. 
Co.,  L.  R.  5  Q.  B.  241,  39  L.J.  Q.  B.  122,  3 
Ry,  6-  C.  T.  Cas.  xx,  18  IV.  R.  627,  22  L.  T. 
299. 

The  obligation  of  a  railroad  company  is  to 
take  whatever  is  delivered  and  received  as 
baggage,  from  a  passenger,  into  the  baggage- 
car  of  the  passenger  train  in  which  the  pas- 
senger takes  his  passage,  and  to  take  it  along 
with  and  deliver  it  to  the  passenger  at  the 
place  of  destination,  in  the  usual  manner  of 
transporting  and  delivering  baggage.  The 
obligation  is  the  same  whether  the  baggage 
is  within  the  quantity  allowed  to  a  passenger 
to  be  carried  without  extra  charge  or 
whether  it  is  an  extra  quantity,  for  which  an 
additional  charge  is  made.  If  it  be  taken  as 
the  baggage  of  the  passenger,  whether  Ok- 
dinar>'  or  extra,  it  is  to  be  carried  with  the 
passenger,  unless  there  is  some  agreement 
to  the  contrary.  Glasco  v.  New  York  C. 
R.  Co.,  36  Barb.  (N.  Y.)  557. 

The  plaintiff  sent  by  a  passenger  train  a 
quantity  of  merchandise,  expecting  to  go 
himself  in  the  same  train,  but  did  not.  The 
goods  were  lost  without  any  gross  negligence 
in  the  carrier,  or  any  conversion  by  him. 
Held,  that  the  carrier  was  not  liable  for  the 
loss.  Collins  V.  Boston  &•  M,  R.  Co.,  10  Cush. 
{Mass.)  506.— Approved  in  Michigan  C. 
R.  Co.  V.  Carrow,  73  111.  348.  Reconciled 
IN  Wilson  V.  Grand  Trunk  R.  Co.,  57  Me. 

138. 

14.  BafiTgrage  goes  asi)reight  in  such 
cases. — Carriers  are  only  obliged  to  carry 
baggage,  as  such,  where  it  goes  on  the  same 
train  with  the  passenger ;  and  if  received 
later  and  carried  it  goes  as  freight,  and  the 
carrier  is  entitled  to  compensation.  Graf- 
fam  V.  Boston  &*  M.  R.  Co.,  67  Me.  234,  1 5 
Am.  Ry.  Rep.  372.— Following  Wilson  v. 
Grand  Trunk  R.  Co.,  56  Me.  60,  57  Me.  138. 
—Explained  in  Blumantle  v.  Fitchburg 
R.  Co.,  127  Mass.  322. —  Wilson  v.  Grand 
Trunk  R.  Co.,  57  Me.  138.  Wilson  v.  Grand 
Trunk  R.  Co.,  56  Me.  60. — Applied  in 
Curtis  V.  Delaware,  L.  &  W.  R.  Co.,  74  N. 
Y.  116.  Followed  in  Graffam  v.  Boston 
A  M.  R.  Co.,  67  Me.  234. 

15.  Exception  to  tlie  rule  —Where 
it  ij  tlic  settled  law  that  passengers  arc  only 
entitled  to  have  their  baggage  carried  where 
it  goes  on  the  same  train  with  them,  a  hus- 


band may  recover  for  loss  of  baggage  be- 
longing to  himself  and  family,  where  they 
are  all  passengers,  and  the  baggage  goes  on 
the  train  with  his  family,  but  he  goes  on 
another  train.  Curtis  v.  Delaware.  L.  &* 
W.  R.  Co.,  74  ^-  Y-  116.— Applying  Wil- 
son V.  Grand  Trunk  R.  Co.,  56  Me.  60; 
Beclier  v.  Great  Eastern  R.  Co.,  L.  R.  5 
Q.  B.  241 ;  Stimson  v.  Connecticut  River 
R.  Co.,  98  Mass.  83 ;  Belfast  &  B.  Co.  v.  Keys, 
9  H.ofL.  Cas  556.  Distinguishing  Mag- 
nin  V.  Dinsmore,  62  N.  Y.  35. 

IG.  Coiupuuy  liable  whether  ptis- 
seiiger  travels  on  suine  train  or  not. 
— A  carrier  is  liable  for  lost  baggage  whether 
it  goes  on  the  same  train  with  the  passenger 
or  not.  Wilson  v.  Chesapeake  &*  O.  R.  Co., 
21  Gratt.  (F<7.)654. 

If  a  passenger  on  a  railroad  pays  his  fare, 
and  his  baggage  is  sent  forward  pursuant  to 
an  agreement  and  as  a  part  of  the  considera- 
tion moving  from  the  company  for  the  fare 
prepaid  by  the  passenger,  the  same  rules  of 
care  and  diligence  on  the  part  of  the  com- 
pany apply  whether  the  baggage  is  for- 
warded on  the  same,  the  preceding,  or  a 
subsequent  train.  Warner  v.  Burlington  &* 
M.  R.  R.  Co.,  22  Iowa  166. 

Upon  applying  to  a  baggage-room  to  have 
his  trunk  checked,  a  passenger  was  told  by 
an  agent  that  it  was  locked  up  then,  but 
would  be  sent  on  by  the  next  train.  The 
passenger  inquired  for  his  trunk  on  the  day 
after  his  arrival  at  destination  and  on  the 
following  day,  but  did  not  find  it.  On  the 
third  day  it  was  found  in  the  passenger 
waiting-room,  but  broken  open  and  the  con- 
tents stolen,  it  appearing  that  the  room  had 
been  broken  open  at  night.  Held,  that 
there  was  such  negligence  on  the  part  of 
the  company  in  failing  to  forward  promptly, 
and  in  not  placing  it  in  the  proper  place  for 
storage,  as  to  make  it  liable  for  the  loss  of 
the  contents.  Warner  v.  Burlington  &*  M. 
R.R.  Co.,  22  Iowa  166. 

4.  Connecting  Lines. 

17.  Their  liability,  generally.*— 

Baggage  checked  over  connecting  lines  is 
subject  to  the  contract  made  by  the  pas- 
senger with  the  first  company,  and  this  is 
not  affected  by  a  charge  at  the  starting- 
point  for  overweight.    Gulf,  C.  &*  S.  F.  R.  Co. 

*  Liability  of  connecting  lines  for  loss  of  bag- 
gage:  when  companies  jointly  liable,  see  44  Am. 
&  Eng.  R.  Cas.  436,  abstr. 


r 


BAGGAGE,  18,  10. 


537 


V.  lom,  3  Tex.  Civ.  App,(>\%  22  5.  W.  Rep. 

lOII. 

Where  three  separate  railroad  companies 
owning  distinct  portions  of  a  continuous  rail- 
road between  two  termini  run  their  cars 
over  the  whole  road,  employing  the  same 
agents  to  sell  passage-tickets  and  receive 
luggage  to  be  carried  over  the  entire  road, 
an  action  may  be  maintained  against  one  of 
them  for  the  loss  of  luggage  received  atone 
terminus  to  be  carried  over  the  whole  road. 
Hart  V.  Rensselaer  &*  S.  R.  Co.,  8  A^.  Y.  37.— 
Distinguished  in  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Roach,  27  Am.  &  Eng.  R.  Cas.  257, 
35  Kan.  740 ;  Milnor  v.  New  York  &  N.  H. 
R.  Co.,  S3  N.  Y.  363.  Followed  in  Quimby 
V.  Vanderbilt,  17  N.  Y.  306;  Buffett  v.  Troy 
&  B.  R.  Co.,  40  N.  Y.  168;  Gary  v.  Cleve- 
land &  T.  R.  Co.,  29  Barb.  (N.  Y.)  3,  ; 
Schroeder  v.  Hudson  River  R.  Co.,  5  Duer 
(N.  Y.)  55  ;  Louisville  &  N.  R.  Co.  v.  Weaver, 
i6Am.  &  Eng.  R.  Cas.  218,9  Lea  (Tenn.) 
38.  Reviewed  in  Peterson  %i.  Chicago,  R. 
I.  &  P.  R.  Co.,  80  Iowa  92,  45  N.  W.  Rep. 
573  ;  Barter  v.  Wheeler,  49  N.  H.  9;  Gray 
V.  Jackson,  51  N.  H.  9 ;  Dillion  v.  New  York 
&  E.  R.  Co.,  I  Hilt.  (N.  Y.)  231,  12  Abb.  U. 
S.  479 ;  Check  v.  Little  Miami  R.  Co.,  2  Disn. 
(Ohio)  237. 

PlaintifT  bought  a  through  ticket,  by  rail 
to  a  certain  point  and  thence  by  boat,  and 
had  his  baggage  checked  accordingly.  At 
the  point  where  he  took  the  boat,  the  rail- 
road agent,  instead  of  delivering  the  baggage 
to  the  boat  delivered  it  to  another  road, 
which  carried  it  to  the  place  of  destination, 
where  it  was  lost.  Held,  that  such  agent 
was  in  no  sense  the  agent  of  the  passenger 
so  as  to  bind  him  by  his  act.  Fairfax  v. 
New  York  C.  &*  H.  R.  R.  Co.,  73  A^.  Y. 
167 ;  affirming  11  /.&-  S.  18 ;  referring  to  67 
N.  Y.  II,  which  reversed  5/.  <S-  5.  516. 

18.  Liability  of  initial  carrier, 
generally.— In  the  absence  of  a  special 
contract  a  carrier  is  only  bound  to  trans- 
port baggage  to  the  end  of  its  own  line  and 
safely  deliver  it  to  the  next  connecting 
carrier;  but  any  one  of  the  companies  form- 
ing a  link  in  the  through  route  may  agree 
that  its  liability  shall  extend  over  the  whole. 
Mauritz  v.  New  York.  L.  E.  &*  IV.  R.  Co., 
21  Am.  &*  Eng.  R.  Cas.  286,  23  Fed.  Rep. 
765. 

A  passenger  who  was  to  travel  over  two 
roads  had  her  trunk  checked  to  the  end  of 
ihe  first,  and  left  it  overnight  in  a  union 
depot  used    by  both   companies.     Before 


leaving  on  the  second  road  she  gave  her 
check  to  an  agent  of  the  first  company,  who 
agreed  to  put  her  trunk  out  in  position  for 
transportation  on  the  second  road;  but  it 
appeared  that  it  had  never  been  put  on  the 
train,  and  it  was  lost.  Hild,  that  the  first 
company  was  liable  for  the  loss.  Route  R. 
Co.  V.  IVivtderly,  75  Ga.  316,  58  Aw.  Rep.  468. 

The  company  could  not  relieve  itself  of 
responsibility  without  in  some  manner  ac- 
counting for  the  loss  of  the  trunk  and  show- 
ing how  it  left  its  custody.  Its  failure  to  do 
this  would  warrant  the  inference  that  the 
trunk  was  stolen  by  its  servants  or  was  lost 
in  consequence  of  their  gross  neglect.  Rome 
R.  Co.  v.  Wimberly,  75  Ga.  316,  58  Am.  Rep. 
468. 

Nor  is  the  charge  of  negligence  fully  met 
by  evidence  produced  to  show  that  the 
building  used  for  the  storage  of  baggage 
was  safe  and  secure,  in  charge  of  trusty 
agents  and  servants,  and  .properly  guarded 
by  day  and  night.  Rome  R.  Co.  v.  Wim- 
berly, 75  Ga.  316,  58  Am.  Rep.  468. 

19.  Contract  with  initial  carrier 
for  through  carriage.— The  sale  of  a 
ticket  for  a  through  carriage,  without  limita- 
tions, makes  the  initial  carrier  liable  for  the 
safe  transportation  of  the  passenger  and  his 
baggage  to  his  place  of  destination,  and  it 
will  be  liable  for  the  loss  of  baggage  occur- 
ring on  the  connecting  lines.  Tulcott  v. 
Wabash  R.  Co.,  50  N.  Y.  S.  R.  A,2i,  66  Hun 
456,  21  A';  Y.  Supp.  318.— Applying  Bur- 
nell  V.  New  York  C.  R.  Co.,  45  N.  Y.  188; 
Cary  v.  Cleveland  &  T.  R.  Co.,  29  Barb. 
(N.  Y.)  35 ;  Burtis  v.  Buflalo  &  S.  L.  R.  Co.. 
24  N.  Y.  275 ;  Condict  v.  Grand  Trunk  R. 
Co.,  54  N.  Y.  505 ;  Sloman  v.  Great  Western 
R.  Co.,  67  N.  Y.  211.  Reconciling  Isaac- 
son V.  New  York  C.  &  H.  R.  R.  Co.,  94 
N.  Y.  278, — Hawley  v.  Screven,  62  Ga.  347. 
—  Distinguishing  Baugh  v.  McDaniel, 
42  Ga.  641 ;  East  Tenn.  &  G.  R.  Co.  v. 
Montgomery,  44  Ga.  278.— Followed  in 
Savannah,  F.  &  W.  R.  Co.  v.  Mcintosh,  27 
Am.  &  Eng.  R.  Cas.  269,  73  Ga.  '^yi.—Cary 
v.  Cleveland  <S-  T.  R.  Co.,  29  Barb.  (N  Y.) 
35.— Following  Hart  v.  Rensselaer  &  S.  R. 
Co.,  8  N.  Y.  37.  Quoting  Weed  v.  Saratoga 
&  S.  R.  Co.,  19  Wend.  (N.  Y.)  534.  Review- 
ing Muschamp  v.  Lancaster  &  P.  J.  R.  Co., 
8  M.  &  W.  421.— Applied  in  Talcott  i>. 
Wabash  R.  Co..  50  N.  Y.  S.  R.  423.  Dis- 
tinguished in  Milnor?'.  New  York  &  N. 
H.  R.  Co.,  S3  N.  Y.  363.  Followed  in 
Brown  v.  Canadian  Pac.  R.  Co.,  3  Man.  496. 


■^M 


M 
m 


1! 


.•I 


i  :;:i 


528 


BAGGAGE,  20. 


I:: 

ir 


a 


I 


'•( 


i 


Reviewed  in  Gray  v.  Jackson,  51  N.  H.  9. 
—Atchison,  T.  &*  S.  F.  R.  Co.  v.  /ioac/t,  27 
Am.  &*  Eng.  R.  Cas.  257,  35  A'an.  740, 12  Piu. 
Rep.  93.  Croft  v.  Baltimore  and  O.  R.  Co.,  i 
MacArth.  {D.  C.)  492.  Baltimore  <S-  O.  R. 
Co.  V.  Campbell,  3  /J;«.  (S»  AVj^.  A'.  Cas.  246, 
36  O^w  5/.  647,  38  Am.  Rep.  617.— Quoted 
IN  Frank  v.  Ingalls,  21  Am.  &  Eng.  R.  Cas. 
277,  41  Ohio  St.  560. 

And  this  liability  is  not  aflected  by  the 
fact  that  the  passenger  is  travelling  upon  a 
through  ticket  with  u  coupon  for  each  road. 
Louisville  ^S«•  A^.  A'.  Co.  v.  Weaver,  16  Am. 
&»  Eng.  R.  Cas.  218,  9  Lea  (Tenn.)  38.— A  P- 
PLVINC.  Mytton  W.Midland  R.Co.,4  H.&  N. 
615.  Distinguishing  Nashville  &  C.  R. 
Co.  V.  Sprayberry,  9  Heisk.  (Tenn.)  857. 
Quoting  Furstenheim  v.  Memphis  &  O.  R. 
Co..  9  Heisk.  (Tenn.)  23S.  — Quoted  in 
Coward  v.  East  Tenn.,  V.  &  G.  R.  Co.,  16 
Lea  (Tenn.)  225,  57  Am.  Rep.  226. 

Nor  by  the  fact  that  the  lines  beyond  the 
point  to  which  it  was  checked  sold  the  pas- 
senger return  tickets  at  reduced  rates,  in 
consideration  that  she  would  release  them 
from  liability.  Louisville  &*  N.  R.  Co.  v. 
Weaver,  16  Am.  &*  Eng.  R.  Cas.  218,  9  Lea 
{Tenn.)  38.— Following  Hart  v.  Rens- 
selaer &  S.  R.  Co.,  8  N.  Y.  37. 

Where  a  carrier  sells  tickets  over  its  own 
and  connecting  lines,  and  receives  baggage 
to  be  sent  through  without  a  change  of 
cars,  the  initial  carrier  is  liable  for  baggage 
received  and  lost  anywhere  on  the  route, 
but  which  was  not  checked,  the  agent  in- 
forming the  passenger  that  it  "would  be 
perfectly  safe "  without  being  checked. 
Najac  v.  Boston  &»  L.  R.  Co.,  7  Allen 
(Mass.)  329. — Referred  to  in  Darling  v. 
Bostrn  &  W.  R.  Co..  11  Allen  (Mass.)  295. 
REVfSWKD  IN  Gray  v.  Jackson,  51  N.  H.  9. 

The  fact  of  the  sale  of  a  through  ticket 
may  be  considered  in  determining  whether 
the  ir.itial  carrier  intended  to  be  liable  for 
through  basfgage ;  but  evidence  sufficient  in 
amount  ought  to  be  introdLced  as  to  make 
it  evident  that  the  initial  carrier  in  selling 
the  ticket  intended  to  be  so  liable.  Mauritz 
V.  New  York,  L.  E.  &*  W.  R.  Co.,  21  Am.  &* 
Eng.  R.  Cas.  286,  23  Fed.  Rep.  765. 

A  railroad  company  that  checks  baggage 
over  its  own  line  and  a  connecting  stage- 
coach line  is  liable  for  loss  of  the  baggage 
by  the  stage  line ,  and  this  is  so  even  where 
the  ticket  specities  on  its  face  that  the 
company  will  only  be  responsible  for  loss  of 
baggage  on  its  own  line.     IVilson  v.  Chesa- 


peake &•  0.  R.  Co.,  21  Gratt.  (Fa.)  654.— 
Applied  in  Louisville  &  N.  R.  Co.  v. 
Weaver,  16  Am.  &  Eng.  R.  Cas.  218,  9  Lea 
(Tenn.)  38. 

A  railroad  checking  baggage  over  its  own 
line  and  that  of  a  connecting  steamboat 
line  is  not  liable  for  a  loss  while  on  the 
steamboat,  unless  the  railroad  company  has 
some  interest  in  or  control  over  the  carriage 
of  passengers  by  boat,  or  the  railroad  com- 
pany received  fare  for  passage  by  the  boat. 
Green  v.  New  York  C.  R.  Co.,  12  Abb.  Pr. 
N.  S.  (A'.  Y.)  473.  4  ^aly  553. 

It  seems  that  a  railroad  company  has  not 
the  implied  power  of  contracting  fur  through 
carriage  of  a  passenger  and  baggage  over  its 
own  line  and  a  connecting  steamboat  line. 
Green  v.  New  York  C.  R.  Co.,  12  Abb.  Pr. 
N.  S.  (N.  Y.)  473.  4  Duly  553- 

PlaintilT  purchased  a  ticket  from  defend- 
ant at  D.  for  a  first-class  passage  from  D. 
to  W.,  paying  a  fare  for  the  whole  distance. 
It  had  live  coupons  attached,  perforated  so 
that  they  could  be  detached  aiul  f;!vcn  up, 
each  one  being  for  the  distance  to  he  trav- 
ersed over  a  different  railway  or  omnibus 
route  on  the  way.  The  plaintiff's  trunk 
was  checked  to  Buffalo,  and,  when  near 
that  place,  a  person  took  his  check  for  it, 
with  the  coupon  for  the  omnibus  route 
to  the  station  of  the  Erie  railway,  by  which 
the  plaintiff  was  to  proceed,  and  gave  him 
an  omnibus  check  across  the  city  of  B.  in 
return.  The  conductor  of  the  defendant's 
train,  being  asked  by  the  plaintiff,  told  him 
it  was  right  to  give  his  check  to  this  person. 
The  omnibus  line  was  paid  by  the  Erie  R. 
W.  Co.  The  trunk  having  been  lost  owing 
to  the  neglect  of  the  omnibus  agent — held, 
that  the  defendants  were  liable,  for  the  con- 
tract was  with  them  to  carry  the  plaintiff 
and  his  luggage  the  entire  distance.  Smith 
V.  Grand  Trunk  R.  Co.,  35  I/.  C.  Q.B.  547. 
— Quo  riNG  Great  Western  R.  Co.  v.  Blake, 
7  H.  &  N.987;  Thomas  v.  Rhymney  R.Co., 
L.  R.  6  Q.  B.  266;  Wright  v.  Midland  R, 
Co.,  L.  R.  8  Ex.  137.  Reviewing  Zunz  v. 
Southeastern  R.  Co.,  L.  R.  4  Q.  B.  539; 
Peninsula  &  5.  Co.  v.  Shand.  12  L.  T.  808; 
Bristol  &  E.  R.  Co.  v.  Collins,  7  H.  L.  Cas. 
194. 

30.  Delivery  to  second  carrier, 
and  proof  thereof.*— Where  three  car- 
riers unite  in  selling  through  tickets  and 
checking  through  baggage,  the  initial  car- 

*  See  also  post,  68. 


BAGGAGE,  21. 


529 


ri'er  is  liable  for  a  loss  of  baggage  in  the  ab- 
sence of  proof  showing  that  it  carried  tlie 
baggage  safely  over  its  line  and  delivered 
it  to  the  next  carrier,  and  the  burden  of 
proof  in  such  case  is  on  the  carrier.  Phila- 
delphia, W.  <S-  B.  R.  Co.  V.  Harper,  29  Md. 

330- 

Where  baggage  has  been  checked  over 
connecting  lines,  to  relieve  the  initial  car- 
rier from  liability  for  loss  it  must  show  that 
it  delivered  it  to  the  next  connecting  line 
by  evidence  that  would  be  sufficient  to 
charge  such  line  if  the  suit  was  against  it. 
Hyman  v.  Central  Vt.  R.  Co.,  49  A^.  Y.  S.  R. 
313,  66  Hun  {N.  Y.)  202,  ii  N.  Y.  Supp. 
119. 

Where  a  through  ticket  was  sold,  and 
through  baggage  checked,  and  the  contract 
of  the  initial  carrier  was  only  to  safely 
carry  to  the  terminus  of  its  line  and  deliver 
to  the  next  carrier,  a  total  loss  or  non-de- 
livery at  the  point  of  destination  makes  the 
initial  carrier  prima  facie  liable  and  casts 
on  it  the  burden  of  sliowing  delivery  to  the 
next  connecting  line;  but  this  presumption 
does  not  arise  where  the  baggage  is  deliv- 
ered by  the  first  line,  but  in  a  damaged 
condition.  Montgomery  &*  E.  R.  Co.  v. 
Culver,  22  Am.  &>  Eng.  R.  Cas.  411,  75  Ala. 
587.— Explaining  AND  modifying  South 
&  N.  Ala.  R.  Co.  V.  Wood.  71  Ala.  215. 

Where  it  is  the  custom  of  a  railroad  at 
the  end  of  its  route,  and  where  it  connects 
with  another  carrier,  to  keep  baggage  in  its 
room  to  be  delivered  to  the  agents  of  the 
..ext  carrier,  baggage  arriving  in  the  night 
and  left  for  a  few  hours,  to  be  reshipped, 
remains  in  the  company's  hands  as  carrier 
and  not  as  warehouseman.  Ouimit  v.  Hen- 
shau;  35  Vt.  605.— Reviewed  and  dis- 
tinguished IN  Blumenthal  v.  Brainerd, 
38  Vt.  402. 

The  initial  carrier  is  not  liable  for  bag- 
gage lost  after  it  is  delivered  to  the  second 
carrier  simply  because  it  sells  a  through 
ticket  and  checks  biiggage  through,  and  the 
two  carriers  divide  the  money  received, 
where  the  ticket  was  in  two  parts  easily 
detached  from  each  other,  and  where  there 
was  nothing  in  common  between  the  two 
roads  except  the  mere  arrangement  to  sell 
til  rough  tickets.  Milnor  v.  New  York  &» 
N.  H.  R.  Co.,  53  A^.  Y.  363,  S  Am.  Ry.  Rep. 
381 :  affirming  4  Daly  355.— DISTINGUISH- 
ING Quimby  v.  Vanderbilt,  17  N.  Y.  306; 
Hart  V.  Rensselaer  &.  S.  R.  Co.,  8  N.  Y.  37  ; 
Weed  V.  Saratoga  &  S.  R.  Co..  19  Wend. 
I  n  R   0.-14. 


534 ;  Gary  v.  Cleveland  &  T.  R.  Co.,  29  Barb. 
35;  Burnell  v.  New  York  C.  R.  Co.,  45  N. 
Y.  184. 

Where  baggage  arriving  at  a  union  depot 
is  placed  where  the  baggage  for  the  next 
connecting  line  is  usually  put,  and  there 
destroyed  by  fire,  there  is  no  such  delivery 
to  the  next  carrier  as  to  relieve  the  initial 
carrier  from  liability.  Hyman  v.  Central  Vt. 
R.  Co.,  49  N.  Y.  S.  R.313,  66  Hun  (N.  Y.) 
202,  21  N.  Y.  Supp.  119.  —  Reviewing 
Isaacson  v.  New  York  C.  &  H.  R.  R.  Co., 
94  N.  Y.  278. 

A  delivery  of  baggage  at  the  end  of  the 
passenger's  journey,  either  to  him  or  to  his 
authorized  agent,  terminates  the  liability  of 
the 'company  as  a  common  carrier;  but  a 
delivery  at  the  terminus  of  the  defendant's 
road  to  the  baggage-master  of  an  inde- 
pendent steamboat  company,  who,  by  agree- 
ment between  the  railroad  and  steamboat 
companies,  always  entered  the  defendant's 
cars  and  took  the  baggage-checks  of  through 
passengers,  giving  in  exchange  for  them  the 
checks  of  the  steamboat  company,  would 
not  discharge  the  defendant  from  liability 
for  a  loss  caused  by  the  larceny  of  its 
servants  after  the  delivery  of  the  baggage 
to  the  baggage-master  of  the  boat,  unless 
the  baggage-master  was  the  plaintiff's 
authorized  agent  to  receive  the  bafrgage ; 
which,  being  a  controverted  question,  is  for 
the  jury.  Mobile  &»  0.  R.  Co.  v.  Hopkins, 
41  Ala.  486. 

21.  Right  of  initial  carrier  to  limit 
liability  to  its  own  route.'"— Where  a 
railroad  company  sells  a  ticket  for  the  car- 
riage of  a  passenger  over  its  line  and  other 
connecting  lines,  it  may,  by  a  stipulation 
printed  on  the  ticket  and  agreed  to  by  the 
passenger,  limit  its  liability  for  injury  to  his 
baggage  to  such  injury  as  may  occur  on  its 
own  line.  Peterson  v.  Chicago,  R.  J.  &*  P. 
R.  Co.,  80  Iowa  92.  45  A^.  W.  Rep.  573. 

A  condition  printed  on  a  through  ticket 
that  the  initial  carrier  only  acts  as  the  agent 
of  the  next  carrier  in  selling  the  ticket,  and 
will  not  be  liable  beyond  its  own  line,  is  suf- 
ficient to  advise  a  passenger  that  such  is  the 
fact ;  and  in  such  case  the  duty  of  the  ini- 
tial carrier  as  to  the  passenger's  baggage  is 
fully  discharged  when  it  is  safely  carried 
over  its  line  and  delivered  to  the  next 
carrier.  Nealon  v.  Grand  Trunk  R.  Co.,  5 
N.  Y.  S.  R.  256,  42  Hun  651.    Pennsylvania 

*Sct  aXno  pott,  95-108. 


530 


BAGGAGE,  22,  23. 


C.  R.  Co.  V.  Schwarzenberger,  45  Pa.  St.  208. 
—Distinguishing  Camden  &  A.  R.  Co.  v. 
Baldauf,  16  Pa.  St.  67.— Approved  in  Har- 
ris V.  Howe,  39  Am.  &  Eng.  R.  Cas.  498, 
74  Tex.  534.  Reviewed  in  Mullarkey  v. 
Philadelphia,  W.  &  B.  R.  Co.,  9  Phila. 
(Pa.)  114. 

Railroad  companies  have  a  right  to  con- 
tract, in  the  sale  of  through  tickets,  that 
they  will  only  be  liable  for  loss  of  baggage 
upon  their  own  lines;  and  a  passenger  buy- 
ing a  ticket  with  such  conditions  printed  on 
its  face  is  bound  by  it,  though  he  may  not 
have  read  it,  as  the  initial  carrier  would  not 
be  bound  anyhow  in  the  absence  of  an  ex- 
press contract,  or  something  like  a  partner- 
ship arrangement  between  the  roads.  Cen- 
tral Trust  Co.  V.  Wabash,  St.  L.  &*  P.  R. 
Co.,  31  Am.  &*  Eng.  R.  Cas.  103,  31  Fed.  Rep. 
247. 

22.  Liability  of  intermediate  car- 
rier.— Each  carrier  is  liable  for  the  result 
of  its  own  negligence,  and,  although  the 
first  carrier  may  have  assumed  the  responsi- 
bility for  the  transportation  to  a  point  be- 
yond its  own  route,  any  of  the  subsequent 
or  connecting  lines  to  whose  negligence  the 
loss  or  injury  can  be  traced  will  also  be 
liable  to  the  owner.  Atchison,  T.  &*  S.  F. 
R.  Co.  V.  Roach,  27  Am.  &•  Eng.  R.  Cas. 
257i  35  R^t.  740,  12  Pac.  Rep.  93.  LouiS' 
ville  &*  N.  R.  Co.  v.  Weaver,  16  Am.  &* 
Eng.  R.  Cas.  218, 9  Lea  (Tenn.)  38. 

An  intermediate  carrier  may  be  liable  for 
loss  of  baggage  of  a  through  passenger, 
where  the  proof  shows  clearly  that  it  came 
into  its  possession,  and  the  proof  tending  to 
show  that  it  delivered  it  to  the  next  con- 
necting line  is  not  legally  sufficient  for  that 
purpose.  Baltimore  Steam  Packet  Co.  v. 
Smith,  23  Md.  402. 

Where  baggage  has  been  checked  over 
more  than  one  road,  if  it  is  not  found  at  the 
end  of  the  first  line  by  the  agents  of  the 
second  they  should  at  once  give  notice  to 
the  owner  or  the  initial  carrier,  anc  failing 
to  do  so,  the  second  carrier  will  be  liable. 
Davis  V.  Michigan  S.  &»  N,  I.  R.  Co.,  22 
///.  278.— Distinguished  in  Chicago,  R.  I. 
&  P.  R.  Co.  V.  Clayton,  78  111.  616. 

Where  baggage  is  carried  over  three  lines 
and  delivered  in  a  damaged  condition,  and 
it  appears  that  it  was  in  good  condition 
when  delivered  by  the  first  company  to  the 
second  and  by  that  to  the  third  or  delivering 
company,  mere  proof  of  its  bad  condition 
when  delivered  will  not  cast  on  the  inter- 


mediate company  the  burden  of  showing  that 
it  was  in  good  condition  when  delivered  by 
it  to  the  delivering  company.  Montgomery 
&•  E.  R.  Co.  V.  Culver,  22  Am.  &*  Eng.  R. 
Cas.  411,  75  Ala.  587. 

An  arrangement  between  three  com- 
panies, whose  roads  are  connected,  to  sell 
through  tickets,  and  to  check  through  bag- 
gage, each  being  entitled  only  to  the  fare 
for  transportation  over  its  own  line,  does 
not  render  one  company  liable  for  a  loss  oc- 
curring on  another's  line  ;  and  the  interme- 
diate company  is  only  bound  to  receive  from 
the  initial  company,  and  safely  carry  over 
its  own  road,  and  deliver  to  the  terminal 
company.  Montgomery  &*  E.  R.  Co.  v.  Cul- 
ver, 22  Am.  &*  Eng.  R.  Cas.  41 1,  75  Ala.  587. 
—Quoting  Michigan  C.  R.  Co.  v.  Min- 
eral Springs  Mfg.  Co.,  16  Wall.  (U.  S.)  318; 
Mobile  &  G.  R.  Co.  v.  Copeland,  63  Ala. 
219.  Reviewing  Lindley  v.  Richmond  & 
D.  R.  Co.,  88  N.  Car.  547. 

Where  a  connecting  line  over  which  an* 
other  company  issues  through  tickets  re- 
ceives baggage  of  a  through  passenger  to 
forward  it,  it  commits  a  breach  of  duty  in 
neglecting  to  do  so,  for  which  it  is  respon- 
sible apart  from  any  question  of  contract. 
Hooper  v.  London  &*  N.  W.  R.  Co.,  50  L.J. 
Q.  B.  D.  103,  43  L.  T.  N.  S.  570,  29  W.  R. 
241. 

23.  Last  carrier,  when  liable.*— 
Where  a  passenger  purchased  a  through 
ticket  over  a  line  of  railroads,  having  a  cou- 
pon attached  for  each  road,  and  checked  his 
baggage  through  to  his  destination,  if,  upon 
his  arrival,  it  was  found  to  be  lost,  he  could 
hold  the  last  road  of  the  line  responsible 
therefor.  Savannah,  F.  &*  W.  R.  Co.  v. 
Mcintosh,  27  Am.  &*  Eng.  R.  Cas.  269,  73 
Ga.  532.— Following  Hawley  v.  Screven, 
62  Ga.  347 ;  Wolff  v.  Central  R.  Co.,  68  Ga. 
653.— Applied  in  International  &  G.  N.  R. 
Co.  V.  Foltz,  3  Tex.  Civ.  App.  644.  Re- 
viewed IN  Peterson  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  80  Iowa  92,  45  N.  W.  Rep.  573. 

Where  a  railroad  company  sells  a  through 
ticket  and  checks  baggage  over  its  own  and 
connecting  roads,  and,  in  pursuance  of  the 
contract  thus  made,  the  passenger  is  trans- 
ported to  his  destination,  and  his  baggage  is 
delivered  to  him  by  the  last  carrier,  with  the 
lock  broken,  and  a  portion  of  the  contents 


*  Liability  of  last  carrier  of  connecting  lines 
fur  baggage  lost  or  injured,  see  note,  37  Am.  ft 
Eng.  R.  Cas.  271. 


BAGGAGE,  24. 


631 


stolen,  he  is  entitled  to  recover  damages 
from  the  last  carrier,  unless  it  shows  that 
the  baggage  was  delivered  in  the  same  con- 
dition as  received.  Lin  v.  Terre  Haute  &* 
I.  R.  Co.,  lo  Mo.  App.  125.— Distinguish- 
ing Wyman  v.  Chicago  &  A.  R.  Co.,  4  Mo. 
App.  35 ;  Watkins  v.  Terre  Haute  &  I.  R. 
Co.,  8  Mo.  App.  570.— Followed  in  Jacobs 
V.  Tutt,  33  Fed.  Rep.  412. 

Where  the  last  of  connecting  carriers  de- 
livers baggage  in  a  damaged  condition,  the 
presumption  prevails  that  the  baggage  con- 
tinued in  the  same  condition  as  when  de- 
livered to  the  first  carrier,  and  casts  on  the 
last  carrier  the  burden  of  showing  its  con- 
dition when  received.  Montgomery  &*  E. 
R.  Co.  v.  Culver,  22  Am.  &*  Eng.  R.  Cas. 
411,  75  Ala.  587.  Lin  v.  Terre  Haute  &• 
/.  R.  Co.,  10  Mo.  App.  125. 

Where  a  passenger  buys  a  through  ticket 
with  coupons  for  each  road,  where  the  last 
carrier  receives  tiie  coupon  for  its  road,  and 
carries  the  passenger,  and  delivers  to  him  a 
check  for  his  baggage,  and  delivers  a  part  of 
it,  it  will  be  liable  fur  the  portion  not  deliv- 
ered or  lost.  ATcCormick  v.  Hudson  River 
R.  Co.,  4  E.  D.  Smith  (N.  V.)  181.— Ap- 
PLIKD  IN  Louisville  &  N.  R.  Co.  v.  Weaver. 
16  Am.  &  Eng.  R.  Cas.  218,  9  Lea  (Tenn.)38. 

24.  Lnst  carrier,  when  not  liable. 
— Ga.  Code  §  2084,  providing  that  the  last 
of  a  connecting  line  of  railroads  over  which 
goods  are  shipped  which  receives  them  as  in 
good  order  is  liable  to  the  consignee,  does 
not  apply  to  baggage  of  a  passenger  checked 
and  accompanying  him  on  his  passage. 
IVolJ"  V.  Centra! R.  Co.,  6  Am.  &*  Eng.  R. 
Cas.  441.  68  Ga.  653,  ^lAtn.Rep.  501.— Fol- 
lowed IN  Savannah,  F.  &  W.  R.  Co.  v. 
Mcintosh,  27  Am.  &  Eng.  R.  Cas.  269,  73 
Ga.  532. 

Mere  failure  on  the  part  of  the  last  con- 
necting carrier  to  deliver  baggage  is  not  of 
itself  proof  of  negligence,  so  as  to  make  it 
liable.  Stimson  v.  Connecticut  River  R.  Co., 
98  Mass.  83. 

Where  plaintifl  travels  over  several  con- 
necting lines  on  a  coupon  ticket,  and  has 
baggage  checked  througii,  the  last  carrier  is 
not  liable  for  its  loss  without  some  evidence 
to  show  that  it  came  into  its  hands.  Kess- 
ler  V.  i\',w  York  C.  (S-  H.  R.  R.  Co.,  61  A'.  Y. 
538,  1 2  Am.  Ry.  Rep.  1 34 ;  affirtning  7  Lans. 
62. — Following  Milnor  v.  New  York  & 
N.  H.  R.  Co.,  53  N.  Y.  363.— Reviewed 
IN  Poole  V.  Delaware.  L.  &  W.  R.  Co.,  35 
Hun  (N.  Y.)  29;  Wardw.  New  York  C.  & 


H.  R.  R.  Co.,  56  Hun  (N.  Y.)  268,  30  N.  Y. 
S.  R.  604.  9  N.  Y.  Supp.  377- 

In  the  absence  of  evidence  to  show  a 
joint  contract  between  connecting  roads, 
one  road  is  not  liable  for  loss  of  baggage 
before  it  reaches  its  line.  EeUier  v.  Colum- 
bia &*  G.  R.  Co.,  27  Am.  &*  Eng.  R.  Cas. 
264,  21  So.  Car.  35,  53  Am.  Rep.  656.— DIS- 
TINGUISHING Bradford  v.  South  Carolina 
R.  Co.,  7  Rich.  (So.  Car.)  201, 

Where,  by  traffic  arrangements  between 
two  companies,  passengers  are  ticketed 
through,  over  both  lines,  there  is  one  entire 
contract  between  the  passenger  and  the 
company  issuing  the  ticket.  Accordingly 
the  passenger  has  no  cause  of  action  against 
the  second  company  for  the  loss  of  luggage 
on  its  line.  Mytton  v.  Midland  R.  Co.,  4 
H.  <S-  A^.  615,  28  L.  J.  Exch.  385,  33  L.  T. 
587,  7  W.  R.  737.— Held  overruled  in 
Hooper  v.  London  &  N.  W.  R.  Co.,  50  L.  J. 
Q.  B.  103,  43  L.  T.  570.  29  W.  R.  241,  45 
J.  P.  223. 

The  Pennsylvania  Central  R.  Co.  sold  and 
delivered  in  New  York  "  a  through  ticket  " 
and  "  a  through  check  "  to  F.,  and  under- 
took to  transport  him  and  his  baggage  over 
its  own  road  and  others  designated,  making 
a  continuous  line  from  New  York  to  Mem- 
phis. F.  sued  the  Memphis  &  O.  R.  Co.,  the 
last  road  along  the  route,  for  the  loss  of  his 
baggage  on  the  first.  In  the  absence  of 
proof  that  the  first  company  was  the  agent 
of  the  last  or  that  there  was  a  contract  or 
arrangement,  either  expressed  or  implied, 
or  a  custom  from  which  such  contract  or 
arrangement  could  be  inferred,  between  the 
several  companies,  as  to  the  transportation 
of  passengers  and  baggage — held,  that  the 
first  company  acted  for  itself,  and  that,  as 
no  privity  was  shown  between  the  plaintiff 
and  defendant,  the  latter  was  not  responsi- 
ble for  the  loss.  Furstenheim  v.  Memphis 
&*  O.  R.  Co.,  9  Heisk.  ( Tenn.)  238,  19  Afn.  Ry. 
Rep.  409.— Quoted  in  Louisville  &  N.  R. 
Co.  V.  Weaver,  16  Am.  &  Eng.  R.  Cas.  218. 
9  Lea  (Tenn.)  38. 

Plaintiff  bought  a  through  ticket  with 
the  privilege  of  changing  the  route  at  an 
intermediate  point  and  go  from  there  over 
defendant's  road.  Her  baggage  was  checked 
over  the  regular  route,  but  on  reaching  such 
intermediate  point  she  had  it  rechecked 
over  defendant's  road,  and  on  arrival  at  its 
destination  some  of  the  articles  were  found 
to  be  stolen,  Held:  (1)  that  the  rechecklnjj; 
of  the  baggage  was  not  a  new  contract,  but 


I 


■s.-^if 


532 


BAGGAGE,  25-26. 


ill  .'■'I 


s 


fi'-v' 


^ 


i'^ 


ill 


•    ■! 


It;  i 


I 


1  i 


was  done  in  pursuance  of  the  original  agree- 
ment ;  (2)  that,  without  deciding  the  liabil- 
ity of  defendant  for  loss  while  in  its  hands, 
no  recovery  can  be  had  where  the  complaint 
does  not  allege  that  the  loss  occurred 
through  defendant's  negligence.  Candee  v. 
Pennsylvania  R.  Co.,  21  Wis.  582.— Fol- 
lowing Illinois  C.  R.  Co  v.  Copeland,  24 
III.  332  ;  Peet  v.  Chicago  &  N.  W.  R.  Co.,  19 
Wis.  118.— Distinguished  in  Tolman  v. 
Abbot,  78  Wis.  192.  Reviewed  in  Gray 
V.  Jackson,  51  N.  H.  9. 

25.  When  either  road  may  be  sued. 
— Where  different  railways  forming  a  con- 
tinuous line  run  their  cars  over  the  whole 
line  and  sell  tickets  over  the  whole  route 
and  take  baggage  through,  an  action  lies 
against  either  company  for  the  loss  of  the 
baggage,  Texas  &•■  P.  R.  Co.  v.  Ferguson, 
9  Atn.  &»  Eng.  R.  Cas.  395,  i  Tex.  App. 
(Civ.  Cas:)  724. 

Where  a  through  passenger  upon  arriving 
at  his  place  of  destination  finds  that  his 
baggage  is  damaged  or  has  been  broken 
open  and  the  contents  stolen,  he  may  sue 
the  road  which  issued  the  check,  or  he 
may  sue  the  road  delivering  the  baggage  in 
bad  condition.  Wolff  v.  Central  R.  Co.,  6 
Am,  6-  Eng.  R.  Cas.  441,  68  Ga.  653,  45  Am. 
Rep.  501. 

Under  the  American  authorities  each  of 
the  roads  composing  a  continuous  line  over 
which  a  passenger  travels  on  a  through 
ticket,  and  baggage  is  sent  on  a  through 
check,  is  a  principal  contractor,  adopting 
the  contract  of  the  first  road,  and  is 
therefore  liable  for  spoliation  of  baggage, 
irrespective  of  the  point  at  which  it  actually 
occurred.  Wolff  v.  Central  R.  Co.,  6  Am. 
«S«»  Eng.  R.  Cas.  441, 68  Ga.  653,  45  Am.  Rep. 
501.— Reviewed  in  Peterson  v.  Chicago,  R. 
I.  &  P.  R.  Co.,  80  Iowa  92,  45  N.  W.  Rep. 

573- 

26.  Each  road  agent  of  all  the 
others. — Where  several  carriers  unite  to 
complete  a  line  of  transportation  and  receive 
passengers  for  transportation  over  their 
entire  lines,  and  give  tickets  for  baggage  to 
be  transported,  each  carrier  is  the  agent  of 
all  the  others  to  accomplish  the  carriage  of 
the  passenger  and  the  delivery  of  his  baggage, 
and  is  liable  for  any  damage  to  them  on 
whatever  part  of  their  line  the  damage  is 
received.  Texas  &»  P.  R.  Co.  v.  Fort,  9  Am. 
&•  Eng.  R.  Cas.  392,  i  Tex.  App.  (Civ.  Gii.) 
722.  Texas  S*  P.  R.  Co.  v.  Ferguson,  9  Am.  &• 
Eng.  R.  Cas.  395,  1  Tex.  Apf>.  {Civ.  Cas').  724. 


—Distinguished  in  Atchison,  T.  &S.  F.  R. 
Co.  V.  Roach,  27  Am.  &  Eng.  R.  Cas.  257, 
35  Kan.  740.  Reviewed  in  Peterson  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  80  Iowa  92,  45 
N.  W.  Rep.  m.— Missouri  Pne.  R.  Co.  v. 
Slater,  3  Tex.  App.  (Civ.  Cas.)  25. 

As  to  through  baggage,  it  is  the  duty  of 
the  company  receiving  it,  and  selling  a 
through  ticket,  to  sec  that  the  baggage  is 
delivered  at  the  end  of  the  route,  and  its 
duty  does  not  cease  until  this  is  done.  If  it 
delivers  to  a  connecting  line,  the  latter  nets 
as  its  agent  in  the  further  carrying  and 
delivering.  Lin  v.  Terre Haute  &*  I.R.  Co., 
10  Mo.  App.  125. 

Plaintiff  purchased  a  through  ticket  and 
had  his  baggage  checked  through,  but  ar- 
rived at  his  place  of  destination  over  a  con- 
necting line.  Two  days  afterward  he  de- 
manded his  baggage,  but  it  could  not  be 
found.  It  appeared  that  the  company  sell- 
ing the  ticket  had  delivered  the  baggage  to 
the  connecting  carrier,  who  had  carried  it 
to  its  place  of  destination,  but  that  it  was 
lost  about  the  baggage-room.  Held,  that  the 
second  company  was  but  the  agent  of  the 
first,  and  that  the  first  was  liable  either  as 
carrier  or  warehouseman.  Burnell  v.  Neiv 
York  C.  R.  Co.,  45  N.  Y.  184,  6  Am.  Rep.  61. 
—Limiting  Roth  v.  Buffalo  &  S.  L.  R.  Co., 
34  N.  Y.  548.- Applied  in  Talcott  v.  Wa- 
bash R.  Co.,  so  N.  Y.  S.  R.  423.  DiSTiN. 
guished  in  Price  v.  Oswego  &  S.  R.  Co., 
50  N.  Y.  213;  Milnor  v.  New  York  &  N.  H. 
R.  Co.,  53  N.  Y.  363.  Followed  in  Gross- 
man V.  Fargo,  6  Hun  (N.  Y.)  310;  Burgevin 
V.  New  York  C.  &  H.  R.  R.  Co.,  23  N.  Y. 
Supp.  415  ;  Brown  v.  Canadian  Pac.  R.  Co., 
3  Man.  496. 

Suit  was  instituted  against  the  Texas  & 
Pacific  Railway  for  baggage  lost  at  some 
unknown  point  between  Memphis  and 
Dallas,  through  checks  for  said  baggage 
being  delivered  to  plaintiff  at  Memphis  by  an 
agent  of  the  Memphis  and  Little  Rock  Rail- 
road, over  three  uniting  lines,  including  the 
Texas  and  Pacific  Railway.  Held,  that  the 
check  delivered  at  Memphis  was  the  check  of 
appellant  railroad,  as  well  as  of  the  other  com- 
panies, and  that  the  contract  w;is  appellant's 
contnict,  and  it  was  bound  by  it.  Texas  &» 
P.  R.  Co.  v.  Fort,  9  Am.  <S-  Enti.  R.  Cas.  392, 
I  Tex.  App.  (Civ.  Cas.)  722.— Reviewing 
McCorniick  ?'.  Hudson  River  R.  Co.,  4  E. 
D.  Smith  (N.  Y.)  181.— Distinguished  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Roach,  27 
Ai!i.   fi   luiur     R.    C:is.    257,   35    Kan.   740. 


' 


BAGGAGE,  27-2J*. 


53:t 


Reviewed  in  Peterson  v.  Chicago,  K.  I.  k 
P.  R.  Co.,  80  Iowa  92,  45  N.  W.  Rep.  573. 

27.  Effect  of  custom  or  coiirHe  of 
business. — The  course  of  business  and  the 
practice  of  a  railroad  company  in  respect 
to  the  custody  of  baggage  passing  over  its 
line,  and  to  be  transferred  to  a  connecting 
road,  is  of  great  importance  in  determining 
the  nature  of  its  liability  therefor.  Ouimit 
V  Henshaw,  35  Vt.  605. 

Where  a  passenger  buys  a  ticket  by  a 
particular  route  over  connecting  lines,  and 
has  his  baggage  so  checked  and  marked, 
and  it  is  carried  a  part  of  the  way  by  a  road 
not  forming  part  of  the  through  route,  no 
contract  can  be  inferred  from  the  fact  that 
such  road  had  frequently  carried  other  bag- 
giige  similarly  checked  und  marked.  Fair- 
fax V.  New  York  C.  &>  H.  R.  R.  Co.,  8/.  &* 
S.  {N.  y.)  128.— Following  Coleman  v. 
Livingston,  4  J.  &  S.  32. 

28.  Effect  of  recognition  of  ticlcet 
solil  by  aiiotlicr  road.— Where  two  rail- 
roads connect,  and  sell  through  tickets 
which  are  recognized  by  each  road,  they  are 
jointly  liable  for  through  baggage  that  may 
be  lost.  S/.  Louis,  I.  M.  6-  S.  R.  Co.  v. 
Hindsmun,  i  Tex.  App.  {Civ.  Cas.)  82. 

Where  a  passenger  ticket  entitles  the 
holder  to  travel  over  different  lines  of  road 
to  his  place  of  destination,  to  which  his 
baggage  is  checked,  all  of  them  recognizing 
the  validity  of  the  ticket, each  company  into 
whose  possession  the  baggage  may  come 
will  be  liable  for  its  loss  while  in  the  posses- 
sion of  such  company.  Chicago  &•  R.  I.  R. 
Co.  V.  Fa  hey,  52///.  81. 

Where  a  passenger  seeks  to  hold  one  of 
several  roads  in  his  line  of  transit  liable  for 
the  loss  of  his  baggiige,  the  recognition  of 
his  ticket,  purchased  at  the  beginning  of  his 
trip,  by  the  conductor  of  such  road  is,  in 
effect,  an  admission  that  it  was  issued  by 
some  person  having  competent  authority  to 
bind  the  company ;  and  in  such  case  it  is 
immaterial  whether  the  ticket  was  issued  by 
a  special  agent  of  the  company  sought  to 
be  held  liable  or  by  the  ticket  agent  of 
some  other  company.  Chicago  6r»  R.  I.  R. 
Co.v.  Fahey,^iIlL  81. 

II.   WHAT  WILL  BE  BEEMBD  TO  BB 
BAGOAOE. 

20.  What  is  included  within  the 
term  *•  bafff^age,'*  generally.*— A  car- 

*What  constitutes  baggage,  see  notes.  16  Am. 
&  Eng.  R.  Cas.  131 ;  33  Id.  486;  31  Id.  97;  34 


ricr  of  passengers  for  hire  is,  at  comnioii 
law,  only  bound  to  carry  their  personal  lug- 
gage. Great  Northern  R.  Co.  v.  Sheperd,  8 
Exch.  30,  7  Railw.  Cas.  310,  21  L.  /.  Exch. 
286. 

Under  the  California  Civil  Code  the  term 
"  luggage  "  means  the  same  as  the  term 
"  baggage."  Pfister  v.  Central  Pac,  R,  Co., 
70  Cat.  169,  II  Pac.  Rep. 686. 

A  carrier  of  passengers  is  liable  only  for  a 
loss  of  wearing  apparel  or  personal  effects  of 
the  passenger,  and  for  money  enough  to  de- 
fray his  travelling  expenses.  Dunlap  v.  In- 
ternational Steamboat  Co.,  98  Mass.  371. 
Whit  more  v.  Steamboat  Caroline,  20  Mo.  513. 
The  baggage  which  a  passenger  is  entitled 
to  have  carried  is  limited  to  a  reasonable 
amount,  which  may  include  such  articles  as 
are  necessary  and  convenient  for  the  per- 
sonal use  of  the  passen^rr,  and  such  as  pas- 
sengers usually  carry.  New  Orleans,  J.  ^^ 
G.  N.  R.  Co.  v.  Moore,  40  Miss.  39.  Mctz  \. 
California  Southern  R.  Co.,  44  Am.  &■•  /-"//.v . 
R.  Cas.  433,  85  Cal.  329,  24  Pac.  Rep.  6\v. 
—  F'OLLOWINO  Hannibal  &  St.  J.  R.  Co.  t'. 
Swift,  12  Wall.  2y2.—Hutchittgs  v.  Western 
&*  A.  R.  Co.,  25  Ga.6\. 

As  a  rule  any  article  which  is  carried  by 
a  passenger  for  personal  use  and  conven- 
ience and  according  to  the  want  ol  a  par- 
ticular class  of  travellers  to  which  he 
belongs,  and  carried  with  reference  to  im- 
mediate wants,  is  properly  a  part  of  his  bag- 
gage. Gleason  v.  Goodrich  Transp.  Co.,  32 
Wis.  85.— Quoting  Macrow  v.  Great  West- 
ern R.  Co.,  L.  R.  6  Q.  B.  622  ;  Hopkins  v. 
Westcott,  6  Blatchf.  (U.  S.)  64.  Reviewing 
Phelps  V.  London  &  N.  W.  R.  Co.,  19  C.  B. 
N.  S.  (115  E.  C.  L.)  221-— Macrow  v.  Great 
Western  R .  Co.,  L.  R.  6  Q.  B.  612,  40  L.  J. 
Q.  B.  300,  24  L.  T.  618,  19  W.  R.  8, 3  Ry.  &* 
C.  T.  Cas.  xix. 

A  carrier  is  liable  for  the  loss  of  such  arti- 
cles of  baggage  as  passengers  usually  carry 
for  their  personal  use,  comfort,  instruction, 
amusement,  or  protection,  considering  the 
object  and  length  of  the  journey.  Parmt- 
lee  v.  Fischer,  22  ///.  212.— Following 
Davis  V.  Michigan  S.  &  N.  I.  R.  Co.,  22  111. 
278. 

The  term  baggage  may  also  include  trav- 
elling articles,  a  reasonable  amount,  which 
may  be  purchased  while  abroad  for  the  use 
of  the  traveller's  family  at  home,  such  as  or- 


1  ;a 


Id.  249;  47  Id.  444;  7>  Am.  Dec.  158;  8  Am.  Rkp. 
303;  3  L.  R.  A.  346,  II  Id.  759. 


534 


BAGGAGE,  3<),  :il. 


't  ?■' 


': 


i* 


n* 


dinarily  men  ure  in  the  habit  u(  bringing  to 
their  families  in  that  way.  /ones  v.  Priestfr, 
I  Ttx.  A  ftp.  {Civ.  Cas.)  326. 

But  it  does  nut  extend  to  articles  pur- 
chased  for  strangers.  Dexter  v.  Syracuse, 
B.  6-  A'.  J'.  R.  Co.,  42  A',  y.  326.— Dis- 
I'lNuuiSHiNU  Pardee!/.  Drew,  25  Wend.  460. 
Following  Merrill  v.  Grinnell,  30  N.  Y. 

594. 

30.  Wliut  \»  or  Ih  not  baggage  a 
questiou  I'or  tlic  Jury.— What  articles 
of  property,  as  to  quantity  and  value,  con- 
tained in  a  trunk  may  be  deemed  baggage 
within  the  rule  is  to  be  determined  by  the 
jury  according  to  the  circumstances  of  the 
case,  subject  to  the  power  of  the  court  to 
correct  any  abuse.  Oakes  v.  Northern  Pac. 
K.  Co.,  47  Am.  &*  Eng.  R.  Cas.^n,  20  Oreg. 
392,  2SJ'ac.  Rep.  230.  Maurt'tz  v.  New  York, 
L.  E.  6-  W.  R.  Co.,  21  Aw.  &•  Eng.  R.  Cas. 
286,  23  Fed.  Rep.  765. 

What  articles  are  usually  carried  by  pas- 
sengers is  a  question  to  be  left  to  the  jury, 
under  the  direction  of  the  court,  upon  a 
consideration  of  the  time  of  life  of  the  trav- 
eller, his  habits,  vocation,  and  tastes,  the 
length  of  his  journey,  and  whether  he  trav- 
els alone  or  with  his  family,  and  of  the 
usage  of  the  time  and  place,  and  all  the  cir- 
cumstances of  each  case.  Dibble  v.  Brown, 
12  Ga.  217. — Quoting  Orange  County  Bank 
V,  Brown,  9  Wend.  (N.  Y.)  1 15 ;  Hawkins  v. 
Hoflman,  6  Hill  (N.  Y.)  589. 

The  question  as  to  what  is  etnbraced  in 
the  term  baggage  is  one  made  up  of  both 
law  and  fact ;  whether  certain  classes  of 
articles  usually  transported  by  the  different 
modes  of  public  conveyance  should  be  in- 
cluded within  the  term  or  not  is  a  question 
of  law ;  but  when  the  question  is  as  to  the 
quantity  of  the  articles  generally  coming 
under  that  denomination,  then  it  becomes  a 
question  of  fact  to  be  found  by  the  jury. 
Jones  V.  Priester,  i  Tex.  App.  {Civ.  Cas.) 
326. 

Where  there  is  a  dispute  as  to  whether 
articles  lost  fall  within  the  meaning  of  pas- 
senger's personal  baggage  or  not,  it  is  a 
mixed  question  of  law  and  fact  to  be  deter- 
mined by  the  jury  upon  the  proper  instruc- 
tions of  the  court.  Texas  &»  P.  R.  Co.  v. 
Ferguson,  9  Am.  &*  Eng.  R.  Cas.  395,  i  Tex. 
App.  {Civ.  Cas.)  724- 

To  the  extent  that  articles  carried  by  a 
passenger  for  his  personal  use  when  travel- 
ling exceed  in  quantity  and  value  such  as 


arc  ordiiiurily  or  usually  carried  by  |)assen- 
gcrs  uf  like  station  and  pursuing  like  jour- 
neys, they  are  not  baggage  for  which  the 
carrier,  by  common  law,  is  responsible  as 
insurer.  But  whether  a  passenger  has  car- 
ried such  an  excess  of  baggage  is  not  a  pure 
question  of  law  for  the  sole  or  final  deter- 
mination of  the  court,  but  a  question  of 
fact  for  the  jury,  under  proper  guidance  as 
to  the  law  of  the  case ;  and  their  determina- 
tion of  the  facts,  no  error  of  law  appearing,  is 
not  subject  to  re-examination  in  this  court. 
New  York  C.  &*  H.  R.  R.  Co.  v.  Frahff, 
100  U.  S.  24,  21  Am.  Ry.  Rep.  428.  —  DIS- 
APPROVED IN  Humphreys  v.  Vt.xr<j,  148 
U.  S.  627.  Distinguished  in  Carlson  v. 
Oceanic  Steam  Nav.  Co.,  34  Am.  &  Eng.  R. 
Cas.  215.  109  N.  Y.  359,  16  N.  E.  Rep.  546 
15  N.  Y.  S.  R.  519.  Followed  in  Jacobs 
V.  Tutt,  33  Fed.  Rep.  412;  Wabash  R. 
Co.  V.  McDaniels,  11  Am.  &  Eng.  R. 
Cas.  158,  107  U.  S.  454,  2  Sup.   Ct.    Rep. 

932- 
31.   Beds    and   Bedding.— Wearing 

apparel  and  bedding  valued  at  $285  is  a  rea- 
sonable amount  of  baggage  for  a  woman 
and  two  children  who  are  travelling  to  this 
country  by  vessel  as  immigrants,  and  a  pro- 
vision in  the  ticket  that  the  carrier's  liabil- 
ity for  loss  of  baggage  should  be  limited  to 
I50  was  held  invalid.  Glovinsky  v.  Cunard 
Steamship  Co.,  53  A^.  Y.  S.  R.  528. 

A  bed,  pillows,  bolster,  and  bed-quilts  be- 
longing to  a  poor  man,  who  is  moving  with 
his  wife  and  family,  may  properly  be  called 
baggage,  and  under  such  circumstances  it 
is  not  error  to  submit  to  the  jury  whether 
such  articles  are  baggage.  Ouimit  v.  Hen- 
shaw,  35  Vt.  605. 

An  ordinary  ocean  steamship  transporta- 
tion contract  does  not  include  a  feather-bed 
as  baggage,  which  is  not  necessary  for  the 
use  of  the  passenger  on  the  voyage.  Con- 
nolly V.  Warren,  106  Mass.  146. 

A  silk  bed-quilt  valued  at  (10,  carried  by 
a  lady  in  her  trunk,  which  is  not  necessary 
for  her  convenience  or  comfort,  is  not  bag- 
gage, and  the  carrier  is  not  liable  for  its 
loss.  St.  Louis  &*  C.  R.  Co.  v.  Hardway,  1 7 
///.  App.  321. 

Sheets,  blankets,  and  quilts,  intended  for 
a  passenger's  household  when  permanently 
settled,  are  not  to  be  considered  as  per- 
sonal luggage.  Macrcnu  v.  Great  Western 
R.  Co.,  L.  R.  6  Q.  B.  612,  40  L.  J.  Q.  B.  300, 
24  L.  T.  N.  S.  618,  19  W.  R.  873. 


I 


BAGGAGE,  a2  :<A. 


535 


82.  Dogg.*— A  carrier  that  does  nut  take 
regular  possession  of  dogs,  but  permits  them 
to  be  placed  in  the  car  of  the  baggage-mas- 
ter, is  not  hable  as  a  common  carrier  for  loss 
or  injury  to  the  same,  though  the  baggage- 
master  may  have  been  paid  a  fee.  Honeyman 
V.  Oregon  <S-  C.  R.  Co.,  25  Am.  &*  Eng.  R.  Cas. 
380,  13  Oreg.  352,  10  Pac.  Rep.  628,  57  Am. 
Rep.  20 —Quoting  New  York  C.  R.  Co.  v. 
Lockwood,  17  Wall.  (U.  S.)  357. 

Where  a  company  posts  notice  that  live 
animals  are  "allowed  as  baggagemen's  per- 
quisites," and  a  dog  is  placed  in  the  bag- 
gage-master's care,  who  charges  therefor, 
the  company  is  not  liable  for  its  loss.  Cant- 
ling  V.  Hannibal  6-  St./.  R.  Co.,  54  Mo.  385, 
12  Am.  Ry.  Rep,  387. 

33.  Fipe-arnis.— Guns  for  sporting  pur- 
poses may  be  included  as  baggage  of  a  trav- 
eller coming  into  the  United  States  from  a 
foreign  country.  Van  Horn  v.  Kermit,  4  E. 
D.  Smith  {N.   Y.)  453. 

A  rifle  packed  in  a  trunk  and  valued  at 
%1^—held  to  be  baggage.  Davis  v.  Cayuiiga 
&*  S.  R.  Co.,  10  How.  Pr.  (,N.  Y.)  330. 

A  revolver  may  be  included  as  baggage. 
Davis  V.  Michigan  S.  6-  A^.  /.  R.  Co.,  22  III. 
278.— Followed  in  Parmelee  v.  Fischer,  22 
III.  212. 

A  Chicago  grocer,  who  went  into  the 
country  in  quest  of  butter,  sought  to  re- 
cover of  a  railroad  the  value  of  two  revol- 
vers, among  other  things,  which  he  claimed 
were  in  his  trunk  as  part  of  his  baggage, 
which  was  lost  by  the  company.  Held,yi\\.\\ 
due  regard  to  the  habits  and  condition  in 
life  of  the  passenger,  more  than  one  re- 
volver was  not  reasonably  necessary  for  his 
personal  use  and  protection.  Chicago,  R.  /. 
&*  P.  R.  Co.  v.  Collins,  56  ///.  212,  4  Am. 
Ry.  Rep.  453. 

34.  Fragile  articles,  lace,  etc.— A 
carrier  may  be  liable  for  valuable  laces  be- 
longing to  a  lady  which  were  packed  in  her 
trunk  and  shipped  as  baggage,  such  articles 
appearing  proper,  considering  the  object  of 
her  journey,  and  her  social  position  and 
wealth,  FraloJ  v.  New  York  C.  &*  H.  R.  R. 
Co.,  \o  Blatchf.  (U.  S.)  16. 

Construing  §  4281  of  the  Rev.  St.  of  the 
United  States  (requiring  shippers  of  certain 
articles  to  give  to  carriers  by  vessel  written 

*  Carrier  not  liable  at  common  law  for  refus- 
ing to  carry  dogs,  see  note,  57  Am.  Rep.  34. 

Responsibility  of  company  for  dog  left  with 
baggage-master,  see  note,  25  Am.  &  Eng.  R. 
Cas,  383. 


notice  of  the  true  character  and  value 
thereof)  in  the  light  of  judicial  decisions 
upon  the  English  statute,  of  which  that  sec- 
tion is  in  most  respects  a  substantial  copy, 
fans  and  parasols  made  of  delicate  and  ex- 
pensive materials,  ornamented  with  carving, 
fragile  in  construction  and  intended  more  for 
ornament  than  for  use,  although  possessing 
to  some  extent  the  quality  of  utility,  are 
"trinkets,"  in  the  sense  in  which  this  word 
is  used  in  that  section.  Though  constitut- 
ing a  part  of  a  lady's  paraphernalia,  such 
articles  are  not  clothing;  and  when  shipped 
by  vessel  written  notice  of  their  character 
and  value  must  be  given.  Ocean  Steamship 
Co.  v.  IViiy,  90  Ga.  747, 

The  word  "  lace  "  in  the  section  cited  in- 
cludes a  lady's  shawl  made  exclusively  of 
Chantilly  lace.  Ocean  Steamship  Co.  v.  U-^ay, 
90  Ga.  747. 

35.  Household  goods.— Articles  not 
intended  to  be  used  on  the  passenger's  trip, 
but  being  transported  merely  for  future  or 
prospective  household  use,  are  not  consid- 
ered baggage  in  that  sense,  whereby  the  rail- 
way company  would  be  liable  for  their  loss; 
and  a  refusal  of  a  charge  asking  such  in- 
struction to  the  jury  was  error.  Texas  &» 
P.  R.  Co.  V.  Ferguson,  9  Am.  &*  Eng.  R.  Cas. 
395,  I  Tex.  App.  (Civ.  Cas^  724. 

A  railway  company  may  be  liable  for  such 
articles  as  blankets,  window-curtains,  books, 
cutlery,  and  ornaments  when  packed  with 
other  baggage  for  which  the  company  is 
liable ;  but  the  company  is  not  liable  as  ware- 
houseman for  goods  left  at  a  station  after 
the  journey  has  terminated,  where  the  com- 
pany is  not  entitled  to  charge  for  storage. 
McCaffrey  v.  Canadian  Pac.  R.  Co.,  \  Man. 
350.— Approving  Great  Northern  R.  Co.  v. 
Shepherd,  8  Exch.  30  ;  Hudston  v.  Midland 
R.  Co.,  L.  R.  4  Q.  B.  366  ;  Macrow  v.  Great 
Western  R.  Co.,  L.  R.  6  Q.  B.  612;  Cahill 
v.  London  &  N.  W.  R.Co.,  13C.  B.  N.S.819. 
Following  Shaw  v.  Grand  Trunk  R,  Co., 
7  U.  C.  C.  P.  493  ;  Bruty  v.  Grand  Trunk  R. 
Co.,  32  U.  C.  Q.  B.  66 ;  Lee  v.  Grand  Trunk 
R.  Co.,36U.  C.  Q.  B.  350. 

Where  an  emigrant  carries  trunks  and 
other  ordinary  baggage  with  her,  and  also 
turns  over  to  the  carrier  a  number  of  boxes 
of  goods  for  transportation,  and  pays  freight 
for  their  weight  in  excess  of  her  baggage  al- 
lowance, and  the  general  character  of  the 
shipment  is  known  to  such  carrier,  itcanm  t 
be  conclusively  presumed  that  the  entire 
shipment  was  as  baggage.    Hamburg-Ameri' 


:t   l;i 


586 


BA(;(;Atii:,  ;i«,  ;i7. 


h 


^:  i 


can  Packtt  Co.  v.  Oat/man,  127  ///.  Sy8,  20 
N.  E.  Hep.  66j  ;  affirniing  27  ///.  App.  182. 

3«,  Jewelry.*  — (I)  Company  liable,— 
Finger  rings  and  a  guld  watch  and  chain 
may  be  carried  as  baggage,  for  which  the 
carrier  will  be  liable.  AlcCormkk  v.  Hudson 
River  A'.  Co.,  4  E.  D.  Smith  (N.  )'.)  181. 

A  diamond  pin  and  a  watch-chain  valued 
at  $1400  held  to  be  baggage,  and  the  carrier 
liable  for  the  loss  of  them,  tliough  the  car- 
rier had  attempted  to  limit  its  liability  to 
wearing  apparel,  not  to  exceed  in  value  fioo. 
Coward  V.  East  Tenn.,  V.  &"  G.  R.  Co.,  16 
Lea  {Tenn.)  225,  57  Am.  Rep,  226.— Quot- 
ing Louisville  &  N.  R.  Co.  v.  Weaver,  9  Lea 
51 ;  Dillard  v.  Louisville  &  N.  R.  Co.,  2  Lea 
293;  New  York  C.  R.  Co.  v.  Locltwood,  17 
Wail.  (U.  S.)  358;  Davidson  v.  Graham,  2 
Ohio  St.  131.— Approved  in  Louisville  & 
N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas. 
312,  88  Tenn.  320,  14  S.  W.  Rep.  311. 
Distinguished  in  Louisville  &  N.  R.  Co. 
V.  Soweli,  90  Tenn.  17. 

If  a  station  agent  checks  as  personal  bag- 
gage a  trunk  known  to  him  to  belong  to  a 
jeweller  and  to  contain  a  stock  of  jewelry, 
the  railroad  company  is  liable  as  a  common 
carrier  for  its  loss  to  the  same  extent  as  if 
the  trunk  had  contained  nothing  but  wear- 
ing apparel,  or  as  if  it  had  undertaken  to 
carry  it  as  freight.  Central  Trust  Co.  v. 
Wabash,  St.  L.  &*P.  R.  Co.,  40  Am.  <^  Eng. 
R.  Cas.  636,  39  Fed.  Rep.  417. 

(2)  Company  not  liable. — A  carrier  is  not 
liable  for  the  loss  of  such  articles,  shipped 
in  a  trunk  as  baggage,  as  jewelry  which  the 
traveller  had  purchased  and  intended  as 
presents  to  friends,  engravings,  or  regalia  of 
a  secret  order.  Nevins  v.  Bay  State  Steam- 
boat Co.,  4  Bosw.  (N.  Y.)  225.— Quoting 
Hawkins  v.  Hoffman,  6  Hill  (N.  Y.)  589. 

Where  a  passenger  sues  to  recover  for 
loss  of  baggage,  the  jury  will  not  be  justified 
in  allowing  a  certain  sum  which  he  claims 
for  loss  of  jewelry,  but  which  he  can  neither 
identify  nor  describe  other  than  as  "  several 
articles  of  jewelry,  being  presents  received, 
valued  at  $100."  Nevins  v.  Bay  State  Steam- 
boat  Co.,  4  Bosw.  (N.  K.)  225. 

A  man  travelling  alone  cannot  recover  as 
baggage  for  loss  of  a  lady's  jewelry  which  he 
had  in  his  trunk.  Metz  v.  California  South- 
ern R.  Co.,  44  Am.  &*  Eng,  R,  Cas.  433,  85 
Cal.  329,  24  Pac.  Rep.  610. — DlSTINGUISH- 

*  Jewelry  and  precious  stones  as  t>aggage,  see 
note,  16  Am.  ft  Eng.  R.  Cas.  400. 


iNo  McGill  V.  Rowand,  3  Pa.  St.  451,  4$ 
Am.  Dec.  654.  —  Cadwallader  v.  Grand 
Trunk  R.  Co.,  9  Loiv.  Can.  169. 

37.  MeruliaiuliHC— Currier  not  lia- 
ble.*— The  term  "  baggage,"  for  which  pas- 
senger carriers  are  responsible,  does  not 
include  articles  of  merchandise  not  in- 
tended for  personal  use.  Collins  v.  Boston 
&*  .1/.  R.  Co.,  10  Cusli.  {Mass.)  506.— FoL- 
i.owiNc;  Jordan  v.  Fail  River  R.  Co.,  5  Cush. 
(Mass.)  69. — Oakes  v.  Northern  Pac.  R.  Co., 

20  Ortg.  392,  26  Pac,  Rip.  230. 

A  railroad  company  is  not  bound  by  the 
sale  of  a  ticket  to  a  passenger  to  carry  mer- 
chandise offered  as  baggage,  and  is  not  liable 
as  common  carrier  for  tlie  loss  of  merchan- 
dise so  offered  and  received  by  ii  without 
any  intimation  of  its  true  nature.  Blumen- 
thai  V.  Maine  C.  R.  Co.,  34  Am.  &^  Eng.  R, 
Cas.  247,  79  Me,  550.  5  A'.  Eng,  Rep.  355,  II 
All.  Rep.  605.  Dibble  v.  Brown,  12  Ga.  217. 
Michigan  Southern  &•  N.  I.  R.  Co.  v.  Oehm, 
16  III.  293,4  Am.  Ry.  Rep,  451.— Follow- 
ing Cincinnati  &  C.  A.  L.  R.  Co.  v.  Marcus, 
38  111.  223. — Hamburg- American  Packet  Co. 
V.  Gattman,  1 27  ///.  598,  20  A^.  E.  Rep.  662 ; 
affirming  27  ///.  App.  182.  Mississippi  C. 
R.  Co.  V.  Kennedy,  41  Miss.  671.  Pardee  v. 
Drew,  25  Wend.  (N.  Y.)  459.— FOLLOWING 
Orange  County  Bank  v.  Brown,  9  Wend. 
85.— Distinguished  in  Dexter  v.  Syracuse, 
B.  &  N.  Y.  R.  Co.,  42  N.  Y.  326.  Fol- 
lowed IN  Richards  v.  Wescott,  7  Bosw. 
(N.  Y.)  6.— Belfast  &>  B.  R.  Co.  v.  Keys,  9 
H.  L.  Cas.  556,  9  W.  R.  793.  4  L.  T.  841, 
8/«r.  A^.  S.  367.  Cahill  v.  London  &»  N. 
W.  R.  Co.,  10  C,  B,  N.  S.  154,  7  fur,  N.  S. 
1 164.  30  L,  f.  C.  P.  289,  9  W.  R.  653,  4  L. 
T.  N.  S.  246 ;  affirmed  on  appeal  in  13  C  B. 
N.  S.  818.  8  fur.  N.  S.  1063.  31  L.  /.  C.  P. 
271,  10  W.  R.  321.  Great  Northern  R.  Co. 
V.  Shepherd,  8  Exch.  30,  7  Railw.  Cas.  31a 

21  L.f.  Exch.  286. 

And  the  carrier  is  not  bound  to  inquire 
as  to  the  nature  of  the  property,  but  may 
assume  tliat  it  contains  only  such  things  as 
are  properly  baj^gage.  Haines  v.  Chicago, 
St.  P.,  M.  &*  O.  R.  Co.,  29  Minn.  160,  43  Am. 
Rep.  199,  12  N.  W.  Rep.  447. 

Articles  carried  for  sale  are  not  baggage 
without  regard  as  to  what  the  articles  may 
be.  Spooner  v.  Hannibal  <S-  St.  f.  R.  Co.,  23 
Mo.  App.  403. 

A  common  carrier  of  passengers  is  not  an 

*  Liability  of  company  for  merchandise 
shipped  as  baggage,  see  note,  34  Am.  Rep.  379. 


^ 


liA(i(;AGE,  a8. 


031 


Insurer  of  nicn  hundisc  taken  alon^  by  the 
passcnfjcr,  unless  a  reward  be  given  (or  its 
transportation,  or  ii  be  of  a  churucter  which, 
by  usage  or  contract,  is  to  be  regarded  as 
part  of  tlie  baggage.  Smil/i  v.  Boston  &* 
M.  K.  Co.,  44  A'.  //.  325.  Shaw  v.  Grand 
Trunk  R.  Co.,  7  U.  C.  C.  P.  493.— Followed 
IN  McCaffey  v.  Canadian  I'ac.  R.  Co.,  i 
Man.  "^yi.—DoyU  v.  k'iser,b  Ind.  242. — Dis- 
TINGUISHINO  Walker  v.  Jackson,  10  M.  & 
W.  161  ;  Cole  %>.  Goodwin,  19  Wend.  (N.  Y.) 
234.— Explained  in  Indiana  C.  R.  Co.  v. 
Gulick,  19  Ind.  83. 

Although  the  carrier  in  such  case  is  not 
liable  as  an  insurer,  he  is  liable  as  a  bailee 
without  reward  for  loss  or  injury  caused  by 
his  gross  negligence;  but  such  negligence 
must  be  proved,  and  is  not  to  be  presumed 
from  the  mere  fact  of  the  loss.  Smith  v. 
Boston  &^  M.  K.  Co.,  44  A'.  //.  325. 

The  fact  tluit  other  agents  had  at  other 
times  and  places  received  and  checked  the 
merchandise  as  baggage  with  knowledge  of 
its  true  nature,  will  not  operate  as  notice  to 
thecompany  of  its  nature,  with  respect  to  the 
trip  during  which  it  was  lost.  Bltimenthals. 
Maine  C.  R.  Co.,  34  Am,  &*  Eng.  R.  Cas.  247, 
79  Me.  550,  5  A^.  Eng.  Rep.  355,  11  Atl.  Rep. 
605.  Smith  V.  Boston  6-  M.  R.  Co.,  44  N. 
H.  325.— Following  Elkins  v.  Boston  & 
M.  R.  Co.,  23  N.  H.  286 ;  Murch  v.  Concord 
R.  Co.,  29  N.  H.  41. 

The  plaintifl,  an  emigrant  for  Toronto, 
brought  with  him  from  England  a  box  as 
personal  luggage  which  contained  only  rare 
plants  and  roses  intended  for  sale.  He  de- 
livered it  to  the  defendant's  baggage-master 
at  Quebec,  saying  that  he  would  pay  for  it, 
but  not  stating  its  contents,  on  which  the 
latter  asked  for  his  ticket,  and  on  seeing  that 
it  was  a  third-class  government  emigrant 
ticket  he  said  there  was  nothing  to  pay, 
and  that  it  might  go  with  plaintiff  in  the 
train.  The  plaintiff  said  the  box  was 
marked  somewhere  "  Plants,  perishable,"  but 
he  could  not  say  that  defendant's  officer  saw 
it,  and  it  was  sworn  that  if  defendant  had 
been  notified  that  it  was  freight  or  merchan- 
dise it  would  not  have  been  taken.  Held,  that 
the  defendant  was  not  liable  for  its  loss. 
Lee  V.  Grand  Trunk  R.  Co.,  36  U.  C.  Q.  B. 
350.— Reviewing  Cahill  v.  London  &  N. 
W.  R.  Co.,  13  C.  B.  N.  S.  818,  10  C.  B.  N. 
S.  1 54.— Followed  in  McCafifey  v.  Cana- 
dian Phc.  R.  Co.,  I  Man.  350. 

38.  Merchandise— Carrier  liable.— 
If   a  carrier   receives   goods  as   baggage, 


knowing  them  tu  be  articles  of  merchan- 
dise, and  undertakes  to  transport  them,  it 
is  liable  for  iheir  loss.  Stoneman  v.  Erie  R. 
Co.,  S2  A^.  v.  429 ;  affirming  1  Sheld.  286.— 
Distinguished  in  Plistcr  v.  Central  Pac. 
R.  Co.,  7oCal.  169.  Reviewed  in  Talcott 
V.  Wabash  R.Co,  50  N.  Y.  S.  R.  \2y—Ross 
V.  Missouri,  K.  «S-  /'.  R.  Co.,  4  Mo.  App. 
582. 

Where  the  duly  authorized  agent  of  a 
railroad  company  receives  personal  prop- 
erty to  be  transported  as  baggage,  the 
railroad  company  must  account  fur  such 
property  as  baggage,  although  in  strict  lan- 
guage it  might  not  he  baggage.  Chicago, 
R.  I.  &*  P.  R.  Co.  v.  Conilin,  16  Atn.  6*  Eng. 
R.  Cas.  1 16,  32  A'lin.  35,  3  Pac.  Rep.  762. 

Where  property  is  offered  by  a  passenger, 
but  not  so  packed  as  to  assume  the  out- 
ward appearance  of  ordinary  baggage,  or 
as  to  deceive  or  to  conceal  its  true  character, 
it  is  within  the  scope  of  the  agent's  business 
and  duty  to  decide  whether  the  company 
will  receive  and  carry  it  as  baggage,  and  if 
so  received,  to  be  forwarded,  the  company 
is  liable.  IValdron  v.  Chicago  &*  N,  IV .  R. 
Co.,  I  Dak.  351,  46  A^.  W.  Rep.  456,  1  Dak. 
T.  336.— Quoting  Hannibal  &  St.  J.  R. 
Co.  V.  Swift,  12  Wall.  (U.  S.)  274;  Great 
Northern  R.  Co.  v.  Shepherd,  7  Railw.  Cas. 
3<o. 

Proof  that  a  passenger  had  a  package  of 
merchandise  checked  as  baggage,  the  bag- 
gage master  knowing  that  it  was  merchan- 
dise, and  that  other  passengers  had  similar 
packages  checked,  does  not  warrant  a  finding 
that  the  carrier  had  agreed  to  carry  it  as  mer- 
chandise, or  to  become  liable  for  it  as  a  com- 
mon carrier,  where  there  is  no  evidence  that 
the  baggage-master  had  authority  to  receive 
freight  to  be  carried  on  passenger  trains,  or 
to  bind  the  carrier  to  carry  merchandise  as 
personal  baggage.  Blumantle  v.  Fitchburg 
R.  Co.,  127  Mass.  322.— Distinguishing 
Great  Northern  R.  Co.  v.  Shepherd,  8  Exch. 
30.  Explaining  Sloman  v.  Great  Western 
R.  Co.,  67  N.  Y.  208 ;  GrafTam  v.  Boston  & 
M.  R.  Co.,  67  Me.  234.  Reviewing  Han- 
nibal &  St.  J.  R.  Co.  V.  Swift.  12  Wall.  (U. 
S.)  262. 

If  a  passenger  openly  offers  merchan- 
dise as  personal  luggage,  or  if  the  mer- 
chandise is  so  packed  that  its  nature  is 
obvious,  and  the  company  does  not  object 
to  it,  it  will  be  liable.  Great  Northern  R. 
Co.  V,  Shepherd,  8  Exch.  30,  7  Railw.  Cas. 
310,  31  L.J.  Exch.  286. 


;  % 


688 


i3Ar.(jA(;K,  :m,  40. 


(!.'■ 


Where  a  passenger  pays  his  passa};o  and 
an  extra  sum  for  liavint;  ariicles  of  mer- 
chandise transported  with  his  baggage,  in 
the  absence  of  fraud  or  concealment  on  his 
part  as  to  the  contents  of  the  packages  of 
merchandise,  the  carrier  is  liable  for  the  loss 
of  the  merchandise  the  same  as  for  bag- 
gage. Stone^ium  v.  Erie  A'.  Co.,  52  A^.  V. 
429;  affirming  1  .SV/fA/.  286.— DiSAPPROVKD 
IN  Humphreys  v.  Perry,  148  U.  S.  627. — 
PerUy  v.  New  Vor.',  C.  &•  11.  R.  R.  Co.,  65 
A'.  Y.  374  Sioman  v.  Great  Western  R. 
Co.,  67  A'.  Y.  208,  1 5  Am.  Ry.  Rep.  113;  re- 
versing 6  Hun  546.  — Applied  and  re- 
VI KW ED  IN  Talcott  V.  Wabash  R.  Co.,  50  N. 
Y.  S.  R.  423.  Disapproved  in  Humphreys 
V.  Ferry,  148  U.  S.  627.  Distinguished 
IN  Pfister  V.  Central  Pac.  R.  Co.,  70  Cal. 
169.  Reviewed  in  Talcott  v.  Wabash  R. 
Co.,  50N.  Y.  S.  R.423,  66Hun4s6,  21  N.Y. 
bupp.  318. 

While  the  obligation  of  a  carrier  of  pas- 
sengers is  limited  to  ordinary  baggage,  yet 
if  the  carrier  knowingly  permits  a  passen- 
ger, either  on  payment  or  without  payment 
of  an  extra  charge,  to  take  articles  as  per- 
sonal baggage  which  are  not  properly  such, 
it  will  be  liable  for  thei^  loss  or  desuuction 
though  without  fault.  Oakes  v.  Northern 
Pac.  R.  Co. ,  47  Am.  &*  Eng.  R.  Cas.  437,  20 
Oreg.  392,  26  Pac.  Rep.  230. 

Where  in  such  case  the  property  is  not 
that  of  the  passenger,  but  is  in  his  hands  as 
agent  of  the  owner,  and  he  makes  the  con- 
tract and  p-ys  the  compensation  for  its  car- 
riage, for  account  of  and  in  the  conduct  of 
the  business  of  his  principal,  an  action  is 
properly  brought  in  the  name  of  the  latter 
to  recover  for  the  loss.  Sloman  v.  Great 
Western  R.  Co.,  67  A^.  Y.  208,  15  Am.  Ry. 
Rep.  113;  reversing  6  Hun  546. 

89.  Military  stores,  etc.  —  Public 
l>aggage,  stores,  arms,  etc.,  sent  by  railway, 
in  charge  of  troops,  specified  in  7  &  8  Vic. 
ch.  85,  §  12,  is  their  baggage,  no  matter 
what  may  be  the  disproportion  between  the 
amount  of  baggage  and  the  number  of  the 
force,  and  it  must  be  carried  at  the  rates 
imposed  by  that  «;ection.  Attorney-General 
V.  Great  Southern  &>  W.  R.  Co.,  14  Ir.  Com. 
Law  Rep.  447. 

40.  Money.*— (i)  Carrier   liable.— k 


*  See  also  post,  84. 

Liability  of  company  for  money  transported 
as  baggage,  see  note,  18  Am.  &  Eng.  R.  Cas. 
627. 

Passenger  carrying  money  as  baggage  may 


passenger  has  a  right  to  carry  money  in  his 
trunk  as  baggage  in  a  sum  proper  for  trav- 
elling expenses,  and  if  lost  the  carrier  will 
be  liable  therefor.  Merrill  v.  Griniiell,  30 
N.  Y.  594. —  Followed  in  Dexter  v.  Syra- 
cuse, B.  &  N.  Y.  R.  Co..  42  N.  Y.  326.— 
Torpey  v.  Williams,  3  Daly  (N.  Y.)  162. 
Taylor  v.  Monnot,  4  Duer  {N.  Y.)  116,  i 
Ad6.  Pr.  325.— Following  Weed  v.  Sara- 
toga &  S.  R.  Co.,  19  Wend.  (N.Y.)  534; 
Jordan  v.  Fall  River  R.  Co.,  5  Cush.  (Mass.) 
69.  Not  following  Hawkins  t/.  Hoffman, 
6  Hill  (N.Y.)  589.— Reviewed  in  Merrill z;. 
Grinneil,  30  N.  Y.  $^.— Missouri  Pac.  R. 
Co.  V.  Yor/t,  2  Te.x.  App.  {Civ.  Cas.)  557. 
International  &*  G.  N.  R.  Co.  v.  McCown, 
2  Tex.  App.  (Civ.  Cas.)  624.  Cadwallader  v. 
Grand  Trunk  R.  Co.,  9  Low.  Can.  169. 

In  determining  the  amount  of  money 
which  a  passenger  may  have  carried  as 
baggage  his  expenses  for  his  entire  trip  must 
be  considered,  and  not  his  expenses  merely 
over  the  line  of  the  defendant  company.  In 
addition  to  necessary  travelling  expenses  he 
is  entitled  to  a  proper  allowance  for  acci- 
dents, sickness,  and  sojourning  by  the  way, 
such  as  a  prudent  man  would  consider 
necessary  to  make.  Merrill  v.  Grinneil,  30 
A'.  Y.  594. 

Bank  bills  amounting  to  $300  are  a 
reasonable  sum  for  a  passenger  to  carry  as 
baggage  in  his  trunk  without  informing  the 
company.     Illinois  C.  R.  Co.  v.  Copelanl,  24 

///.  332- 

A  person  making  an  ocean  steamship 
voyage  may  retain  in  his  trunk  money  for 
small  personal  expenses,  and  the  owner  of 
the  vessel  will  be  liable  therefor  if  lost ;  and 
the  amount  may  differ  from  that  allowed 
where  a  person  is  travelling  by  railroad  or 
stage  coach,  where  the  journey  is  much 
briefer  as  to  time.  Duffy  v.  Thompson,  4 
E.  D.  Smith  (A.  F.)  178. 

(2)  Carrier  not  liable. — Common  carriers 
of  passengers  are  not  responsible  for  money 
included  in  the  baggage  of  a  passenger  to 
an  amount  exceeding  what  a  prudent  person 
would  deem  proper  and  iitcessary,  or  in- 
tended for  purposes  other  than  for  the  ex- 
penses of  the  journey,  unless  the  loss  is 
occasioned  by  the  gross  negligence  of  the 
carriers  or  their  servants,  Jordan  v.  Fall 
River  R.  Co.,  5  Cush.  (Mass.)  69.— Applied 
IN  Merrill  v.  Grinneil.  30  N.  Y.  594.     FOL- 


be  compelled  to  pay  freight,  see  note,  27  Am.  ft 
Eng.  R.  Cas.  2^6 


m 


BAGGAGK,  41. 


530 


'i   J 


I 


LOWKD  IN  Collins  V.  Boston  &  M.  R.  CO.. 
lo  Ciish.  (Mass.)  506;  Taylor  v.  Monnot, 
4Diier  (N.  Y.)  116.  Rkvikwku  in  Davis  v. 
Cayuga  &  S.  R.  Co.,  10  How.  Pr.  (N.  Y.) 

330. 

A  traveller  cannot  recover  from  a  car- 
rier for  the  loss  of  money  contained  in  his 
trunk  checked  as  baggage,  which  he  ex- 
pected to  expend  in  buying  mercandise  at 
the  end  of  his  journey.  Hickox  \.  Naupa- 
tuck  R.  Co.,  31  Conn.  281. 

When  the  baggage  consists  of  an  ordinary 
travelling  trunk,  in  which  there  is  a  large 
sum  of  money,  such  money  is  not  considered 
as  included  under  the  term  baggage,  so  as 
to  render  the  carrier  responsible  for  it.  It 
seems,  however,  that  the  carrier  would  be 
liable  for  money  in  the  trunk  not  exceeding 
an  amount  ordinarily  carried  for  travelling 
expenses.  Orange  County  Bank  v.  Brown,  9 
Wend.  (JV.  Y.)  85. — Appi.ikd  in  Merrill  v. 
Grinncll,  30  N.  Y.  594.  Foli.owkd  in  Pardee 
V.  Drew,  25  Wend.  (N.  Y.)  459.  Quoted  in 
Hopkins  v.  Westcott,  6  Blatchf.  (U.  S.)  64 ; 
Dibble  z/.  Brown,  12  Ga.  217;  Oppenheinier 
V.  United  States  Exp.  Co.,  69  111.  62.  Re- 
viewed in  Pacific  Exp.  Co.  f.  Foley,  46 
Kan.  457. 

It  seems  that  money  to  pay  travelling  ex- 
pen&es,  carried  in  the  passenger's  trunk,  is 
not  included  in  the  term  baggage.  Haw- 
kins V.  Hoffman,  6  Hill  {N.  V.)  586.— Nor 
FOLLOWED  IN  Merrill  v.  Grinnell,  30  N.  Y. 

594. 

Gold,  silver,  notes,  etc.,  contained  in  a 
travelling-bag  are  not  baggage,  and  a  person 
carrying  a  bag  containing  such  on  a  train 
and  keeping  entire  possession  and  control 
of  it  near  his  own  person  is  liable  to  pay 
freight  therefor.  Hutchings  v.  Western  &* 
A.  /i.  Co.,  25  Ga.  61. 

Where  money  amounting  to  $90,000  is 
presented  by  a  passenger,  the  company  may 
refuse  to  carry  it  as  luggage  and  insist  that 
it  shall  go  by  express.  Pfister  v.  Central 
Pac,  R.  Co.,  27  Am.  St*  Eng.  R.  Cas.  246,  70 
Cal.  169,  II  Pac.  Rep.  em. 

A  county  treasurer  who  is  travelling  to 
the  place  of  deposit  of  his  funds  is  not  en- 
titled to  carry  with  him,  as  baggage,  a  large 
sum  of  money,  and  the  carrier  may  refuse  to 
carry  it,  though  for  years  it  had  allowed  him 
to  travel  on  the  train  with  large  sums  of 
money.  Pfister  v.  Central  Pac.  R.  Co.,  27 
Am.  &*  Eng.  R.  Cas.  246,  70  Cal.  169,  11  Pac. 
Rep.  686.— Distinguishing  Minter  v.  Paci- 
fic R.  Co.,  41  Mo.  504 ;    Butler  v.  Hudson 


River  R.  Co.,  3  E.  D.  Smith  571  ;  Stonenian 
V.  Erie  R.  Co.,  52  N.  Y.  429;  Sloman  v. 
Great  Western  R.  Co.,  67  N.  Y.  208  ;  Hanni- 
bal &  St.  J.  R.  Co.  V.  Swift,  12  Wall.  (U.  S.) 
262, 

(3)  Question  of  liability  for  jury.— V^\\t\.\\er 
a  sum  of  money  carried  in  a  trunk  is  more 
than  would  ordinarily  be  required  to  meet 
the  expenses  of  a  journey  is  a  question  for 
the  jury,  fones  v.  Priestcr,  i  Tex.  App. 
{Civ.  Cas.)  326. 

As  to  what  is  a  reasonable  amount  of 
money  to  be  carried  by  a  passenger  as  bag- 
gage must  depend  upon  the  character  of  the 
journey  and  the  special  circum.stances  of 
each  case.  Merrill  v.  Grinnell,  30  N.  V. 
594.— Applying  Weed  v.  Saratoga*  S.  R. 
Co.,  19  Wend.  534 ;  Orange  County  Bank  v. 
B:own,  9  Wend.  85  ;  Jordan  v.  Fall  River  R. 
Co.,  5  Cush.  (Mass.)  69. 

As  to  what  is  a  reasonable  amount  of 
money  to  be  carried  by  a  passenger  as  bag- 
gage is  a  question  to  be  determined  by  the 
jury  or  a  referee;  and  where  the  referee  has 
passed  upon  the  fact  and  determined  what 
is  a  reasonable  sum,  his  finding  should  not 
be  disturbed  on  appeal.  Merrill  v.  Grinnell, 
30  N.  V.  594.— Reviewing  Orange  County 
Bank  1'.  Brown,  9  Wend.  85 ;  Weed  ?'.  Sara- 
toga &  S.  R.  Co.,  19  Wend.  534;  Taylor  v, 
Monnot,  4  Duer  1:6. 

Plaii'tiff  was  moving  a  long  distance  with 
himse!'  ..■  i  family,  and  with  other  things 
shipped  ^jo  in  money  in  a  trunk,  which  was 
lost,  and  he  claimed  that  such  amount  was 
necessary  under  the  circumstances,  and  that 
there  was  less  danger  of  pickpockets.  HeM, 
that  the  question  as  to  whether  the  money 
was  necessary  under  the  circumstances  for 
their  personal  comfort  and  convenience,  and 
was  therefore  baggage,  was  a  question  of  fact. 
Missouri  Pac.  R.  Co.  v.  I'orA;  2  Tex.  App. 
(Civ.  Cas.)  557. 

41.  Price-IistH,  ontaloffucs,  etc.— A 
"  price-book  "  carried  by  a  travelling  sales- 
man, containing  lists  and  prices  which  he 
used  in  his  business  and  could  not  remem- 
ber, is  properly  personal  baggage.  Gleason 
V.  Goodrich  Transp.  Co.,  32  Wis.  85,  14  Am. 
A"*'/.  716.— Followed  in  Staub?/.  Kendrick, 
40  Am.  &  Eng.  R.  Cas.  632,  121  Ind.  226,  23 
N.  E.  Rep.  79,  6  L.  R.  A.  619. 

A  catalogue  prepared  by  a  travelling 
salesman  at  his  own  expense,  and  which  was 
his  own  individual  property,  and  was  carried 
with  him  as  an  article  convenient  and  neces- 
sary for  use  in  his  business  while  travelling. 


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is  an  article  of  j)er.s<jnal  baggage  (or  whicli 
he  may  recover  wlien  lost,  with  other 
articles  in  a  valise,  by  a  baggage-transfer 
carrier.  Slmtb  v.  Kendruk,  40  Am.  &*  Eng. 
R.  Cas.  632,  121  Ind.  226,  23  A'.  E.  Rep.  79, 
6  L.  R.  A.  619.— Following  Gleason  v. 
(i(M)dricli  Transp.  Co.,  32  Wis.  85,  14  Am. 
Kfp.  716. 

42.  Suiiiitlfs  curried  by  travelling 
NaieMiiieii.*— The  term  baggage  does  not 
embrace  samples  of  merchandise  carried  by 
the  passenger  in  a  trunk,  with  a  view  to  en- 
abling him  to  mai^e  bargains  for  the  sale  of 
goods.  Hawkins  V.  Hoffman,  6  Hill.  (.y.  J'.) 
586. -ytioi  El)  IN  Dibble  7'.  Brown,  12  Ga. 
2iT.— Texas  &*  /'.  R.  Co.  v.  Cafifis,  2  Tex. 
App.  {Civ.  Cas)  35. 

A  railroad  company  is  not  liable  on  its 
implied  contract  for  the  loss  of  samples 
used  by  a  travelling  salesman  in  his  busi- 
ness, which  are  ship|)ed  as  baggiige,  at  the 
suit  of  either  the  owner  or  the  salesman, 
and  it  is  only  liable  in  tort  for  the  loss 
where  there  is  gross  negligence.  Stimson  v. 
Connecticut  River  R.  CV.,  98  Mass.  83. — Ap- 
plied IN  Curtis  V.  Dt'laware,  L.  &.  W.  R. 
Co.,  74  N.  Y.  116.  Followed  in  Ailing?'. 
Boston  &  A.  K.  Co.,  126  Mass.  121. 

A  carrier,  in  the  absence  of  gross  negli- 
gence, is  not  liable  for  the  loss  of  samples  of 
merchandise  shipped  in  a  trunk  as  personal 
baggage,  and  its  liability  is  not  affected  by 
proof  that  the  carrier  was  in  the  habit  of 
carrying  trunks  known  to  contain  samples 
used  by  travelling  salesmen.  Allini^  v. 
lioslon  &*  A.  R.  Co.,  126  Afass.  121.— Fol- 
lowing Stimson  v.  Connecticut  Kiver  R. 
Co.,  98  Mass.  83. 

Where  a  trunk  is  checked  containing 
samples  of  jewelry  used  by  a  travelling  sales- 
man, the  contents  being  made  known  to  the 
agent  who  checks  it,  the  carrier  is  liable  for 
its  loss  as  for  ordieiary  baggage.  Jacobs  v. 
Tutt,^-^  Fed.  AV/.  412.— Following  New 
York  C.&  H.  R.  R.  Co,  v.  FralofT,  too  U.  S. 
27.— 7VMrt.5  &*  P.  R.  Co.v.  Capps,  16  Atn. 
<^  Eng.  R.  Cas.  1 18,  2  Tex.  App.  {Civ.  Cas.) 
35.  Hoeger  v.  Chicago,  Af.  &^  .St.  P.  R.  Co., 
21  Am.  <S«»  Eng.  R.  Cas.  308,  63  ll'is.  100,23 
N.  IV.  Rep.  435,  53  Am.  Rep.  271. 

A  railroad  company  which,  with  knowl- 
edge of  its  contents,  takes  upon  a  freight 
c.iras  passenger's  baggage  a  sample  trunk 
containing  valuable  merchandise,  is  liable 

•Commercial  travellers'  trunks  and  sample- 
rases  as  baKRaRC.  Liability  of  carrier,  sec  39 
Am  &  Eng.  R.  Cas.  439  abslr. 


for  its  l()ss  while  in  transit.    Rider  v.  IVa- 
bash,  St.  L.  iS-  P.  R.  Co.,  14  Mo.  App.  529. 

43.  Siirtfieui  iiiMtriiiiieiitH,  toolH  of. 
inecliaiiicH,  etc. — Surgical  instruments, 
in  the  case  of  a  surgeon  in  the  army  travel- 
ling with  troops,  constitute  part  of  his  bag- 
bage.  //annibal  &-  St.  J.  R.  Co.  v.  Swift, 
12  Wall.  (U.  S.)  262,  !  Am.  Ry.  Rep.  434. 

A  reasonable  quantity  of  his  tools  is 
proper  baggage  for  a  mechanic  working  as  a 
watchmaker  and  jeweller.  What  constitutes 
ii  reasonable  quantity  is  for  the  jury.  Kan- 
sas City,  Ft.  S.  (S>»  G.  R.  Co.  v.  Alorrison,  34 
Kan.  502,  55  ///;/.  Rep.  252,  9  Pac.  Rep.  225. 
—Quoting  Macrow  v.  Great  Western  R. 
Co..  L.  R.  6  Q.  B.  612.  Reviewing  Davis 
V.  Cayuga  &  S.  R.  Co.,  10  How.  Pr.  (N.  Y.) 
330;  Porter  7'.  Hildebrand,  14  Pa.  St.  129. 

The  tools  of  a  harness-maker,  valued  at 
$10,  packed  in  his  trunk  with  clothing  and 
shipped  as  baggage — held  to  be  such,  under 
proof  that  it  was  customary  for  a  harness- 
maker  when  quitting  ore  place  to  pack  and 
transport  his  tools  in  that  way.  Davis  v. 
Cayuga  <S>»  -S'.  R.  Co.,  10  Ho<v.  Pr.  {N.  V.)  330. 
-Reviewing  Brooke?/.  Pcckwiih,  4  Bing. 
218;  Bomar  7'.  Maxwell,  9  Humph.  (Tenn.) 
623;  Jordan  v.  Fall  River  R.  Co.,  jj  Cush. 
(Mas.s.)69.  — Reviewed  IN  Kansas  City,  Ft. 
S.  &  G.  I^.  Co.  V.  Morrison,  34  Kan.  502,  55 
Am.  Rep.  252. 

44.  VVutclieH.  —  A  watch  is  part  of  a 
traveller's  baggage,  and  is  properly  deposited 
in  his  trunk.  Jones  v.  Voorhees,  10  Ohio 
145.  American  Contract  Co.  v.  Cross,  8  Rush 
{Ky.)  472. 

A  railroad  company  is  responsible  as  a 
common  carrier  for  the  value  of  a  gold  watch 
which  was  lost  from  the  trunk  of  a  pas- 
senger l)y  the  negligence  of  the  company. 
American  Contract  Co.  v.  Cross,  8  Rush  {Ky.) 
472. 

45.  AriHcclIaiieouN  articles.  —While 
such  articles  as  a  group  of  photographs 
framed,  family  portraits,  a  meerschaum  pipe, 
chandeliers,  and  mirrors  are  not  strictly 
baggage,  yet  where  a  railroad  company  re- 
ceives such  things  with  other  articles,  and 
receives  extra  compensation  for  the  same, 
as  baggage,  and  agrees  to  transport  them 
at  baggage  rates  without  inquiry  as  to  what 
the  packages  contain,  and  without  any  mis- 
representation by  the  owner,  the  railroad 
company  will  be  liable  for  any  loss  or  dam- 
age thereto.  Missouri  Pac.  R.  Co.  v.  Slater, 
3  Tex.  App.  {Civ.  Cas.)  25. -APPROVING 
Sloneman  v.  Erie   R.  C>    52  N.  Y.  429; 


BAGGAGE,  4«,  47. 


641 


Hannibal  &  St.  J.  R.  Co.  v.  Swift,  12  Wall. 
(U.  S.)  26?. 

Where  a  traveller  is  a  shipmaster,  com- 
mon carriers  will  be  held  responsible  for  a 
dressing-case,  and  for  night-glasses  or  tele- 
scopes, upon  the  presumption  that  he  may 
reasonably  have  thought  they  would  be  use- 
ful to  him  in  the  course  of  his  intended 
voyage  across  the  Atlantic.  Cadwallader  v. 
Grand  Trunk  R.  Co.,  9  Low.  Can.  169. 

Thf  following  articles  have  been  held  to  be 
within  the  meaning  of  the  term  "  baggage" 
so  as  to  render  the  carrier  liable  for  their 
lo. 

A  limited  quantity  of  goods  cut  into  shirt 
patterns.  Duffy  v.  Thompson,  4  E.  D.  Smith 
(iV.  Y.)  178. 

An  opera-glass.  Toledo,  IV.  &*  IV.  K.  Co. 
<j.  Hammond,  33  Ind.  379. 

A  rifle,  a  reVDivcr,  two  gold  chains,  a 
locket,  two  gold  rings,  a  silver  pencil-case. 
Bruty  V.  Grand  Trunk  R.Co.,  31  U.  C.  Q.  B. 
66. 

Articles  for  the  personal  use,  convenience, 
instruction,  or  amusement  of  the  passenger 
on  the  way,  and  usually  carried  as  baggage; 
c.g.,  wearing  ap|)arel,  brushes,  writing  ma- 
terials, books,  fishing  tackle,  etc.  Hawkins 
V.  Hoffman,  6  Hill  (A'.   K.)  586. 

Clothing,  money  for  travelling  expenses, 
a  few  books  for  reading,  a  watch,  a  lady's 
jewelry  for  dressing,  etc.  Doyle  v.  Kiser,  6 
Ind.  242. 

Manuscript  of  a  student,  author,  or  pro- 
fessional man.  Hopkins  v.  Westcitt,  6 
Blatchf.  {(/.S.)  64.— QiroTEi)  in  Gleason  v, 
Goodrich  Transp.  Co.,  32  Wis.  85. 

Sixteen  yards  of  silk,  two  goblets,  a  half  a 
bushel  ot  canary-seed,  100  dollars  in  coin 
and  200  dollars  in  bills,  /ones  v.  Priester,  i 
Tex.  App.  (Civ.  Cas.)  326. 

The  foUo^ving  art  it  If  s  are  held  not  "  bag- 
gage "for  the  loss  of  which  the  carrier  is 
'liable: 

An  artist's  pencil  sketches.  My  I  ton  v. 
Midland  K.  Co..  4 /A  *.'!-  A^  615,  28  /.. /. 
Exch.  385,  33/..  T.  587,7  W.  R.  737.- Held 
OVF.RRU I.F.I)  IN  Hoo|jor  7'.  London  &  N.  W. 
R.  Co..  50  L.  J,  i^.  H.  103,  43  L.  T.  570,  29 
W.  R.  241.  45  J- P- 223. 

A  child's  spring-horse,  although  it  weighs 
less  than  the  limit  which  passengers  are  en- 
titled to  take.  Hudsion  v.  Midland  R.  Co., 
L.  R.  4  Q.  li.  366,  10  li.  &■  S.  504.  38  /„/. 
Q.  li.  213,  17  IV.  R.  ^o^,  20  L.   T.  yV.  .V.  526. 

A  concertina,  a  scwiiig-iniK^liino,  and  \\\i: 
tools  of  trade  of  a  carpenter.  Jin-.y  v.  Cnuui 


Trunk  R.  Co.,  32  U.  C.  Q.  B.  66.  —  Fol- 
lowed IN  McCaffey  v.  Canadian  Pac,  R. 
Co.,  I  Man.  350. 

Articles  usually  carried  about  the  person 
and  not  as  baggage.  Hawkins  v.  Hoffman, 
6  Hill  {N.  Y.)  586. — Nor  followed  in 
Taylor  v,  Monnot,  4  Duer  (N.  Y.)  1 16. 
Quoted  in  Nevins  v.  Bay  State  Steamboat 
Co.,  4  Bosw.  (N.  Y.)  225. 

A  sacque  and  muff  and  silver  napkin- 
rings,  when  carried  by  a  niaii.  Chicago,  R.  I. 
&*  P.  R.  Co.  V.  Boyce,  73  ///.  510. 

Title  deeds  and  bank  notes  to  a  consider- 
able amount,  carried  by  an  attorney  for  use 
in  court.  Phelps  v.  London  &*  N.  W.  R.  Co., 
19  C. B.  N.  i".  321,  II  Jur.  N.  S.  652,  34  L, 
J.  C.  P.  259,  13  IV.  R.  782,  12  L.  T.  496. 

4G.  Extru  bag:(;nt;c— L  i  111  i  t  o  t' 
wcig^lit. — An  agreement  to  carry  immi- 
grants across  the  ocean  into  this  country 
only  binds  the  carrier  to  trs.  isport  the  ordi- 
nary personal  baggage.  Nordemeyer  v. 
Loescher,  \  Hilt.  (N.  Y.)  499. 

Under  the  laws  of  Texas  a  railway  com- 
pany has  a  right  to  exact  pay  for  extra 
weight  ot  baggage  above  100  pounds,  and — 
all  tickets  being  bought  with  knowledge  of 
this  law— demanding  and  receiving  pay  for 
such  extra  weight  is  neither  a  violation, 
change,  nor  substitute  of  the  contract  be- 
tween the  carrier  and  the  passenger  made  in 
buying  the  ticket.  Gulf,  C.  &>  S.  E.  R.  Co. 
v.  /ons,  3  Tex.  Civ.  App.  619,  22  S.  W.  Rep. 
101 1. 

The  mere  payment  of  extra  compensation 
on  account  of  overweight  of  baggage  does 
not  convert  it  into  freight.  Hamburg- 
American  Packet  Co.  v.  Gall  man,  127  111. 
598,  20  A'.  E.  Rep.  662;  affirming  27  ///. 
App.  182. 

A  rule  that  the  passenger  may  carry  with 
him  a  certain  weight  of  luggage,  permits  a 
husband  and  wife  travelling  together  to  take 
double  that  weight.  Great  Northern  R.  Co. 
V.  Sheperd,  21  L.J.  Exch.  114. 

III.    C0MM£NCE1IENT    AHO    TEBMIHATION 
OF  THE  LIABILITY. 

I.    Delivery    to    Company — Checks  for 
Baggage. 

47.  Necessity  of  delivery  to  com- 
pany.— A  common  carrier  is  not  liable  for 
loss  of  baggage  unless  it  appears  thai  there 
was  son.e  contract  on  its  (wrt  id  carry  the 
bag^agfe,  or  that  it  came  into  tlu-  carrier's 
hands.  Michigan,  S.  ^  A'.  /.  R,  Co.  v. 
M.jres,  21  /ll.()27.     DisriNcinsiiKD  in  Chi- 


dM 


54:J 


BAGGAGE,  48,  49. 


ft 

I 


If; 


Ji:  V 


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7 
I- 


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cago,  R.  I.  &  P.  R.  Co.  V.  Clayton,  78  111. 
616. 

48.  Suiflcieiicy  of  the  delivery, 
generally.— It  is  inunutertal  wlien  bag- 
gage cuines  lu  the  possession  of  the  carrier, 
whether  at  the  time  the  check  is  issued  or 
at  a  subsequent  time.  In  cither  case,  the 
carrier's  liability  as  an  insurer  becomes  fixed 
in  case  of  a  loss.  Chicago,  R.  I.  &*  P.  A*.  Co. 
V.  Clayton,  78  ///.  616. 

Receiving  baggnge,  in  the  evening,  from 
passengers  intending  to  take  a  morning  train, 
where  that  is  the  custom  of  the  company, 
makes  tlic  company  liable  as  carrier  of  the 
baggage  from  tlie  time  of  its  receipt.  Green 
V.  Mihvaukee  «S-  .SV.  P.  R.  Co.,  41  Iowa  410. 
— Reviewed  in  Lake  Shore  &  M.  S.  R.  Co. 
V.  Foster,  104  Ind.  293,  54  Am.  Rep.  319. 

Mere  depositing  of  baggage  on  the  vt 
hide  of  a  carrier,  without  notifying  the  car- 
rier or  his  agent  of  an  intention  to  take 
passage,  is  not  such  constructive  notice  as 
will  sustain  an  action  for  its  loss.  IVright 
V.  Caldwell,  3  Mich.  51.— DISTINGUISHED 
IN  Lake  Shore  &  M.  S.  R.  Cc  v.  Foster, 
104  Ind.  293,  54  Am.  Rep.  319. 

A  common  carrier  may  assent  to  the  de- 
livery of  baggage  at  its  station  without  no- 
tice to  its  agents,  and  this  assent  maybe 
inplied  from  the  course  of  business  and 
custom  of  the  carrier  in  allowing  baggage 
ro  be  deposited  in  its  rooms;  but  whetlier 
such  delivery  is  to  be  regarded  by  the  com- 
pany as  binding  upon  it  is  a  question  of  fact, 
which  should  be  left  to  the  jury.  Green  v. 
Milwaukee  &•  St.  P.  R.  Co.,  38  /o7c>a  100. 

The  company  is  not  liable  as  a  carrier  if 
the  passenger,  finding  that  his  trunk  is  too 
large  to  be  put  in  the  caboose,  on  his 
own  account  and  responsil)ility,  and  not  as 
a  delivery  to  a  common  carriir,  places  it  in 
a  box  car,  the  company  having  no  knowl- 
edge as  to  the  character  of  its  contents. 
Ritier  v.  IVafiasA,  S/.  L.  6-  P.  R.  Co.,  14  Mo. 
App.  529. 

Plaintiff,  an  intending  passenger  by  de- 
fendant's railway,  a  quarter  of  an  hour  be- 
fore the  train  started  entered  a  passenger 
car  standing  at  the  station  at  the  original 
starting-point,  left  his  valise  on  a  vacant 
seat,  and  went  out ;  on  his  return  shortly 
afterward  his  valise  was  gone.  It  was 
not  shown  that  at  the  time  he  left  the 
valise  any  one  was  in  charge  of  the  train, 
or  that  there  was  nny  other  passenger  in 
the  car.  Held,  no  sufficient  rielivcry  nf  the 
valise  to  defendants  to  render  them  liable 


Kerr  v.  Grand  Trunk  R.  Co.,  24  U.  C.  C.  P. 
209.  —  Distinguishing  Talley  v.  Great 
We-^Lcrn  R.  Co.,  L.  R.  6  C.  P.  44 :  Gamble  v. 
Great  Western  R.  Co.,  24  U.  C.  Q.  B.  407. 

4il.  Delivery  to  bat^giiise-iiiaMter.— 
Tiie  proprietors  of  a  railroad,  who  receive 
passengers  and  commence  their  carriage  at 
the  station  of  another  road,  are  bound  to 
have  a  servant  there  to  take  charge  of  the 
baggage  until  it  is  placed  in  their  cars;  and 
if  it  is  the  custom  of  the  baggage-master  of 
the  station,  in  the  absence  of  such  servant, 
to  receive  and  take  charge  of  baggage  in 
hiii  acead,  the  proprietors  will  be  responsi- 
ble for  baggage  so  delivered  to  him.  Jordan 
V.  Fall  River  R.  Co.,  5  Cus/t.  (Mass.)  69. 
—Distinguished  in  Michigan  C.  R.  Co. z/. 
Car'ow,  73  111.  348. 

The  delivery  of  a  trunk  to  a  baggage- 
master  at  his  railroad  station,  and  his  ac- 
ceptance of  such  trunk  for  transportation, 
impose  upon  the  railroad  company  the  ob- 
ligation of  common  carriers.  IVilson  v. 
Grand  Trunk  R.  Co.,  57  Me.  138.— Recon- 
ciling Elkins  V.  Hoston  &  M.  R  Co.,  23  N. 
H.  287 ;  Collins  %>.  Boston  &  M  R.  Co.,  10 
Cush.  (Mas«.)  507.  Reviewing  Mayall  v. 
Boston  &  M.  R.  Co.,  19  N.  H.  122. 

Where  a  baggageman  is  the  agent  of  a 
railway  company,  with  general  authority  to 
receive  the  baggage  of  persons  intending 
to  go  upon  the  company's  train,  and  does 
receive  baggage  in  violation  of  the  rules 
and  regulations  of  the  company,  the  latter 
will  be  liable  for  the  loss  of  such  baggage 
to  the  owner  who  has  delivered  the  same  in 
good  faith  within  a  reasoable  time  before 
the  departure  of  the  train,  unless  the  exist- 
ence of  such  rules  is  brought  to  the  knowl- 
edge of  such  owner.  Lake  Shore  <S~»  M.  S. 
R.  Co.  v.  Foster,  104  Ind.  293,  54  Am.  Rep. 
319,  4  A^.  E.  Rep.  20. 

If  a  baggage-master  receives  and  checks 
a  trunk,  and  it  is  lo;^*  before  the  passenger 
purchases  a  ticket,  the  company  is  liable, 
though  the  baggage-master  may  have  vio- 
lated a  rule  of  the  company  in  so  checking 
it.  Lake  Shore  &*  M.  S.  R.  Co.  v.  Foster, 
104  Ind.  293,  54  Am.  Rep.  319,  4  N.  F..  Rep. 
20.— Distinguishing  Ford  v.  Mitchell.  21 
Ind.  54;  Grosvenor  v.  New  York  C.  R.  Co., 
39  N.  Y.  34;  Mattison  7/.  New  York  C.  K. 
Co.,  57  N.  Y.  552;  Wright  v.  Caldwell,  3 
Mich.  51.  Reviewing  Green  v.  Milv  aukee 
&  St.  P.  R.  Co.,  41  Iowa  410;  Hie  cox  v. 
Naugatuck  R.  Co.,  31  Conn.  281 ;  Cimden 
&  A.  R.Co.  V.  Belknap.  21  Wend.  (N.  Y.) 


' 


BAGGAGE,  r»0. 


543 


3S4;   Rogers  V.   Long  Island  R.  Co.,  :  T. 
&  C.  (N.  Y.)  396. 

It  is  within  the  apparent  authority  of  a 
baggage-master  to  checic  baggage,  and 
where  he  receives  it  and  agrees  to  check  it 
through  by  a  particular  route,  the  com- 
pany is  bound,  although  in  far^t  he  had  no 
authority  to  check  it  by  that  route ;  at  least 
it  is  a  question  of  fact  for  a  jury.  Isaacson 
V.  New  York  C.  &^  H.  R.  R.  Co.,  16  Am.  <5- 
Eng.  R.  Cas.  188.  94  .^V.  V.  278,  46  Am.  Rep. 
142;  reversing  25  Hun  350. 

It  seems  that  a  baggage-master,  in  the 
absence  of  special  authority,  cannot  bind 
his  company  by  a  contract  to  carry  baggage 
beyond  the  terminus  of  its  road,  or  by  fixing 
a  special  or  unusual  mode  of  delivery,  as  at  u 
place  other  t.'ian  the  depot  of  the  company. 
Isaac  on  v.  Neu>  York  C.  <S-  H.  R.  R.  Co.. 
16  A/K.  &>  Eng.  R.  Cas.  188,  94  N.  J'.  278, 
46  Am.  Rep.  142  ;  reversing  25  Hun  350. 

The  general  duty  of  a  carrier  to  transport 
baggage  of  passengers  cannot  be  extended 
to  imply  a  special  contract  to  carry  baggage 
which  has  been  receipted  for  by  a  train 
baggage-master,  where  the  owner  has  paid 
no  fare  to  the  carrier,  but  takes  passage  by 
another  route  to  the  same  place  of  destina- 
tion ,  and  the  carrier  receiving  the  baggage 
will  pot  be  liable  for  its  loss.  Fair/a.v  v. 
Ne7v  York  C.  &•  H.  R.  R.  Co.,  5  /.  6-  S. 
{N.  Y.)  516. 

Where  a  package  of  goods  was  delivered 
to  a  baggage-master  along  with  the  passen- 
ger's trunk,  and  the  latter  was  checked,  and 
the  baggage-master  told  the  passenger  that 
the  goods  would  go  safely  without  being 
checked,  the  company  was  liable  for  their 
loss,  though  the  baggage-master  was  in- 
structed by  his  company  not  to  receive 
articles  of  merchandise  as  baggage.  Minler 
v.  Pacific  R.  Co.,  A,\  Mo.  503. —Disapproved 
IN  Humphreys  v.  Perry,  148  U.  S.  627. 
DISTINGUI.SHKD  IN  I  fister  ».  Central  Pac. 
R.  Co.,  70  Cal.  169.  Reviewed  in  Cantling 
V.  Hannibal  &  St.  J.  R.  Co.,  54  Mo.  385. 

Plaintiff  presented  his  baggage  to  be 
checked,  but  was  told  by  the  baggage- 
master  that  he  must  first  buy  tickets.  While 
gone  to  purchase  tickets  the  baggage-master 
placed  the  baggage  in  the  car,  and  on  plain- 
tiff's return  with  his  tickets  he  was  told 
that  he  would  have  to  pay  for  extra  weight 
on  the  baggage,  which  he  declined  to  do, 
and  demanded  his  baggage,  but  the  bag- 
gage-master said  it  was  already  loaded  and 
he  could  not  get  it  off  the  train  before  time 


for  its  departure.  Plaintiff  declined  to  take 
passage,  but  the  baggage  was  carried  to  its 
place  of  destination  and  there  destroyed  by 
fire.  Held,  in  an  action  for  conversion  of 
the  baggage,  that  the  company  did  not 
occupy  the  position  of  common  carrier  of 
plaintiff,  and  therefore  could  not  avail  itself 
of  any  of  the  rules  governing  common 
carriers,  and  that  it  was  liable  for  the  act  of 
its  baggage-master,  even  if  the  act  was 
wrongful.  McCormick  v.  Pennsylvania  C.  R. 
Co.,  49  A^.  K.  303,  4  Am.  Ry.  Rep.  429.— 
Following  Higgins  v.  Watervliet  "Turn- 
pike Co.,  46  N.  Y.  23.— Distinguished  in 
McCormick  v.  Pennsylvania  C.  R.  Co.,  80 
N.  Y  .  353. 

50.  Delivery  to  porter.*— The  liabil- 
ity of  a  railway  company  as  insurers  of  lug- 
gage commences  from  the  moment  when 
luggage  is  placed  nnder  the  control  of  one 
of  their  porters  for  tiie  purpose  of  putting 
it  in  transit.  Lovell  v.  London.  C.  &•  D.  R. 
Co.,  45  L.  J.  Q.  B.  476,  34  /,.  r.  127,  24  W. 
R.  394, 6  Ry.  &»  C.  T.  Cas.  Ixix. 

When  a  porter  receives  luggage  at  the 
entrance  of  a  station  for  the  purpose  of 
labelling  it  and  putting  it  in  a  train,  he  re- 
ceives it  as  agent  of  the  company,  and  the 
company  is  liable  for  its  safety,  although 
the  passenger  has  not  yet  taken  a  ticket. 
Lan'ell  v.  London.  C.  <S-  D.  R.  Co.,  45  L.  J. 
Q.  B.  476,  34  L.  r.  127,  24  W.  R.  394,  6  Ry. 
&*  C.  T.  Cas.  Ixix.  3  Ry.  &^  C.  T.  Cas.  xx. 

In  such  a  case  the  company  is  not  re- 
lieved from  liability  by  a  notice  that  it 
would  not  be  responsible  for  luggage  left  in 
the  custody  of  porters.  Lovell  v.  London, 
C.  &*  D.  R.  Co.,  24  IV.  R.  394.  45  L.  J.  Q.  B. 
A  476,  34/-.  r.  127. 

If  a  passenger  intrusts  luggage  to  a  porter 
for  deposit  and  custody,  as  distinguished 
from  the  physical  handing  over  for  the  pur- 
p.  ae  of  transit,  the  railway  company  are  not 
liable  for  the  loss.of  such  luggage.  Great 
Western  R.  Co.  v.  Bunch,  \},  App.  Cas.  31 
57  L.J.  Q.  B.  361.  Welch  v.  London  &^  N. 
W.  R.  Co.,  34  W.  R.  166,  6  Ry.  6-  C.  T.  Cas. 
Ixix. 

The  wife  of  the  plaintiff  arrived  at  a  sta- 
tion on  the  defendants'  railway  forty  min- 
utes before  the  time  at  which  the  train  by 
which  she  intended  to  travel  was  to  start. 
She  had  a  bag  and*  two  other  articles  of 
luggage,  which  a  porter  took  into  the  sta- 

*  Liability  of  carrier  (or  baK^aK^  delivered  to 
porter  or  agent,  see  note,  aO  Am.  &  En(;.  R. 
Car.  148. 


ill 


Mm 


644 


BAGGAGE,  51-54. 


E"  ." 


^      ' 


tion.  She  saw  the  two  labelled,  and  t;.ld 
the  porter  she  wislied  the  bag  to  be  put  in 
the  train  with  her,  and  asked  if  it  would  be 
safe  to  leave  it  with  him.  He  replied  that 
it  would  be  quite  safe,  and  she  then  went 
to  meet  her  husband  ind  get  a  ticket. 
They  returned  together  in  ten  minutes  and 
found  tiiat  tlie  two  labelled  articles  had 
been  put  into  the  van,  but  that  the  bag  was 
not  forthcoming.  At  the  trial  in  the  county 
court  the  judge  found  that  the  porter  had 
been  negligent  in  not  being  in  readiness  to 
put  the  bag  into  the  carriage  on  the  return 
of  the  female  plaintiff,  and  that  the  defend- 
ants were  liable  for  its  loss.  //M  (Lopes, 
L.j.,  dissenting),  thiit  there  was  evidence 
to  warrant  the  judge  in  finding  that 
the  bag  was  intrusted  to  the  porter  for  the 
purpose  of  the  transit,  and  not  to  be  taken 
charge  of  while  the  journey  was  suspended, 
and  that  he  was  acting  within  the  scope  of 
his  authority  in  taking  charge  of  it.  Biinfh 
V.  Great   IVesUrn  R.  Co.,  \7  Q.  H.  D.  21%, 

SS  ^Z-  Q-  ^-  525.  5  /^y-  **  (^-  T.  Cas.  viii. 

Where  a  passenger  on  arriving  at  a  sta- 
tion hands  his  bug  to  a  porter,  telling  him 
his  destination,  and  the  porter  takes  the 
bag  and  is  about  to  have  it  labelled,  when 
the  passenger  tells  him  he  will  take  it  with 
him  in  the  carriage,  and  the  porter  then 
suddenly  departs,  leaving  the  bag  on  the 
platform,  and  the  passenger  goes  to  get  his 
ticket  and  the  bag  is  missing  on  his  re- 
turn, there  is  evidence  to  go  to  the  jury 
that  the  bag  was  intrusted  to  the  porter  to 
go  to  the  passenger's  destination  as  his 
luggage,  and  there  is  no  evidence  of  the 
bailment  having  been  terminated.  Leach  v. 
South  Eastern  R.  Co.,  34  L.  T,.  134. 

61.  Delivery  to  captain  of  steam- 
boat.—  riic  receipt  of  baggage  is  within 
the  apparent  scope  of  the  employment  of  a 
captain  of  a  steamboat,  and  such  delivery 
will  bind  the  transportation  company, 
though  the  captain  was  not  in  fact  the 
proper  agent  to  receive  such  things.  U'it- 
beck  V.  Schuyler,  31  How.  Pr.  (.V.    )'.)  97 

62.  Delivery  to  tirket  iiKeiit.— 
Where  a  company  Hunclions  the  employ- 
ment of  a  ticket  agent  and  holds  him  out 
to  the  world  as  its  au;cnt,  it  is  estopped 
from  repudiating  his  act  in  accepting  bag- 
gage for  transportation.  Rogers  v.  Long 
Island  R  Co.,  38  Hffw.  Py.  (N.  V.)  289.  2 
J-ans.  269. 

53. or  otiier  iiffeut  of  company. 

— Common  carriers  of  piissenmi>«  and  bag- 


gage, as  well  as  of  merchandise,  are  answer- 
able, under  their  common-law  liability,  for 
baggage  left  at  their  otiices  for  transporta- 
tion in  charge  of  their  agents,  with  the 
intention  of  proceeding  with  the  same  on 
the  next  conveyance.  Camden  &*  A.  R.  &^ 
Tr.  Co.  V.  .Belknap,  21  IVend.  (N.  V.)  354. 
—Reviewed  in  Waldron  v.  Chicago  &  N. 
W.  K.  Co.,  I  Dak.  351 ;  Lake  Sliore  &  M.  S. 
R.  Co.  V.  Foster,  104  Ind.  293,  54  Am.  Rep. 

3'9- 

Proof  that  baggage  was  delivered  to  a 
person  acting  as  the  agent  of  the  company, 
who  received  and  accepted  it,  establishes  a 
prima-facie  delivery  to  the  company,  though 
it  appears  that  such  person  was  not  the 
actual  agent  having  charge  of  the  receipt  of 
baggage  and  freight.  Rogers  v.  Long  Island 
R.  Co.,  38  //ojo.  I'r.  u\.  Y.)  289.  2  Lans.  269. 
— Di.STiNOUlsHiNt;  Grosvenorv.  New  York 
C.  R.  Co.,  39  N.  Y.  34. 

Where  baggage  is  sent  to  a  railroad  sta- 
tion in  c'tre  of  an  expressman,  who  delivers 
it  to  the  company's  agent  and  calls  his  at- 
tention to  it,  who  replies  "  All  right,"  it  is 
a  sufficient  delivery  to  make  the  company 
lit. lie  for  its  loss.  Rogers  v.  Long  Island  R. 
Co.,  I  T.  &>  C.  (.V.  r.)  396;  affirmed,  56  A'. 
K.620,  /«/#».— Reviewed  in  Lake  Shore  & 
M.  S.  R.  Co.  V.  Foster,  104  Ind.  293,  54  Am. 
Ro|v  319, 

When  a  p.issenger  notifies  the  servants  of 
a  railroa't  company  of  hia  wish  that  his  bag- 
gage go  with  him,  it  is  *'  e  duly  01  the  com- 
pany to  take  charge  of  it.  The  company  is 
liable  as  for  a  breach  of  that  duty  if  the 
passenger,  having  been  directed  by  a  servant 
of  the  company  where  to  deposit  his  bag- 
gage, delivered  it  at  the  place  designated, 
but,  by  mi.st.tke,  to  another  than  an  employe 
of  the  comptny.  International  Sr*  G.  N.  R. 
Co.  v.  Folliard,  66  Te.x.  603.  i  S.  W.  Rep, 
624. 

64.  Delivery  Hoinc  time  iu  advance 
of  4lopartiir«  of  train.*— The  question 
of  the  intent  of  the  parly  in  leaving  baggage 
at  a  station  sonic  time  in  advance  of  the 
d«'parture  of  a  train  determines  whether  the 
company  is  liable  for  it  as  a  common  carrier. 
So  where  baggage  is  left  in  good  faith,  the 
owner  intending  to  take  passage,  the  rom- 
pany  is  liable,  though  the  owii'-r  siihsequcnt- 
ly  changes  hii)  mind  and  does  not  become  a 

*  See  also  fast,  73. 

Liability  for  baggaf^e  lost  before  (tnin  time. 
AKcnt's  iiiithority,  sec  36  Am.  &  Enu.  K.  Cas.  1)9 
ahslr. 


I 


BAGGAGE,  ff5-57. 


045 


passenger.  Green  v.  Milwaukee  &-  5/.  P.  R. 
Co.,  41  Iowa  410. 

If  a  person  leaves  his  baggage  with  a 
railroad  agent  as  a  matter  of  accummoda- 
tion,  without  any  direction  as  to  siiipment, 
i<nowing  tliat  a  regulation  of  the  company 
prevents  the  receipt  of  l)aggage  except  for 
immediate  shipment,  the  company  will  not 
be  liable  for  ii.i  loss.  Illinois  C.  A',  Co.  v. 
Tronstinc,  31  Am.  &*  E»S-  A'.  Cas.  99,  64 
Miss.  834,  2  So.  Rep,  255. 

Where  trunks  are  left  overnight  in  the 
care  of  a  freight  agent,  the  passenger  in- 
tending to  have  them  transported  to  the  pas- 
senger depot  the  next  day,  and  where  they 
arc  destroyed  before  being  taken  away,  the 
freight  agent  is  to  be  regarded  as  a  gratui- 
tous bailee,  and  the  company  will  not  be 
liable  as  common  carrier  or  as  warehouse- 
man, in  the  absence  of  gross  negligence 
leading  to  the  loss.  Van  Gilder  v.  C/u'ca^o 
&*  N.  \V.  R.  Co.,  44  Iffwa  548. 

A  person  expecting  to  become  a  passen- 
ger left  his  baggage  in  the  care  of  the  com- 
pany's agent  to  be  shipped  the  next  evening, 
unless  other  directions  were  given.  Held, 
tiiat,  in  the  absence  of  further  directions, 
after  the  lapse  of  such  time  the  baggage 
was  held  for  immediate  shipment,  and  the 
company  became  liable  as  carriers.  Illinois 
C.  R.  Co.  V.  Trons/ine,  31  /////.  &•  Eng.  R. 
Cas.  99,  64  Miss.  834,  2  So.  Rep.  255. 

A  passenger  took  his  trunk  to  a  station 
and  requested  it  to  be  checked  for  a  train 
that  left  in  about  four  hours,  but  was  told 
by  the  agent  that  the  company  only  checked 
baggage  fifteen  minutes  before  the  depart- 
ure of  trains.  He  left  his  baggage  and 
returned  at  the  proper  time,  got  his  check, 
and  took  passage,  but  on  receiving  his  trunk 
at  the  place  of  destination  found  that  it  had 
been  opened  and  some  of  its  contents  stolen, 
but  there  was  no  evidence  as  to  whether  it 
was  opened  while  at  the  station  or  en  route. 
Held,  that  the  company  must  be  regarded 
as  having  received  the  trunk  when  it  was 
first  taken  to  the  station,  that  their  liability 
attached  at  that  time,  and  that  it  was  there- 
fore immaterial  where  the  articles  were 
.iw^ien.  Hiiicox  v  Xaugatuck  R.  Co.,  31 
Conn.  381.— Revikwkd  in  Lake  Shore*  M. 
S.  R.  Co.  V,  Foster,  104  Ind.  293,  54  Am. 
F<ep.  3i(>. 

55.  Nature  and  use  of  clieckH  for 

\\wg,^WIic      riio   purpose  of  delivering    a 

( iietk  for  bagpage  is  to  relieve  the  passenger 

of  its  burden  and  care,  which  devolve  upon 

I  D.  R.  D.-35. 


the  carrier.  Check  v.  Little  Miami  R,  Co., 
2  Disn.  (Ohio)  zyj. 

The  usual  baggage  check  delivered  to  a 
passenger  is  not  regarded  as  embodying  the 
contract  of  carriage,  but  only  as  a  voucher 
or  token  to  enable  him  to  identify  and  claim 
his  baggage  at  the  end  of  the  route.  Isaac- 
son  v.  Nc!i>  York  C.  &>  H.  R.  R.  Co.,  16  Am, 
&>  Eng.  R.  Cas.  188,  94  N,  V.  278,  46  Am. 
Rep.  142  ;  reversing  25  Hun.  350. 

The  check  is  a  mere  receipt  and  is  only 
intended  as  evidence  of  ownership  and  to 
identify  the  baggage.  Hickox  v.  Naugatucft 
R.  Co.,  31  Conn.  281. 

A  check  for  baggage  may  be  issued  with 
a  ticket  for  only  part  of  the  way.  In  such 
case  the  check  may  be  considered  as  stand- 
ing in  the  place  of  a  bill  of  lading  for  the 
distance  called  for,  and  it  imposes  the  duty 
to  carry  and  deliver  accord  ingly.  Louisjnlle 
<S-  N.  R.  Co.  V.  IVeaver,  16  Am.  &*  Eng,  R. 
Cas.  218,  9  Lea  (Tenn.)  38.— Applying  Dill 
V.  South  Carolina  R.  Co.,  7  Rich.  (So. 
Car.)  158;  Wilson  v.  Chesapeake  &  O.  R. 
Co.,  21  Gratt.  (Va.)  654. 

A  check  for  baggage  may  be  given  by  one 
company  for  part  of  the  line  when  the  pas- 
senger has  a  through  ticket  from  another 
company,  in  which  case  the  former  will  be 
liable  for  the  loss.  Louisville  <S-  A^.  A'.  Co. 
V.  IVeaver,  16  Am,  «S<«  En^.  R,  Cas.  218,  9 
Lea  (Tenn.)  38.— Applying  McCormick  v. 
Hudson  River  R.  Co.,  4  E.  D.  Smith  (N.  Y.) 
181 ;  Straiton  v.  New  York  &  N.  H.  R.  Co., 
2  E.  D.  Smith  184. 

50.  ClicckH  an  evidence,  generally. 
— Baggage  checks  are  admissible  in  evi- 
dence to  show  the  nature  and  undertaking 
of  the  carrier's  contract.  Wilson  v.  Chesa- 
peake 6-  O.  R,  Co,,  21  Gratt,  (  Va.)  654. 

Possession  of  a  baggage  check  and  proof 
that  it  was  presented  at  the  place  of  desti- 
nation at  a  proper  time,  and  the  baggage 
demanded  but  not  delivered,  raises  a  pre- 
sumption of  negligence  on  the  part  of  the 
carrier.  Atchison,  T.  &•  S,  F.  R.  Co.  v. 
Brewer,  20  KaH.  669. 

57.  Checks  as  evidence  of  receipt 
of  baggage  by  currier. — The  delivery 
of  a  baggage  check  by  a  railroad  company 
to  a  passenger  is  prima-facie  evidence  that 
the  carrier  has  received  the  baggage  it  rep- 
resents. Chicago,  R.  I.  &•  P.  R.  Co.  v. 
Clayton,  78  ///.  616;  Davis  v.  Michigan,  S. 
6-  A^.  /.  R.  Co,,  22  ///.  278;  Denver,  S,  P. 
&^  P.  R.  Co.  V.  Roberts,  18  Am,  &*  Etig,  R. 
Cas.  627,  6  Colo.  333. 


i 


^m 


546 


BAGGAGE,  58-60. 


m: 


LlHii; 


li    I 


Possession  of  a  baggage  check  and  proof 
that  baggage-masters  only  give  checks  upon 
the  owner  of  the  baggage  taking  passage 
and  delivering  the  baggage  to  the  company 
is  sufficient  to  establish  the  receipt  of  the 
baggage  by  the  company  and  make  it  liable 
for  its  loss.  Dart's  v.  Cayuga  &'  S.  A'.  Co., 
lo  //ow.  Pr.  {N.  y.)  330. 

A  ci)eck  in  the  possession  of  a  passenger 
is  evidence  that  his  baggage  was  delivered 
to  the  carrier,  and  as  a  trunk  is  the  usual 
means  by  which  a  passenger  conveys  his 
baggage,  it  is  evidence  that  a  trunk,  with  its 
contents,  was  delivered.  Z?///  v.  Sou/ A  Caro- 
Una  H.  Co.,  7  Rich.  (So.  Car.)  158.— APPLIED 
IN  Louisville  &  N.  R.  Co.  v.  Weaver,  16  Am. 
&  Eng.  R.  Cas.  218,  9  Lea  (Tenn.)  38. 

58.  Delivery  of  check  to  connect- 
ing carrier.*— The  possession  of  a  bag- 
gage check  by  a  railway  passenger  \%priina- 
facie  evidence  that  the  carrier  has  received 
and  is  in  possession  of  his  personal  baggage, 
and  where  he  delivers  such  check  to  the 
agent  of  a  connecting  railroad  company, 
and  receives  its  check  in  exchange  therefor, 
the  presumption  is,  in  the  absence  of  proof 
to  the  contrary,  that  the  baggage  is  received 
in  due  course  by  the  latter  company,  and  it 
is  responsible  therefor.  Ahlbeck  v.  St.  Paul. 
M.  &»  M.  R.  Co.,  39  Minn.  424,  40  N.  W. 
Rep.  364. 

Delivery  of  a  baggage  check  by  a  carrier 
and  taking  up  one  of  a  former  carrier  is 
prima-facie  evidence  of  receipt  of  the  bag- 
gage in  good  order,  but  this  presumption  or 
evidence  may  be  overcome.  St.  Louis,  A. 
&*  T.  H.  R.  Co.,  V.  Hawkins,  39  ///.  App. 
406. 

Where  the  company  takes  up  a  baggage 
check  of  a  former  carrier  and  issues  a  new 
check,  to  release  it  from  liability  for  dam- 
age to  baggage,  it  must  sliow  that  it  received 
the  baggage  in  the  same  condition  that  it 
was  delivered  to  the  owner.  St.  Louis,  A. 
&*  T.  H.  R.  Co.  v.  Hawkins,  39  ///.  App.  406. 

Where  a  passenger  has  tra.clled  over  one 
road,  holding  a  check  for  baggage,  the  fact 
that  he  delivers  such  check  to  the  next  con- 
necting carrier  is  some  evidence  that  such 
connecting  carrier  received  the  baggage,  and 
it  may  go  to  the  jury  with  other  evidence 
tending  to  establish  the  same  fact.  Kansas 
Pac.  R.  Co.  v.  Montdle,  \o  Kan.  119. 

Where  a  railway  conipany  received  a  pas- 
senger's check  for  baggage,  which  had  not 

*  See  also  ante,  20. 


then  arrived  by  another  road,  and  gave  its 
own  check  for  the  same,  and  it  appeared 
that  it  surrendered  the  passenger's  first 
check  to  the  other  railway  company — held, 
that  this  was  sufficient,  in  the  absence  of 
proof  to  the  contrary,  to  show  that  the  bag- 
gage was  received  by  the  company  so  sur- 
rendering the  first  check.  Chicago,  R.  I.  &* 
P.  R.  Co.  V.  Clayton,  78  ///.  616.— DISTIN- 
GUISHING Davis  V.  Michigan,  S.  &  N.  \.  R. 
Co.,  23  111.  2/8;  Michigan,  S.  &  N.  \.  R.  Co. 
V.  Meyres,  21  111.  627. 

59.  Penalty  for  refusal  to  check 
baggage."'  —  Receiving  baggage  upon  a 
train  and  refusing  to  check  it  renders  the 
company  liable  for  the  penalty  provided  by 
Mass.  act  of  1854,  ch.  23.  Commonwealth  v. 
Connecticut  River  R.  Co.,  15  Gray  [Mass.) 

447- 

Plaintiff,  injured  by  a  railroad  company's 
refusal  to  carry  his  baggage,  is  not  limited 
to  a  recovery  of  the  penalty  prescribed  for 
such  refusal  by  Va.  Code  1873,  ch.  61,  §  17, 
but  may  recover  the  amount  of  the  actual 
damage.  Norfolk  <S-  IV.  R.  Co.  v.  Irvine, 
84  Va.  553,  I  L.  R.  A.  no,  5  S.  E.  Rep.  532. 

2.  Delivery  by  Company. 

60.  Duty  to  have  baggage  in  readi- 
ness for  delivery  to  owner.— When  a 

passenger's  baggage  has  reached  its  destina- 
tion, it  is' the  duty  of  the  company  to  have 
it  ready  for  delivery  upon  the  platform  at 
the  usual  place,  until  the  owner,  in  the  exer- 
cise of  due  diligence,  can  receive  it.  Pat- 
scheiderv.  Great  Western  R.  Co.,L.  R.  3 Exch. 
D.  153,  i^L.T.  149,  26  IV.  R.  268.— Distin- 
guished IN  Hodkinson  v.  London  &  'A.  W. 
R.  Co.,  L.  R.  14  Q.  B.  D.  228,  32  W.  V..  662. 

The  liability  of  a  carrier  of  passengers  for 
the  passenger's  baggage  does  not  cease 
until  a  delivery  of  the  same  to  the  passenger. 
Lilt  V.  Terre  Haute  «^  /.  R.  Co.,  10  Mo.  App. 
J  J  5.  Gary  v.  Cleveland  &*  T.  R.  Co.,  29  Bari. 
(N.  V.)  35. 

A  carrier  who  retains  the  custody  of  bag. 
gage  after  it  has  reached  the  place  of  desti- 
ni'ion,  and  deposits  it  in  a  room  assigned 
to  unclaimed  baggage,  is  responsible  for  its 
safe  keeping,  and  is  bound  to  deliver  the 
thing  or  pay  its  value,  unless  delivery  has 
become  impossible  without  his  act  or  fault. 
Pelland  v.  Canadian  Pac.  R.  Co.,  7  Afant. 
L.  R.  {Sup.  Ct.)  131. 

If   baggage   belonging   to    a   passenger, 

*  See  also  past,  86. 


HAGGAGE,  01-03. 


547 


after  reaching  its  place  of  destination,  and 
while  still  in  the  possession  of  the  carrier,  is 
destroyed  by  (ire,  without  any  fault  of  the 
owner,  the  carrier  is  liable  for  its  value. 
Carjf  V.  Cleveland  &»  T.  A'.  Co.,  29  £ar6.  (N. 

r.)  as- 
Common  carriers  arc  bound  to  deliver  to 
each  passenger,  at  the  end  of  his  journey,  his 
trunk  or  baggage.  The  whole  duty  in  this 
respect  rests  upon  the  carrier.  The  exer- 
cise of  ordinary  care  in  marking  the  bag- 
gage, entering  it  upon  a  way-bill,  and 
delivering  a  check  ticket  to  the  owner, 
renders  iis  discharge  easy.  The  passenger 
is  not  required  to  expose  his  person  in  a 
crowd  or  endanger  his  safety  in  the  attempt 
to  designate  or  claim  his  property.  Cole  v. 
Goodwin,  19  ireml.  (N.   J'.)  251. 

Where  a  passenger,  on  his  arrival  at  his 
destination,  sees  a  person  handling  and  tak- 
ing charge  of  baggage  he  has  a  right  to  as- 
sume that  he  is  the  authorized  agent  of  the 
company,  and  dircc.ions  to  such  person  as 
to  the  destination  of  baggage  will  be  deemed 
as  given  to  the  company.  Ouiniit  v.  Hen- 
shaiv,  35  Vt.  605. 

01.  What  Ih  a  siifllcieut  delivery. 
— Common  earners  of  passengers  and  their 
baggage  are  liable  for  the  latter  until  its  safe 
delivery  to  the  owner;  its  delivery  upon  a 
forged  order  wilt  not  discharge  them. 
Powell  V.  Myers,  26  Wend.  {N.  Y.)  591. 
— DiSTiNGiMSHED  IN  Roth  V.  Buffalo  &  S. 
L.  R.  Co.,  34  N.  Y.  548.  Followed  in 
Brown  v.  Canadian  Pac.  R.  Co.,  3  Man.  496. 
Quoted  in  Ouimit  v.  Henshaw,  35  Vt.  605. 
A  railway  company  is  bound,  on  the  arrival 
of  a  train  at  the  terminus  of  the  journey,  to 
deliver  a  passenger's  luggage  into  a  carriage, 
to  be  conveyed  from  the  station,  if  required 
so  to  do,  and  if  such  is  the  usual  practice. 
Butcher  v.  London  &*  S.  W.  R.  Co.,  16  C.  B. 
13,  3  C.  L.  R.  805,  I  Jtir.  N.  S.  i,vj,  24  L.J. 
C.  P.  137,  3  IV.  R.  409.— Explained  in 
Bergheim  v.  Great  Eastern  R.  Co.,  26  W. 
R.  301.  L.  R.  3  C.  P.  D.  221,  47  L.  J.  C.  P. 
318,  38  L.  T.  160;  Bunch  v.  Great  Western 
R.  Co.,  L.  R.  17  Q.  B.  D.  21S,  34  W.  R.  574- 
55  L.  J.  Q.  B.  52s.  55  L-  T.  9- 

If  a  porter  takes  charge  of  a  passenger's 
luggage  at  the  terminus  of  the  journey,  and 
places  part  of  it  in  a  cab  and  returns  for  the 
remainder,  when  the  cab  disappears,  the 
company  is  liable  for  the  loss.  Butcher  v. 
London  <S-  S.  IV.  R.  Co..  16  C.  B.  13.  3  C  L. 
R.  80s.  '  /«'•  ^-  •!>•  427.  24  L.  J.  C.  P.  137. 
3  M'.  R.  409. 


A  passenger  by  the  M.  R.  from  G.  to  B., 
on  arriving  at  B.,  told  a  porter  there  that  he 
wished  to  proceed  by  the  B.  &  E.  R.,  whose 
station  closely  adjoined  that  of  the  M.  R. 
The  porter  thereupon  placed  the  portman- 
teau on  a  truck  with  other  luggage,  and 
entered  the  B.  &  E.  station  with  the  truck. 
There  was  no  evidence  that  the  portmanteau 
was  ever  afterward  seen.  In  an  action 
against  the  M.  R.  Co. — held,  that  there  was 
no  evidence  of  a  breach  of  its  contract.  Mid- 
land R.  Co.  v.  Bromley,  17  C.  B.  372,  2jur.  N. 
S.  140,  25  L.J.  C.  P.  94. 

If  a  passenger  has  notice  of  reasonable 
regulations  of  the  company,  touching  the 
manner  of  delivering  baj^gage,  he  is  bound 
thereby  without  directly  assenting  thereto. 
Gleason  v.  Goodrich  I'ransp.  Co.,  yi  Wis,  85. 

02.  Place  of  delivery.— A  railroad 
company  is  liable  where  it  carries  baggage 
beyond  the  proper  station  and  puts  it  in  its 
baggage-room  at  another  station,  from  which 
it  is  stolen.  Toledo  W.  iS-  W.  R.  Co.  v. 
Hammond,  33  Ind.  379. 

A  steamship  passenger  bound  for  the  port 
of  New  York,  being  sick,  left  the  vessel  at 
the  quarantine  station,  some  distance  from 
the  city,  but  left  his  baggage  on  the  vessel. 
Held,  that  in  the  absence  of  any  offer  of  the 
vessel  to  deliver  the  baggage  at  the  quaran- 
tine station,  it  was  bound  to  carry  it  to 
the  end  of  the  journey  and  deliver  it  when 
called  for.  Gilhooly  v.  New  York  &*  S.  S. 
N.  Co..  I  Daly  (N.  Y.)  197. 

"  The  port  of  New  York  "  does  not  neces- 
sarily mean  New  York  City ;  so  where  an 
immigrant  sailed  with  his  baggage  for  the 
port  of  New  York — held,  that  the  carrier's 
obligation  was  ended  by  discharging  him  in 
New  Jersey,  opposite  New  York  City,  and 
that  the  vessel  was  not  liable  for  the  loss  of 
his  baggage  between  there  and  the  city. 
Klein  v.  Hamburg-American  Packet  Co.,  3 
Daly  {A\  Y.)  390. 

'  03.  Leavitifir  bag:gage  in  agent's  cus- 
tody after  delivery  by  company.*— 
Where  a  passenger  tells  a  station  porter 
that  he  will  leave  his  luggage  at  the  station 
for  a  short  time  and  then  send  for  it,  and 
ti.e  porter  replies  that  he  will  take  care  of 
it,  this  amounts  to  a  delivery  of  the  luggage 
by  the  company  and  a  redelivery  by  the  pas- 
senger to  the  porter  as  his  agent;  accordingly 
the  company  is  not  liable  for  the  loss  of 
such  luggage.    Hodkinson  v.  London  &^  N. 

*See  aUo  fosf,  71,  128-1.31. 


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648 


BAGGAGE,  U4. 


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IV.  K.  Co..  L.  R.  IS  Q.  B.  D.  aal.  32  W. 
R.  663,  5  Ry.  &*  C.  T,  Las.  ix. 

The  liability  o(  u  common  carrier  is  ter- 
minated after  a  reasonable  time  after  the 
arrival  of  baggage  at  its  place  of  destina- 
tion ;  and  although,  if  the  station-master 
at  such  place  consents  to  h(il(l  such  bag- 
Kage  for  the  owner  after  such  time,  the 
carrier's  liability  continues,  yet,  if  the  sta- 
tion-master is  ignorant  of  the  fuel  that  the 
articles  carried  arc  not  personal  baggage, 
the  company  is  not  responsible,  notwith- 
standing that  the  receipt  of  the  articles  as 
baggage  hud  previously  estopped  it  from 
denying  that  the  articles  were  baggage. 
V'fxiis  &^  /'.  R.  Co.  V.  Capps,  16  Am.  &^  A''(^', 
A'.  t'lVi.  118,  2  7c.t.  .\pp.  \civ.  Cits  )  35. 

A  lady  was  prevented  from  taking  her 
baggage  with  her  at  the  end  of  her  jour- 
ney by  the  baggage- master  placing  it  in 
tiie  baggage-room  and  immediately  leav- 
ing. Some  three  hours  afterward  she 
sent  her  son  for  the  baggage,  who,  not  find- 
ing the  baggage-master  in,  hunted  him  up, 
delivered  the  checks,  and  the  baggage  was 
drawn  to  the  front  d(M)r;  but  meanwhile 
the  hack  retained  to  remove  the  baggage 
had  c^oiie  away  and  no  other  could  be  pro- 
cured that  day,  and  the  baggage  was  left  in 
charge  of  the  baggage-master.  During  the 
night  it  was  broken  open  and  the  contents 
were  stolen.  Held,  that  the  company's  lia- 
bility as  common  carrier  had  not  terminated, 
and  that  it  was  liable.  Dininny  v.  New 
York  <&-  A^.  H.  R.  Co.,  49  A^.  V.  546.  4  /////, 
Ry.  Rep.  457. 

PlaintifT  was  a  passenger  upon  defend- 
ant's road  from  K.  to  P.,  having  the  usual 
check  for  her  baggage.  On  arriving  at  P. 
she  informed  the  baggage-master  at  the 
station  that  she  desired  to  leave  her  trunk 
for  a  few  days.  The  baggage-trtaster  replied 
that  he  was  not  allowed  to  and  could  not 
keep  baggage  with  the  checks  on,  but  that 
if  she  gave  up  her  check  the  baggage  would 
be  perfectly  safe.  This  she  did,  and  the 
trunk  was  left.  It  was  subsequently  deliv- 
ered to  one  falsely  claiming  authority  to  re- 
ceive it.  Id  an  action  to  recover  the  value 
of  the  trunk  and  contents — Aelii,  that  the 
declaration  of  defendant's  agent  was,  in  sub- 
stance, a  notification  to  plaintiff  that  he  was 
without  power  to  continue  in  force  the  obli- 
gation of  the  company  in  respect  to  the 
baggage  indicated  by  the  check ;  that  the 
surrender  of  the  check  was,  in  effect,  an  ad- 
mission of  tlif  I'lrformance  of  that  oblijj.i- 


tion,  i.e.,  the  safe  arrival  and  delivery  of 
the  baggage ;  that  in  thu  absence  of  evi- 
dence tending  to  show  that  the  agent  had 
power  thereafter  to  bind  the  company  by  a 
new  agreement,  or  that  it  had  acquiesced 
in  the  exercise  by  him  of  such  pc^wer,  and  it 
appearing  that  it  was  in  clear  violation  of 
the  regulations  of  the  company,  defendant 
could  not  l)c  held  liable ;  and  that  the  sub- 
mission to  the  jury  of  the  question  as  to  the 
autiiority  of  the  agent  was  error.  Mattison 
V.  Xiio  York  C.  R.  Co.,  57  ;V.  )'.  5s2.-D1.s- 
TiNUUisiiiNU  Dininny  f.  New  York  <S  N.  H, 
K.  Co.,  49  N.  Y.  546.— Di.sriNi;ui.siiKi)  in 
I.»ike  Shore  iV  M.  S.  K.  Co.  v.  Foster,  104 
Ind.  293,  54  Am.  Rep.  319;  Maiteson  v. 
New  York  C.  &  11.  R.  R.  Co..  76  N.  Y.  381. 
A  lady  on  arriving  at  the  end  of  her  jour- 
ney delivered  her  baggage  checks  to  the 
company's  agent,  with  his  assurance  that 
her  trunks  would  be  just  as  safe  without  the 
checks  as  with  them.  A  few  days  later, 
when  the  trunks  were  called  for,  they  could 
not  be  found,  and  it  appeared  that  the  bag- 
gage-master was  prohibited  from  thus  keep- 
ing baggage.  Helii,  in  an  action  to  recover 
for  their  loss,  that  the  question  as  to  whether 
there  was  a  delivery  to  the  owner  was  for 
the  jury.  Matttson  v.  Neiv  York  C.  Sr*  H. 
R.  R.  Co.,76  JV.  Y.  381.— Di.STiN<;uiSHiN(; 
Mattison  v.  New  York  C.  R.  Co.,  57  N.  Y. 
552- 

3.  Duty  of  Owner  to  Call  for  Baggage. 

«4.  The  general  rnle.— It  is  the  duty 
of  the  owner  of  baggage  to  call  for  and  take 
it  away  within  a  reasonable  time  after  the 
journey  is  complete,  and  during  this  time 
it  is  the  duty  of  the  company  to  keep  the 
baggage  ready  for  delivery  on  its  platform. 
Vineberg  v.  Grand  Trunk  R.  Co.,  27  Am.  &• 
ling.  A\  Cas.  271.  130///.  .4//).93.— QuoTiNO 
Shepherd  v.  Bristol  &  E.  R.  Co.  L.  R.,  3  Exch. 
189.  Rkvikwinc.  Penton  v.  Grand  Trunk 
R.  Co.,  28  U.  C.  Q.  B.  367 ;  Hodkinson  ta 
London  &  N.  W.  R.  Co.,  14  Q.  B.  D.  228. 

Where  a  passenger  on  arriving  at  his 
destination  fails  to  look  after  his  baggage, 
or  to  make  any  arrangement  that  the  com- 
pany should  retain  it  for  him,  if  it  is  lo«t 
without  the  carrier's  fault,  the  carrier  is  not 
liable.  Curl/s  v.  Avon,  G.  &-  A//.  M.  R.  Co., 
49  Barb.  {N.  Y.)  148.— Following  Roth  7/. 
Buffalo  &  S,  L.  R.Co.,  34  N.  Y.  S4S.— Powell 
v.  .Myers,  26  Wend.  (A'.  1'.)  591- 

Only  the  act  of  God  or  a  pul>lic  enemy 


i! 


HA(i(iA(il':,  4(.i,  no. 


54!) 


will  relieve  a  coinmun  carrier  from  its 
liability  for  the  safe  carriage  and  delivery  of 
baggage.  This  liability  docs  not  necessarily 
terminate  at  the  end  of  the  route,  but  con- 
tinues  until  the  baggage  is  delivered  to  the 
owner ;  but  if  the  owner  fails  to  call  for  it 
within  a  reasonable  lime  the  liability  of  the 
carrier  is  thiit  of  bailee  only,  and  it  is  liable 
only  for  a  loss  which  is  the  result  of  its  own 
neglect.  Roth  v.  liuffnlo  &*  S.  /..  A'.  Co.,  34 
A'.  )'.  548.-I)isriN(iUisHiNr.  Powell  v. 
Myers,  26  Wend.  591  ;  Garside  if.  Trent  & 
M.  Nav.  Co.,  4  Term  Rep.  581.— Followed 
IN  Hedges  v.  Hudson  River  R.  Co.,  49  N.  Y. 
223;  Curtis  7'.  Avon,G.  &  Mt.  M.  R.  Co., 49 
BarD.  (N.  Y.)  148;  Holdridge  7'.  Ulica  &  B. 
R.  R.  (■()..  56  Barb.  (N.  Y.)  191 ;  Hurgcvin7'. 
New  \  Oik  C.  A  H.  R.  R.  Co.,  23  N.  Y.  Supp. 
415.  LiMlTKl)  IN  Burnell  7'.  New  York  C. 
R.  Co.,  45  N.  Y.  184.  yuAl.lFiEi)  IN  Lamb 
V.  Camden  &  A.  R.  &  T.  Co.,  2  Daly  (N.  Y.) 
454.  Reviewed  in  Burgevin  v.  New  York 
C.  &  H    R.  R.  Co.,  52  N.  Y.  S.  R.  617. 

05.  What  Ih  n  ronipliaiicc  with 
tlie  rule  oil  the  part  ot'tho  imHH<>iig:t'r. 
— Where  it  is  usual  to  deliver  baggage  im- 
mediately after  its  arrival  the  owner  should 
apply  for  it  as  soon  as  it  is  possible  for  him 
Willi  due  dilifjencc  to  do  so,  and  this  rule 
applies  even  where  the  baggage  arrives  at  a 
late  hour  of  the  night,  if  the  company  is 
ready  to  deliver  it.  Ouimit  v.  Henshaw,  35 
Vt.  605. 

A  traveller  should  call  for  his  baggage 
within  a  reasonable  time,  and  where  both 
come  on  the  same  train  this  should  be  im- 
mediately after  his  arrival,  and  the  transfer 
of  the  baggage  to  the  platform,  making  due 
allowance  for  the  delay  and  confusion  caused 
by  the  arrival  and  departure  of  trains  and 
the  crowd  that  usually  is  about  the  platform 
Chicago  &»  A.  R.  Co.  v.  Addizoat,  \  7  ///.  App. 
632.— DiSTiNfiUi.sHiNG  Stevens  v.  Boston 
&  M.  R.  Co.,  I  Gray  (Mass.)  277. 

Where  a  party  is  informed  that  the  bag- 
gage has  not  arrived  on  the  train  with  him, 
and  he  fails  to  give  any  directions  concern- 
ing it  or  notice  where  he  may  be  found,  he 
should  call  and  make  inquiry  as  soon  as 
convenient  after  the  arrival  of  the  next  train. 
Chicago  ^-A.R.  Co.  v.  Addisoat,  17  ///.  App. 
632. 

Where  the  agents  of  a  railroad  company 
agree  that  biiggage  arriving  in  the  evening 
may  remain  in  the  baggage-room  until  the 
following  morning,  it  remains  during  that 
time  at  the  risk  of  the  company.    Burgei'in 


V.  \,w  York  C.  &*  Ji.  R.  R.  Co.,  23  A'.  )'. 
.SV///.  415. 

Where  a  passengcris  lame  andcannotcarry 
his  baggage,  but  arranges  with  the  baggage- 
master  to  leave  it  until  sent  for,  llic  liability 
of  the  company  continues  as  common  car- 
rier until  he  sends  fur  it.  Cut/is  v.  Avon, 
G.  &*  Aft.  A/.  R.  Co..  49  /lar/>.  (X.  }'.)  148. 

A  delay  (»f  several  days  in  calling  f<ir 
baggage  arriving  by  steamer  does  not  re- 
lease the  company  from  its  obligation  to 
deliver  it  on  demand.  Ci/hoofy  v,  A'civ 
Vori-A'*  S.  S.  A'.  Co.,  i  Dafy  (A'.   1.)  197. 

Where  a  passenger,  a  lady  travelling  alone, 
in  consequence  of  the  detention  of  the  train, 
did  not  arrive  at  her  destination  until  late 
at  night,  and — a  number  of  traifis  arriving  at 
the  same  lime— there  was  an  unusual  crowd 
of  passengers  and  much  delay  in  delivering 
baggage — hc/d,  that  she  was  not  required  to 
demand  her  baggage  that  night,  and  that  it 
having  been  destroyed  by  fire  during  the 
night,  the  company  was  liable  Carjf  v.  Cleve- 
land &*  T.  R.  Co.,  29  Barb.  (A'.  I'.)  35.— Dis- 
tinguishing Thomas  v.  Boston  &  P.  R.  Co., 
10  Met.  (Mass.)  472  ;  Norway  Plains  Co.  v. 
Boston  &  M.  R.  Co.,  i  Gray  (Mass.)  263. 

Where  a  railroad  company  is  sued  for 
loss  of  baggage,  the  defense  that  the  owner 
never  presented  the  check  for  the  baggage 
to  any  agent  of  the  company,  and  never  de- 
manded the  delivery  of  the  same,  is  unavail- 
ing where  the  owner's  evidence  shows  that 
immediately  on  arrival  at  the  place  of  des- 
tination she  gave  the  check  to  a  gentleman 
with  whom  she  was  stopping,  and  directed 
him  to  get  the  baggage,  but  that  he  re- 
turned from  the  baggage-room  saying  that 
he  could  not  get  the  t)aggagc  until  the  next 
morning,  and  that  the  next  morning  he 
went  and  returned  with  a  trunk  which  was 
not  hers;  whereupon  she  went  with  the 
gentleman  and  told  the  baggage-master 
that  the  trunk  was  not  hers,  and  that  she 
had  returned  it,  when  he  told  her  to  look 
through  the  baggage-room  to  see  if  she 
could  find  her  trunk,  which  she  did,  but 
failed.  Texas  &>  P.  R.  Co.  v.  Cook,  2  Tex. 
App.  (Civ.  Cas.)  576. 

<IU.  Owner  iiiiiHt  have  a  reason- 
able time. — Railroad  companies  are  liable 
as  common  carriers  for  the  baggage  of  pas- 
sengers until  the  baggage  is  ready  to  be 
delivered  to  the  owner  at  his  place  of  desti- 
nation, and  until  he  has  had  a  reasonable 
opportimity  of  receiving  and  removing  it, 
Louisville,  C.  **  /..  R.  Co.  v.  Mahan,  8  Bush 


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(Ay.)  184.  Mi)U  V.  Chicigo  G^  N.  IV.  A'. 
Co..  27  /(m'li  22. — Distinguished  in  Rich- 
mond V.  Dubuque  &  S.  C.  R  Co.,  33  Iowa 
\Z2.—Patscheider  v.  Great  IV.  JH.  Co.,  L.  R. 
3  Rxch.  D.  153,  38  L.  r.  N.  S.  149,  26  W.  E. 
268.— Distinguished  in  Hodkinson  v. 
London  &  N.  W.  R.  Co.,  L.  R.  14  Q.  B.  D. 
228.  32  W.  R.  662. 

Hence  it  is  not  negligence  for  a  passenger 
to  go  to  his  hotel,  which  is  only  a  short  dis- 
tance away,  and  send  back  for  his  baggage. 
Nevtns  v.  Bay  State  Stt  u.  ■  i/  Co.,  4  Bosw. 
{N.  Y.)  225. 

In  order  to  remove  the  responsibility  of 
a  common  carrier,  for  bagga."'-:  it  is  its  duty 
to  have  a  bagiragc-master  at  r  to  deliver 
baggage   for  a   reasonable  ;  after  the 

arrival  of  a  train,  and  at  reujur.dble  hours 
thereafter.  Dininny  v.  New  Yo,k  &^  N,  H. 
R.  Co.,  49  N.  V.  546,  4  Am.  Ry.  Rep.  457.— 
Distinguished  in  Mattison  v.  New  York 
C.  R.  Co.,  57  N.  Y.  552. 

But  in  determining  what  is  a  reasonable 
time,  the  custom  of  t'le  company,  the  man- 
ner of  taking  the  baggage  away  from  tlie 
station,  and  all  the  circumstances  of  the 
case  are  to  be  considered.  Mote  v.  Chicago 
<S-  N.  W.  R.  Co.,  27  Iowa  22. 

Where  baggage  arrives  after  six  o'clock 
in  the  evening,  until  seven  o'clock  of  the 
following  morning  is  a  reasonable  time  in 
which  to  call  for  it,  and  during  that  time 
the  company  is  liable  as  common  carrier. 
Burgevin  v.  Neiv  York  C.  &>  H.  R.  R.  Co., 
23  A^.  Y.  Supp.  415. 

Where  baggage  arrives  in  the  evening, 
until  the  next  morning  is  a  reasonable  time 
for  the  passenger  to  call  for  and  take  it  away ; 
and  where  the  carrier  is  sued  for  the  loss 
of  baggage  which  is  thus  left  overnight,  an 
instruction  that  the  company  was  not  liable 
as  a  common  carrier,  but  only  as  a  ware- 
houseman, and  leaving  it  to  the  jury  to 
determine  whether  there  was  such  negli- 
gence as  to  make  it  liable  as  warehouseman, 
was  more  favorable  than  the  company  had 
a  right  to  ask  for,  as  it  was  in  fact  liable  as 
carrier.  Burgevin  v.  New  York  C,  6-  ff. 
R.  R.  Co.,  52  N.  Y.  S.  R.  617.— Reviewing 
Roth  V.  Buffalo  &  S.  L.  R.  Co.,  34  N.  Y.  548. 

The  morning  of  the  second  day  after 
baggage  arrived— >*(?/</,  to  be  a  reasonable 
time  to  call  for  it,  and  the  company  is  held 
liable  for  a  loss  in  the  meantime,  with  in- 
terest on  the  value  of  the  articles  lost  from 
date  of  loss.  Mote  v,  Chicago  &-  N.  IV.  R. 
Co.,  27  Ivwa  22.— Distinguished  in  Atch- 


isf)n,  T.  &  S.  F.  R.  Co.  v.  Gabbert,  22  Am. 
&  Eng.  R.  Cas.  621,  34  Kan.  132;  Cobb  7'. 
Illinois  C.  R.  Co.,  38  Iowa  601.  Followed 
in  Arthur  v.  Chicago,  R.  1.  &  P.  R.  Co.,  16 
Am.  &  Eng.  R.  Cas.  283,  61  Iowa  648. 

67.  What  delay  Is  unreasoiiaMo.* 
— (i)  General  rit/es.—ViIhere  a  passenger 
leaves  his  baggage  at  the  station  until  the 
following  morning,  for  no  other  reason  tlian 
that  his  cabman  could  not  conveniently 
carry  it,  it  is  not  taking  it  away  within  the 
reasonablj  time  required  by  law  ;  ai;d  in  the 
meantime  the  liability  of  the  company  will 
be  only  that  of  a  bailee.  Vineberg  v.  Grand 
Trunk  R.  Co.,  27  Am,  <&>»  Eng.  R.  Cas.  271, 
1 3  Ont.  App.  93. 

From  afternoon  until  between  nine  and 
ten  o'clock  of  the  next  day  is  not  a  reason- 
able time  for  a  passenger  to  delay  demand- 
ing his  baggage  at  the  place  of  destination. 
Jacobs  v.  Tutt,  33  Fed.  Rep.  412. 

From  Friday  night  until  the  following 
Monday  morning  is  not  a  reasonable  time 
to  leave  baggage  in  the  company's  depot, 
and  if  it  is  destroyed  in  the  meantime  the 
company  is  not  liable.  Watkins  v.  New 
York  C.  &•  H.  R.  R.  Co.,  16  N.  Y.  S.  R. 
592,  3  N.  Y.  Supp.  946. 

(2)  //lustrations. — The  owner  of  a  valise 
which  had  been  transported  as  baggage 
allowed  it  to  remain  in  the  company's  open 
depot,  where  baggage  was  usually  kept, 
without  making  any  arrangement  for  it,  for 
some  twenty-four  hours  before  calling  for  it, 
and  in  the  meantime  it  was  stolen,  //eld, 
that  the  liability  of  the  company  as  carrier 
ceased  upon  the  arrival  of  the  baggage,  and 
that  therefore  it  was  only  liable  as  bailee. 
//o/dridge  v.  l/tica  &^  B.  R.  R.  Co.,  56  Barb. 
(N.  Y.)  191.— Following  Roth  v.  Buffalo 
&  St.  L,  R.  Co.,  34  N.  Y.  548. 

The  plaintiff  was  a  passenger  on  defend- 
ant's railway  from  P.  to  S.,  with  two  trunks 
for  which  he  had  checks.  At  S.  the  trunks 
were  put  on  the  platform,  and  he  assisted 
defendants'  servant  to  carry  them  into  the 
baggage-room,  and  went  up  in  an  omnibus 
to  the  hotel ;  this  was  about  3  P.M.  In  the 
evening  about  8  he  sent  his  checks  for  his 
trunks,  but  one  or  them  had  disappeared, 
and  the  evidence  went  to  show  that  it  had 
been  stolen.  Held,  that  defendants  were 
not  responsible,  that  their  duty  as  common 
carriers  ended  when  the  trunk  had  been 
placed  on  the  platform,  and  that  the  plaintiff 

•  See  also  post,  69. 


BAGGAGE,  08,69. 


tiSl 


!2  Am. 

bbb  7'. 

LOWED 

Co.,  i6 

8. 

ial;1c>.* 
ssenijer 

til  the 

n  thai) 
niently 

in  the 

in  tlie 
ny  will 

Grand 
as.  271, 


had  had  a  reasonable  time  to  remove  it. 
A  nonsuit  was  therefore  ordered.  Pen- 
ton  V.  Grand  Trtmk  R.  Co.,  28  U.  C.  Q. 
B.  367.— Following  Inman  v.  Buffalo  & 
L.  H.  R.  Co.,  7  U.  C.  C.  P.  325 ;  Shepherd  v. 
Bristol  &  E.  R.  Co..  L.  R.  3  Exch.  189.— 
Followed  in  Brown  v.  Canadian  Pac.  R. 
Co.,  3  Man.  496.  Reviewed  in  Vineberg  v. 
Grand  Trunk  R.  Co.,  13  Ont.  App.  93. 

Plaintiff  sued  for  baggage  burned  in  a 
baggage-room.  The  railroad  set  up  the  de- 
fense tliat  the  baggage  was  safely  carried 
to  its  destination,  and  not  being  called  for 
was  stored,  and  was  there  destroyed  by  fire 
without  fault  on  their  part.  Plaintiff  replied 
that  his  passage  had  been  over  several  lines ; 
that  while  on  an  intermediate  line  he  was 
informed  that  his  baggage  was  not  on  the 
same  train  as  himself ;  that  on  reaching  his 
destination  at  defendant's  station  he  looked 
in  defendant's  baggage-car,  and  not  seeing 
his  baggage  went  away  without  calling  for 
it ;  and  that  he  called  the  next  day  but  was 
told  that  it  had  been  destroyed.  Held,  that 
the  replication  was  bad  on  demurrer.  Brown 
V.  Canadian  Pac.  P.  Co.,  3  Man.  496. 

4.  Company  When  Liable  as  Warehouseman 
Only. 

68.  When  liability  as  carrier 
ceases,  generally.* — The  liability  of  a 
railroad  company  as  a  common  carrier  ceases 
upon  the  expiration  of  a  reasonable  time 
after  putting  baggage  off  at  a  station,  and 
after  the  expiration  of  such  reasonable  time 
the  company's  liability  for  baggage  in  its 
custody  is  that  of  a  warehouseman  for  hire ; 
and  in  case  of  the  destruction  of  the  bag- 
gage by  the  burning  of  the  station  there  is 
no  presumption  of  .legligence  against  the 
company.  Wald  v.  Louisville,  E.  &>  S/. 
L.  R.  Co.  {Ky.),  58  Am.  <&-  Eng.  K.  Cas.  123. 

Where  a  passenger  with  baggage  arrives 
at  a  railroad  station,  and  for  his  own  con- 
venience leaves  his  baggage  at  the  station 
overnight,  the  railroad  company  is  no  longer 
liable  as  a  common  carrier,  and  if  the  bag- 
(^age  is  destroyed  by  accidental  fire,  without 
the  company's  fault,  the  company  is  not 
liable  therefor.  Ross  v.  Missouri,  K.  &*  T. 
R.  Co.,  4  Mo.  App.  582. 

Leaving  baggage  with  a  carrier  either  for 
temporary  convenience,  or  from  necessity, 
sickness,  or  accident,  is  not  such  an  unusual 

*  When  company's  liability  as  carrier  ceases, 
see  note,  2i  Am.  &  Enr.  R.  Cas.  312. 


or  exceptional  circumstance  as  to  create  a 
presumption  that  it  was  not  within  the 
contemplation  of  the  carrier  at  the  time  the 
contract  to  carry  was  made.  Burnell  v.  New 
York  C.  R.  Co.,  45  N.  Y.  184,  6  Am.  Pep.  61. 

Where  a  passenger  on  board  a  steamboat 
checks  his  baggage  through  to  his  destina- 
tion, and,  having  taken  advantage  of  his 
stop-over,  the  baggage  is  warehoused  sub- 
ject to  delivery  on  call  and  presentation  of 
check,  the  carrier  is  not  liable  for  its  loss 
by  fire  while  in  the  warehouse.  Laffrey  v. 
Grunimond,  37  Am.  &*  Eng.  P.  Cas.  235,  74 
Mich.  186,  41  N.  W.  Pep.  894.— Reviewing 
McKee  I/.  Owen,  15  Mich.  115. 

69.  Expiration  of  reasonable  time 
to  call  for  baggape.*— Where  baggage  is 
not  called  for  within  a  reasonable  time  it  is 
the  duty  of  the  carrier  to  properly  store  it, 
and  when  this  is  done  its  liability  as  carrier 
ceases  and  that  of  warehouseman  attaches. 
Mote  v.  Chicago  <&>»  N.  W.  P.  Co.,  27  Icwa 
22.  St.  Louis  &*  C.  P.  Co.  v.Hardway,  17 
///.  App.  321.— Following  Bartholomew  t/. 
St.  Louis,  J.  &  C.  R.  Co.,  53  111.  227.— Chi- 
cago &>  A.  P.  Co.  V.  Addizoat,  17  ///.  App. 
632.  Louisville,  C.  6f  L.  P.  Co.  v.  Mahan, 
8  Bush  (Ky.)  184.  Wald  v.  Louisville,  E. 
<S-  St.  L.  P.  Co.,  92  Ky.  645.  Burnell  v. 
New  York  C.  P.  Co.,  45  N.  Y.  184,  6  Am. 
Pep.  61.  Galveston,  H.  Sf  S.  A.  P.  Co.  v. 
Smith,  81  Tex.  479,  17  5.  W.  Rep.  133.— 
Quoting  Ouimit  v.  Henshaw,  35  Vt.  605. — 
Texas  &»  P.  P.  Co.  v.  Capps,  16  Am.  &^ 
Eng.  P.  Cas.  118,  2  Tex.  App.  \civ.  Caj.)  35. 
Ouimit  V.  Henshaw,  35  Vt.  605. — Criticis- 
ing Norway  Plains  Co.  v.  Boston  &  M.  R. 
Co.,  i  Gray  (Mass.)  263.  Quoting  Farmers' 
&  M.  Bank  v.  Champlain  T.  Co.,  23  Vt.  21 1  ; 
Powell  V.  Myers,  26  Wend.  (N.  Y.)  591. — 
Quoted  in  Galveston,  H.  &  S.  A.  R.  Co. 
V.  Smith,  81  Tex.  479. — Brawn  v.  Cana- 
dian Pac.  P.  Co.,  3  Man.  496.— FOLLOW- 
ING ''atscheider  v.  Great  Western  R.  Co., 
3  Ex  D.  154;  Jones  v.  Norwich  &  N.  Y. 
T.  <,o.,  50  Barb.  (N.  Y.)  194;  Powell  v. 
Myers,  26  Wend.  (N.  Y.)  591 ;  Cary  v.  Cleve- 
land T.  R.  Co.,  29  Barb.  (N.  Y.)  35 ;  Burnell 
V.  New  York  C.  R.  Co.,  45  N.  Y.  184;  Penton 
V.  Grand  Trunk  R.  Co.,  28  U.  C.  Q.  B.  367. 

If  the  passenger  does  not  call  for  his  bag- 
gage on  arrival  the  carrier  cannot  leave  it 
uncared  for,  or  abandon  it ;  but  his  strict 
responsibility  as  carrier  ceases  after  a  rea- 
sonable time    has   elapsed  to  enable    the 

*  See  also  ante,  67. 


552 


BAGGAGE,  70-72. 


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■                                      ! 
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I  T 

owner  to  claim  it,  and  a  modified  liability, 
like  that  of  a  warehouseman,  supervenes. 
Matteson  v.  New  York  C.  <&-  N.  A'.  A\  Co.,  76 
A^.  V.  381. -Reviewed  in  Oderkirk  v. 
Fargo,  34  N.  Y.  S.  R.  166,  58  Hun  347,  11 
N.  Y.  Supp.  871. 

Where  a  travelling  salesman  leaves  his 
sample-trunk  in  tlie  baggage-room  at  his 
place  of  destination  from  Saturday  evening 
until  Monday  morning,  the  company  is  lia- 
ble for  its  loss  as  warehouseman.  Hoeger  v. 
Chicago,  M.  Ssr'St.  P.  R.  Co.,2\  Am.&r' Etig. 
R.  Cas.  308,  63  IV/s.  100,  23  A\  IV.  Rep.  435, 
53/4;«.  Rep.  271. 

A  passenger  by  vessel  has  a  reasonable 
time  after  the  arrival  of  the  vessel  in  port 
for  the  removal  of  his  baggage.  During  that 
time  the  liability  of  the  owners  of  the  ves- 
sel as  insurers  continues,  but  beyond  such 
reasonable  time  the  owners  of  the  vessel  are 
bound  to  preserve  it  with  ordinary  care,  and 
they  will  only  be  charged  thereafter  as  bailees 
where  such  loss  occurs  through  their  negli- 
gence.   Van  Horn  v.  Kermit,  4  E.  D.  Smith 

KN.  F.)  453- 

A  passenger  on  a  railway  train  got  oflf  the 
train  about  nine  o'clock  at  night,  and  his 
baggage  was  also  put  off  and  placed  at  his 
disposal.  Failing  to  call  for  his  trunks, 
they  were  put  in  the  depot  for  safe  keeping. 
During  the  night  the  depot,  with  its  con- 
tents, was  burned.  Held,  that  in  the  ab- 
sence of  any  negligence  on  the  part  of  the 
railroad  company  it  was  not  liable  to  the 
owner  of  the  baggage.  Wald  v.  Louisville, 
E.  &»  St.  L.  R.  Co.,  92  Ky.  645. 

The  fact  that  the  depot  in  which  plain- 
tiflf's  baggage  was  stored  was  constructed  of 
pine  timber  is  not  evidence  of  negligence, 
the  depot  being  in  a  small  town,  and  not  ex- 
posed to  any  unusual  danger  from  fire. 
Wald  V.  Lonisville,  E.  &•  St.  L.  R.  Co.,  92 
Ky.  645. 

70.  Question  of  reasonable  time  is 
for  Jury. — The  liability  of  the  carrier  for 
baggage  continues  for  a  reasonable  time 
after  its  arrival  at  place  of  destination,  and 
what  is  a  reasonable  time,  where  the  facts 
are  undisputed,  is  a  question  for  the  court. 
Burgevin  v.  New  York  C.  <S-  H.  R.  R.  Co., 
23  A^.  Y.  Supp.  415.— Following  Roth  v. 
Buffalo  &  S.  L.  R.  Co.,  34  N.  Y.  548;  Bur- 
nell  V.  New  York  C.  R.  Co.,  45  N.  Y.  184. 

Whether  a  passenger  has  called  for  his 
baggage  at  the  place  of  destination  within 
a  reasonable  time  after  its  arrival,  is  a  ques- 
tion for  the  jury,  to  be  determined  from  all 


of  the  facts  and  circumstances  of  the  case. 
Brown  v.  Canadian  I'ac.  R.  Co.,  3  Man.  496. 

What  constitutes  such  reasonable  oppor- 
tunity for  removing  the  baggage  is  a  mixed 
question  of  law  and  fact,  necessarily  depend- 
ent upon  the  peculiar  surroundings  of  each 
particular  case.  Louisville,  C.  &>  L.  R.  Co. 
V.  Mahan,  8  Bush  (Ky.)  184. 

71.  Voluntary  bailment  by  pas- 
senger.*—A  passenger's  baggage  was  deliv- 
ered to  him  at  the  end  of  his  journey,  but 
afterward  he  asked  the  baggage-master,  as  a 
matter  of  convenience,  to  keep  it  until  he 
sent  for  it.  Held,  that  the  bailment  being 
gratuitous,  the  company  was  not  liable  for 
'■-,,  subsequent  loss,  as  a  common  carrier,  and 
^v  juld  only  be  liable  at  all  for  gross  negli- 
gence. Minor  v.  Chicago  &*  N.  IV.  R.  Co., 
19  IVis.  40. 

Arriving  at  his  destination  at  half-past 
eight  P.M.,  the  passenger  left  his  baggage 
in  the  custody  of  the  agent  of  the  company, 
and  during  the  same  night  the  depot  and 
contents,  including  the  baggage,  were  de- 
stroyed by  fire.  Held,  that  in  order  to  make 
the  company  liable  for  tiie  baggage  so  de- 
stroyed, it  was  incumbent  on  the  owner  to 
show  that  the  fire  was  the  result  of  such 
negligence  on  the  part  of  the  employes  of 
the  company  as  would  render  liable  a  bailee 
for  hire.  Louisville,  C.  &*  L.  R.  Co.  v.  Mahan, 
8  Bush  {Ky.]  184. 

A  lady  left  a  trunk  at  a  depot  till  she  was 
ready  to  proceed  on  her  journey,  or  until 
she  called  for  it,  if  she  should  decide  not  to 
go.  //i?/ir/,  that  the  liabilityof  the  company,  at 
most,  was  not  more  than  that  of  a  gratuitous 
bailee.  Little  Rock  &>  Ft.  S.  R.  Co.  v.  Hun- 
ter, iZA»i.&*  Eng.R.  Cas.  527,  42  Ark.  200. 

Where  the  baggage  of  a  passenger  is 
placed  in  charge  of  the  carrier,  and  upon 
arriving  at  his  place  of  destination  the  pas- 
senger leaves  it  in  charge  of  the  carrier,  the 
liability  of  the  carrier,  as  such,  will  not  be 
changed  to  that  of  warehouseman,  until 
the  baggage  is  stored  in  a  safe  and  secure 
warehouse.  If  the  baggage  be  placed  in  an 
insecure  room,  and  is  stolen,  the  carrier  will 
be  responsible  in  that  capacity,  not  as  ware- 
houseman. In  this  regard,  the  same  rule 
applies  to  the  carrying  of  baggage  as  to  the 
carrying  of  ordinary  freight.  Bartholomew 
V.  St.  Louis,/.  (S-  C.  R.  Co.,  53  ///  227. 

72.  Baggage  reacliing  destination 
ahead  of  passenger.— Where  a  passen- 

*  See  also  ante,  63  ;  post,  128-131. 


I 


■!^p 


BAGGAGE,  78,  74. 


60a 


I 


ger  is  detained  *//  route  by  sickness,  causing 
his  baggage  to  reach  its  destination  ahead 
of  him,  and  the  baggage  is  placed  in  the 
baggage-room,  the  carrier  will  be  liable 
thereafter  only  as  warehouseman.  Chicago, 
R.  I.  &■>  P.  A'.  Co.  V.  Boj'u;  72,  III.  510. 

73.  or   held    over    for    later 

train. "* — A  carrier  is  only  liable  as  carrier 
for  a  passenger's  baggage  which  is  left 
with  it  for  immediate  transportation,  and 
where  such  baggage  is  voluntarily  deposited 
for  safe  keeping,  as  when  it  is  brought  to 
the  depot  for  one  train,  and  on  learning  that 
it  could  not  go  till  a  Liter  train  is  left  for 
such  later  train,  the  liability  for  loss  is 
merely  that  of  warehouseman.  Goodbar  v. 
Wabash  R.  Co.,  53  Mo.App.\T,\. — Quoting 
O'Neil  V.  New  York  C.  &  H.  R.  R.  Co., 
60  N.  Y.  138 ;  Watts  v.  Boston  &  L.  R.  Corp., 
106  Mass.  466.  Reviewing  Hunter  v.  Little 
Rock  &  Ft.  S.  R.  Co.,  42  Ark.  200;  Gregory 
V.  Wabash  R.  Co.,  46  Mo.  App.  574. 

74.  Extent  of  the  liability  as  ware- 
houseman.—On  the  trial  of  an  action  for 
the  loss  of  a  passeng  s  trunk,  it  was  not 
error  to  charge  that  if  the  company  failed 
to  deliver  it  and  undertook  to  deposit  it  in 
its  warehouse,  its  liability  would  be  that  of 
a  warehouseman,  and  it  would  be  bound  to 
use  ordinary  diligence  in  takirig  care  of  it, 
and  if  it  failed,  the  plaintiff  would  be  enti- 
tled to  recover.  Georgia  R.  &•  B.  Co.  v. 
Thompson,  86  Ga.  327,  12  S.  E.  Rep.  640. 

When  a  passenger  checks  baggage  to  his 
destination,  and  such  baggage  arrives,  \)ut 
is  not,  from  any  cause,  delivered  to  such 
passenger,  it  is  the  duty  of  the  company  to 
deposit  such  baggage  in  their  baggage-room, 
in  which  event  the  responsibility  becomes 
that  of  warehouseman.  It  is  not  neces- 
sary that  such  place  of  deposit  should  be 
absolutely  fire-proof  or  burglar-proof,  but 
it  should  be  such  a  place  as  a  man  of  ordi- 
nary prudence  would  use  for  the  storage  of 
his  own  goods.  Chicago,  R.  I.  &•  P.  R.  Co. 
v.  Fairclough.  52  ///.  106. 

Where  a  lady's  trunk  arrives  in  the  even- 
ing and  is  placed  overnight,  in  the  ladies' 
waiting-room,  where  it  is  broken  open  and 
the  contents  are  stolen,  the  company  is 
liable  for  the  loss.  St.  Louis  <S-  C.  R.  Co. 
V.  Hardway,  17  ///.  App.  321. 

Baggr..<Te  left  in  a  station  at  its  place  of 
destination  from  evening  until  the  next 
morning  is  held  by  the  company  as  a  gratu- 

*  See  also  ante,  54. 


ituus  bailee,  and  it  will  only  be  liable  for  its 
loss  where  there  is  gross  negligence  ;  and  a 
failure  on  its  part  to  provide  a  storeroom 
safe  from  lire,  and  to  provide  proper  means 
for  extinguishing  fire,  is  not  of  itself  suflR- 
cieiit  proof  of  gross  negligence  to  make  the 
company  liable.  Clark  v.  Eastern  R,  Co.,  21 
Am.  &"  Eng.  R.  Cas.  yyj,  139  Mass.  423,  i 
^V.  E.  Rep.  128. 

Where  a  company  holds  baggage  as  ware- 
houseman only,  proof  that  baggage  was  de- 
livered to  the  company  requires  it  to  rede- 
liver it  on  demand  or  to  account  for  its  loss, 
and  failing  to  do  so  will  warrant  a  verdict 
against  the  company  for  its  value.  Fairfax 
V.  New  York  C.  (^  H.  R.  R.  Co.,  67  N.  Y. 
11,15  •^'"-  i^y-  ^'P-  '4' ;  reversing  8  /,  &* 
S.  128. 

A  road  that  receives  baggage  which  is 
checked  over  another  route,  and  carries  it  to 
its  place  of  destination,  where  it  is  lost,  is 
subject,  at  least,  to  the  liability  of  a  ware- 
houseman, and  to  relieve  itself  from  liability 
for  the  loss,  it  must '  w  that  such  loss  was 
without  its  fault ;  an  nis  is  so  regardless  of 
the  nature  of  the  baggage.  Fair/ax  v.  New 
York  C.  &*  H.  R.  R.  Co.,  73  A^.  Y.  167; 
affirming  11  /.  &*  S.  18. 

Baggage  arrived  safely  in  New  York  and 
was  there  lost  through  defendant's  negli- 
gence. Held,  that,  without  regard  to  the 
question  of  defendant's  liability  as  common 
carrier,  it  incurred  the  responsibility  of 
warehouseman,  and  was  liable  for  negli' 
gence.  Curtis  v.  Delaware,  L.  &*  W.  R. 
Co.,  74  N.  Y.  116.— Distinguished  in 
Faulkner  v.  Hart,  82  N.  Y.  413,  37  Am.  Rep. 

S74. 

The  implied  undertaking  of  a  carrier  to 
insure  the  safety  of  baggage  does  not  extend 
to  the  contents  of  a  trunk,  consisting  of 
samples  of  merchandise,  which  the  pas- 
senger, a  travelling  salesman,  carried,  to 
facilitate  his  business  in  making  sales.  But 
the  carrier,  by  taking  the  property  into  his 
charge,  and  putting  it  in  his  warehouse  for 
safe  keeping,  assumes  the  relation  to  it  of  an 
ordinary  bailee,  and  he  is  bound  to  take 
such  care  of  the  property  as  a  man  of  ordi- 
nary prudence  would  of  his  own,  under  like 
circumstances.  Pennsylvania  Co.  v.  Miller, 
35  Ohio  St.  541. 

As  to  goods  in  the  hands  of  a  carrier 
shipped  as  baggage,  but  held  by  the  carrier  as 
warehousemen,  it  is  bound  only  to  ordinary 
care,  or  such  cnre  as  a  man  of  ordinary 
prudence  would  use  in  the  management  of 


1, 1 


If 


554 


BAGGAGE,  75-79. 


I 


k   ' 


J'- ' 


ii>v 


his  own  property  under  like  circumstances; 
and  such  care  does  not  require  the  carrier 
to  keep  a  night-watch  about  a  warehouse, 
or  to  have  some  one  sleep  therein,  where 
the  average  amount  of  goods  stored  therein 
does  not  exceed  $500.  Pi/;e  v.  Chicago,  At. 
6*  St.  P.  R.  Co.,  40  Wis.  583, 13  Am.  Ny.  Rep. 

447- 

Where  a  vessel  arrives  in  port  on  Monday 
evening  and  baggage  is  called  for  on  Wed- 
nesday morning,  but  is  lost,  the  burden  is 
on  the  owners  of  the  vessel  to  show  that 
it  was  lost  without  their  fault,  or  the  fault 
of  their  servants.  Van  Horn  v.  Kermit,  4 
E.  D.  Smith  (iV.  Y.)  453. 

5.   Transfer-  Companies. 

75.  Bight    to    solicit    business.— 

Going  on  an  incoming  passenger  train,  at 
out  stations,  and  soliciting  the  transfer  of 
baggage  from  passengers,  is  not  a  violation 
of  a  city  ordinance  prohibiting  soliciting 
any  passenger  at  any  of  the  "stands,  rail- 
road stations,  steamboat  landings,  or  else- 
where in  said  city,"  where  no  baggage  was 
taken  at  the  time,  and  only  checks  were 
given  therefor.     Reg.  v.  Verral,  18  Ont.  117. 

76.  Sufficiency  of  delivery  to.— In 
an  action  against  the  W.  Express  Co.  to  re- 
cover a  trunk  and  contents,  it  appeared  that 
plaintiffs'  agent  took  passage  by  railroad 
and  checked  the  trunk  at  Detroit  for  New 
York  City ;  that  he  stopped  over  en  route  ; 
that  the  trunk  arrived  at  the  Grand  Central 
depot  twenty-four  hours  before  him ;  and 
that  it  was  taken  out  of  the  car  on  its  arrival 
by  defendant's  employes,  but  was  left  in  the 
baggage-room  of  the  railroad  company  and 
in  its  possession  and  control,  to  be  delivered, 
in  accordance  with  custom,  to  any  one  pre- 
senting the  check.  H.  gave  the  check  to 
defendant's  agent  on  the  train,  who,  upon 
reaching  New  York,  searched  for  the  trunk, 
but  it  could  not  be  found.  Held,  that  plain- 
tiffs failed  to  show  a  delivery  of  the  trunk 
to  defendan'.,  and  that  therefore  it  was  not 
liable.  Aikin  v.  Westcott,  123  N.  Y.  363,  25 
N.  E.  Rep.  503,  33  A^.  Y.  S.  R.  623. 

77.  Liability  for  loss  of  trunk.— A 
passenger  on  a  railway  train,  having  arrived 
at  the  point  of  destination,  entered  into  a 
contract  with  a  transfer  company,  for  an 
agreed  compensation,  to  procure  his  bag- 
gage from  the  railroad  company's  depot 
a  v\  haul  it  to  his  residence,  and  for  that 
purpose  surrendered  his  baggage  checks. 
Held,  that  the  transfer  company  was  respon- 


sible to  the  passenger  for  the  safe  keeping 
and  delivery  of  the  baggage.  DaPonte  v. 
New  Orleans  Transfer  Co.,  42  La.  Ann.  696, 
7  So.  Rep.  608. 

Under  this  state  of  facts,  contractual  rela- 
tions existed  between  the  passenger  and 
the  transfer  cu.ripany,  which  the  former 
could  enforie  by  suit  and  sequestration. 
DaPonte  v.  New  Orleans  Transfer  Co.,  42 
La  Ann.  696,  7  So.  Rep.  608. 

Defendant  was  engaged  in  transferring 
baggage  arriving  at  a  city  depot.  An  in- 
coming passenger  surrendered  his  checks 
to  one  of  defendant's  agents  on  the  train, 
and  another  employe  of  defendant  testified 
that  plaintiff's  two  trunks  came  to  the  sta- 
tion and  were  taken  cha  e  of  by  him  for 
defendant,  as  was  theii  justom  under  an 
arrangement  with  railroad  company.  One 
of  the  trunks  was  delivered  to  plaintiff. 
Held,  that  there  was  sufficient  evidence  to 
call  on  defendant  to  answei  why  the  other 
was  not  delivered,  and  it  was  error  to  dis- 
miss the  complaint.  Aikin  v.  Westcott,  14 
Daly  (N.  Y.),  504,  9  N  Y.  Supp.  481,  16  A^. 
Y.  S.  R.  600. 

78.  Limitation  of  liability.— Where 
a  transfer  company  receives  the  baggage  of 
a  person  to  be  transferred  from  a  railroad 
station  to  her  home,  merely  putting  in  her 
hand  a  card  of  the  company  with  a  condi- 
tion printed  on  it,  limiting  the  company's 
liability,  will  not  bind  her,  where  there  is 
nothing  to  show  that  she  assented  thereto. 
Such  a  contract  applies  only  to  steamboats 
and  railroads.  Prentice  v.  Decker,  49  Barb. 
(N.  K)  21. 

IV.  CU8T0DT  OF  BAOOAOE  BT  PA88ENO£B. 

79.  General  rule  exempting  car- 
rier from  liability.*— A  railway  company 
is  liable  for  the  loss  of  baggage  only  when 
it  is  placed  in  its  charge,  not  when  it  is 
retained  in  the  possession  of  the  passenger. 
Cohen  v.  Frost,  2  Duer  {N.  K)  335.— Fol- 
lowing Burgess  v.  Clements,  4  M.  &  S. 
306.  Reviewing  Hawkins  v.  Hoffman,  6 
Hill  (N.  Y.)  586. 

Where  the  counsel  for  the  plaintiff  dis- 
claims any  taking  charge  by  the  defendants 
as  common  carriers  of  articles  lost,  and 
it  appears  that  the  plaintiff,  during  her 
whole  travel,  kept  them  in  her  possession, 

♦Liability  of  company  for  baggage  in  passen- 
ger's custody,  see  notes  16  Am.  &  Eno.  R.  Cas. 
399;  42  Am.  Dec.  27. 


r 


BAGGAGE,  80. 


56f) 


under  her  charge,  no  question  of  liability 
as  common  carriers  can  arise.  Tolatio  v. 
National  Steam  Nav.  Co.,  5  J^obt.  {N.  Y.) 
318,  4  Abb.  Pr.  316.  35  How.  Pr.  496. 

If  a  passenger  retains  the  exclusive  con- 
trol of  his  baggage,  the  carrier  is  not  respon- 
sible for  its  loss,  unless  such  loss  results 
from  the  latter's  negligence.  Pullman 
Palace  Car  Co.  v.  Pollock,  34  Am.  &•  Eng. 
R.  Cas.  217,  69  Tex.  120,  5  Am.  St.  Rep.  31,5 
5.  W.  Rep.  814. 

A  railway  company  is  not  liable  for  the 
loss  or  theft,  without  any  negligence  on  its 
part,  of  luggage  placed  in  the  same  compart- 
ment with  a  passenger  at  his  request.  Berg- 
heim  v.  Great  E.  R.  Co.,  L.  R.  3  C.  P.  D. 
221,  47  L.J.  C.  P.  Div.  318,  38  L.  T.  N.  S. 
160,  26  W.R.  301,  3  Ry.  &>  C.  T.  Cas.  xx. 

If  a  passenger's  luggage  be  intrusted  to  a 
porter  of  the  carrier,  the  latter  will  be  liable 
as  common  carrier;  but  where  the  passen- 
ger talces  it  into  the  carriage  and  under  his 
own  control,  a  railway  company  is  not  lia- 
ble as  common  carrier,  it  it  is  lost,  and  will 
be  liable  in  any  way  01. ly  for  negligence. 
Bunch  V.  Great  Western  K.  Co.,  26  Am.  &* 
Eng.  R.  Cas.  137,  17  Q.  B.  D.  215,  55  L.  J. 
Q.B.  525,  5  RySf  C.  T.  Caj.viii.— Explain- 
ing Bergheim  v.  Great  Eastern  R.  Co.,  3 
C.  P.  D.  221  ;  Cohen  v.  South  Eastern  R. 
Co.,  2  Exch.  D.  253.  Reviewing  Butcher 
7/.  London  and  South  Western  R.  Co.,  16  C. 

B.  13,  24  L.  J.  (C.  P.)  137  ;'  Richards  t/.  Lon- 
don. B.  &  S.  C.  R.  Co.,  7  C.  B.  839,  18  L.  J. 
(C.  P.)  251. 

A  railway  company  accepting  passenger's 
luggage  to  be  carried  in  a  carriage  with  the 
passenger,  enter  into  a  contract  as  common 
carriers,  subject  to  this  modification,  that 
in  respect  of  his  interference  with  heir  ex- 
clusive control  of  his  luggage,  the  company 
are  not  liable  for  any  loss  or  injury  occur- 
ring during  its  transit,  to  which  the  act  or 
default  of  the  passenger  has  been  contrib- 
utory. Great  Western  R.  Co.  v.  Bunch 
13  App.  Cas.  31,  57  L.f.  Q.  B.  361,  3  Ry.  &• 

C.  T.  Cas.  Ixix. 

If  the  negligence  of  a  passenger  who  has 
his  luggage  with  him  in  the  carriage  causes 
its  loss,  the  company  is  not  liable.  Talley 
V.  Great  Western  R.  Co.,  L.  R.  6  C.  P.  44, 
40  L.J.  C.  P.  9,  19  f^-  H-  1 54.  23  L.  T.  N. 
S'.  413,  3  J^y-  &*  C.  T.  Cas.,  XX.— Approved 
IN  Bergheim  v.  Great  Eastern.  R.  Co.,  26 
VV.  R.  301,  L.  R.  3  C.  P.  D.  221,  47  L.  J.  C. 
P.  318,  38  L.  T.  160, 

If  a  passenger  having  his  luggage  in  the 


carriage  with  liim  gets  out  at  an  intermedi- 
ate station  and  negligently  fails  to  find  the 
same  carriage  again,  finishing  his  journey 
in  a  different  one,  and  his  portmanteau  is 
stolen,  the  company  is  not  liable.  Talley 
V.  Great  Western  R.  Co.,  L.  R.  6  C.  P.  44, 
40  L.  J.  C.  P.  9,  19  W.  R.  154,  23  L.  T  N. 
S.  413,  3  Ry.  &•  C.  T.  Cas.  xx. 

Steamboat  owners  are  regarded  as  com- 
mon carriers  and  are  subject  to  the  law  reg- 
ulating such  carriers,  but  there  is  no  law 
making  a  common  carrier  responsible  for  the 
wearing  apparel  of  a  passenger  or  for  money 
which  he  carries  upon  his  person  and  which 
is  under  his  own  immediate  care  and  con- 
trol; but  it  is  otherwise  when  such  things 
are  made  baggage  and  delivered  to  the 
steamboat  owners  or  their  agents.  Steam- 
boat Crystal  Palace  v.  Vanderpool,  16  B.  Man. 
{Ky)  302. 

Jewels  of  $6000  value  retained  by  a  pas- 
senger in  liis  own  care  are  not  baggage  for 
the  loss  of  which  a  carrier  is  chargeable. 
In  order  to  render  the  carrier  liable  for 
losses  of  baggage,  or  of  goods  shipped  as 
freight,  they  must  be  delivered  and  en- 
trusted to  the  carrier.  Del  Valle  v.  Steam- 
boat Richmond,  27  La.  Ann.  90. 

80.  Limits  and  exceptions  to  tlie 
rule. — Where  no  interference  with  a  com- 
mon carrier's  control  of  property  carried  is 
attempted,  it  is  not  a  ground  for  limiting 
its  responsibility  that  the  owner  of  such 
property  accompanies  it  and  keeps  a  watch- 
ful lookout  for  its  safety.  Hannibal  <&*  St. 
J.  R.  Co.  V.  Swijt,  12  Wall.  {U.  S.)  262,  i 
Am.  Ry.  Rep.  434. 

A  carrier  is  not  to  be  regarded  as  the  in- 
surer of  money  or  other  baggage  which  is 
lost  while  being  carried  in  the  control  of 
the  passenger;  but  such  carrier  is  liable  if 
its  negligence  is  the  proximate  cause  of  the 
loss.  Bonner  v.  Grumbach,  2  Tex.  Civ.  App. 
482,  21  .<>.  W.  Rep.  loio. 

A  carrier  is  bound  to  deliver  the  pas- 
senger's luggage  to  liim  at  the  end  of  the 
journey,  although  it  may  have  been  in  the 
same  carriage  with  him  and  under  his  per- 
sonal care  ;  and  if  the  usual  course  of  de- 
livery is  at  a  particular  syot,  that  is  the 
place  of  delivery.  Richards  v.  London  &* 
S.  C.  R.  Co.,  7  C.  B.  839,  6  Railw.  Cas.  49, 
'3  A''-  986,  18  L.  f.  C.  P.  251. 

A  railway  company  is  liable  for  the  loss 
of  a  passenger's  luggage,  though  carried  in 
the  carriage  in  which  he  hinself  is  trav- 
elling.   LeConteur  v.  London  'S*  S.  W.  R, 


-„.'* 

^m 


■^ 


556 


BAGGAGE,  81. 


I 

a 


I 


Co.,  6£.&^  S.  961,  35  L.y.  (J.  li.  40.  \2jur. 
N.  S.  j66,  L.  R.  I  Q,.  B.  54,  14  W.  K.  80,  13 
L.  T.  325.— Commented  on  in  Bergheim 
V.  Great  Eastern  R.  Co.,  26  W.  R.  301,  L. 
R.  3,C.  P.  D.  221,47  L.  J.  C.  P.  3i8,38L.T. 
160. 

If  a  passenger  keeps  liis  luggage  with 
him  during  the  journey,  it  is  in  the  custody 
of  the  company,  which  is  responsible  for  its 
loss.  Great  Northern  R.  Co.  v.  Shepherd,  8 
Exch.  30,  7  Railw.  Cm.  310,  21  L.J.  Exch. 
286. 

The  mere  fact  of  a  passenger  travelling 
in  a  railway  carriage  retaining  possession  of 
a  bag  or  other  small  article  of  luggage  does 
not,  without  some  evidence  of  contract  ex- 
press or  implied  to  that  effect,  relieve  the 
company  from  their  liability  as  common 
carriers  in  case  of  loss.  Gamble  v.  Great 
Western  R.  Co.,  3  Up.  Can.  Error  &>  App, 
163. 

Where  a  passenger  directs  a  porter  to 
place  his  luggage  on  the  carriage  seat, 
which  is  done,  this  alone  is  not  a  sufficient 
taking  of  such  luggage  from  under  the  con- 
trol of  the  company  so  as  to  relieve  it  from 
liability  for  its  loss.  LeConteur  v.  London 
&*  S.  W.  R.  Co.,  6  H.  &^S.  961,  35  L.J.  Q. 

B.  40,  12  Jur.  N.  S.  266,  L.  R.  i  Q.  B.  54, 
14  IV.  R.  80,  13  L.T.  325. 

The  company  receiving  a  passenger's  lug- 
gage, to  be  carried  in  the  carriage  with  the 
passenger,  contracts  as  a  common  carrier, 
except  that  it  will  not  be  liable  for  any  loss 
or  injury  to  which  the  passenger's  own  act 
contributed.  Great  Western  R.  Co.  v.  Bunch. 
34  Am.  &*  Eng.  R.  Cas.  224,  13  App.  Cas.  31  ; 
affirming  17  Q.  B.  D.  215.  — Approving 
Richards  v.  London,  B.  &  S.  C.  R.  Co.,  7 

C.  B.  839 ;  Talley  v.  Great  Western  R.  Co., 
L.  R.  6  C.  P.  44.  Disapproving  Bergheim 
V.  Great  Eastern  R.  Co.,  3  C.  P.  D.  221. 
Quoting  Butcher  v.  London  &  S.  W.  R. 
Co.,  16  C.  B.  13. 

81.  Placiii{>:  articles  ill  state-room.* 
— Where  a  passenger  by  boat  is  given  a 
state-room  (and  the  key  to  it),  in  which  he 
places  his  baggage,  and  from  which  it  is 
stolen  in  his  absence  while  the  door  is 
locked,  the  owners  of  the  boat  are  liable. 
Mudgett  v.  Bay  State  Steamboat  Co.,  i  Daly 
(N.  F.)  151.— Followed  in  Gleason  v. 
Goodrich  Transp.  Co.,  32  Wis.  8$.— Gleason 
v.  Goodrich   Transp.  Co.,  32  Wis.  85. 

It  seems  that  carriers  by  water  may  re- 

*  See  also  ante,  4. 


quire  passengers  to  deposit  baggage  not 
necessary  for  daily  use  in  some  designated 
place  in  their  care ;  but  to  hold  the  ship- 
owners liable  it  is  not  necessary  for  the 
passenger,  of  his  own  motion,  to  place  it  in 
charge  of  the  officers  of  the  vessel.  Van 
Horn  V.  Kermit,  4  E.  D.  Smith  (iV.  F.)  453. 

Where  a  passenger  pays  extra  for  a  state- 
room on  a  vessel,  a  rule  requiring  him  to 
place  his  baggage  in  the  care  of  an  officer 
.  of  the  vessel  and  forbidding  him  to  take  it 
into  his  state-room  is  an  unreasonable  rule, 
so  far  as  it  applies  to  articles  required  for 
present  use,  and  will  not  relieve  the  com- 
pany from  liability  in  case  of  loss.  Macklin 
V.  New  Jersey  Steamboat  Co.,  7  Abb.  Pr.  N. 
S.  {N.  y.)  2:9. 

Where  a  passenger  by  vessel  places  his 
baggage  in  a  state-room  and  it  is  stolen  at 
night,  without  negligence  on  his  part,  the 
owners  of  the  vessel  are  liable,  though  the 
articles  lost  are  such  things  as  a  pocket- 
book  and  money,  and  a  watch  and  chain. 
And  a  notice  posted  up  requiring  such  bag- 
gage to  be  put  in  the  custody  of  an  officer  of 
the  boat  does  not  apply  where  the  passen- 
ger is  furnished  with  a  state-room.  Crozier 
V.  Boston,  N.  Y.&'A.  Steamboat  Co.,  43  How, 
Pr.  {N.  y.)  466.— Quoted  in  Woodruff,  S. 
&  P.  Coach  Co.  V.  Diehl,  9  Am.  &  Eng.  R. 
Cas.  294,  84  Ind.  474,  43  Am.  Rep.  102. 

If  a  passenger  by  steamboat  deposits  his 
wearing  apparel  in  his  state-room,  the  owners 
of  the  vessel  are  liable  if  it  is  stolen  there- 
from without  fault  on  the  part  of  the  owner. 
Gore  V.  Norwich  &*  N.  K.  Transp.  Co.,  2 
Daly  {N.  F.)  254. 

The  fact  that  a  passenger  by  steamboat 
wears  an  overcoat  and  deposits  it  in  his 
state-room  cannot  be  regarded  as  such  ex- 
clusive possession  as  to  relieve  the  carrier 
from  liability  if  it  be  stolen  without  the 
owner's  fault.  Gore  v.  Norwich  <S««  N.  Y. 
Transp,  Co.,  2  Daly  (N.  F.)  254.— Followed 
in  Gleason  v.  Goodrich  Transp.  Co.,  32  Wis 
85. 

The  animus  custodiendi  of  a  passenger  by 
boat  as  to  wearing  apparel  ceases  when 
such  articles  are  placed  in  his  state-room, 
unless  he  has  notice  to  the  contrary.  Gore 
V.  Norwich  <S-  N.  F.   Transp.  Co.,  2  Daly 

(N.  y.)  254. 

The  liability  of  a  carrier  of  passengers 
for  the  safe  transportation  of  baggage  does 
not  extend  to  such  articles  as  the  passenger 
has  in  his  charge.  Where  a  lady  passenger 
by  boat  left  jewelry  in  her  state-room,  and 


BAGGAGE,  82-84. 


557 


[age  not 
signaled 
he  ship- 
for  the 
lace  it  in 
1.     yan 

y-)  453. 

a  state- 

him  to 
n  officer 
o  take  it 
able  rule, 
uired  for 
he  com- 
Macklin 

Pr.  N. 


it  was  stolen,  the  owners  of  the  boat  were 
held  not  liable.  77/^?  R.  E.  Lee,  i  Abb.  {U. 
0.)  49.— Reviewing  Tower  v.  Utica  &  S.  R. 
Co.,  7  Hill  (N.  Y.)  47. 

The  owners  of  a  steamboat  are  not  liable 
for  the  loss  of  a  passenger's  baggage,  which 
without  the  consent  of  the  owners  he  de- 
posits in  his  state-room,  which  he  knows 
cannot  be  locked,  where  there  is  a  baggage- 
porter  known  to  the  passenger,  whose  duty 
it  is  to  take  ciiarge  of  and  check  baggage, 
and  where  the  loss  occurs  while  the  passen- 
ger is  away  from  his  room.  Gleason  v.  Good- 
rich Transp.  Co.,  32  Wis.  85. 

82.  Leaving  articles  on  tlie  cars.— 
A  railroad  company  is  liable  for  the  con- 
tents of  a  valise  which  is  left  by  a  passenger 
on  a  train,  he  being  informed  that  he  must 
get  ofi  quick,  that  the  train  will  soon  start, 
it  appearing  that  the  valise  was  discovered 
by  the  officers  of  the  train  and  that  it  re- 
mained in  their  possession  for  several  hours. 
The  negligence  of  the  passenger  under  the 
r-ircumstances  in  leaving  the  valise  in  the 
car  after  he  had  reached  his  destination 
will  not  relieve  the  company  from  liability. 
Bonner  v.  De  Mendoza,  4  Tex.  App,  (Civ. 
Cas.  392,  16  5.  IV.  Hep.  976. 

Where  a  carrier  provides  a  place  for  the 
safe  keeping  of  articles  that  may  be  inad- 
vertently left  by  passengers  on  its  cars,  and 
make  it  the  duty  of  its  employes  to  take 
charge  of  such  articles,  it  will  be  deemed  a 
part  of  the  business  of  the  carrier  to  take 
charge  of  and  safely  keep  such  articles  un- 
til called  for.  Morris  v.  Third  Ave.  R.  Co., 
I  Daly  (N.  K)  202,  23  How.  Pr.  345. 

A  passenger  by  rail  left  a  car  to  get  a 
meal,  on  being  told  by  an  employe  that  it 
was  perfectly  safe  to  leave  his  baggage  in 
the  car.  On  returning  the  car  was  de- 
tached, but  he  was  told  that  he  would  find  ' 
his  baggage  and  a  seat  in  another  car,  but 
in  going  into  such  car  he  found  only  part  of 
his  baggage.  The  first  car  was  a  sleeper 
and  was  not  owned  by  the  railroad  company 
hauling  it,  but  there  was  nothing  to  show 
that  plaintiff  had  any  knowledge  of  such 
fact.  Held,  that  there  was  evidence  to  war- 
rant a  finding  that  the  missing  baggage 
was  lost  through  the  negligence  of  the  com- 
pany, and  that  its  liability  was  not  affected 
b^  the  fact  that  it  did  not  own  the  car. 
Kinsley  v.  Lake  Shore  &*  M.  S.  R.  Co.,  125 
Mass.  54. 

Plaintiff,  travelling  on  a  first-class  passen- 
ger ticket  on  defendant's  railway,  from  C.  to 


T.,  had  a  travelling-bag  which  he  took  with 
him  into  the  car,  not  having  offered  it  to  be 
checked,  nor  having  been  asked  to  do  so, 
or  to  give  it  in  charge  to  any  of  defendant's 
servants.  At  L.,  where  the  train  stopped 
for  refreshments,  he  left  it  on  his  seat  in  the 
car  in  order  to  retain  the  place,  and  on  his 
return  from  the  refreshment-room  it  was 
gone.  Held,  th  t  the  defendants  were  liable 
for  the  loss.  Gamble  v.  Great  IVi'slern  R. 
Co.,  24  U.  C.  Q.  B.  407.— Quoting  Stewart 
7'.  London  &  N.  W.  R.  Co.,  10  L.  T.  N.  S. 
302.  Reviewing  Batcher  v.  London  &  S. 
W.  R.  Co.,  16  C.  B.  13.— Distinguished  in 
Kerr  v.  Grand  Trunk  R.  Co.,  24  U.  C.  C.  P. 
209. 

In  an  action  brought  to  charge  a  railroad 
company,  as  a  common  carrier,  for  the  loss  of 
an  overcoat  belonging  to  a  passenger,  it  ap- 
peared that  the  coat  was  not  delivered  to 
the  defendants,  but  that  the  passenger,  hav- 
ing placed  it  on  the  seat  of  the  car  in  which 
he  sat,  forgot  to  take  it  with  him  when  he 
left,  and  that  it  was  afterward  stolen.  Held, 
that  the  defendant  was  not  liable.  Tower 
V.  Utica  <S««  S.  R.  Co.,  7  Hill  {N.  Y.)  47.— 
Adhered  to  in  Welch  v.  Pullman  Palace 
Car  Co..  16  Abb.  Pr.  N.S.  (N.  Y.)  352.  Dis- 
tinguished IN  Weeks  v.  New  York,  N.  H. 
&  H.  R.  Co.,  72  N.  y.  50.  Followed  in 
Grosvenor  v.  New  York  C.  R.  Co.,  39  N.  Y. 
34,  5  Abb.  Pr.  N.  S.  345.  Quoted  in  Glea- 
son v.  Goodrich  Transp.  Co.,  32  Wis.  85. 
Reviewed  in  The  R.  E.  Lee,  2  Abb.  (U.  S.) 

49. 

83.  Articles  dropped  from  car 
window. — A  railroad  company  is  not  re- 
sponsible for  the  loss  of  a  bag  containing 
money  and  jewelry,  carried  in  the  hand  of  a 
passenger  and  by  him  accidentally  dropped 
through  an  open  window  in  the  car,  although, 
upon  notice  of  the  loss,  it  refused  to  stop 
the  train,  short  of  a  usual  station,  to  enable 
him  to  recover  it.  Henderson  v.  Louisville 
&•  N.  R.  Co.,  31  Ant.  &^  E7ig.  R.  Cas.  93,  123 
U.  S.  dx,  Z  Sup.  Ct.  Rep.  60;  affirming  16 
Am.  Sf  Eng.  R.  Cas.  397,  20  Fed.  Rep.  430. 

84.  Money  on  person  of  passenger.* 
— A  company  is  not  liable  as  common  car- 
riers for  the  loss  of  money  in  the  possession 
of  a  passenger,  which  is  carried  without 
notice  to  the  company,  and  for  purposes  not 
connected  with  the  journey,  though  the 
loss  be  caused  by  the  negligence  of  the  com- 
pany's servants.    First  Nat.  Bank  v.  Mari- 


:    ; 


*  See  also  ante,  40. 


558 


BAGGAGE,  Ho-88. 


I 


tit  a  ^f  C.  R.  Co.,  20  Ohio  St.  259.  — A  P- 
PROVKP  IN  Illinois  C.  R.  Co.  v.  Handy,  63 
Miss.  609, 

It  seems  that  a  railroad  corporation  does 
not  undertake  to  carry  and  safely  deliver 
the  effects  of  travellers  not  delivered  into  its 
custody,  and  that,  while  money  necessary  for 
the  expense  of  a  journey  undertaken,  which 
is  carried  in  the  trunk  of  a  passenger,  is  part 
of  his  baggage,  for  the  loss  (jf  whicli  while  in 
the  custody  of  the  corporation  for  transporta- 
tion it  is  liable,  money  in  the  clothing  worn 
by  the  passenger  is  not  in  its  custody,  and 
it  is  not  chargeable  for  its  loss  unless  negli- 
gence on  its  part  is  shown.  Carpenter  v. 
Ne^v  York,  N.  H.  &*  H.  A\  Co.,  47  Am.  &> 
Eng.  R.  C^xs.  421,  124  iV.  Y.  53,  26  A^.  E.  Rep. 
277.  34  N.  Y.  S.  R.  854;  affirming  15  A'.  Y. 
S.  R.  345.  H  Daiy  457. 

85.  Company's  liability  where  pas- 
seii{;er  is  robbed.— Under  the  ordinary 
contract  of  carriage,  a  carrier  of  passengers 
makes  no  contract  and  enters  into  no  duty 
as  to  articles  of  property  of  great  value 
forming  no  pnrt  of  the  passenger's  ordinary 
baggage  or  personal  equipment ;  and  where  a 
passenger  carries  such  articles  upon  his  per- 
son, without  notice  to  or  knowledge  of  the 
carrier,  and  they  are  violently  taken  from 
him  by  robbers,  in  the  absence  of  gross  neg- 
ligence or  fraud  the  carrier  is  not  liable, 
although  negligent  in  the  exercise  of  its 
duty  of  protecting  its  passengers  from  vio- 
lence. Weeks  v.  New  York,  N.  H.  6-  H.  R. 
Co.,  72  N.  Y.  50,  28  Am.  Rep.  104;  affirming 
9  Hun  669.— Distinguishing  Tower  v. 
Utica  &  S.  R.  Co.,  7  Hill  (N.  Y.)  47- 

Whether,  where  a  passenger  is  robbed  of 
articles  of  clothing  or  usual  and  reasonable 
articles  of  personal  adornment,under  circum- 
stances charging  the  carrier  with  a  neglect 
to  perform  its  duty  of  protecting  the  pas- 
senger from  violence,  the  carrier  is  liable 
for  the  loss,  quare.  Weeks  v.  New  York, 
N.  H.  €r-  H.  R.  Co..  72  N.  Y.  50,  iZAm.Rep. 
104 ;  affirming  9  Hun  669. 

86.  Refusal  to  rce(>iv<>  parcel  as 
baggage.* — A  railway  company  cannot  re- 
fuse to  carry  as  luggage  a  package  brought 
by  a  passenger  and  made  up  in  a  railway 
wrapper  or  a  horse-rug,  on  the  ground  that 
it  consists  of  articles  of  clothing;  nor  can 
they  oblige  the  passenger  to  take  it  along 
with  him  in  the  carriage,  so  as  to  throw  on 
him  the  responsibility  for  its  safety.  Munster 


*  See  also  ante,  S9. 


V.  South  Eastern  R.  Co.,  ^Jur.  N.  S.  738,  27 
L.J.  C.  P.  308,  4  C.  B.  N.  S.  676. 

87.  Rights  of  passenger  stoppiui; 
over. — Where  a  passenger  buys  through- 
tickets  over  a  railroad  and  a  connecting 
stage  line,  on  arriving  at  the  end  of  the  rail- 
road he  has  a  right  to  have  his  baggage 
taken  to  a  hotel  where  he  waits  until  the 
next  morning  for  the  stage,  without  breaking 
the  continuity  of  through  transportation  of 
his  baggage.  Wilson  v.  Chesapeake  6-  O, 
R.  Co.,  21  Gratt.  (P'a.)  654. 

V.  DISCIOSURE  OR  COKCEALMENT  OF  VALUE 
OR  CONTENTS. 

88.  l>iity  of  passent;er  to  disclose 
value    and    nature    of    contents.  — 

It  is  the  duty  of  a  passenger  having  valu- 
ables in  his  trunk,  and  desiring  its  trans- 
portation, to  disclose  to  the  carrier  the 
nature  and  value  of  the  contents;  and  if  the 
latter  then  cliooses  to  treat  it  as  baggage, 
without  extra  compensation,  the  liability  of 
common  carrier  will  attach,  but  not  other- 
wise. Michigan  C.  R.  Co.  v.  Carroru>,  73  ///. 
348. 

In  order  to  charge  a  railroad  company 
for  loss  of  articles  which  it  receives  in  a 
trunk  and  transports  as  baggage,  but  which 
are  not  properly  baggage,  it  must  appear 
that  the  company  at  the  time  of  shipment 
had  notice  of  the  contents  of  the  trunk. 
Texas  &^  P.  R.  Co.  v.  Capps,  2  Tex.  App. 
{Civ.  Cas.)  35. 

If  a  passenger  practises  a  fraud  on  the 
carrier  by  inducing  it  to  accept  jewelry, 
merchandise,  and  other  valuables  for  trans- 
portation as  baggage,  such  fraud  releases 
the  carrier  from  liability  as  i  common  car- 
rier. Cincinnati  6^  C.  A.  L.  R.  Co.  v. 
Marcus,  38  ///.  219.— Distinguished  in 
-Michigan  C.  R.  Co.  v.  Carrow,  73  111.  348. 
Followed  in  Michigan  S.  &  N.  I.  R.  Co. 
V.  Oehm,  56  111.  203. 

Where  a  valise  is  accepted  by  a  carrier  as 
baggage,  without  notice  that  it  contains  in 
addition  to  baggage  proper  a  large  amount 
of  gold,  the  carrier  is  not  liable  for  the  loss 
of  the  gold,  though  stolen  by  one  of  its 
^j^ents.     Doy/e  v.  Riser,  6  /nd.  242. 

Where  a  passenger  knows  that  a  carrier 
has  a  fixed  rate  of  charges  for  transporting 
gold,  surreptitiously  obtaining  the  carrier  to 
take  charge  of  gold  as  baggage  is  such 
fraud  as  will  release  the  company  from 
liability  in  case  of  a  loss  ;  but  if  the  carrier 
knows  that  the  baggage  contains  gold,  and 


'' 


BAGGAGE,  80. 


609 


A/p. 


charges  as  for  extra  baggage,  there  is  no 
fraud,  and  the  company  is  liable  for  a  loss. 
Htllman  v.  Holladay,  i  Woohv.  {U.  S.)  365. 

If  a  passenger  on  a  railway  brings  a  trunk 
to  the  depot  which  contains  jewelry  of  the 
value  of  $30,000,  and  gives  no  notice  of  its 
contents,  and  has  the  same  checked  as  ordi- 
nary baggage,  and  there  is  nothing  about 
the  trunk  indicating  its  contents,  and  the 
same  is  consumed  by  fire  while  being  car- 
ried, the  company  not  being  guilty  of  gross 
negligence,  it  cannot  be  held  liable.  Michi- 
gan C.  R.  Co.  V.  Carrow,  73  ///.  348. 

Where  a  person,  under  the  pretence  of 
having  baggage  transported,  places  in  the 
hands  of  the  agents  of  a  railroad  jewelry 
and  other  valuables,  without  notifying  them 
of  its  character  and  value,  he  practises  a 
fraud  upon  the  company  which  will  prevent 
his  recovery  in  case  of  a  loss,  unless  it  occurs 
through  gross  negligence.  Afichigan  C.  K, 
Co.  v.  Carrow,  73  ///.  348. 

Where  goods  are  shipped  as  freight,  if  the 
shipper  use  fraud  or  artifice  to  deceive  the 
carrier,  whereby  his  risk  is  increased  or  his 
care  and  vigilance  are  lessened,  the  carrier  is 
relieved  from  liability.  There  is  a  distinc- 
tion with  regard  to  money  carried  as  part  of 
freight  and  money  carried  as  part  of  bag- 
gage. Missouri Pac.  K.  Co.  v.  York,  {Tex.) 
18  Am.  &-  Eng.  R.  Cas.  623. 

As  a  condition  precedent  to  any  contract 
for  the  transportation  of  baggage,  the  car- 
rier may  require  information  from  the  pas- 
senger as  to  its  value,  and  may  demand  extra 
compensation  for  any  excess  beyond  that 
wliich  the  passenger  may  reasonably  de- 
mand to  have  transported  as  baggage  under 
the  contract  to  carry  the  person.  New 
York  C.  &*  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S. 
24,  21  Am.  Ry.  Rep.  428. 

The  carrier  may  be  discharged  from  lia- 
bility for  the  full  value  of  the  passenger's 
baggage  if  the  latter  by  any  device  or  arti- 
fice puts  off  inquiry  as  to  such  value, 
whereby  is  imposed  upon  the  carrier  a 
responsibility  beyond  what  it  is  bound  to 
assume  in  consideration  of  the  ordinary 
fare  charged  for  the  transportation  of  the 
person.  New  York  C.  6»»  H.  R.  R.  Co.  v. 
Fraloff,  100  U.S.  24,  21  Am.  Ry.  Rep.  428. 

A  rule  of  a  railroad  company  that  it 
will  carry  as  baggage  only  the  passenger's 
wearing-apparel  on  passenger  trains  is  rea- 
sonable \  and  where  plaintiff,  who  had  been 
in  the  habit  of  carrying  his  peddler's  ware 
as   baggage,  declined  to  certify  that    his 


trunk  contained  nothing  except  wearing 
apparel,  the  company  had  a  right  to  decline 
to  carry  the  trunk,  and  he  is  not  entitled  to 
damages  therefor.  Norfolk  &■•  IV.  R.  Co.  v. 
Irvine,  84  Va.  553,  i  L.  R.  A.  110,  5  S.  E. 
Rep.  532.— Quoting  Phelps  v.  London  & 
N.  W.  R.  Co.,  19  C.  B.  N.  S.  321. 

8U.  NeccMHity  of  inquiry  uii  part  of 
carrier. — (i)  Such  inquiry  necessary.  —  In 
the  absence  of  legislation,  or  of  special 
regulations  by  the  carrier,  or  of  conduct  by 
the  passenger  misleading  the  carrier  as  to 
the  value  of  baggage,  the  failure  of  the  pas- 
senger unasked  to  disclose  the  value  of  his 
haggage  is  not  in  itself  a  fraud  upon  the 
carrier.  New  York  C.  &^  H.  R.  R.  Co.  v. 
Fraloff,  100  {/.S.  24,  21  Ain.Ry.Rep.  428. 

A  person  who  sends  bagyage  by  a  com- 
mon carrier  is  not  bound  to  declare  its  value 
unless  required  to  do  so,  and  in  the  absence 
of  proof  to  the  contrary  this  will  be  pre- 
sumed, in  an  action  in  the  courts  of  New 
Jersey,  to  be  the  rule  of  law  in  that  state. 
Brown  v.  Camden  &•  A.  R.  Co.,  83  Pa.  St. 
316,  IS  Am.  Ry.  Rep.  421.— Reviewed  in 
Ryan  v.  Missouri,  K.  &  T.  R.  Co.,  23  Am  & 
Eng.  R.  Cas.  703,  65  Tex.  13. 

A  passenger,  whose  trunk  contained  a 
quantity  of  coin,  paid  the  charge  for  extra 
baggage  demanded  by  the  baggage-master, 
but  did  not  inform  him  that  the  trunk  con- 
tained coin,  in  addition  to  clothing.  Held, 
in  an  action  against  the  carrier  for  the  loss  of 
the  trunk,  that  the  carrier  was  liable  for  the 
value  of  the  coin.  Baldraff  v.  Camden  &» 
A.  R.  Co.,  2  Fed.  Cas.  507. 

Where  a  trunk  of  a  passenger  contains 
specie  it  is  not  incumbent  on  him  to  inform 
the  carrier  of  its  contents,  unless  inquired 
of,  notwithstanding  the  advertisement  of 
the  carrier,  that  passengers  are  "  prohibited 
from  taking  anything  as  baggage  but  their 
wearing-apparel,  which  will  be  at  the  risk  of 
the  owner ; "  and  where  the  extra  weight  of 
the  passenger's  baggage,  including  the 
trunk,  was  paid  for,  and  the  agents  of  the 
carrier  took  charge  of  \t—held,  that  it  was 
immaterial  whether  the  trunk  was  to  be 
viewed  as  baggage  or  freight,  and  that  the 
carrier  was  responsible  for  its  loss  through 
the  negligence  or  fraud  of  its  agent.  Cam- 
den &-■  .-/.  R.  Co.  V.  Baldauf,  16  Pa.  Si.67.— 
Distinguished  in  Pennsylvania  C.  R.  Co. 
V.  Schwarzenberger,  45  Pa.  St.  208. 

An  emigrant  shipped  a  quantity  of  gold 
coin  packed  in  the  centre  of  a  box  of  cloth- 
ing and  household  goods,  //eld,  that  the  car- 


m 
p 


660 


BAGGAGE,  00-03. 


I 


|-'-" 


w 


I 


1 .1 


riers  were  not  liable  for  a  loss  if  there  were 
no  circumstances  to  lead  them  to  infer  that 
the  box  contained  coin;  but  if  the  carriers 
knew  that  emigrants  were  in  the  habit  of 
transporting  gold  put  up  in  a  similar  way, 
and  might  reasonably  have  inferred  that 
plaintiff's  box  contained  money,  then  it  was 
ihcir  duty  to  inquire  as  to  its  contents,  and 
failing  to  do  so  they  would  be  liable  as  car- 
riers, /^u/ir  V.  Michi^ixn  C.  A'.  Co.,  i  /J/ss. 
{('.  S.)  3S.— DiSAPi'RovEiJ  IN  Humphreys 
I'.  Perry,  148 'J.  S  627.  DisTiNGUisHEU  in 
Michigan  C.  R.  Co.  v.  Carrow,  73  111.  348. 

(2)  Sue  A  inquiry  untuxessary.—A  carrier 
of  passengers  is  not  bound  to  inquire  as  to 
the  contents  of  a  trunk  delivered  to  it  as 
ordinary  baggage,  such  as  travellers  usually 
carry,  even  if  the  same  is  of  considerable 
weight,  but  may  rely  upon  the  representa- 
tion, arising  by  implication,  that  it  contains 
noliiiiifj  more  than  baggage.  M.'higan  C. 
A'.  Co.  V,  CnrrtKo,  73  ///.  348. 

After  buying  a  railroad  ticket  atravelling 
salesman  for  a  jewelry  firm  asked  the  agent 
to  check  his  trunk,  but  without  informing 
him  that  it  contained  jewelry,  and  without 
any  inquiry  on  the  part  of  the  agent  as  to 
what  it  contained.  The  trunk  was  found  to 
be  overweight  as  baggage,  and  an  extra 
charge  was  paid  and  the  trunk  checked. 
The  trunk  was  so  constructed  as  to  show 
that  it  was  a  jeweller's  sample-trunk.  The 
carrier  had  been  in  the  habit  of  checking 
similar  trunks,  but  there  was  no  evidence  to 
show  that  it  knew  when  doing  so  what  the 
trunks  contained.  NM,  that  the  agent 
was  not  bound  to  inquire  what  the  trunk 
contained,  that  the  evidence  was  not  suffi- 
cient to  show  that  he  had  knowledge  of  its 
contents,  or  had  reason  to  believe  it  con- 
tained jewelry,  and  that  the  company  there- 
fore was  not  liable  for  a  loss.  Humphrcyi  v. 
Perry,  54  Am.  &»  Eng.  R.  Cas.  29,  148  (/.  S. 
627,  1 3  Sup.  Ct.  Rep.  711;  reversing  40  Am. 
&*  Eng.  R.  Cas.  636.— Disapproving  Kuter 
V.  Michigan  C.  R.  Co..  i  BIss.  (U.  S.)  35; 
Minterr/.  Pacific  R.  Co.,  41  Mo.  503;  Han- 
nibal &  St.  J.  R.  Co.  V.  Swift,  12  Wall.  (U.  S.) 
262 ;  Stoneman  v.  Erie  R.  Co.,  52  N.  Y.  429  ; 
Slonian  7>.  Great  Western  R.  Co.,  67  N.  Y. 
208;  Millard  z/.  Missouri,  K.  &  T.  R.  Co.,  86 
N.  Y.  441 ;  Texas  &  P.  R.  Co.  v.  Capps, 
2  Tex.  App.  (Civ.  Cas.)  35 ;  Butler  v. 
Hudson  River  R.  Co.,  3  E.  D.  Smith  (N.  Y.) 
571  ;  New  York  C.  &  H.  R.  R.  Co.  v.  Fra- 
lofT,  100  U.  S.  24 ;  Talcott  v.  Wabash  R. 
Co.,  21  N.  Y.  Supp.  318. 


00.  Reqiiiriiii;  tiflidavil  hn  iu  cou" 
teiits.—A  passenger  In  the  habit  of  carry- 
ing niercliandise  in  his  trunk  against  the 
carrier's  rules  may  be  required  to  prove  con- 
tents as  a  condition  of  receiving  and  check- 
ing it.  Norfolk  &•  W.  R.  Co.  v.  Irvine,  yj 
Am.  iS-  Eng.  R,  Cas.  227,  85  Va.  217,7  ^^ 
E.  h't'P-  233. 

Whether  a  i.i  Iroad  company  may  or 
may  not  reasonably  require  a  peddler  who 
has  been  in  the  habit  of  transporting  his 
wares  as  baggage  to  sign  an  affidavit  as 
to  the  contents  of  his  trunk,  the  court  will 
not  entertain  an  action  at  his  instance  when 
it  appears  that  he  had  taken  the  trunk  with 
nothing  in  It  except  wearing  apparel,  and 
insisted  that  it  should  be  checked  for  the 
patent  purpose  of  having  the  agent  refuse 
to  check  it  unless  he  should  sign  an  affidavit 
as  to  its  contents,  and  of  making  such  re- 
fusal the  foundation  for  an  action  against 
the  company.  Norfolk  &•  W,  R.  Co.  v.  Ir- 
vine, 37  Am.  &^  Eng.  R.  Cas.  227,  85  Va. 
217.7  S.E.  Rep.  233. 

VI.    THE  OARBIEB'8  LIEN  UPON  BAOOAOE. 

01.  For  passenger's  fare. —The  fare 
paid  by  a  passenger  to  a  carrier  includes 
transportation  of  his  baggage ;  and  the  car- 
rier has  a  lien  thereon  for  the  fare,  and  may 
detain  the  same  until  payment  thereof. 
Roberts  v.  Koehler,  12  Sawy.  (d/.  6^)  252,  30 
Fed.  Rep.  94. 

A  passenger  purchased  an  unconditional 
ticket  for  a  passage  on  the  Oregon  &  C.  rail- 
way from  P.  to  A.,  and.  after  his  ticket  had 
been  taken  up  by  the  conductor,  stopped 
over  at  an  intermediate  point  without  his 
consent,  leaving  his  baggage  to  be  carried  on 
to  A.  On  the  next  day  he  got  on  the  train 
to  A.  but  refused  to  pay  the  fare  thereto, 
when  the  conductor  allowed  him  to  remain 
on  the  train,  but  refused  to  deliver  him  his 
baggage  at  A.  until  he  paid  the  additional 
fare.  Held,  that  the  journey  from  P.  to  A. 
was  performed  under  one  contract,  modified 
by  the  action  of  the  passenger  in  stopping 
over,  whereby  he  incurred  an  additional 
charge  for  his  transportation,  for  which  the 
carrier  had  a  lien  on  the  baggage  so  long  as 
it  remained  in  its  possession.  Roberts  v. 
Koehler,  30  Fed.  Rep.  94,  12  Sawy.  (17.  5.) 
252. 

03.  For  carriage  of  baggage.— If  a 
passenger  holding  an  excursion  ticket  which 
does  not  allow  him  to  carry  higga^je  has  a 


^ 


BAGGAGE,  03-»7. 


561 


portmanteau  placed  in  the  luggage-van, 
without  inforniing  the  porter  that  lie  was 
travelling  on  uii  excursion  ticket,  he  im- 
pliedly contracts  for  the  carriage  of  the 
portmanteau  for  hire,  and  the  company  is 
justified  in  detaining  it  till  the  carriage  is 
paid.  Rumsey  v.  North  Eastern  R.  Co.,  14 
C.  B.  N.  S.  641,  32  L.J.  C.  P.  244,  II  W.  R. 
911,  8  L.  T.  N.  S.  666,  10  Jur.  N.  S.  208. 

03.  For  advance  uliari;c8  paid.— A 
carrier  who  had  carried  plaintifT  into  this 
country  agreed  to  forward  her  baggage.  He 
sent  it  by  another  carrier,  in  care  of  defend- 
ant, who  advanced  certain  charges  thereon. 
HelJ,  that  \  ?.  had  a  lien  on  the  baggage  for 
such  adv.iin.i;s,  there  being  no  proof  that  the 
charges  had  been  paid  to  the  first  ciinier. 
Nordemeyer  v.  Loescher,  i  Hilt.  {N.  Y.)  499. 

04.  Liability  for  safety  of  baggatfe 
held  under  lien.— A  railroad  is  liable  for 
articles  taken  from  a  trunk  which  it  was 
holding  under  a  lien  for  the  payment  of  the 
fare  of  a  passenger.  Southwestern  R.  Co.  v. 
Bent  ley,  51  Ga.  311. 

yil.  IIMITATIOK  OF  LIABIIITT. 

05.  Power  to  limit  the  common- 
law  liability.* — Carriers  may  limit  their 
liability  for  the  loss  of  baggage  intrusted  to 
them  not  resulting  from  their  negligence. 
Laitig  V.  Colder,  8  Pa.  St.  479. — Following 
Atwood  V.  Reliance  Transp.  Co.,  9  Watts 
(Pa.)  87;  Bingham  v.  Rogers,  6  W  Us  &  S. 
(Pa.)  495.— Disapproved  in  Indianapolis, 
P.  &  C.  R.  Co.  V.  Allen,  31  Ind.  394.  FOL- 
LOWED in  Philadelphia  &  R.  R.  Co.  v. 
Anderson,  6  Am.  &  Eng.  R.  Cas.  407,  94  Pa. 
St.  351,  39  Am.  Rep.  787. 

U  is  competent  for  passenger  carriers  by 
specific  regulations  which  are  reasonable 
and  not  inconsistent  with  any  statute  or  its 
duties  to  the  public,  and  which  are  distinct- 
ly brought  to  the  knowledge  of  the  pas- 
senger, to  protect  themselves  against  liabil- 
ity as  insurers  of  baggage  exceeding  a  fixed 
amount  in  value,  except  upon  additional 
compensation  proportioned  to  the  risk. 
New  York  C.  &*  H.  R.  R.  Co.  v.  Fraloff, 
100  U.  S.  24.— Followed  in  The  Majestic, 
56  Fed.  Rep.  244. 

It  is  competent  for  a  commoii  carrier  to 
contract  for  exemption  from  liability  for 
jewelry  carried  as  baggage,  unless  its  value 
be  made  known  and  an  extra  charge  paid 


*  Limiting  liability  for 
Am.  &  Eng.  R.  Cas.  292. 
\  D.  R.  D.-3'^.. 


e,  see  note,  13 


thereon.  The  Bermuda,  27  Fed.  Rep.  476, 
23  Blatchf.  {U.  S.)  5S4.--DlSTI.\GUISHING 
Lebeau  v.  General  S.  Nav.  Co,,  L.  R.  8  C. 
P.  88. 

Common  carriers  can  only  relieve  them- 
selves from  their  common-law  liability,  as  to 
baggage,  by  express  contract  and  not  by 
words  stamped  on  a  check,  and  in  no  case 
can  they  relieve  themselves  by  contract  for 
u  loss  resulliii).,  from  a  want  of  care.  Indi- 
anapolis iS-  C.  A'.  Co.  V.  Cox,  29  Ind.  360. — 
Disapproving  Moore  v.  Evans,  14  Barb. 
(N.Y.)  ^M. 

00.  '.Vhat  rcgiilatijus  are  reason- 
able^.— A  railw.v  coinpany  is  not  precluded 
from  making  i,yvj  idl  arrangements  for  the  ex- 
clusion of  l.iggage  by  cheap  excursion  trains, 
although  its  charter  requires  it  to  carry  a 
certain  amount  uf  passenger  luggage  with- 
out extra  charge.  Rumsey  ".  North  Eastern 
R.  Co.,  14C.B.  N.  S.  641,  32  L.J.  C.  P.  244, 
II  W.  R.  911,  8  Z.  T.  N.  S.  666,  10  Jur.  N. 
S.  208. 

At  the  time  a  travelling  salesman  shipped 
his  samples  as  baggage  he  paid  an  excess- 
baggage  charge,  and  received  in  addition  to 
the  ordinary  brass  checks  an  excess-baggage 
coupon  ticket,  which  expressly  provided  that 
it  should  be  surrendered  with  the  check  in 
order  to  get  the  baggage.  Held,  that  the 
requirement  providing  for  a  surrender  of 
the  excess-baggage  coupon  was  reasonable 
and  proper,  and  not  an  infringement  of  the 
statute  providing  that  common  carriers  shall 
not  limit  their  common-law  liability.  Texas 
Mex.  R.  Co.  V.  Willis,  3  Tex.  App.  (Civ. 
C'rtJ.)  94. 

07.  What  limitations  are  unrea- 
sonable.—The  limitation  of  the  liability  of 
the  carrier,  authorizing  recovery  for  wearing- 
apparel  to  the  extent  of  one  hundred  dollars, 
and  no  more,  is  not  valid.  Davis  v.  Chicago, 
R.  /.  6-  P.  R.  Co.,  83  fowa  744, 49  N.  W.  Rep. 

77. 

A  regulation  of  a  carrier  that  it  would  not 
be  responsible  for  any  passenger's  luggage 
unless  fully  and  properly  addressed  with  the 
name  and  destination  of  the  owner  thereon, 
is  not  a  just  and  reasonable  condition, 
within  the  Railway  and  Canal  Trafiic  Act, 
1854,  §  7,  and  will  not  be  enforced.  Cutler  v. 
North  London  R.  Co.,  31  Am.SfEng.R.  Cas. 
105,  19  Q.  B.  D.  64. 

A  railway  company  has  no  power  to  make 
a  by-law  relieving  itself  from  responsibility 
for  the  care  of  baggage  unless  it  is  booked 
and  paid  for,  in  contravention  of  its  act  re- 


962 


BAGGAGE,  98. 


I 

a 


I 


quiring  it  to  carry  personal  effects  as  bag- 
gage with  the  liability  of  the  common  car- 
rier. IVilliams  v.  Great  Western  R.  Co.,  lo 
Exch.  15. 

Plaintiff's  ticket  for  transportation  from 
Hamburg  to  New  Yorlc  City,  issued  by  de- 
fendant, contained  a  condition  limiting  de- 
fendant's liability  for  loss  of  baggage  to  fifty 
dollars.  Plaintiff's  baggage,  consisting  of 
wearing-apparel  for  herself  and  two  children, 
and  valued  at  $283,  was  lost  on  the  way. 
Held,  that  a  finding  by  a  jury  that  the  pro- 
vision limiting  defendant's  liability  was  un- 
reasonable was  right.  Glovtnsky  v.  Cunard 
Steamship  Co.,  4  Misc.  (N.  Y.)  266. 

The  plaintiff  was  a  season-ticket  holder 
on  the  defendants'  line  from  B.  to  K.  under 
a  special  contract,  by  which  he  undertook 
to  abide  by  all  the  rules,  regulations,  and 
by-laws  of  the  defendants.  One  of  such 
regulations  was  that  the  defendants  would 
not  be  responsible  for  any  passenger's  lug- 
gage unless  fully  and  properly  addressed 
with  the  name  and  destination  of  the  owner. 
The  plaintiiT  having  with  him  a  bag,  which 
was  not  so  addressed,  saw  it  labelled  for  K. 
by  one  of  the  defendants'  servants;  he  left 
the  train  at  C,  an  intermediate  station,  and 
proceeded  to  K.  by  a  subsequent  train ;  on 
his  arrival  at  K.  his  bag  was  missing. 
There  was  no  evidence  that  the  bag  ever 
reached  K.  Held,  that  the  regulation  of 
the  defendants  was  not  a  just  and  reasonable 
condition  within  §  7  of  the  R.  &  C.  Tr.  Act, 
1854  (17  &  18  Vic.  c.  31),  and  could  not  be 
enforced  against  the  plaintiff.  Cutler  v. 
North  London  R.  Co.,  19  Q.  B.  D.  64,  5  Ry. 
&*  C.  T.  Cas.  ix. 

08.  Effect  of  condition  or  notice 
printed  on  ticket. — (i)  General  rules. — 
To  restrict  the  liability  of  a  railroad  com- 
pany as  a  common  carrier  for  the  loss  of 
the  baggage  of  a  passenger,  there  must  be 
proof  of  actual  notice  to  the  passenger  of 
such  restriction  before  the  cars  are  started ; 
and  an  indorsement  on  the  ticket  given  to 
the  passenger  is  not  enough,  unless  it  is 
shown  that  he  knew  its  purport  before  the 
cars  started.  Wilson  v.  Chesapeake  &•  O.  R. 
Co.,  21  Graft.  (Va.)  654.  Mauritz  v.  New 
York,  L.  E.  &*  W.  R.  Co.,  21  Am.  &*  Eng. 
R.  Cas.  286.  23  Fed.  Rep.  765. 

Discovery  of  the  condition  after  the  jour- 
ney has  commenced  will  not  affect  the 
rights  of  the  passenger.  Raivson  v.  Pentt' 
sylvania  R.  CV.,48  N.  K.  212,  3  Am.  Ry.  Rep. 
528 ;  affirming  2  Abb.  Pr.  N.  S.  220.— Fol- 


lowing Blossom  V.  Dodd,  43  N.  Y.  264.— 
Distinguished  in  Elmore  v.  Sands,  54 
N.  Y.  512.  Followed  in  Kent  v.  Baltimore 
&  O.  R.  Co.,  31  Am.  &  Eng.  R.  Cas.  125,  45 
Ohio  St.  284,  10  West.  Rep.  459,  12  N.  E. 
Rep.  798- 

Such  a  notice  printed  on  the  back  of  a 
ticket  does  not  raise  a  legal  presumption 
that  the  passenger  knew  of  and  assented  to 
such  condition  before  the  journey  was  com- 
menced ;  and  whether  the  passenger  did 
have  actual  notice  of  such  condition  before 
starting  on  the  journey  is  a  question  for  the 
jury.  Brown  v.  Eastern  R.  Co.,  11  Cush. 
(Mass.)  97.  —  Distinguishing  Austin  v, 
Manchester,  S.  &  L.  R.  Co.,  10  C.  B.  454 ; 
Shaw  V.  York  &  N.  M.  R.  Co.,  6  Railw. 
Cas.  87,  13  Q.  B.  347.— Distinguished  im 
Grace  v.  Adams,  100  Mass.  505;  Fonseca 
V.  Cunard  Steamship  Co.,  153  Mass.  553; 
Malone  v.  Boston  &  W.  R.  Co.,  12  Gray 
(Mass.)  388 ;  Kent  v.  Baltimore  &  O.  R.  Co., 
31  Am.  &  Eng.  R.  Cas.  125,  45  Ohio  St. 
284,  10  West.  Rep.  459,  12  N.  E.  Rep.  798. 
Quoted  in  Blossom  v.  Dodd,  43  N.  Y.  264. 

The  fact  that  a  passenger  receives  a  ticl;et, 
printed  on  the  face  "Look  on  the  back," 
where  there  is  a  provision  limiting  the  car- 
rier's liability,  does  not  raise  a  legal  con- 
clusion that  the  passenger  had  notice  of 
such  provision.  Malone  v.  Boston  &•  W. 
R.  Corp.,  12  Gray  (Mass.)  388. 

Words  on  a  railroad  ticket  or  baggage- 
check  limiting  the  liability  of  the  carrier  to 
a  specific  amount  for  loss  of  baggage  are 
not  binding  on  a  passenger  unless,  with 
knowledge  of  such  limitation,  he  agrees  to 
it ;  and  the  burden  of  showing  such  agree- 
ment is  on  the  carrier.  Baltimore  &•  O. 
R.  Co.  V.  Campbell,  3  Am.  <S-  Eng.  R.  Cas. 
246,  36  Ohio  St.  647,  38  Am.  Rep.  617.— 
Following  Welsh  v.  Pittsburg,  Ft.  W.  &  C. 
R.  Co.,  10  Ohio  St.  65 ;  Cleveland,  P.  &  A. 
R.  Co.  V.  Curran,  19  Ohio  St.  1  ;  Cincinnati, 
H.  &  D.  R.  Co.  V.  Pontius,  19  Ohio  St.  221 ; 
Union  Exp.  Co.  z/.  Graham,  26  Ohio  St.  595; 
United  States  Exp.  Co.  v.  Backman,  28  Ohio 
St.  144 ;  Gaines  v.  Union  T.  &  I.  Co.,  28  Ohio 
St.  418;  Pittsburgh,  C.  &  St.  L.  R.  Co.  v. 
Barrett,  36  Ohio  St.  448.  Not  following 
Burke  v.  South  Eastern  R.  Co.,  5  C.  P. 
Div.  I.— Followed  in  Kent  v.  Baltimore 
&  O.  R.  Co.,  31  Am.  &  Eng.  R.  Cas.  125,  45 
Ohio  St.  284.  10  West.  Rep,  457,  12  N.  E. 
Rep.  7<)i.— Kansas  City,  St.  J.  6-  C.  B.  R. 
Co.  V.  Rodebaugh,  34  Am.  &*  Eng.  R.  Cas. 
919,  38  Kan.  45,  15  Pac.  Rep.  899. 


^jr 


BAGGAGE,  09. 


563 


Where  bills  issued  by  a  railway  company 
announce  that  luggage  taken  on  excursion 
trains  is  at  the  passenger's  risk,  the  com- 
pany is  not  liable  for  the  loss  of  the  luggage 
of  a  passenger  who  took  a  ticket  referring 
him  to  such  Ijills,  although  he  did  not  see 
them  or  know  of  the  condition.  Stewart 
V.  London  &>  N.  W.  K.  Co.,  3  H.  &'  C.  135, 
xojur.  N.  S.  805,  33  L.J.  Exch.  199,  12  W. 
Ji.689,  10  L.  T.  N.  S.  302.— Overruled  in 
Cohen  v.  South  Eastern  R.  Co.,  L.  R.  2  Exch. 
D.  253,  46  L.  J.  Exch.  417,  36  L.  T.  N.  S.  130, 
25  W.  K.  475. 

(2)  Illustrations. — Z.  took  a  through 
ticket  from  the  C.  C.  station  of  the  S.  E.  R. 
Co.  to  P. ;  the  ticket  was  in  three  coupons — 
(i)  from  L.  to  D. ;  (2)  from  D.  to  C. ;  (3) 
from  C.  to  P.  His  luggage  consisted  of  a 
portmanteau  and  a  hat-box,  which  were 
registered  through  to  P.  Upon  the  ticket 
was  printed  the  following  condition :  "  The 
company  is  not  responsible  for  loss  or  de- 
tention of  or  injury  to  luggage  of  the  pas- 
senger travelling  by  this  through  ticket, 
except  while  the  passenger  is  travelling  by 
the  company's  trains  or  boats."  The  port- 
manteau was  lost  on  the  journey  between 
C.  &  P.  In  an  action  for  the  loss — held, 
thac  the  R.  &  C.  Tr.  Act,  1854,  only  applied 
to  the  traffic  of  the  company  on  their  own 
line,  and  therefore  the  company  was  at  lib- 
erty to  make  the  special  contract  contained 
in  the  ticket.  Zunz  v.  South  Eastern  R.  Co., 
L.  R.  4  Q.  B.  539,  38  L.  J.  Q.  B.  209,  3  Ry. 
&*  C.  T.  Cas.  xix. 

The  plaintiff  purchased  from  an  agent  a 
non-transferable  return  ticket  which  had 
printed  on  it  a  number  01  conditions,  one 
of  which  limited  the  liability  of  the  com- 
pany for  baggage  to  wearing  apparel  not 
exceeding  $100  in  value,  and  another  re- 
quired tlie  signature  of  the  passenger  for 
the  purpose  of  identification  and  to  prevent 
a  transfer.  The  agent  obtained  the  plain- 
tiff's signature  to  the  ticket,  explaining  that 
it  was  for  the  purpose  of  identification,  but 
did  not  read  or  explain  to  her  any  of  the 
conditions ;  and  having  sore  eyes  at  the  time 
siie  was  unable  to  read  them  .  .rself.  An 
accident  happened  to  the  train,  and  plain- 
tiff's baggage,  valued  at  over  |iooo,  caught 
lire  and  was  destroyed.  In  an  action  for 
damage  for  such  loss — held,  that  there  was 
sufficient  evidence  that  the  loss  of  the  bag- 
gage was  caused  by  defendant's  negligence, 
and  that,  the  special  conditions  printed  on 
the  ticket  not  having  been  brought  to  tlu; 


notice  of  plaintiff,  she  was  not  bound  by 
them  and  could  recover  the  full  amount  of 
her  loss  from  the  company.  Bate  v.  Cana- 
dian Pac.  R.  Co.,  18  Can.  Sup.  Ct.  697. 

A  ticket  contained  a  condition  limiting 
the  liability  of  the  company  for  loss  of  bag- 
gage to  $100,  below  which  was  a  contract 
agreeing  to  the  condition  in  consideration 
of  the  reduced  rate  at  which  the  ticket  was 
sold,  with  a  blank  space  for  the  purchaser's 
signature.  The  agreement  was  not  signed, 
and  it  was  shown  that  the  ticket  was  not 
sold  at  a  reduced  rate.  Held,  that  there  was 
no  agreement  by  the  purchaser  to  the  con- 
dition. Anderson  v.  Canadian  Pac.  R.  Co., 
40  Am.  &^  Eng.  R.  Cas.  624,  17  Ont.  747. 

99.  Stipulatious  or  coiuUtious  in 
receipts  for  bajfgage.— A  mere  accept- 
ance of  a  receipt  containing  a  memorandum, 
attempting  to  limit  the  carrier's  liability  as 
to  baggage  to  $100,  does  not,  as  a  matter 
of  law,  constitute  a  contract  between  tiie 
carrier  and  the  passenger,  where  the  pas- 
senger's attention  is  not  called  to  such 
memorandum  and  he  does  not  assent 
thereto.  Madan  v.  Sherard,  73  A^.  Y.  329 ; 
affirming  10  /.  &*  S.  353.  —  Following 
Blossom  V.  Dodd,  43  N.  Y.  264. — Reviewed 
IN  London  &  L.  Fire  I  >  .  Co.  v.  Rome,  W. 
&  O.  R.  Co.,  23  N.  Y.  Supp.  231,  68  Hun 
598,  52  N.  Y.  S.  R.  s^i.  —  Limburger  v. 
Westcott,  49  Barb.  {IV.  Y.)  283. 

Proof  that  an  express  company  gave  a 
receipt  for  baggage,  at  night,  in  a  dimly- 
lighted  and  rapidly-running  car,  which  at- 
tempts to  limit  the  carrier's  liability,  is  not 
sufficient  to  constitute  a  contract,  where 
the  provision  is  obscurely  printed  and  there 
is  nothing  to  show  that  the  passenger  as- 
sented to  it.  Blossom  v.  Dodd,  43  N.  Y.  264. 
—Distinguishing  Grace  v.  Adams,  loo 
Mass.  505 ;  Van  Toll  v.  South  Eastern  R. 
Co.,  104  E.  C.  L.  75.  QcOTiNG  Butler  v. 
Heane,  2  Camp.  415;  Brown  w.  Eastern  R. 
Co.,  1 1  Cush.  (Mass.)  97. — Madan  v.  Shcr- 
rard,  \oJ.  &*  S.  {N.  Y.)  353.— Distinguish- 
ing Grace  v.  Adams,  100  Mass.  505;  Van 
Toll  V,  South  Eastern  R.  Co.,  104  E.  C.  L. 
75.  Following  Blossom  v.  Dodd,  43  N. 
Y.  264. 

Notices  attempting  to  limit  a  carrier's 
liability  for  lost  goods  or  baggage  are  to  be 
construed  most  strongly  against  the  carrier. 
So  a  provision  in  a  receipt  attempting  to 
limit  such  liability  to  S'oo  "on  any  article" 
will  be  construed  not  as  a  limitation  of  lia> 
liilitv  to  that  amount  for  the  whole  contents 


:\^ii 


564 


BAGGAGE,  lOO,  lOl. 


1 

:  fe 
13 


I 


of  a  trunk,  but  as  a  limitation  to  that  amount 
on  each  article  that  may  be  in  the  trunk. 
EarU  V.  Cadmus,  2  Daly  (N.  Y.)  237,  /fop- 
kins  V.  Westcott,  6  Blatchf.  {C/.  S.)  64. 

After  a  lady  had  left  her  baggage  at  the 
ofliceof  a  carrier  and  given  directions  about 
where  it  should  be  taken,  and  received  a 
check  therefor,  she  turned  back  and  asked  a 
clerk  to  give  her  a  receipt,  which  was  given, 
containing  a  provision  attempting  to  limit 
the  carrier's  liability  to  $!oo,  but  which  pro- 
vision was  not  read  by  her  until  after  a  loss 
of  her  baggge.  //e/d,  that  there  was  nothing 
showing  such  assent  thereto  as  would  con- 
stitute an  agreement,  and  that  she  was  there- 
fore entitled  to  recover  full  value  for  the 
baggage  lost.  Woodruff  \.  Sherrard,  9  Hun 
(N.  K.)  322. 

100.  Notices  posted  at  stations,  etc. 
— Stage-coach  proprietors  are  answerable  as 
common  carriers  for  the  baggage  of  passen- 
gers, and  cannot  restrict  their  liability  by  a 
general  notice  that  "the  baggage  of  passen- 
gers is  at  the  risk  of  the  owners."  Hollister 
V.  Nffwlen,  19  Wend.  {N.  F.)  234.  Camden 
&»  A.  R.  &*  T.  Co.  V.  Belknap,  21  Wend. 
(N.  K)  354. 

Notice  in  the  usual  form,  "  All  baggage  at 
the  risk  of  the  owners, '  though  brought 
home  to  th-i  knowledge  of  the  passengers, 
will  not  in  such  cases  excuse  the  company. 
Common  carriers  cannot,  by  such  notice, 
excuse  themselves  from  thj  implied  agree- 
ment that  the  vessel,  coach,  or  other  vehicle 
for  the  transportation  of  goods  or  baggage 
is  sufficient  for  the  business  in  which  it  is 
employed.  Camden  &*  A.  R.  (i^  T.  Co.  v. 
Burke,  13  Wend.  {N.  K)  ^11.— Followed 
IN  Potts  V.  Wabash,  St.  L.  &  P.  R.  Co.,  17 
Mo.  App.  394. — Hollister  v.  Nowlen,  19  Wend. 
(N.  Y.)  234.  Distinguished  in  Kimball 
V.  Rutland  &  B.  R.  Co.,  26  Vt.  247.  Fol- 
lowed IN  Camden  &  A.  R.  &  T.  Co.  v. 
Belknap,  21  Wend.  (N.  Y.)  354.  Reviewed 
in  Slocum  7'.  Fairchild,  7  Hill  (N.  Y.)  292. 

A  passenger's  luggage  cannot  be  said  to 
be  off  the  line  of  a  railway  company  until  it 
is  out  of  its  custody  and  in  the  custody  of 
some  person  responsible  for  its  loss,  within 
the  meaning  of  a  notice  that  the  company 
does  not  hold  itself  responsible  for  any  loss 
arising  "  off  its  lines."  Kent  v.  Midland  R. 
Co.,  L.  R.  loQ.B.i.u  L.  J.  Q.  B.  18,  31  L. 
T.  N.  S.  430.  23  W.  R.  25. 

A  steamboat  passenger  is  not  charged 
with  notice  posted  about  in  the  boat  stating 
certain  rules  of  the  carrier  touching  the  de- 


livery of  baggage ;  but  if  he  be  specially  in- 
formed of  such  rules,  he  will  be  bound 
thereby  so  far  as  they  are  reasonable.  Glea' 
son  V.  Goodrich  Transp.  Co.,  32  Wis.  85. — 
Quoting  Macklin  v.  New  Jersey  Steam- 
boat Co.,  7  Abb.  Pr.  N.  S,  (N.  Y.)  241. 

A  statute  provided  that  railway  commis- 
sioners might  make  "regulations  for  the 
safe  construction  and  working  of  the  rail- 
ways under  their  charge  for  the  transmission 
of  goods  and  passengers  thereon,"  but  that 
such  regulations  must  be  first  approved  by 
the  governor  in  council.  Notice  was  posted 
at  stations  limiting  the  carrier's  liability,  but 
which  had  not  been  approved  by  the  gov- 
ernor in  council,  and  of  which  plaintiff  had 
no  notice  at  the  time  of  shipping  baggage 
over  the  road,  which  was  lost  en  route.  Held, 
that  defendants  were  liable  for  the  loss  as 
common  carriers.  Willis  v.  European  &• 
N.  A.  R.  Co.,  13  New  Brun.  157. 

101.  LiniitiiiiT  liability  for  negli- 
gence—Law  of  place.*— Passengers'  lug- 
gage is  within  §7  of  the  Railway  and  Canal 
Traffic  Act,  and  railway  companies  are 
liable  for  the  negligent  loss  of  or  injury  to 
such  luggage,  notwithstanding  any  notice 
or  condition  made  and  given  by  them  in 
any  wise  limiting  such  liability.  Cohen  v. 
Southeastern  R.  Co.,  46  L.  J.  Exch.  D.  417, 
L.  R.  2  Exch.  D.  253,  36  L.  T.  N.  S.  130, 
25  W.  R.  475 ;  affirming  L.  R.  i  Exch.  D. 
217.  45  L.  J.  Exch.  D.  298,  24  W.  R.  522, 
35  Z.  T.  N.  S.  213.  Approved  in  Doolan 
V.  Midland  R.  Co.,  37  L.  T.  317,  L.  R.  2 
App.  Cas.  792. 

A  railway  company  is  not  exempt  from 
liability  for  damage  caused  by  its  own  neg- 
ligence under  a  special  contract  for  the 
transportation  of  troops,  whereby  it  is  pro- 
vided that  "the  baggage  shall  remain  in 
charge  of  a  guard  provided  by  the  troops, 
the  company  accepting  no  responsibility." 
Martin  v.  Great  Indian  Peninsular  R.  Co., 
37  /.  Exch.  27,  L.  R.  3  Exch.  9,  17  L.  T.  N. 

S.  349- 

If  a  ticket  bought  in  England  for  an 
ocean  passage,  consisting  of  a  large  sheet 
of  paper  nearly  covered  on  both  sides 
with  print  and  writing,  with  the  printed 
heading  on  the  face  "  Passengers'  Con- 
tract Ticket,"  contains  elaborate  pro- 
visions for  governing  the  conduct,  rij-lits, 
and  liabilities  of  the  parties  till  the  steam- 
ship reaches  the  port  of  destination  in  Mas- 

*  See  also  ante,  7. 


BAGGAGE,  102,  103. 


565 


sachusetts,  among  other  things  exempting 
the  carrier  from  liability  for  any  loss  arising 
from  his  negligence,  the  passenger,  in  ac- 
cepting and  using  the  ticket,  even  if  he  did 
not  read  it,  wii!  be  conclusively  held  to 
have  assented  to  its  terms ;  and  the  stipu- 
lation, being  valid  in  England,  will  be  en- 
forced here,  notwithstanding  that  a  similar 
contract  made  in  Massachusetts  would  be 
void  as  against  public  policy.  Fonseca  v. 
Cunard  Steamship  Co.,  153  Mass.  553,  27  A^. 
E.  Rep.  665.— -  Distinguishing  Brown  v. 
Eastern  R.  Co.,  1 1  Cush.  (Mass.)  97 ;  Malone 
V.  Boston  4  W.  R.  Co.,  12  Gray  (Mass.) 
388 ;  Henderson  v.  Stevenson,  L.  R.  2  H.  L. 
Sc.  470;  Quimby  v.  Vanderbilt,  17  N.  Y. 
306;  Grand  Trunk  R.  Co.  v.  Stevens,  95 
U.  S.  655.— Followed  in  New  York,  L.  E. 
&  W.  R.  Co.  V.  Bennett,  50  Fed.  Rep.  496, 
6  U.  S.  App.  95, 1  C.  C.  A.  544. 

A  contract  made  in  the  United  States  for 
the  carriage  of  a  passenger  and  his  baggage 
into  Canada,  which  contains  a  provision 
limiting  the  carrier's  liability  as  to  the  bag- 
gage, is  to  be  governed  by  the  law  of  the 
latter  country ;  and  a  provision  of  a  state 
law,  where  the  contract  was  made,  allowing 
carriers  to  contract  against  certain  liabilities, 
will  not  be  enforced  in  Canada.  Brown  v. 
Canadian  Pac.  R.  Co.,  4  Man.  396. 

102.  No  limitatJion  as  against  viW- 
ftil  acts  of  servants. — A  special  contract 
made  between  the  carrier  and  a  passenger, 
limiting  the  carrier's  liability  to  a  certain 
amount  of  baggage,  is  not  binding  as  against 
the  wilful  acts  or  torts  of  its  employes. 
Mobile  &*  O.  R.  Co.  v.  Hopkins,  41  Ala.  486. 

Where  a  railroad  company  issues  a  free 
ticket,  containing  the  provision  ther.^on 
that  "the  person  accepting  this  free  ticket 
in  consideration  thereof  assumes  all  risk  of 
accident,  and  expressly  agrees  that  the 
company  shall  not  be  liable  under  any  cir- 
cumstances, whether  of  the  negligence  of 
their  agents  or  otherwise,  for  any  injury  to 
the  person  or  property,"  the  company  is 
not  relieved  thereby  from  liability  for  loss 
of  baggage  which  results  from  the  wilful 
act  or  tort  of  its  employes.  Mobile  &*  O. 
R.  Co.  V.  Hopkins,  41  Ala.  486.— Criticising 
Indiana  C.  R.  Co.  v.  Mundy,  21  Ind.  48 ;  Wells 
V.  New  York  C.  R.  Co.,  24  N.  Y.  181. 
Followed  in  Jacobus  v.  St.  Paul  &  C.  R. 
Co.,  20  Minn.  125  (Gil.  iio.)  Not  fol- 
lowed IN  Griswold  v.  New  York  &  N.  E. 
R.  Co.,  26  Am.  &  iSng.  R.  Gas.  280,  53 
Conn.  371,  55  Am  Rep.  115. 


I 


103.  Special  contracts  limiting^  lir,- 
bility. — While  a  common  carrier  can'.iot 
by  a  general  notice  free  itself  from  all  lia- 
bility for  property  transported  by  it,  yet  it 
may  reasonably  qualify  its  liability  by  notice 
brought  to  the  knowledge  of  the  owner,  and 
by  special  contract  Jt  may  relieve  itself 
from  its  common-law  liability,  except  for 
such  loss  as  results  from  negligence.  Where 
a  special  contract  exists,  the  burden  to 
prove  negligence  is  on  the  plaintiff.  Smith 
V.  North  Carolina  R.  Co.,  64  N.  Car.  235. — 
Followed  in  Capeiiart  v.  Seaboard  &  R. 
R.  Co.,  81  N.  Car.  438. 

In  an  action  for  loss  of  baggage,  an  in- 
struction to  the  jury  that  gave  them  to 
understand  that  it  was  of  little  importance 
whether  the  plaintiff  omitted  to  read  the 
contract  to  which  she  had  signed  her  name, 
which  agreed  to  a  limitation  of  the  liability 
of  the  company,  provided  the  railroad  com- 
pany had  not  ca11c<.^  her  attention  specially 
to  its  terms,  was  erroneous,  as  it  was  her 
duty  to  read  the  contract  if  she  had  the 
opportunity  of  doi  ig  so,  and  no  fraud,  impo- 
sition, or  deception  was  practised  to  prevent 
her  from  doing  so.  Louisville,  N.  "  If  C. 
R.  Co.  V.  Nicholai,  4  Ind.  App.  1 19,  30  N.  E. 
Rep.  424. 

The  defendant  railroad  company,  in  con- 
sideration of  a  sum  paid  to  it  by  the  plain- 
tiff, undertook  to  safely  carry  the  plaintiff 
and  her  baggage  from  Portland,  Ore.,  to 
Indianapolis,  Ind.,  by  way  of  its  own  road 
and  connecting  lines.  The  ticket  con- 
tained the  following  words:  "None of  the 
companies  represented  in  this  ticket  will 
assume  any  liability  on  baggage  except  for 
wearing-apparel,  and  then  only  for  a  sum 
not  exceeding  $100."  Following  this  was 
the  signature  of  the  general  passenger 
agent,  and  immediately  after  that  the  fol- 
lowing: "I  agree  to  the  above  contract. — 
Mrs.  Osceola  Nicholai."  When  the  trunk 
reached  its  destination  it  was  discovered 
that  a  sealskin  sacque,  jewelry,  etc.,  of  the 
value  of  three  hundred  dollars  had  been 
abstracted  en  route.  Held,  that  where  the 
exemption  provided  for  by  contract  is  not 
for  loss  or  damage  from  a  particular  cause, 
but  as  to .  amount  only  (as  in  the  case  at 
bar),  and  the  carrier  will  not  account  nor 
attempt  to  account  for  a  refusal  to  deliver 
the  property  which  it  undertook  to  safely 
carry,  the  presumption  is  that  there  lias 
been  negligence  on  the  part  of  the  rarrier, 
and  the    plaintiff   may    recover   the  fuU 


506 


BAGGACili,   I04-107. 


■IV  :■ 

i: 


amount  of  the  loss  she  has  sustained.  Lou- 
isville, N.  A.  &*  C.  R.  Co.  V.  Nicholai,  4  Ind. 
App.  1 19,  30  N.  E.  Rep.  424. 

VIU.   ACTIONS  FOS  LOSS  OF  BAGOAOE. 

104.  Jurisdiction.  — Where  a  party 
sues  for  money  shipped  in  baggage,  and 
also  for  baggage  lost  in  transitu,  and  the 
allegations  of  his  petition  are  sufficient  to 
warrant  a  recovery  for  the  money  lost,  the 
facts  that  he  did  not  recover  for  the  money 
and  that  the  value  of  the  goods  lost  was  not 
within  the  jurisdiction  of  the  court,  form  no 
ground  for  sustaining  a  plea  to  the  jurisdic- 
tion. Missouri  Pac.  R.  Co.  v.  York,  18  Am. 
&-  Et^.  R.  Cas.  623,  2  Tex.  App.  (Civ.  Cas.) 

557. 

105.  Bight  of  OpCtion,  generally.— 

Formerly  the  only  remedy  for  negligent 
loss  of  baggage  or  goods  was  either  a  spe- 
cial action  on  the  case  for  breach  of  the 
carrier's  public  duty  to  safely  carry  and  de- 
liver, or  assumpsit  for  a  breach  of  the  un- 
dertaking; and  it  seems  that,  under  the 
Code,  a  plaintiff  in  drawing  his  complaint 
must  still  observe  the  distinction  between  a 
mere  negligent  loss  and  a  cot  version  of  the 
baggage.  Samuels  v.  McDonald,  11  Abb.  Pr. 
N.  S.  (N.  Y.)  344.  Tolafu  v.  National 
Steam  Nov.  Co.,  5  Ro6t.  (K.  Y.)  318,  4  Abb. 
Pr.  A^.  5.  316,  35  How  Pr.  496. 

Where  porters  are  licensed  and  required 
to  give  bond,  a  passenger  whose  baggage  is 
lost  by  the  negligence  of  such  porter  may 
maintain  an  action  on  his  bond.  Chillicothe 
ex  rel.  v.  Raynard,  80  Mo,  185. 

The  general  railroad  act  of  New  York, 
passed  in  1850,  relating  to  actions  against 
carriers  for  loss  of  baggage,  is  limited  in  its 
operation  to  domestic  corporations.  Gar- 
vey  V.  Camden  &•  A.  R.  Co.,  1  Hilt.  {N.  K) 
2So,^  AM.  Pr.  171. 

A  gratuitous  bailee  13  not  liable  in  an 
action  of  assumpsit  for  th?  loss  of  a  thing 
Intrusted  to  him;  therefore,  an  ::ct<on  of 
assumpsit  will  not  lie  against  a  carrier  for 
the  loss  of  baggage  where  it  was  carried 
free.  An  action  for  tort  is  the  proper 
remedy  in  such  cases,  if  there  is  negligence 
enough  on  the  part  of  the  carrier  to  support 
it.  Flint  &*  P.  M.  R.  Co.  v.  W«ir,  37  Mtch. 
III. 

The  fact  that  a  passenger  has,  in  a  box 
containing  his  personal  luggage,  articles 
which  he  ii*  not  entitled  to  carry  as  such, 
will  not  prevent  him  from  recovering  for 
the  loss  of  such  as  are  personal  lug^;age. 


Rtuty  V.  Grand  Trunk  R.  Co.,  32  U.  C.  Q.  B. 
K.  66. 

106.  Demand  before  suit.— Proof  of 
a  delivery  of  baggage  to  a  carrier  and  its 
loss  make  a  primafacie  case  against  the 
carrier,  and  it  is  not  necessary  to  show  a 
demand  and  refusal  before  suit.  Garvey  v. 
Camden  6-  A.  R.  Co.,  i  Hilt.  (N.  Y.)  280. 
4.  AM.  Pr.  171. 

Where  baggage  is  lost,  it  is  not  necesLary 
before  suit  to  make  a  demand  upon  the  car- 
rier's directors.  A  demand  upon  an  agent 
of  the  company  who  was  charged  with  the 
duty  of  receiving  and  delivering  the  bag- 
gage is  sufficient.  Cass  v.  New  York  &•  N. 
H.  R.  Co.,  I  E.  D.  Smith  {N  Y.)  522. 

Where  a  passenger  on  a  railroad,  having 
lost  the  check  of  his  baggage,  applied  for 
the  latter  to  one  of  the  company's  employes 
at  the  station,  who  replied  that  the  check 
or  proof  of  the  property  by  affidavit  must 
be  produced,  and  the  passenger  afterward 
assigned  the  baggage  to  the  plaititifT,  who 
in  company  with  the  passenger  demanded 
it  anew  of  a  baggage-master  at  the  station, 
who  represented  that  it  was  not  in  the  de- 
fendant's possession — Aeld,  that  the  plain- 
tiff's right  of  action  against  the  company 
for  the  value  of  the  baggage  was  complete. 
Cass  V.  New  York  6-  N.  H.  R.  Co.,  1  E.  D. 
Smith  (N.  Y.)  522. 

107.  Wlio  may  sue.- (i)  Husband  or 
wife. — In  equity,  the  paraphernalia  of  the 
wife  is  treated  as  her  separate  estate,  and  a 
court  of  equity  will  protect  her  in  its  pos- 
session and  enjoyment.  A  court  of  admi- 
ralty is  a  court  of  equity,  and  upon  equit- 
able grounds  may  sustain  a  proceeding  in 
rem  by  a  married  woman  against  a  carrier 
to  recover  for  loss  of  her  wearing-apparel 
shipped  as  baggage.  SteamMat  State  of 
New  York,  7  Ben.  {U.  S.)  450. 

The  ordinary  and  necessary  wearing-ap- 
parel of  the  wife,  furnished  by  the  husband 
with  his  own  means,  or  bought  by  him  on 
credit,  does  not  constitute  a  part  of  her 
statutory  estate,  but  is  his  property,  and  he 
may  maintain  an  action  against  a  common 
carrier  for  its  loss ;  but  if  bought  with  the 
wife's  earnings  since  the  28th  February, 
1887  (Code,  §§  2341,  2351),  it  is  her  separate 
property,  and  she  alone  can  maintain  an 
action  for  its  loss.  Richardson  v.  Louisville 
6-  N.  R.  Co.,  85  Ala.  559,  5  So.  Rep.  308. 2  L. 
R.  A.  716.  Curtis  v.  Delaware,  L.  6-  W.  R. 
Co.,74N.  Y.  116. 

A  husband  travelling  with  his  w'i'e,  an4 


i^i 


BAGGAGE,  108. 


567 


QB. 

oof  of 

id  its 
St  the 
low  a 
'vey  V. 
)2So. 


having  a  trunk  checked  without  informing 
the  company  that  it  belonged  to  her,  m^y 
maintain  an  action  for  its  loss  though  lie 
was  travelling  on  a  pass.  Malone  v.  Boston 
6-  W.  R.  Corp.,  12  Gray  {Mast.)  388.— Fol- 
lowing Brown  v.  Eastern  R.  Co.,  11 
Cush.  (Mass.)  97.— Distinguished  in  Grace 
V.  Adams,  too  Mass.  505 ;  Fonseca  v,  Cunard 
Steamship  Co.,  1 53  Mass.  553.  Followed 
in  Kentz/.  Baltimore  &  O.  R.  Co.,  31  Am. 
&  Eng.  R.  Cas.  125,  45  Ohio  St.  284,  10 
West.  Rep.  459,  12  N.  E.  Rep.  798. 

When  a  trunk  is  shipped  as  baggage,  part 
of  the  contents  belonging  to  a  husband  and 
part  to  his  wife,  the  husband's  title  to  the 
whole  is  sufficient  to  enable  him  to  recover 
for  a  loss.  Rogers  v.  Lot^  Island  R.  Co.,  i 
T.  6*  C.  (N.  K.)  396;  affirmed  56  N.  Y.  620, 
mem. 

(2)  Parent  or  child. — Where  a  child's 
clothes  are  shipped  as  baggage,  in  the  ab- 
sence of  other  evidence  the  presumption  is 
that  they  were  furnished  by  its  father,  and 
he  may  therefore  sue  for  a  loss.  Richardson 
V.  Louisville  &*  N.  R.  Co.,  85  Ala,  559,  5  So. 
Rep.  ^oS.zL.R.A.  716. 

The  fact  that  clothing  which  was  lost  as 
b^gg^ge  was  prepared  for  a  minor  daughter 
of  plaintiff  does  not  divest  him  of  the  right 
to  recover  its  value  in  an  action  against  the 
carrier.  Baltimore  Steam  Racket  Co.  v. 
Smith,  23  Md.  402. 

The  legal  title  to  wearing-apparel  and 
jewelry  provided  by  a  father  for  the  use  of 
his  infant  daughter  remains  in  him,  not- 
withstanding the  possession  of  them  by  the 
infant.  And  for  the  purpose  of  an  action 
by  the  father  against  a  common  carrier  to 
recover  for  the  loss  of  such  property,  the 
daughter  must  be  treated  as  the  legally  con- 
stituted agent  of  the  plaintiff.  Prentice  v. 
Decker,  49  Barb.  {N.  K.)  21. 

(3)  Principal  and  agent. — Where  an  agent 
becomes  a  passenger  and  has  his  trunk 
checked,  the  principal  cannot  recover  for 
loss  of  its  contents,  though  they  belong  to 
him  and  such  contents  be  money  intended 
to  pay  the  necessary  expenses  of  the  agent. 
Weed  V.  Saratoga  6f*  S.  R.  Co.,  19  Wend. 
(yV.  K)  534.— Applied  in  Merrill  v.  Grin- 
nell,  30  N.  Y.  594.  Distinguished  in 
Milnor  v.  New  York  &  N.  H.  R.  Co.,  53  N. 
Y.  363.  Followed  in  Taylor  v.  Monnot, 
4  Duer  (N.  Y.)  116.  Quoted  in  Elkins  v. 
Boston  &  M.  R.  Co.,  19  N.  H.  337. 

A  person  living  in  a  foreign  country  di- 
rected plaintiff  to  purchase  certain  goods 


for  him  in  New  York  and  send  them  by  a 
third  party  by  vessel  to  him.  The  goods 
were  purchased  and  placed  in  the  hands  of 
such  third  party,  who  delivered  them  to  the 
vessel,  but  afterward  decided  not  to  go  him- 
self, and  delivered  the  key  of  a  trunk  in 
which  the  goods  were  to  plaintiff  and  di- 
rected him  to  recover  the  goods.  Held, 
that  plaintiff  could  maintain  replevin  against 
the  vessel  for  the  goods,  as  it  was  necessary 
for  him  to  assume  possession  in  order  to 
deliver  to  his  correspondent.  Tanco  v. 
Booth,  15  iV.  Y.  Supp.  no. 

(4)  Master  and  servant. — A  servant  may 
sue  for  the  loss  of  baggage  though  his 
master  may  have  engaged  the  passage  and 
paid  the  fare  therefor,  as  the  right  of  action 
in  such  cases  does  not  depend  upon  a  con- 
tract. Macklin  v.  New  Jersey  Steamboat 
Co.,  7  Abb.  Pr.  N.  S.  {N.  Y.)  229.  Marshall 
V,  York.  N.  <S-  B.  R.  Co.,  11  C.  i9.  655,  16 
Jur.  124,  21  L.J.  C.  P.  34. 

(5)  Joint  owners. — Plaintiffs  were  the 
joint  owners  of  a  chest,  but  owners  in  sev- 
eralty of  certain  articles  contained  in  it. 
They  shipped  it  as  baggage  on  defendant's 
road,  and  a  check  was  issued  to  them  jointly 
therefor.  Held,  in  a  joint  action  to  recover 
for  the  loss  of  both  the  chest  and  its  con- 
tents, that,  as  the  contract  with  them  was 
joint,  the  company  could  not  insist  that 
the  contract  should  be  severed  and  sepa- 
rate actions  brought  thereon.  (Reed,  J., 
dissenting.)  Anderson  v.  Wabash,  St.  L.  &* 
P.  R.  Co.,  18  Am.  &"  Eng.  R.  Cas.  yjj,  65 
Iowa  131,  21  A^.  W.  Rep.  485. 

108.  Parties  defendant.— Suit  in  re- 
plevin was  brought  to  recover  baggage 
which  had  been  delivered  to  defendants  to 
be  carried  to  a  foreign  port,  while  they 
were  acting  outwardly  as  the  agents  of  a 
steamship  line,  but  were  in  fact  partners  in 
the  firm  that  operated  the  vessel.  Held, 
that  the  action  was  properly  brought. 
Tanco  v.  Booth,  15  A^.  Y.  Supp.  iio. 

Upon  the  arrival  of  a  vessel  in  the  port  of 
New  York,  carrying  emigrants,  under  the 
rules  of  the  commissioners  of  immigration 
they  were,  for  the  purpose  of  being  landed, 
placed  on  barges  which  were  owned  and 
controlled  by  certain  railroad  companies 
which  had  offices  on  the  grounds  belonging 
to  the  commissioners.  While  one  of  the 
emigrants  was  ashore  for  the  purpose  of 
registering,  his  baggage  was  lost  from  the 
barge,  wlille  in  care  of  the  railroad  com- 
pany's agents.  Held,  that  the  commissioners 


■■I 


568 


BAGGAGE,  1(M>-111. 


s 

a 


I 


*' 


were  not  liable  for  its  loss,  the  liability,  if 
there  was  any,  being  upon  the  railroad  com- 
pany. Semler  v.  Com'rs  of  Emigration,  i 
Hilt.  (iV.  Y.)  244. 

109.  Complaint  —  Declaration.  — 
Where  the  owner  of  baggage  sues  to  re- 
cover for  its  loss,  it  is  sufficient  to  describe 
it  in  the  complaint  as  one  trunk,  containing 
articles  described  as  clothing,  jewelry,  etc. 
Montgomery  &•  E.  R.  Co.  v.  Culver,  22  Am. 
&*  Eng.  R.  Cas.  411,75  Ala.  587. 

The  production  of  a  baggage-check  is 
prima-facie  evidence  that  plaintiff  was  a 
passenger,  and,  in  suing  for  lost  baggage, 
it  is  not  necessary  to  allege  that  he  was  a 
passenger  and  the  owner  of  tlie  lost  bag- 
gage. Illinois  C.  R.  Co.  v.  Copeland,  24  ///. 
332. — Followed  in  Candee  v.  Pennsyl- 
vania R.  Co.,  21  Wis.  582. 

A  party  is  not  entitled  to  have  baggage 
carried  until  the  relation  of  carrier  and  pas- 
senger exists.  So  a  complaint  alleging  a 
contract  by  a  common  carrier  to  carry  plain- 
tiff over  a  certain  portion  of  its  road  and 
the  delivery  of  baggage,  and  a  subsequent 
loss  of  the  baggage,  is  not  open  to  the  objec- 
tion, on  demurrer,  that  it  states  two  causes 
of  action,  one  a  breach  of  contract  and  the 
other  a  tort.  Rothschild  v.  Grand  Trunk 
R.  Co.,  38  N.  Y.  S.  R.  869,  60  Hun  582,  14 
N.  Y.  Supp.  807. 

A  charge  in  a  complaint  against  a  railroad 
company  for  the  loss  of  a  valise,  setting  out 
that  plaintiff  was  a  passenger  on  a  train  of 
the  defendant  company,  having  bought  and 
paid  for  a  ticket  recognized  by  the  agents 
of  the  company,  sufficiently  sets  out  a  con- 
tract with  the  company  for  the  safe  carriage 
of  himself  and  baggage.  Bonner  v.  De 
Mendoza,  4  Tex.  App.  (Civ.  Cas)  392,  16  S. 
IV.  Rep.  976. 

Where  baggage  is  shipped  to  be  tran- 
sported over  several  connecting  lines  on  a 
through  ticket,  a  complaint  against  the  ini- 
tial carrier,  which  alleges  a  partnership 
between  the  defendant  and  the  other  car- 
riers, is  sufficient  to  show  a  separate  liability 
of  the  defendant.  International  &»  G.  N. 
R.  Co.  v.  Folts,  3  Tex.  Civ.  App.  644,  22  S. 
W.  Rep.  541. 

110.  Schedule  attached  to  com- 
plaint.— A  plaintiff  sued  for  a  trunk  and 
its  contents,  which  were  lost  as  baggage, 
and  attached  to  the  complaint  a  schedule 
containing  a  list  of  the  contents  and  their 
value,  sworn  to  as  "  correct  and  true."  Held, 
tha-  this  did  not  estop  plaintiff  from  filing 


ii  further  schedule  showing  that  the  trunk 
contained  other  articles,  and  fixing  a  higher 
value  upon  articles  contained  in  the  first 
schedule,  especially  where  objection  was  not 
made  to  the  amendment,  but  was  raised  at 
the  trial,  and  on  a  motion  for  a  new  trial. 
Forbes  v.  Davis.  18  Tex.  268. 

111.  Plea.— Where  a  railroad  company 
is  sued  for  loss  of  baggage,  a  plea  is  good  to 
the  effect  that  it  did  not  operate  its  road  in 
the  county  where  suit  is  brought,  and  had 
no  office  or  agent  therein,  though  it  appears 
that  the  baggage  was  checked  to  a  point  in 
the  county  at  a  station  on  a  connecting  line. 
Gulf,  C.  &-  S.  F.  R.  Co.  v.  Jackson,  4  Tex. 
App.  {Civ.  Cas)  73,  IS  S.  IV.  Rep.  128. 

In  an  action  for  the  loss  of  a  passeng-  r's 
luggage,  the  defendant's  plea  tliat  it  r  n- 
tained  merchandise  and  that  the  passenger 
had  not  paid  for  it  as  such  was  a  good 
answer.  Belfast  &*  B.  R.  Co.  v.  Keys,  9  W. 
R.  793.  4  L.  T.  N.  S.  841,  9  A^.  L.  Cas.  556,  8 
Jur.  N.  S.  367. 

In  an  action  for  the  loss  of  a  passenger's 
portmanteau,  the  defendant's  pica  that 
plaintiff  did  not  comply  with  the  carriers' 
act,  in  declaring  the  nature  and  value  of  the 
goods  which  were  lost  while  in  its  posses- 
sion as  a  carrier  by  land,  was  good  ;  but  the 
same  plea  to  a  count  alleging  that  the  de- 
fendant refused  to  carry  the  plaintiff's  port- 
manteau, but  not  alleging  its  loss,  was  bad. 
Pianciani  V.  London  &*  S.  W.  R.  Co.,  18  C. 
B.  226. 

In  an  action  by  a  military  officer  for  the 
non-delivery  of  and  for  injury  to  his  uq- 
gage,  a  plea  by  the  company  that  the  car. 
riage  was  under  a  contract  with  the  goviiP 
ment,  and  that  there  was  no  contract  be- 
tween the  company  and  the  passenger,  is  an 
answer  to  the  count  for  non-delivery,  but 
not  an  answer  to  the  count  for  negligence 
in  causing  injury  to  the  luggage.  Martin 
v.  Great  Indian  Peninsular  R.  Co.,  37  L.J. 
Exch.  27,  L.  R.  3  Exch.  9,  17  Z.  T.  N.  S. 
349- 

Where  a  declaration  against  a  company 
alleges  the  non-delivery  of  the  passenger's 
luggage  and  injury  thereto  by  the  negli- 
gence of  the  company,  a  plea  is  good  which 
alleges  that  the  passenger  was  an  officer 
travelling  in  command  of  soldiers,  and  that 
the  non-delivery  and  injury  were  caused  by 
the  mutinous  acts  of  the  soldiers.  Martin 
v.  Great  Indian  Peninsular  R.  Co. ,  37  L.  J. 
Exch.  27,  L.  R.  3  Exch,  9,  17  L.  T.  N.  S. 
349- 


' 


BAGGAGE,  112,  113. 


5G<J 


112.  Beplicntioii. — In  an  action  for 
the  loss  of  a  passenger's  luggage  a  replica- 
tion to  a  plea  that  the  luggage  contained 
merchandise  and  was  not  paid  for  as  such, 
alleging  that  the  box  manifestly  contained 
merchandise  and  yet  was  received  as  lug- 
gage, was  bad  for  not  averring  that  the  com- 
pany had  notice  that  the  box  contained 
merchandise.  Belfast  &^  B.  R.  Co.  v.  Keys, 
9  W.  R.  793,  4  I..  T.  N.  S.  841,  9  H.  L.  Cas. 
556,  8/«r.iV.  5.  367. 

When  baggage  is  lost  and  the  passenger 
sues  the  company,  and  declares  on  the  con- 
tract to  safely  carry,  and  the  company  sets 
up  the  defense  by  plea  that  its  liability  was 
limited  to  "wearing-apparel,  not  exceeding 
$100  in  value,"  a  replication  setting  up  the 
gross  negligence  of  the  company  is  bad  on 
demurrer.  Shaw  v.  Canadian  Pac.  R.  Co., 
5  Man.  334. 

113.  Evidence  for  tbe  plaintiff, 
generally.— (I) C^w^ra/  rw/«.— Where  a 
trunk  was  lost  as  baggage,  and  no  proof  was 
given  as  to  when  or  how  it  was  lost,  the 
legal  inference  is  that  it  was  lost  or  mislaid 
in  consequence  of  the  negligence  or  fraud  of 
the  carrier  or  his  agent.  Camden  &*  A,  R. 
Co.  V.  Baldauf,  16  Pa.  St.  67. 

A  common  carrier  is  liable  for  the  safe 
transportation  and  delivery  of  baggage  the 
same  as  of  merchandise,  and  where  the  de- 
fendant company  both  received  and  de- 
livered the  baggage,  it  is  rendered  prima 
facie  liable  by  proof  showing  that  the  bag- 
gage was  in  good  condition  when  it  re- 
ceived it,  and  that  it  was  damaged  when  it 
delivered  it.  Montgomery  &*  E.  R.  Co.  v. 
Culver,  22  Am.  &•  Eng.  R.  Cas.  411,  75  Ala. 
S87. 

The  provisions  of  the  Mass.  act  of  1851, 
ch.  147,  §  5,  providing  that,  in  actions 
to  recover  for  lost  baggage,  the  passenger 
shall  be  allowed  to  put  in  evidence  a  de- 
scriptive list  of  its  contents,  sworn  to  by  him- 
self, applies  to  a  loss  occurring  where  a 
trunk  is  placed  in  the  hands  of  a  baggage- 
master  at  the  place  of  destination.  Harlow 
V.  Fitchburg  R.  Co.,  8  Gray  (Mass.)  lyj. 

Where  a  passenger  sues  to  recover  for  a 
loss  of  baggage,  and  the  question  whether 
the  relation  of  carrier  and  passenger  actu- 
ally existed  is  made,  proof  that  plaintiff 
purchased  a  ticket  of  one  who  purported  to 
be  an  agent  of  defendant,  and  that  the  con- 
ductor received  it  on  the  line  over  which  he 
travelled,  and  demanded  no  other  fare,  is 
sufficient  to  establish  such  relation.    Glasco 


V.  New    York  C.  R.  Co.,  36  Bari.  (N.  V.) 

557- 

In  an  action  against  a  carrier  for  the  loss 
of  a  trunk  the  gist  of  the  action  is  the  non- 
delivery at  the  proper  destination,  and  the 
terminus  a  quo  is  immaterial.  Woodwards, 
Booth,  7  B.  &•  C.  301.  Tucker  v.  Cracklin,  2 
Stark.  385. 

Where  baggage  is  lost  by  fire,  the  fact  that 
the  agents  of  the  company  in  charge  of  the 
depot  failed  to  take  steps  to  prevent  a  trac- 
tion-engine near  tlie  depot  from  being 
moved  by  steam  at  night  is  not  evidence  of 
negligence,  as  there  was  no  reasonable 
ground  to  apprehend  danger  from  escaping 
sparks,  and  therefore  the  court  properly  re- 
fused to  submit  the  question  of  negligence 
to  the  jury.  Wald  v.  Louisville,  E.  &»  St. 
L.  R.  Co.,  92  Ky.  645. 

Testimony  that  a  trunk  was  of  a  size  and 
shape  recognized  by  railroad  men  as  a 
sample-trunk  is  not  conclusive  of  the  com- 
pany's knowledge  that  it  was  not  a  bag- 
gage-trunk. Rider  v.  Wabash,  St.  L.  &*  P. 
R.  Co.,  i^Mo.  App.  529. 

(2)  Illustrations. — Suit  was  brought  to 
recover  the  value  of  certain  articles  that 
had  been  stolen  from  a  trunk  while  it  was 
being  carried  as  baggage,  but  the  evidence 
did  not  show  where  the  articles  were  stolen. 
Held,  that  the  company  was  not  liable  un- 
less the  evidence  showed,  with  reasonable 
certainty,  that  they  were  not  stolen  before 
the  trunk  came  to  the  possession  of  the  de- 
fendant.    McQuesten  v.    Sanford,    40  Me. 

117. 

Plaintiff's  son,  a  lad  eighteen  years  of 
age,  was  employed  by  him  as  travelling  agent 
to  sell  goods  by  sample.  He  had  two  large 
trunks  containing  the  samples,  different 
from  ordinary  travelling  trunks,  and  had  a 
valise  for  his  personal  baggage.  He  de- 
livered the  trunks  to  a  baggage-master  at  a 
railroad  depot,  and  when  asked  where  he 
wanted  them  checked  to,  replied  that  he 
did  not  then  know,  as  he  had  sent  a  despatch 
to  a  customer  at  F.  to  know  if  he  wanted 
any  goods  ;  if  not  he  wanted  them  to  go  to 
R.,  where  he  expected  to  meet  some  custom- 
ers. Soon  afterward  he  had  them  checked 
to  R.,  paying  two  dollars  and  receiving  a 
receipt  ticket  for  them,  headed  "  receipt 
ticket  for  extra  baggage,"  etc.  They  were 
not  weighed,  and  no  evidence  was  given 
as  to  any  regulation  of  the  company  in 
reference  to  charging  extra  compensation 
for   passengers'    baggage.    Held,  that  the 


570 


BAGGAGE,  114. 


I 

a 


t'rf' 


evidence  justified  tlic  submission  to  the 
jury  of  the  question  of  notice  as  to  tlie  con- 
tents of  the  truni«s.  Slomanv.  Great  West- 
ern /?.  Co.,  67  A'.  Y.  208,  1 5  Am.  Ry.  Rep. 
113;  reversing  t  Hun  546. — Explained  in 
Blumantle  v.  Fitchburg  R.  Co.,  127  Mass. 
322. 

On  appeal  from  a  justice's  court,  of  a  suit 
brought  on  account  against  a  railway  com- 
pany for  "breaking  a  trunk,"  and  for  dam- 
age and  expenses  incurred  by  delay  of 
"goods  checked,"  etc.,  there  being  no  ex- 
ception taken  to  the  generality  of  the  de- 
scription—//<?/</,  that  evidence  might  be  given 
in  regard  to  the  delay  of  any  kind  of 
property  "  comprehended  within  the  mean- 
ing of  such  articles  as  a  passenger  on  a  rail- 
road train  might  carry  with  him  as  baggage, 
and  which  might  be  checked."  Interna- 
tional <S-  G.  N.  R.  Co.  V,  Philips,  63  Tex. 
590.— Following  Deaton  v.  State,  44  Tex. 
446. 

In  such  a  suit,  on  such  an  account  not 
excepted  to,  it  was  competent  to  shov,  the 
damage  plaintiff  sustained  by  reason  of 
being  compelled  to  buy  clothes  to  supply 
the  place  of  those  delayed  in  their  delivery 
by  the  company,  and  of  being  compelled  to 
wait  for  the  arrival  of  the  goods.  Inter- 
national &*  G.  N.  R.  Co.  V.  Philips,  63  Tex. 
590. 

114.  Competency  of  plaintiff  to 
prove  contents  or  value.— (i)  Plaintiff 
a  competent  witness. — In  an  action  against  a 
railroad  company,  as  a  common  carrier,  to 
recover  damages  for  the  loss  of  a  passen- 
ger's baggage,  the  plaintiff  may  prove  the 
contents  and  value  of  his  trunk  by  his  own 
oath.  Douglass  v.  Montgomery  &*  W.  P.  R. 
Co.,  37  Ala.  638.— Disapproving  Snow  v. 
Eastern  R.  Co.,  12  Met.  (Mass.)  44. — Nolan 
V.  Ohio  &*  M.  R.  Co.,  39  Mo.  1 14. 

Proof  may  be  made  by  the  plaintid's  oath 
of  the  value  of  baggage  lost  or  destroyed 
while  in  the  custody  of  the  carrier  after 
arrival  at  place  of  destination.  Pelland  v. 
Canadian  Pac.  R.  Co.,  7  Montr,  L.  R.  {Sup. 
a.)  131. 

That  plaintiff's  possession  of  baggage- 
check,  with  proof  of  the  usage  of  the  com- 
pany to  give  checks  for  baggage  to  passen- 
gers, is  suflicient  proof  of  plaintiff's  being 
a  passenger  to  entitle  him  to  testify,  under 
the  act  of  1850,  as  to  the  contents  of  a  trunk 
lost  by  the  railroad  company.  Davis  v. 
Cayuga  &*  S.  R.  Co.,  10  Ho7v.  Pr.  (N.  V.) 
330. 


In  an  action  for  the  value  of  a  lost  trunk, 
the  ex-parte  affidavit  of  the  plaintiff  is  not 
competent  evidence  to  prove  the  contents 
of  the  trunk,  but  plaintiff  himself  is  a  com- 
petent witness  for  that  purpose.  Indiana 
C.  R.  Co.  V.  Gulick,  19  Ind.  83.— EXPLAIN- 
ING Doyle  V.  Riser,  6  Ind.  242. 

(2)  Plaintiff  competent  where  there  is  no 
other  means  of  proof  . — The  evidence  of  the 
plaintiff,  in  an  action  to  charge  a  common 
carrier  for  the  loss  of  a  trunk,  to  prove  its 
contents,  is  in  no  case  admissible  if  other 
evidence  is  attainable  to  prove  it.  If  there 
is  none,  and  it  is  proven  that  the  defendant 
has  committed  spoliation  upon  the  property, 
then  the  evidence  of  the  plaintiff  is  admis- 
sible in  odium  spoliatoris.  Dibble  v.  Brown, 
12  Ga.  217. 

The  passenger's  oath  to  establish  the 
value  of  the  contents  of  his  lost  trunk  is 
admissible  in  such  cases,  on  the  ground  of 
necessity,  as  no  one  but  himself  is  likely  to 
be  acquainted  with  its  contents.  Cadwalla- 
der  v.  Grand  Trunk  R.  Co.,  gLorv.  Can.  169. 

A  party  is  admissible  to  prove  the  con- 
tents of  a  trunk  when  no  other  evidence  is 
attainable,  upon  a  policy  in  favorem  justi- 
tice,  springing  out  of  the  necessity  of  the 
case  and  the  nature  of  the  subject.  Dibble 
V.  Brown,  12  Ga.  217. 

The  owner  of  lost  baggage  is  not  com- 
petent to  prove  the  value  of  the  lost  articles 
when  that  can  be  established  by  description. 
Davis  V.  Michigan  S.  &•  N.  I.  R.  Co.,  22  ///. 
278.— Following  Parmelee  v.  McNulty,  19 
111.  SS8. 

(3)  Plaintiff  not  competent. — In  an  action 
against  a  common  carrier  to  recover  the 
value  of  goods  delivered  to  him  to  be  car- 
ried, the  plaintiff  cannot  prove  the  contents 
of  a  trunk  nor  their  value,  on  his  own  oath. 
Bingham  v.  Rogers,  6  Watts  &-  S.  {Pa.) 
495.  Dill  v.  South  Carolina  R.  Co.,  7  Rich. 
(So.  Car.)  158. 

In  an  action  against  a  railroad  company 
to  recover  damages  for  the  loss  of  a  trunk 
by  its  negligence,  the  plaintiff  is  not  a  com- 
petent witness,  although  he  has  no  other 
evidence.     Snow  v.  Eastern  R.  Co.,  12  Met.  I 
{Mass.)    44. — Distinguishing    Porter  v.  \ 
Hundred   of   Regland,  Peake's  Add.   Cas.  I 
203;  East  India  Co.  v.  Evans,  i  Vern.  308; 
Herman  v.  Drinkwater,  i  Me.  27. — Disap- 
proved   IN    Douglass  V.   Montgomery   & 
W.  P.  R.  Co.,  37  Ala.  638.    Reviewed  in 
Garvey  v.  Camden  &  A.  R.  Co.,  i   Hilt.  (N. 
Y.)  280,  4  Abb.  Pr.  171.— Smith  v.  North 


' 


BAGGAGE,  115,  110. 


57L 


trunk, 

is  not 

)ntents 

com- 

ndiana 

PLAIN- 


Carolina     A'.    Co.,     i     Wilts.     (X.     C>ir.) 
203. 

(4)  Competency  of  husband  or  wife. — 
Either  husband  or  wife  may  be  admitted  to 
prove  the  quantity  and  value  of  the  wearing- 
apparel  belonging  to  each,  including  in  the 
catalogue  the  wife's  jewelry,  and  every  other 
article  pertaining  to  her  wardrobe  that  may 
be  necessary  or  convenient  to  either  in  trav- 
ciiitig.  McGill  V.  Kowand,  3  Pa.  i/.  451. — 
Approved  in  Mad  River  &  L.  E.  R.  Co.  v. 
P'ulton,  20  Ohio  318.  Distinguished  in 
Metz  V.  California  Soutliern  R.  Co.,  44  Am. 
&  Eng.  R.  Cas.  433,  85  Cal.  329. 

The  principle  of  necessity,  which  enables  a 
party.under  certain  circumstances, to  prove 
the  contents  of  a  lost  box  or  trunk,  applies 
with  as  much,  if  not  greater,  force  to  the 
wife  as  to  the  husband.  McGill  v.  Rowand, 
I  Pa.  St.  451. 

A  husband  may  prove,  in  a  suit  by  himself 
to  recover  for  lost  baggage,  the  articles  lost 
by  either  himself  or  his  wife;  but  on  account 
of  their  interest,  they  are  not  permitted  to 
prove  their  value.  Illinois  C.  R.  Co.  v.  Tay- 
lor, 24  ///.  323. 

The  evidence  of  the  wife  of  the  owner  is 
admissible  to  prove  value  and  contents,  but 
tiie  rule  for  the  admission  of  such  evidence 
does  not  extend  further  than  to  the  proof 
of  such  articles  as  are  commonly  carried  in 
a  travelling  trunk.  Mad  River  &■»  L.  E.  R. 
Co.  v.  Fulton,  20  Ohio  318.— Approving 
Whitesell  v.  Crane,  8  Watts  &  S.  (Pa.)  369, 
McGill  V.  Rowand,  3  Pa.  St.  451. 

(5)  Limitation  of  plaintiff's  testimony. — 
Plaintiff's  testimony  as  to  the  contents  of  a 
box  lost  by  the  carrier  should  be  limited  to 
clothing  and  personal  ornaments.  Pudor  v. 
Boston  &*  M.  R.  Co.,  26  Me.  458. 

Where  the  owner  sues  for  lost  baggage 
he  is  a  competent  witness  to  prove  the  con- 
tents of  the  baggage  and  its  loss,  but  not 
the  value  of  such  contents.  The  contents 
should  be  described  and  left  to  the  knowl- 
edge of  the  jurors  to  assess  the  value.  Il- 
linois C.  R.  Co.  V.  Copeland,  24  ///.  332. 

Where  suit  is  brought  for  lost  baggage, 
the  owner  should  only  be  permitted  to  tes- 
tify as  to  the  value  of  such  articles  as  are 
ordinarily  carried  as  baggage,  and  only  then 
where  the  carrier  has  interfered  in  an  un- 
warranted manner  with  the  goods.  Garvey 
v.  Camden  6-  A.  R.  Co.,  1  Hilt.  (JV.  V.)  280, 
4  AM.  Pr.  171.— Reviewing  Snowt/.  Eastern 
R.  Co.,  12  Met.  (Mass.)  44.— Mad  River  6-  L. 
E.  R.  Co.  V.  Fulton,  20  Ohio  318.— Approv- 


ing Whitesell  v.  Crane,  8  Watts  &  S.  (Pa.) 
369.— Reviewed  in  Dill  v.  South  Carolina 
R.  C- .,  7  Rich.  (So.  Car.)  1 58. 

115.  AtlmiMsiuiis  luid  >  led  tratious. 

—Where  a  carrier  has  been  sut.^  for  the  re- 
covery of  lost  baggage,  an  admission  by  one 
of  its  othcers,  against  the  carrier's  interest, 
is  not  competent  evidence.  Green  v.  New 
York  C.  R.  Co.,  12  Abl).  Pr.  N.  S.  tni,  4  Daly 

553- 

In  case  of  a  disaster  resulting  in  the  de- 
struction by  tire  of  a  baggage  car  and  its 
contents,  the  company  can  in  no  event  be 
bound  by  the  subsequent  declarations  of 
one  of  its  brakemen  as  to  the  cause  of  the 
disaster.  Michigan  C.  R.  Co.  v.  Carrow,  73 
///.  348. 

A  passenger  by  railroad  train,  as  soon  as 
practicable  after  its  arrival  at  the  place  l,; 
destination,  presented  to  the  agent  in  charge 
of  the  baggage-room  a  check  for  his  baggage 
and  demanded  the  same,  which  baggage  he 
had  delivered  to  the  carrier  when  he  took 
passage  on  the  train.  The  agent,  being  un- 
able to  find  the  baggage,  took  the  number 
of  the  check  and  requested  the  passenger 
to  call  again.  On  the  same  evening  the 
passenger  returned  to  the  depot,  but  the 
agent  informed  him  that  he  had  made  fur- 
ther search  and  the  baggage  could  not  be 
found.  Held,  that  such  acts  and  declarations 
of  the  agent  were  competent  evidence  for 
the  passenger  in  his  action  against  the  car- 
rier for  loss  of  such  baggage.  Baltimore  &* 
O.  R.  Co.  V.  Campbell,  3  Am.  &*  Eng.  R.  Cas. 
246,  36  Ohio  St.  647,  38  Am.  Rep.  617. 

C.  sought  to  recover  the  value  of  a  trunk 
and  contents  lost  from  cars  of  defendant. 
On  the  trial  evidence  was  admitted  that  B. 
(who  was  since  deceased),  a  clerk  in  an 
office  of  defendant,  declared  some  time 
after  the  loss  that  he  had  discovered  what 
had  become  of  the  trunk — that  it  had  been 
put  oil  the  cars  at  a  certain  point  and  the 
contents  lost,  etc.  Held,  that  there  being 
no  effort  in  the  case  to  fix  the  liability  of 
the  defendant  by  reason  of  any  act  or  agree- 
ment of  the  supposed  agent,  B.,  but  a  mere 
attempt  to  prove  by  his  declarations  a  fact 
with  which  he  was  not  in  any  way  con- 
nected, and  of  which  he  did  not  appear  to 
have  any  personal  knowledge,  the  evidence 
was  improperly  admitted.  Baltimore  &•  O. 
R.  Co.  V.  Christie,  5  IV.  Va.  325. 

116.  Offers  to  compromise.— Where 
baggage  is  lost  the  company  will  not  be 
made  liable  by  an  offer  to  pay  a  certain 


m 


572 


BAGdAGli,   117-1  I ». 


'II 


f 

5 


I 


k' 


amount  as  compromise,  nor  by  the  voluntary 
acts  of  its  agents  in  assisting  in  looking 
after  it.  Michigan  S.  &<•  N.  I.  R.  Co.  V. 
Meyers,  2i  ///.  627. 

Suit  was  brought  to  recover  for  a  trunk 
lost  by  a  train  going  through  an  opening  in 
a  bridge  caused  by  a  flood.  It  appeared 
that  the  company  liad  offered  to  settle  for 
the  loss  connected  with  the  disaster  by  pay- 
ing $50  to  all  claimants,  wliere  no  value  was 
fixed  upon  the  baggage  at  time  of  shipment, 
which  was  so  as  to  plaintiff's  baggage,  and 
that  amount  was  offered  to  plaintiff.  At  the 
trial  it  was  .idmitted  that  plaintiff  was  en- 
titled to  I175,  if  entitled  to  recover  at  all. 
Held,  that  a  judgment  for  plaintiff  should 
be  affirmed,  as  it  would  be  taken  that  the 
court  below  understood  the  offer  to  pay  $50 
as  an  admission  of  liability,  and  that  being 
estaLlished,  he  had  a  right  to  recover  the 
$175.  Fox  v.  Adams  Exp.  Co.,  116  Mass. 
292. 

117.  Burden  of  proof.— In  an  action 
against  a  carrier  of  passengers  for  loss  of 
baggage,  the  burden  of  showing  delivery  of 
the  baggage  is  upon  defendant ;  transporta- 
tion of  the  baggage  to  the  place  of  destina- 
tion is  not  sufficient  to  discharge  from 
responsibility.  Matteson  v.  Ne^u  York  C. 
&-H.Ji.R.  Co.,76N.  F.  381. 

In  an  action  for  the  loss  of  baggage, 
which  had  been  stolen  from  the  place  where 
it  had  been  deposited  by  the  carrier  at  the 
place  of  destination,  if  the  latter  seeks  to 
avoid  liability  as  a  carrier,  and  places  his 
defense  on  the  ground  that  he  is  only  liable 
as  warehouseman,  the  burden  of  proof  is 
upon  him  to  show  that  the  baggage  was 
stored  in  a  safe  and  secure  warehouse.  Bar- 
tholomew V.  St.  Louis,  J.  &*  C.  R.  Co.,  53  ///. 
227.— Followed  in  St.  Louis  &  C.  R.  Co. 
V.  Hard  way,  17  111.  App.  321. 

In  an  action  against  a  railway  company 
for  not  delivering  luggage  to  another  rail- 
way company  at  B.,  to  be  carried  by  such 
last-mentioned  company  from  B.  to  C,  the 
plaintiff  must  give  such  evidence  of  a  non- 
delivery at  B.  as  preponderates  over  the 
presumption  of  a  delivery.  It  is  not  enough 
to  show  that  the  luggage  never  reached  C, 
or  to  give  evidence  of  a  loss  which  is 
equally  consistent  with  a  loss  by  the  one 
company  as  by  the  other.  Midland  R.  Co. 
V.  Bromley,  17  C.  B.  372,  2  Jur.  N.  S.  140, 
25  Z./.  C.P.9A- 

118.  Variance. — An  averment,  in  an 
action  to  recover  for  lost  baggage,  that  the 


defendant  coMipaiiy  almie  agreed  to  trans- 
port the  baggage  to  a  certain  place  and 
there  deliver  it  to  plaintiff,  is  not  supported 
by  proof  that  the  contract  was  to  carry  to 
a  certain  place  and  there  deliver  to  a  con- 
necting carrier.  Montgomery  &*  E,  R.  Co. 
V.  Culver,  22  Am,  &>  Eng.  R.  Cas,  411,  75 
Ala.  587. 

119.  What  may  be  shown  in  de- 
fense, generally.— A  common  carrier  is 
not  liable  for  the  loss  of  money  of  one 
passenger  froni  the  valise  of  another  pas- 
senger, shipped  as  the  property  of  the  latter. 
Dunlap  V.  International  Steamboat  Co.,  98 
Mass.  371. 

Where  persons  are  sued  as  receivers  of  a 
railroad  for  loss  of  baggage,  it  is  competent 
on  defense  to  show  that  the  receivers  had 
been  discharged  and  their  possession  ended 
before  the  loss.  Corscr  v.  Russell,  20  Abb. 
N.  Cas.  {N.  Y.)  316. 

Where  a  passenger  in  sailing  from  the 
United  States  to  a  foreign  port  takes  mer- 
chandise on  board  the  vessel  in  his  trunk, 
to  be  carried  as  baggage,  in  the  absence  of 
anything  to  show  fraud  or  concealment  the 
owners  of  the  vessel  cannot  confiscate  it  as 
an  attempt  to  violate  the  laws  of  the  United 
States,  though  it  may  have  been  taken  on 
the  vessel  in  violation  of  the  carrier's  rules. 
Tancov.  Booth,  15  A^.  Y.  Supp.  no. 

In  an  action  against  a  railroad  to  recover 
the  value  of  baggage  lost  by  the  company, 
the  evidence  tended  to  show  that  it  be- 
longed to  a  third  person,  who  took  it  away 
from  the  depot  without  the  knowledge  of  the 
agen  and  then  procured  plaintiff  to  bring 
suit  for  its  recovery.  Held,  that  a  letter 
written  by  such  third  person  to  a  stranger 
to  the  transaction,  going  to  show  the  con- 
spiracy, was  admissible  in  evidence  against 
the  plaintiff.  Chicago,  R.  I.  6r*  P.  R.  Co.  v. 
Collins,  56  ///.  212,  4  Am.  Ry.  Rep.  453. 

A  railway  company,  when  sued  for  loss  of 
baggage,  defended  on  the  ground  that  the 
baggage  was  carried  under  a  condition  in 
the  passenger's  ticket  limiting  the  carrier's 
liability  to  $100,  and  at  the  trial  offered  a 
letter  written  by  the  baggage  agent  to  the 
passenger  agent,  asking  why  the  plaintiff 
had  not  signed  the  ticket,  and  if  her  atten- 
tion had  been  called  to  the  conditions  of  it, 
and  the  reply  of  the  ticket  agent,  stating 
that  the  ticket  was  sold  at  full  rates,  and  that 
under  the  rules  of  the  company  it  was  not 
necessary  that  it  be  signed.  Held,  that  the 
letters  were  admissible  as  evidence,  but  that 


1=1 

i  \ 


BAGGAGE,  120-123. 


673 


they  were  of  no  consequence  where  the 
ticket  showed  on  its  face  that  it  was  not 
sold  subject  to  the  conditions  Vt  which  the 
letters  related.  Anderson  v.  Canadian  Pac. 
li.  Co.,  40  Am.  &*  Eng.  R.  Cas.  624.  17  Ont. 
747. — Following  Kirkstall  Brewery  Co.  v. 
Furness  R.  Co..  L.  R.  9  Q.  B.  468. 

120.  Contributory  iiegligcuce  as  a 
defense.— Where  a  passenger's  baggage 
is  checked  to  the  wrong  station,  his  failure 
to  read  a  check  given  to  him,  which  would 
have  shown  the  mistake,  is  sucii  contributory 
negligence  as  to  defeat  a  recovery  for  a  delay 
in  having  it  returned  to  him.  Gonthier  v. 
New  Orleans,  J.  Or*  G.  N.  R.  Co.,  28  La. 
Ann.  67. 

121.  Questions  of  fact  for  the  Jury. 
— Wliere  a  passenger  sues  for  a  loss  of  bag- 
gage, and  it  appears  that  he  was  travelling 
by  boat  under  a  contract  exempting  the 
carrier  from  liability  except  for  gross  neg- 
lect, the  case  should  be  submitted  to  the 
jury  where  the  only  proof  of  negligence  is 
that  the  vessel  was  burned  at  sea.  Downey 
V.  Inman  &*  I.  S.  S.  Co.,  2  A^.  K.  i>u/>p.  659. 

122.  Instructions  to  the  jury.— 
Where  suit  is  brought  to  recover  for  the 
value  of  a.  trunk  which  was  burned  in  the 
company's  station,  and  the  evidence  shows 
that  the  company's  employes  were  occupied 
at  the  time  in  saving  property,  which  was  in 
the  line  of  their  duty,  an  instruction  to  the 
effect  that  the  company  would  not  be  liable 
as  warehouseman  for  the  negligence  of  its 
employes  when  not  acting  in  the  line  of 
duty  is  properly  refused,  as  not  applicable 
to  the  facts  of  the  case.  Galveston,  H.  &* 
S.  A.  R.  Co.v.  Smith,  81  Tex.  479,  175.  IV. 

Rep.  133- 

Where  a  trunk  is  burned  in  the  compa- 
ny's station,  and  it  is  sued  as  warehouseman, 
and  the  jury  has  been  instructed  to  find  for 
plaintiff  if  they  find  a  want  of  ordinary  care, 
it  is  error  to  refuse  when  requested  to  further 
charge  that  the  company  was  not  liable  if  the 
jury  find  that  ordinary  care  was  exercised. 
Galveston,  H.  <&-  S.  A.  R.  Co.  v.  Smith.  81 
Tex.  479,  17  S.  IV.  Rep.  133.— DISTINGUISH- 
ING Aldrich  v.  Boston  &  W.  R.  Co.,  100 
Mass.  31. 

Where  a  steamboat  passenger  sues  for  a 
loss  of  baggage  from  his  state-room,  and 
the  owners  of  the  vessel  defend  on  the 
ground  th-^t  the  passenger  had  notice  that 
no  baggagk  was  allowed  in  state-rooms, 
without  regard  to  what  it  miglit  be  used 
for,  they  are  not  entitled  to  an  instruction 


to  the  effect  that  the  carrier  might  require 
all  baggage  "  not  necessary  for  daily  use  " 
to  be  deposited  in  a  baggage-ruom.  Mack' 
lin  V.  New  Jersey  Sleamlioal  Co.,  7  Abb.  Pr. 
N.  S.  {N.  y.)  229. 

123.  Duniugus  recovernble,  geu- 
evally.— In  case  of  loss  or  injury  to  bag- 
;jage  through  the  carrier's  fault,  the  mea- 
sure of  damages  is  the  value  of  the  baggage 
at  the  place  of  destination.  In  such  case 
the  value  of  clothing  carried  us  baggage  is 
its  value  to  the  owner  for  use,  and  not 
merely  what  it  could  be  sold  for  in  money. 
Lake  Shore  Sf  M.  S.  R.  Co.  v.  IVarren,  21 
Am.  &*  Eng.  R.  Cas.  302,  6  Pac.  Rtp.  724. 
Fairfax  v.  New  York  C.  &*  //.  A'.  R.  Co.,  73 
A';  Y.  167;  affirming  \\  J.&*  S.  18;  refer- 
ring to  (yj  N.  Y.\  ,  15  Am.  Ry.  Rep.  141, 
which  reversed  S/.  A"  S.  516.  Texas  &*  P, 
R.  Co.  V.  Taylor,  3  Tex.  App.  {Civ.  Cas.)  234. 

Where  baggage  is  lost,  the  true  measure 
of  damages  is  the  value  of  the  articles,  and 
not  what  it  cost  the  owner  to  buy  other 
articles  to  replace  them.  Ne7i/  Orleans,  J. 
&*  G.  N.  R.  Co.  V.  Moore,  40  M/;<-.  39. 

The  true  measure  of  damages  for  lost 
baggage  is  the  value  of  the  articles  lost  at 
the  place  where  the  suit  is  brought,  and  not 
at  the  place  from  which  they  were  shipped. 
Douglass  V.  The  Railroad,  i  Phila.  (Pa.) 
337. 

The  measure  of  damages  for  lost  baggage 
is  its  market  value  with  interest,  if  rt  has  a 
market  value,  and  if  not,  then  the  value  of 
its  use  to  the  plaintiff.  Spooner  v.  Hanni- 
bal (S-  St.  J.  R.  Co.,  23  Mo.  App.  403.  Texas 
&*  P.  R.  Co.  V.  Ferguson,  9  Am.  &•  Eng.  R. 
Cas.  395,  I  Tex.  App.  {Civ.  Cas.)  724.  Texas 
&*  P.  R.  Co.  V.  Cook,  2  Tex.  App.  {Civ.  Cas.) 
576. 

In  the  absence  of  proof  as  to  the  contents 
of  a  trunk  and  their  value,  which  is  lost  as 
baggage,  the  jury  may  give  damages  pro- 
portioned to  the  value  that  the  articles 
were  worth,  in  their  judgment,  with  what 
the  trunk  did  and  might  fairly  contain. 
Dill  V.  South  Carolina  R.  Co.,  7  Rich.  {So. 
Car.)  158.— Reviewing  Mad  River  &  L.  E. 
R.  Co.,  V.  Fulton  20  Ohio  318. 

Where  a  trunk  is  checked  as  baggage 
and  arrives  at  its  destination  with  some  of 
the  contents  lost  and  others  damaged,  and 
the  same  is  tendered  by  the  company  to  ilie 
owner  in  a  reasonable  time,  it  is  his  duty  t» 
receive  it,  and  upon  failure  to  do  so  the 
amount  of  recovery  against  the  company  is 
limited  to  the  value  of  the  goods  actually 


'W^^l^ 


574 


BAGGAGE,   124-127. 


I 


lost  and  the  damage  to  the  others,  and  not  ' 
the  whole  value  of  the  trunk  and  its  con- 
tents.    Gu//,  C.  &*  S.  /■'.  A'.  Co.  V.  Jackson,  4 
Tex.  App.  (.Civ.  Cas.)  73,  15  S.  W.  Rep.  128. 

Suit  was  brought  aj^ainst  a  railroad  com- 
pany to  recover  for  luces  which  had  been 
transmitted  without  purchase  for  many  gen- 
erations, and  therefore  had  no  known  market 
value,  and  which  were  shipped  as  baggage. 
Held,  that  their  value  could  not  be  assessed 
upon  mere  conjecture,  and  that,  in  the  ab- 
sence of  any  evidence  to  show  their  market 
value,  only  nominal  damages  could  be  re- 
covered (or  the  loss.  Fraloff  v.  New  York 
C.  &-  //,  K.  R.  Co.,  10  Blatchf.  (U.  S.) 
16. 

124.  ExpeiiHCH  of  Hearcli.  —  The 
owner  of  lost  baggage  cannot  recover  for 
money  expended  in  searching  for  it.  Mis- 
sissippi C.  R.  Co.  V.  Kennedy,  41  Miss.  671. 
Texas  &•  P.  R.  Co.  v.  Ferguson,  9  Am.  &>  ling, 
A'.  Cas.  395,  I  7'ex.  App.  (Civ.  Cas.)  724.  Si. 
Louis,  1.  M.  &^  S.  R.  Co.  v.  Hindsman,  i  Tex. 
App.  {Civ.  Cas)  82,  Provencher  v.  Canadian 
Pac.  R.  Co.,  S  Montr.  L.  R.  {Sup.  CI.)  9. 

In  an  action  for  loss  of  baggage  plaintifl 
is  not  entitled  to  recover  damages  for  ex- 
penses incurred  in  searching  for  his  bag- 
gage, except  such  as  were  tiecessarily  in- 
curred in  ascertaining  whether  the  baggage 
had  reached  its  destinsition.  Texas  6^  P. 
R.  Co.  V.  Ferguson,  9  Am.  &*  Fng.  R.  Cas. 
395,  I  Tex.  App.  {Civ.  Cas.)  724. 

PlaintifT,  a  passenger  on  defendant's  rail- 
way, gave  his  baggage  in  charge  of  its  ser- 
vants. The  baggage  having  been  lost,  plain- 
tiff sued  for  the  value  of  the  articles  and 
for  damage  sustained  in  consequence  of  such 
loss,  both  in  expense  incurred  thereby  and 
in  loss  of  time.  Held,  that  the  damage 
must  be  confined  to  reasonable  expenses  of 
searching  for  the  baggage,  such  as  tele- 
graphing, cab  hire  in  going  to  defendant's 
office,  etc.  Morrison  v.  European  &*  N.  A. 
R.  Co.,  15  New  Brun.  295. 

Suit  was  brought  against  a  railroad  com- 
pany, claiming  $50  for  the  value  of  baggage 
lost;  increased  travelling  expenses,  hotel 
bills,  etc.,  incurred  by  reason  of  the  loss  of 
baggage,  $64.20;  for  loss  of  an  engage- 
ment as  a  school  -  teacher  and  preacher, 
resulting  from  the  loss  of  baggage,  $350. 
Held,  that  the  two  last  items  were  special, 
and  were  not  recoverable  unless  the  com- 
pany was  informed  at  the  time  the  baggage 
was  shipped  of  the  facts  which  would  ren- 
der such  damage  probable  in  the  event  of  a 


loss.  Ttxas  &*  P.  R.  Co.  v.  Taylor,  3  Tex, 
App.  {Civ.  Cas.)  234. 

125.  DuiiiuKCH  for  delay.— Where  a 

passenger  sues  to  recover  for  a  delay  in  the 
delivery  of  baggage,  the  measure  of  damages 
is  the  value  of  the  baggage  to  the  owner 
during  the  time  of  the  delay.  (Jul/,  C.  &* 
S.  F.  R.  Co.  V.  I'amil,  2  Tex.  Civ.  App.  427, 
21  S.  IV.  Rep.  303. 

The  ordinary  measure  of  damages  in  case 
of  delay  in  the  trans|)<>rtati()n  and  delivery 
of  baggage  is  the  value  of  the  use  of  the 
same  during  tlie  delay,  which  in  most  cases 
would  be  the  rental  value  of  the  property 
during  the  time  of  the  delay;  but  this  rule 
does  not  apply  where  the  delayed  baggage 
is  the  passenger's  own  wearing -apparel, 
which  might  have  no  rental  value,  the 
measure  of  damages  in  such  case  being  the 
value  of  the  use  of  the  apparel  to  the  owner 
during  the  time,  excluding  from  the  esti- 
mate damages  which  are  remote,  specula- 
tive, or  uncertain.  Te.ras  &>  P.  R.  Co.  v. 
Taylor,  3  Tex.  App.  {Civ.  Cas.)  234. 

120.  ExecNsive  damage^.— What  is 
wearing  apparel  is  necessarily  a  question  of 
fact,  and  what  is  reasonable  and  customary 
wearing  apparel  to  be  carried  by  a  traveller 
upon  a  particular  journey  is  also  a  question 
of  fact,  to  be  determined  with  reference  to 
the  tastes  and  habits  of  the  traveller,  his 
pecuniary  circumstances,  position  in  society, 
and  the  conveniences  and  necessities  of  the 
particular  journey.  So  where  a  foreign  lady 
of  high  rank  and  large  estate  was  travelling 
extensively  in  the  United  States  and  other 
countries,  it  was  held  to  be  a  question  of 
fact  for  the  jury  to  determine  the  amount 
and  value  of  the  baggage  that  she  had  a 
right  to  carry  as  such  ;  and  where  the  ques- 
tion was  properly  left  to  the  jury,  under 
evidence  warranting  their  finding,  a  verdict 
in  her  favor  for  $10,000  for  laces  lost  from 
her  trunk  while  in  the  hands  of  a  railroad 
company  will  not  be  disturbed.  Fraloff  \, 
New  York  C.  6-  //.  R.  R.  Co.,  48  How.  Pr. 
{N.  F.)  535 ;  affirmed,  100  U.S.  24. 

A  lady  travelling  away  from  home  had 
all  her  clothes,  except  those  that  she  was 
wearing,  in  her  trunk,  which  was  shipped  as 
baggage,  and  by  the  negligence  of  the  car- 
rier they  were  delayed  about  one  month. 
Held,  that  a  verdict  in  her  favor  for  $125 
would  not  be  set  aside  as  excessive.  Gulf, 
C.  <^  •  J.F.R.  Co.v.  Vancil,  2  Tex.  Civ.  App. 
4i7.  n  S.   W.  Rep.  303. 

127.  Costs.— Where  baggage  has  been 


BAGGAGH,   12H-13]. 


575 


IVIicrc  a 
y  ill  the 
damages 
ic  owner 
If,  C.  &- 
//A  427. 


found  after  suit  ha«  been  brouglit,  und  it 
hai  been  accepted  by  the  owner,  the  cuin- 
pany  is  only  responsible  for  the  taxal)le  costs 
incurred  up  to  date  of  delivery.  Provencher 
V.  Canadian  Pac.  R.  Co  ,  5  Montr.  L.  R. 
(Sup.  Ct.)  9. 

IZ.  OLOAX  BOOKS     PABOXL  BOOMS. 

128.  Duty  ol'  ooiiipuuy  to  deliver 
tliluir  depoHited.— In  the  absence  of  any 
stipulation,  there  is  an  implied  contract  be- 
tween a  railway  company  and  a  passenger 
depositing  a  parcel  in  a  cloak-room  at  a  sta- 
tion, paying  the  usual  charge,  that  the  com- 
pany will  deliver  the  parcel  on  reasonable 
request  and  in  a  reasonable  time.  Stallard 
V.  [jreat  Winern  P..  Co.,  2  B.  &»  S.  419,  8 
Ju/.  N.  S.  1076,  31  L.  J.  Q.  B.  137,  10  W. 
R.  488,  6Z.  r.  217. 

A  railway  company  which  receives  a  pas- 
senger's portmanteau  in  its  cloak-room, 
giving  him  a  ticket  providing  that  it  would 
not  deliver  up  luggage  except  to  persons 
presenting  the  proper  receipt,  is  bjuiid  to 
deliver  up  the  portmanteau  on  Sunday  as 
well  as  on  other  days,  on  a  reasonable  re- 
quest and  within  a  reasonable  tiiiic  Whether 
there  is  an  unreasonable  delay  owing  to 
which  the  passenger  loses  his  train  and  is 
compelled  to  suy  overnight  is  a  question 
for  the  jury.  StuUard  v.  Great  Western  R. 
Co.,  2  B.&*S.  419,  31  L.  J.  Q.  B.  137. 

129.  Liability  I'ur  Iohh,  geucriilly. 
— Where  a  commercial  traveller  deposits  a 
case  of  patterns  in  a  station  waiting-room 
and  it  is  lost,  in  an  action  against  the  com- 
pany as  warehouseman  he  cannot  recover 
damages  beyond  the  actual  value  of  the 
article  lost.  Anderson  v.  North  Eastern  R. 
Co..  4  L.  T.  216,  9  IV.  R.  519, 

17  &  18  Vic.  c.  31,  §  7,  does  not  apply  to 
the  loss  of  a  travelling-bag  deposited  by  a 
passenger  in  the  cloak-room  at  a  railway 
station,  the  passenger  taking  and  paying 
for  a  ticket  therefor.  Van  Toll  v.  Souih- 
Eastern  R.  Co.,  12  C.  B.  N.  S.  75,  31  L.  J. 
C.  P.  241,  8  Jur.  N.  S.  1213,  10  W.  R.  578, 
6  L.  T.  244. 

130.  Limitation  of  liability  in 
ticket  or  clieck.— If  a  railway  company 
stipulates  that  it  will  not  he  liable  for  articles 
deposited  in  its  cloak-room  exceeding  the 
value  of  ;£io,  this  stipulation  protects  it 
from  liability  for  delay  in  delivering  an 
article  exceeding  the  value  named,  at  least 
where  the  delay  is  not-caused  by  its  wilful 


act.    Ptpptr  V.  .^outh  Eastern  R.  Co.,  17  L. 
7-.  469. 

Conditions  in  a  ticket  received  by  a  pas- 
senger depositi'ig  parcels  in  a  station  cloak- 
room, exempting  the  company  from  liability 
for  any  package  beyond  the  value  of  /s 
unless  the  value  is  declared  and  increased 
chaigcs  are  paid,  are  applicable  to  a  loss 
owing  to  the  failure  of  the  servants  of  the 
company  to  put  the  parcels  into  the  cloak- 
room, leaving  them  in  a  vestihule  without 
any  protection.  Harris  v.  Great  Western 
R.  Co.,  45  L.y.  Q.  n.  729.  /,.  A'.  I  Q.  B.  D. 
515,  25  W.R.63.  34  Z.  ■/.  647. 

The  owner  of  a  bag  exceeding  the  value 
of  £s  deposited  it  in  a  railway  cloak-room 
and  received  a  ticket  with  tiie  following 
conditions:  "The  company  are  not  to  be 
answerable  for  loss  of  any  anicle  exceeding 
the  value  of  £^  unless  at  the  time  of  delivery 
the  true  value  be  declared,  and  a  sum  at  the 
rate  of  id.  for  every  20i-.  of  the  declared 
value  be  paid  for  such  article,"  above  the 
ordinary  charge.  The  bag  was  delivered  by 
mistake  to  a  wrong  person  and  was  never 
recovered,  //eld,  that  the  word  "  loss"  in- 
cluded misdelivery  and  that  the  railway 
company  were  not  liable.  Skipwiths.  Great 
Western  R.  Co.,  59  Z.  P.  520,  6  Ay.  &»  C.  T. 
Cas.  Ixx. 

131.  Depositor,  when  bound  by 
conditlonH  on  check.— A  passenger  de- 
positing a  travelling-bag  in  a  cloak-room  at 
a  station  will  be  presumed  to  have  assented 
to  the  terms  of  a  notice  on  the  ticket  which 
he  received  for  it.  Van  Toll  v.  South  East- 
ern R.  Co.,  12  C.B.  N.  S.  75,  31  L.  J.  C.  P. 
241,  8  Jur.  N.  S.  1213, 10  W.  R.  578, 6  Z.  T. 
244. 

Where  a  ticket  given  to  a  person  deposit- 
ing a  parcel  in  a  station  cloak-room  plainly 
refers  to  conditions  printed  on  the  back, 
the  depositor  is  bound  thereby  although  he 
may  not  have  read  the  conditions.  Harris 
V.  Great  Western  R.  Co.,  45  Z.  /.  Q.  B.  729, 
Z.  R.  I  Q.  B.  Z>.  515,  25  W.  R.  63,  34  Z.  T. 
647. 

When  a  person  delivers  a  p^'cel  at  a  sta- 
tion cloak-room  and  receives  a  ticket  with 
conditions  on  the  back  limiting  the  com- 
pany's liability,  he  is  not  bound  if  he  does 
not  know  there  is  writing  on  the  ticket ;  but 
if  he  knows  there  is  writing  containing  con- 
ditions he  is  bound ;  if  he  knows  there  is 
writing  but  does  not  know  that  it  contains 
conditions  he  is  bound,  if  in  the  opinion  of 
the  jury  reasonable  notice  is  given.    Parker 


■HR 


■M 


676 


BAILMENT,  1.2. 


a 


I 


V.  SoutA  Eastern  R.  Co.,  37  L.  T.  540,  25  Jf  . 
/?.  564,  Z,.  i?.  2  C.  P.  D.  416.  46  Z.  /.  C.  />. 
768,  3  Ry.  &*  C.  T.  Cas.  xiji. 

It  should  not  be  left  to  the  jury  to  decide 
whether  a  passenger  who  deposited  a  parcel 
in  a  station  cloak-room  was  aware  of  a  con- 
dition printed  on  the  back  of  the  ticket  he 
received  limiting  the  liability  of  the  com- 
pany, and  whether  he  was  under  any  obliga- 
tion to  make  himself  aware  of  it,  the  iace  of 
tlie  ticket  having  on  it  the  words  "  See  back." 
Parker  v.  South  Eastern  R.  Co.,  yj  L.  T.  540, 
25  W.  R.  364,  L.  R.  2  C.  P.  D.  416,  46  L.J. 
C.  P.  768;  reversing  L.  R.  i  C.  P.  D.  618, 
45L./.C.P.siS.3A^-  7-.  654. 


BAOOAOE  CASS. 

Injury  to  passenger  riding  in,  see  Carriage 

OF  Passengers,  III,  7. 


BAOOAGE-HASTER. 
Effect  of  delivery  of  baggage  to,  see  Bag- 
gage, 49,  63. 


BAILMENT. 

Of  baggage  by  passenger  after  arrival,  see 

Baggage,  71. 
Right  of  bailee  to  sue  for  killing  stock,  see 
Animals,  Injuries  to,  314. 
See  also  Pledge,  etc. ;  Warehousemen. 

1.  Sale  or  bailment.  —  Certain  boat- 
builders  engaged  to  build  boats  for  a  canal 
company,  which  kept  lumber  for  such  pur- 
pose, but  not  for  sale  generally.  Lumber 
had  been  delivered  at  various  times,  and  at 
first  it  was  paid  for  in  cash,  but  afterward 
credited  on  the  price  of  the  boats.  The 
lumber  in  suit  was  furnished  and  a  bill  sent 
to  the  builders,  who  became  insolvent  and 
sold  the  lumber  to  plaintiffs,  from  whom  the 
canal  company  took  it  without  permission. 
^VM,  in  an  action  for  such  taking,  that 
whether  the  delivery  to  the  builders  was  a 
sale  or  a  bailment  was  for  the  jury.  Crosby 
V.  Delaware  &-  H.  C.  Co.,  ^^N.  Y.  S.  R.  763, 
59  Hun  617,  13  N.  Y.  Supp.  306 ;  reversed  in 
128  N.  Y.  641,  mem.  40  N.  Y.  S.  R.  85,  3 
S/tv.  App.  550.  —  Following  Crosby  v. 
Delaware  &  H.  C.  Co.,  119  N.  Y.  334,  29 
N.  Y.  S.  R.  453. 

3.  Rights  and  liabilities  of  bailee.* 
— Where  a  bailment  of  and  an  injury  to  goods 

•  Liability  of  comrrion  carrier  as  bailee,  sec 
note,  6  L.  R.  A.  853. 


while  in  the  hands  of  a  bailee  are  proved, 
the  law  presumes  negligence,  and  imposes 
upon  the  bailee  the  burden  of  showing  the 
degree  of  care  required  by  the  nature  of  the 
bailment.  Rice  v.  Illinois  C.  R.  Co.,  22  ///. 
App.  643. 

In  an  action  for  goods  lost  by  a  bailee  it 
is  generally  optional  with  the  plaintiff  to 
declare  against  the  bailee  in  form  ex  con- 
tractu, or  in  tort ;  but  in  whatever  form  he 
may  frame  his  declaration  the  action  is  still 
one  of  contract,  wherever  the  liability  of  the 
defendant  in  fact  arises  out  of  a  contract. 
Belmont  Coal  Co.  v.  Richer,  31  W.  Va.  858, 
8  S.  E.  Rep.  609. 

Bailments  for  the  benefit  of  the  bailor  de- 
positum  or  ntandatum  are  founded  upon  ex- 
press contract,  and  require  the  assent  of  the 
bailee  to  make  him  responsible.  In  such 
case  the  bailee  is  required  to  use  only  slight 
care,  and  he  can  be  made  liable  only  for 
fraud  or  gross  negligence.  Belmont  Coal  Co. 
V.  Richer,  31  W.   Va.  858,  8  S.  E.  Rep.  609. 

The  delivery  of  a  non-negotiable  instru- 
ment to  a  bailee  for  the  purpose  of  trans- 
mitting it  to  a  third  party  does  not  so  clothe 
such  bailee  with  the  indicia  of  title  as  to 
give  validity  to  a  fraudulent  transfer  of  such 
instrument.  New  Jersey  Midland  R.  Co.  v. 
Hitchcock,  14  Atn.  &*  Eng.  R.  Cas.  598,  37 
N.J.  Eg.  549. 

A  bailee  cannot  avail  himself  of  the  title 
of  a  third  person  (though  the  person  be  the 
true  owner),  for  the  purpose  of  keeping  the 
property  for  himself,  in  any  case  where 
he  has  not  yielded  to  the  paramount  title. 
But  he  can  show  that  his  bailor  has  parted 
with  his  title.  Cole  v.  Wabash,  St.  L.  &» P. 
R.  Co.,  21  iMo.  App.  443. 

The  owner  of  a  horse,  who  hires  it  to  a 
street-railway  company,  undertakes  that  it  is 
reasonably  fit  and  suitable  for  the  work  of 
hauling  cars  for  which  it  is  hired,  and  the 
company  has  the  right  to  rely  upon  its 
being  fit  and  suitable  for  such  work,  and  is 
only  required  to  use  and  treat  it  with  rea- 
sonable care ;  but  if,  after  trying  the  animal 
at  such  work,  it  is  plainly  manifest  that  it  is 
unfit  for  it,  and  that  further  use  at  such 
work  would  be  injurious  and  would  endan- 
ger its  health  and  life,  it  is  the  duty  of  the 
company  to  abstain  from  further  use  with- 
out notifying  the  owner ;  the  company  has 
no  right  to  abuse  the  animal.  Bass  v.  Can- 
tor,  123  Ind.  444,  24  N.  E.  Rep.  147. 

It  is  the  usage  in  this  country  for  all 
railroad   companies    receiving   cars    from 


BAILMENT,  3,  4. 


577 


proved, 
imposes 
ring  the 
e  of  the 
22  ///. 


other  roads  to  make  necessary  repairs  at 
their  '"wn  expense,  unless  the  car  is  in- 
spected and  branded  as  defective  when 
received ;  and  in  view  thereof,  a  company 
which  claims  cars  belonging  to  another 
road,  and  pending  a  judicial  determination 
of  the  title  thereto,  is  by  agreement  per- 
mitted to  retain  and  use  them,  subject  to  a 
rental  in  case  the  decision  is  against  it,  can- 
not, after  such  decision,  set  off  against  the 
rental  any  claim  for  the  cost  of  repairs. 
Central  Trust  Co.  v.  Wabash,  St.  L.  &•  P. 
R.  Co.,  1,0  Fed.  Kep.  857. 

A  railroad  company  hired  a  slave  from 
the  plaintiff  to  work  on  its  road,  and  it 
was  asjreed  that  the  slave  should  not 
be  employed  on  the  cars  or  locomotives, 
but  that  he  might  be  carried  on  the 
cars  or  locomotiv.^s  "  from  any  one  place 
10  another  place  on  the  railroad  where 
his  services  may  be  required."  The 
slave,  with  the  knowledge  of  the  con- 
ductor, went  on  the  cars  and  was  carried 
beyond  the  place  at  which  his  services  were 
that  day  required,  and  in  jumping  from  the 
cars  while  they  were  in  motion,  was  killed. 
Held,  that  the  company  was  liable  to  the 
*  plaintiff  for  the  loss.  Duncan  v.  South 
Carolina  R.  Co.,  2  Rich.  {So.  Car.)  613. 

The  defendant  in  error  hired  to  the 
plaintiff  \n  error,  for  the  year  1856,  two 
slaves.  The  contract  of  huiug  contained 
the  following  stipu'ation  :  "  And  all  risks  in- 
curred, or  liability  to  accidents  whilst  in 
said  service,  is  compensated  for  and  covered 
by  the  pay  agreed  upon  ;  the  said  railroad 
company  assuming  no  responsibility  for 
damages  frorr.  accident,  or  any  cause  what- 
ever." The  stipulation  does  not  relieve  the 
company  from  liability  for  any  injury  or  loss 
resulting  from  the  wilful  wrong  or  gross 
negligence  of  said  company  or  its  agents, 
but  it  is  responsible  for  the  same.  Memphis 
&'  C,  R.  Co.  v.  Jones,  2  Head  (Tenn.)  517. — 
Approved  in  Runt  v.  Herring,  21  N.  Y. 
Supp,  244.  Reviewed  in  Nashville  &  C.  R. 
Co.  V.  Carroll,  6  Heisk.  (Tenn.)  347. 

3.  Care  and  diligence  required.— 
It  is  well  settled  that  if  a  mandatary  under- 
take the  busin.^ss  submitted  to  him  he  is 
bound  to  use  a  degree  of  diligence  and  at- 
tention adequate  to  the  performance  of  his 
undertaking,  and  whether  or  not  such  dili- 
gence has  been  used  is  a  question  for  the 
jury,  in  an  action  against  him  by  the  man- 
dator for  loss.  Kirtland  v.  Montgomery,  i 
Swan  (Tenn.)  452. 

1  U.  K    U.— 37. 


Where  a  bailment  is  made  for  the  exclu- 
sive benefit  of  the  bailor,  as  in  the  case  of  a 
railway  company  carrying  a  passenger's 
trunk  containing  articles  of  great  value 
without  reward  and  without  knowledge  of 
its  contents,  the  bailee  is  only  obligated  to 
slight  care,  and  is  liable  only  for  gross  neg- 
ligence. Michigan  C.  R.  Co.  v.  Carrow,  73 
///.  348.— Approving  Collins  v.  Boston  «S 
M.  R.  Co.,  10  Cush.  (Mass.)  506.  Distin- 
guishing Jordan  v.  Fall  River  R.  Co.,  5 
Cush.  (Mass.)  69;  Cincinnati  &  C.  A.  L.  R. 
Co.  z/.  Marcus,  38  III.  219;  Kuterz/.  Michigan 
C.  R.  Co.,  I  Biss.  (U.  S.)  35. 

Persons  receiving  baggage  as  bailees 
without  hire  can  be  held  liable  only  upon 
proof  of  want  of  ordinary  care  in  keeping  it, 
or  of  an  actual  subsequent  appropriation  of 
it  to  their  own  use  ;  but  in  order  to  estab- 
lish the  liability  in  either  case  it  must  be 
shown  that  the  baggage  came  into  their 
possession  for  the  purpose  of  being  kept 
by  them  subject  to  the  call  of  the  owner. 
Samuels  v.  McDonald,  1 1  Abb,  Pr.  N,  S.  {N, 
y.)  344,  42  How.  Pr.  360. 

A  railroad  company  allowing  goods  to  re- 
main on  the  cars  at  tlie  place  of  destination 
as  an  accommodation  to  the  consignee  is  a 
bailee  without  reward,  and  therefore  only 
liable  for  a  loss  resulting  from  its  gross  neg- 
lect. Knowles  v.  Atlantic  &*  St.  L.  R.  Co. , 
38  Me.  55. 

When  the  bailor  or  depositor  not  only 
knows  the  general  character  and  the  habits 
of  the  bailee,  but  the  place  where  and  the 
manner  in  which  goods  deposited  are  to  be 
kept,  he  must  be  presumed  to  assent  in  ad- 
vance that  his  goods  should  be  thus  treated, 
and  if  under  such  circumstances  they  are 
damaged  or  lost,  the  bailee  is  not  liable.  So 
held,  where  a  railroad  company,  after  carry- 
ing goods  to  the  end  of  its  line,  permitted 
the  owner  to  push  the  car  onto  its  wharf, 
there  to  remain  until  it  should  be  conveni- 
ent for  the  owner  to  reship  by  vessel,  and 
the  goods  were  lost  by  reason  of  the  wharf 
giving  way.  Knowles  v.  Atlantic  6-  St.  L. 
R.  Co.,  38  Me.  55. 

4.  Bailee's  lien.— A  railway  company 
entered  into  an  agreement  with  A.  for  the 
delivery  to  it  of  a  certain  quantity  of  coal, 
to  be  carried  by  it  for  hire,  in  A.'s  cars, 
the  company  to  have  the  right  to  detain 
any  cars  of  A.  on  certain  defaults  on  his 
part.  A.  agreed  with  B.  to  supply  a  portion 
of  the  coal  in  cars  which  had  been  hired  for 
a  term  from  A.  by   B.,  but  relet  for  hire 


Ih 


678 


BAILMENT,  5, «.— BALTIMORE   &   OHIO   R.   CO.,  1-3. 


m 

I 

3 


I 


I.   '• 


from  him  tu  A.  A.  made  default,  and  the 
company  seized  and  detained  the  cars  then 
on  the  line,  which  were  in  fact  sent  by  B. 
under  his  agreement  with  A.  Ne/d,  that 
company  could  not  retain  such  cars  as 
against  B.  North  v.  Great  Northern  R.  Co., 
tjur.  N.  S.  98. 

5.  Redelivery  of  subject  of  bail- 
ment.— Where  property  is  not  put  in 
bailee's  charge  by  the  owner,  but  comes 
into  his  possession  through  the  owner's 
neglect— as  where  a  passenger  inadvertently 
leaves  a  salcliel  on  a  car — and  where  he  may 
not  know  to  whom  it  belongs,  or  by  whom  it 
was  left,  he  should  not  be  held  responsible 
for  delivering  it  to  the  wrong  person,  if  he 
has  exercised  all  thie  care  and  vigilance  that 
could  reasonably  be  expected  of  him  under 
the  circumstatices.  Morris  v.  Third  Ave. 
R.  Co.,   I   Daly   {N.  V.)    202,  23  //ow.  Pr. 

345- 

If  a  slave  hired  for  a  term  die  during  the 
term,  the  hire  must  be  apportioned,  even 
though  his  death  was  caused  by  the  negli- 
gence of  tlie  hirer.  Muldrow  v.  Wilmington 
&*M.  R.  Co.,  13  Rich.  (So.  Car.)  69. 

6.  Action  by  bailee  against  third 
persons.— Where  the  bailee  of  property 
delivers  it  to  a  carrier  for  transportation, 
either  the  bailee  or  bailor  niay  maintain  an 
action  against  the  carrier  for  the  loss  of  the 
property.  Elkins  \.  Boston  &•  M.R.  Co.,  19 
A^.  H.  337. 

A  bailee  of  property  who  has  an  interest 
in  it  may  maintain  an  action  in  his  own 
name  for  any  injury  done  to  it,  either  tort- 
wise  or  by  the  breach  of  any  obligation  or 
duty  which  another  may  be  under  in  refer- 
ence to  it.     White  v.  Bascom,  28  Vt.  268. 

A  bailee  has  a  right  to  sue  for  damages 
for  injury  to  the  thing  bailed  which  goes 
beyond  the  particular  loss  which  he,  by 
by  reason  of  his  possession,  has  sustained. 
So  where  a  horse  was  injured  by  coming  in 
contact  with  a  street  car  while  in  the  posses- 
sion of  one  who  had  hired  it  for  the  day,  it 
was  held,  that  he  might  recover  for  the  full 
injuries  to  the  animal.  Jatho  v.  Green  6-  C, 
St.  Pass.  R.  Co.,  4  Phila.  {Pa)  24. 

Cloth  was  sent  to  plaintiff  to  be  made 
into  suits  and  returned.  After  being  made 
up  plaintiff  delivered  it  to  a  railroad  com- 
pany to  be  carried  back  to  the  owners.  Held, 
that  he  had  not  such  an  interest  as  bailee 
as  would  entitle  him  to  recover  for  a  loss. 
Mors*  V.  Androscoggin  R.  Co.,  39  Me. 
285. 


BALTIMOBE  &  OHIO  B.  CO. 

1.  Appointment    of    directors.  — 

The  city  of  Baltimore  held  a  large  amount 
of  stock  in  the  Baltimore  &  Ohio  Railroad 
Company,  which  stock  was  increased  by 
taking  additional  shares  derived  from  divi- 
dends declared  on  the  original  stock.  The 
city  was  entitled  to  appoint  directors  of  the 
company  to  represent  its  original  stock. 
Held,  that  it  was  not  entitled  to  appoint 
further  directors  to  represent  the  additional 
stock.  Wheeling  v.  Mayor,  etc.,  of  Balti- 
more, I  Hughes  {U.  S.)  90. 

2.  Charter  powers,  generally.— The 
B.  &  O.  R.  Company  is  not  an  ordinary  pri- 
vate corporation,  created  only  for  the  pecu- 
niary benefit  of  its  stockholders.  The 
powers  granted  to  it  are  of  the  most  exten- 
sive and  comprehensive  kind,  involving  in 
their  exercise  great  public  interests,  to 
promote  which  was  tlie  cliief  object  of  its 
charter.  Mayor,  etc.,  of  Baltimore  v.  Balti- 
more Gf  O.  R.  Co. ,  2 1  Md.  50. 

To  induce  the  company  to  accept  the  act 
of  March  6,  1847,  the  city  of  Wheeling  and 
the  company  entered  into  a  contract  by 
which  Wiieeling  undertook  to  do  certain 
things  therein  specified  ;  and  the  committee 
of  the  company  agreed  to  recommend  to  it 
to  accept  said  act :  "  it  being  the  intention 
of  the  parlies  to  the  agreement,  among 
other  things,  to  secure  to  the  city  of  Wheel- 
ing the  practical  benefits  of  the  terminus  of 
the  Baltimore  &  O.  R.  according  to  the 
provisions  of  said  law."  Held,  that  the 
company  is  not  forbidden  by  the  contract  to 
connect  with  the  Ohio  river,  or  with  a  rail- 
road in  the  state  of  Ohio,  at  any  point  be- 
tween the  mouth  of  Grave  creek  and  Wheel- 
ing. Baltimore  6-  O.  R.  Co.  v.  Wheelitig, 
13  Gratt.  (Va.)  40. 

3.  Power  to  act  as  warehouseman. 
— The  Maryland  act  1826,  ch.  123,  did  not 
authorize  the  company  to  carry  on  the  gen- 
eral and  ordinary  business  of  a  warehouse- 
man;  and  if  the  act  1830,  ch.  117,  or  any 
subsequent  act,  did  authorize  the  company 
to  receive  and  charge  for  the  storage  of 
grain  and  other  freight  generally,  the  gross 
receipts  derived  from  tlie  exercise  of  this 
special  privilege  or  franchise  were  liable  to 
the  tax  imposed  by  the  act  1872,  ch.  234. 
State  V.  Baltimore  &^  O.  R.  Co.,  48  Md.  49. 

If  no  such  power  had  been  conferred,  and 
these  structures  were  owned  and  used  by 
the  company  for  the  purpose  of  carrying  on 


BALTIMORE   &   OHIO    R.   CO.,  4-«. 


579 


.CO. 

ctors.  — 

re  amount 
>  Railroad 
Teased  by 
from  divi- 
ock.  The 
;ors  of  the 
nal  stock, 
to  appoint 
additional 
o/  Balti- 

Illy.— The 

jinary  pri- 
the  pecu- 
ers.  The 
lost  exten- 
volving  in 
erests,  to 
iject  of  its 
■e  V.  Balti- 

pt  the  act 
eeling  and 
on  tract  by 
do  certain  • 
comnuttee 
mend  to  it 
e  intention 
nt,  among 

of  Wheel- 
erminus  of 
ng  to  the 
,  that  the 
:on  tract  to 
nth  a  rail- 
I  point  be- 
nd Wheel- 

Whetlittg, 

iiiseniau. 

3,  did  not 
n  the  gen- 
rarehouse- 
17.  or  any 
company 
storage  of 
,  the  gross 
ise  of  this 
:  liable  to 
2,  ch.  334. 
8  Md.  49. 
erred,  and 
1  used  by 
irrying  on 


a  business  separate  from  its  business  and 
obligations  as  a  carrier,  then  sucii  structures 
were  taxable  according  to  valuation  as  other 
real  property.  State  v.  Baltimore  &*  O.  R. 
Co.,  48  Afd.  49. 

4.  Power  to  run  hotels.  —  The  com- 
pany is  not  authorized  by  its  charter  to  build 
and  conduct  hotels  for  the  accommodation 
uf  the  public  generally,  but  as  hotels  for  the 
accominodaiion  of  its  passengers  are  nec- 
essiiry  to  its  business,  they  are  therefore 
within  its  charter,  which  would  include  its 
Cumberland  and  Viaduct  hotels,  being 
mainly  designed  for  the  accommodation  of 
passengers  and  for  ticket  and  telegraph 
ofhces  and  waiting-rooms ;  and  under  its 
general  charter,  exempting  its  stock  from 
taxation,  the  gross  receipts  of  these  hotels 
are  exempt ;  but  its  Oakland  and  Deerpark 
hotels,  being  used  primarily  as  summer 
resorts,  and  not  being  necessary  to  the  oper- 
ation of  the  road,  are  not  so  exempt ;  but 
tiiey  can  only  be  taxed  as  other  real  prop- 
erty and  are  not  liable  to  a  tax  on  their 
receipts,  under  the  Maryland  act  of  1872,  ch. 
234.  State  V.  Baltimore  &•  O.  K.  Co.,  48 
Mtl.  49. 

5.  Power  to  construct  or  control 
lateral  roads— Taxation. — The  author- 
ity given  to  the  company  by  the  Maryland 
act  1836,  ch.  276,  to  subscribe  towards  the 
construction  of  any  lateral  or  connecting 
road,  and  to  acquire  an  interest  therein,  not 
exceeding  two-fifths  of  the  estimated  cost 
of  constructing  such  road,  is  a  distinct  priv- 
ilege or  franchise  granted  to  the  company, 
and  the  gross  receipts  derived  from  the 
interest  thus  acquired  in  such  lateral  or  con- 
necting road  are  liable  to  the  tax  levied  by 
the  act  1872,  ch.  234.  State  v.  Baltimore  &* 
O.  R.  Co.,4,%  Md.\<). 

The  Metiopolitan  Railroad,  having  been 
built,  not  under  the  provision  in  the  original 
charter  which  authorized  the  Baltimore  & 
Ohio  Railroad  Company  to  construct  lateral 
roads,  but  under  the  act  1865.  ch.  70,  which 
did  not  exempt  the  projected  road  or  its 
franchises  from  taxation,  the  gross  receipts 
of  the  Metropolitan  road  were  subject  to 
the  tax  imposed  by  the  act  1872,  ch.  234; 
but  no  separate  account  having  been  kept 
of  such  receipts,  they  having  been  mingled 
with  those  derived  from  the  main  stem  of 
the  Baltimore  &  Ohio  Railroad,  the  only 
rule  by  which  to  approximate  to  the  receipts 
of  the  former  was  to  make  them  bear  the 
same  proportion  to  the  entire  gross  receipts 


derived  from  the  main  stem  in  the  state,  as 
the  number  of  miles  of  the  Metropolitan 
road  bears  to  the  entire  length  of  the  Balti- 
more &  Ohio  Railroad.  State  v.  Baltimore 
6-  O.  R.  Co.,  48  Md.  49. 

No  power  is  conferred  on  the  company  by 
its  charter  to  acquire  or  hold  any  interest  in 
steamship  or  steamboat  lines;  but  such 
power  is  granted  by  the  Maryland  act  of 
1868,  ch.  471,  §  218,  and  being  a  separate  and 
distinct  franchise,  the  receipts  or  dividends 
derived  from  the  interest  acquired  in  such 
steamship  or  steamboat  litics  are  liable  to 
the  gross-receipt  tax  imposed  by  the  act  of 
1872.  State  v.  Baltimore  &•  O.  R.  Co.,  48 
Md.  49. 

Bonds  of  other  railroad  companies,  held 
outside  of  the  franchises  of  the  company, 
sought  to  be  taxed  are  liable  to  taxation 
according  to  their  market  value,  as  other 
bonds.  State  v.  Baltimore  6-  O.  R.  Co.,  48 
Md.  49. 

The  gross  receipts  derived  from  all  prop- 
erties and  investments  owned  by  the  com- 
pany under  franchises  granted  subsequent 
to  its  charter,  and  upon  which  no  exemption 
from  taxation  was  engrafted,  were  liable  to 
the  tax  imposed  by  the  act  1872,  ch.  234,  if 
earned  in  the  state.  State  v.  Baltimore  &* 
O.  R.  Co.,  48  Md.  49. 

A  short  lateral  road  diverges  from  the 
main  stem  of  the  Baltimore  &  Ohio  Rail- 
toad  at  Benwood  and  terminates  upon  the 
bank  of  the  Ohio  river,  opposite  to  Belair, 
the  station  of  the  Central  Ohio  Railroad, 
and  communication  between  the  two  roads 
for  goods  and  passengers  is  kept  up  by  a 
steam  ferryboat,  //fid,  that,  under  the  Md. 
act  of  1836,  ch.  276,  which  authorized  the 
Baltimore  &  Ohio  Railroad  Company  "to 
subscribe  towards  the  construction  of  any 
lateral,  continuing,  or  connecting  road,  and 
to  acquire  any  interest  therein,  to  an  extent 
not  exceeding  two-fifths  of  its  estimated 
cost,"  the  Central  Ohio  Railroad  is  a  con- 
necting road,  and  that  the  Baltimore  &  Ohio 
Railroad  Company  may  lawfully  loan  or 
furnish  money  to  aid  in  its  construction  and 
take  a  mortgage  or  other-security  therefor. 
Mayor,  etc.,  of  Baltimore  v.  Baltimore  &•  O. 
R.  Co.,  21  Md.  50. 

O.  Use  of  track  by  other  roads.— 
The  company  is  not  subject  to  the  operation 
of  the  act  of  1874,  ch.  446,  of  Maryland,  re- 
quiring railroads  crossed  by  or  connecting 
with  any  other  railroads  to  allow  the  latter 
the  use  of  their  tracks  for  a  certain  fixed 


■  ,,.■ 


580      BALTIMORE   &   POTOMAC   R.   CO.,  1.— BANKRUPTCY,  1. 


\ 

s 


S 
& 
s 

S 


I  li^" 


.'i:.,i. . 


compensation.  Pennsylvania  R.  Co,  v. 
Baltimore  Sf  O.  R.  Co.,  14  Am.  &*  Eng.  R. 
Cas.  79,  60  Mil.  263. 

7.  Use  of  track  of  other  roads.— 
Tlie  company  had  a  contract  with  the 
Philadelphia,  Wilmington  &  Baltimore 
Railroad,  which  was  controlled  by  the 
Pennsylvania  Railroad,  to  form  a  connection 
at  Philadelphia,  and  for  the  latter  road  to 
receive  the  cars  of  the  Baltimore  &  Ohio 
road  at  Philadelphia  and  transport  the  same 
to  New  York,  which  contract,  by  its  terms, 
might  be  terminated  on  thirty  days'  notice. 
Upon  such  notice  being  given  the  Baltimore 
&  Ohio  Company  filed  a  bill  to  compel  the 
Pennsylvania  Company,  as  a  common  car- 
rier, to  receive  and  transport  its  cars.  Held, 
that  in  order  to  justify^  mandatory  in- 
junction, as  prayed  for,  upon  filing  the  bill, 
plaintiff's  right  should  be  quite  clear,  and 
not  being  so,  the  injunction  was  refused. 
Baltimore  &•  O.  R.  Co.  v.  Pennsylvania  R. 
Co.,  17  P/iila.  (Pa.)  569. 

8.  Suits  by  and  against.— Under  the 
Va.  act  of  March  8,  1827,  the  Baltimore  & 
Ohio  Railroad  Company  became  a  domestic 
corporation  as  to  that  state,  and  may  sue 
and  be  sued  in  its  courts  as  such.  Baltimore 
«&-0.  R.  Co.  V.  Gallahue,  12  G^raW.  ( Fa.)  655. 
— Approved  in  Goshorn  v.  Supervisors,  i 
W.  Va.  308.  Quoted  in  Dixon  v.  Order 
of  Ry.  Conductors,  49  Fed.  Rep.  910.  Balti- 
more &  O.  R.  Co.  V.  Pittsburg,  W.  &  K.  R. 
Co.,  10  Am.  &  Eng.  R.  Cas.  444,  17  W.  Va. 
812.  Reviewed  in  Baltimore  &  O.  R.  Co. 
V.  Wightman,  29  Gratt.  (Va.)  431. 


BALTIMORE  &  POTOMAC  R.  CO. 

1.  Terminal  facilities  at  Washing- 
ton.—The  charter  of  the  Baltimore  & 
Potomac  Railroad  Company,  act  of  Con- 
gress of  February  5,  1867,  authorizes  it  to 
take  and  use  for  depot  purposes,  with  the 
turnouts  necessary  to  reach  it,  any  lots  of 
ground  in  the  city  of  Washington  contigu- 
ous to  the  line  of  its  road ;  that  is  to  say, 
any  lots  between  the  front  of  which  and  the 
line  of  the  road  no  other  lots  intervene ;  and 
for  this  purpose  square  232  is  contiguous  to 
the  line  of  the  road,  although  by  the  recess 
caused  by  the  intersection  of  several  streets 
it  does  not  touch  Maryland  avenue,  along 
which  the  road  runs.  Baltimore  &*  P.  R. 
Co.  V.  Etimonils,  3  Mackey  {D.  C.)  526. 

The  company  has  no  legal  iiuihority  to 
use  its  tracks  on  Maryland  avenue,  between 


Ninth  and  Tenth  streets,  in  the  city  of 
Washmgton,  as  a  general  shifting-ground 
for  its  cars.  Fitzgerald  v.  Baltimore  &-  P. 
R.  Co.,  8  Mackey  [d.  C.)  513. 

The  act  of  congress  permitting  the  com- 
pany to  lay  in  the  city  of  Washington,  at  or 
near  its  depots  or  stations,  "as  many  tracks 
as  its  president  and  board  of  directors  may 
deem  necessary,"  does  not  authorize  the 
company  to  use  those  tracks  for  the  purpose 
of  shifting  cars  and  making  up  and  breaking 
up  trains  in  the  conduct  of  its  general  busi- 
ness; but  the  use  of  such  tracks  must  be 
limited  and  restricted  to  the  necessary 
operations  of  said  railroad,  connected  with 
the  careful  use  of  the  depot  or  station  at  or 
near  which  the  said  tracks  are  laid.  Hopkins 
V.  Baltimore  &*  P.  R.  Co.,  6  Mackey  (D.  C.) 
311.— Reviewing  District  of  Columbian. 
Baltimore  &  P.  R.  Co.,  1 14  U.  S.  460. 

On  Februarys,  1 867,  congress  authorized 
the  company  to  construct  a  lateral  branch 
of  their  road  into  the  District  of  Columbia, 
and  prescribed  how  the  road  might  pass 
along  the  public  streets  and  alleys  to  the 
point  of  terminus  within  the  city  of  Wash- 
ington, and  in  no  way  subjected  the  rail- 
road corporation  to  the  control  or  super- 
vision of  the  municipal  government  of  said 
city.  Held,  therefore,  that  said  corporation 
was  exempted  from  all  interference  from 
such  city  government,  and  that  it  was 
erroneous  to  admit  in  evidence  on  the  trial 
an  ordinance  of  the  common  council  in 
reference  to  the  use  of  a  street  by  said  com- 
pany. Barnes  v.  District  of  Columbia,  i 
MacArth.  (Z?.  C.)  322. 


BANKRUPTCY. 

1.  Operation  of  the  act  upon  rail- 
roads.— Railroad  corporations  are  "mon- 
eyed business  or  commercial  corporations," 
within  the  meaning  of  the  bankrupt  act  of 
•867,  §  37,  and  may  therefore  be  proceeded 
against  as  such.  In  re  California  Pac.  R. 
Co.,  3  Sawy.  {U.  S.)  240.— Quoting  Winter 
V.  Iowa,  M.  &  N.  P.  R.  Co.,  7  Bankr.  Reg. 
291.—  Winter  v.  Iowa,  M.  &*  N.  P.  R.  Co.,  2 
Dill.  {CI.  S.)  487.— Approving  Alabama, 
etc.,  R.  Co.  V.  Jones,  5  Bankr.  Reg.  97 ; 
Adams  v.  Boston,  etc.,  R.  Co.,  4  Bankr. 
Reg.  (99),  314;  Sweatt  v.  Boston,  H.  &  E. 
R.  Co.,  3  Clifi.  (U.  S.)  339.  5  Bankr.  Reg.  234. 
—Followed  in  New  Orleans,  S.  F.  &  L. 
R.  Co.  7/.  Delamore,  114  U.  S.  501. — Adams 
v.  Boston,  H.  &*  E.  R.  Co.,  i  Holmes  {U.  S.) 


^m 


te 


BANKRUPTCY,  2. 


681 


30.— Quoting  Hall  v.  Sullivan  R.  Co.,  11 
Law.  Rep.  138.— Followed  in  New  Orleans, 
S.  F.  &  L.  R.  Co.  V.  Delamore,  1 14  U.  S.  501. 
— Rankin  v.  Florida,  etc.,  R,  R.  Co.,  i 
Bankr.  Reg.  (196)  647 ;  Adams  v.  Boston,  etc., 
R.  Co.,  4  Bankr.  Reg.  (99)  314;  Alabama, 
etc.,  R.  Co.  V.Jones,  5  Bankr.  Reg.  97  ;  Sweat  t 
V.  Boston,  H.  &*  E.  R.  Co.,  5  Bankr.  Reg.  234 ; 
In  re  Southern  Minn.  R.  Co.,  10  Bankr.  Reg. 
86 ;  In  re  Union  Pac.  R.  Co.,  10  Bankr.  Reg. 
178. 

It  is  within  the  general  power  of  congress 
to  enact  bankrupt  laws,  and  there  is  nothing 
to  prevent  such  laws  from  embracing  in 
their  effect  railroad  corporations  whicli  are 
chartered  by  state  laws ;  su_!  corporations 
are  not  "  instiiutions  or  means  of  govern- 
ments," such  as  congress  has  no  jurisdiction 
over.  Sweatt  v.  Boston,  H.  &•  E.  R.  Co. ,  3 
Cliff.  (,U.S.-)'sy). 

Characteristics  of  a  public  nature  attach 
to  every  corporation,  inasmuch  as  they  are 
created  for  the  public  benefit ;  but  if  a  cor- 
poration is  not  created  for  the  administra- 
tion of  political  or  municipal  power,  it  is 
private,  witiiin  the  meaning  of  the  bank- 
ruptcy act,  unless  the  whole  interest  be- 
longs to  the  government.  Sweatt  v.  Boston, 
H.  &-  E.  R.  Co.,  3  Clif.  ([/.  S.)  339. 

The  district  courts  of  the  United  States 
iiave  the  same  jurisdiction  to  adjudge  rail- 
road corporations  bankrupt  as  any  other 
debtors.    Sweatt  v.  Boston,  H.  &*  E.  R.  Co., 

•z  Cliff.  (u.s.)m. 

A  railroad  company  is  a  j^rivate  corpora- 
tion, and  is  not  such  a  public  corporation  as 
to  be  a  necessary  means  of  state  govern- 
ment, whicii  would  exclude  federal  control ; 
and  therefore  the  general  power  of  congress 
to  pass  uniform  bankrupt  laws  includes  the 
power  to  authorize  the  federal  courts  or 
registers  in  bankruptcy  to  sell  and  transfer 
a  railroad  franchise  in  proceedings  in  bank- 
ruptcy, though  the  railroad  was  chartered 
by  state  laws.  Sweatt  v.  Boston,  H.  &•  E.  R. 
Co.,  3  Cliff.  {U.  S.)  339. 

The  fact  that  a  railroad  company  is  created 
under  state  laws,  subjecting  it  to  certain 
duties  and  liabilities,  and  declaring  that 
these  liabilities  are  not  transmissible,  and 
that  the  corporation's  duties  cannot  be 
delegated,  the  corporation  itself  not  being 
vested  with  the  power  of  transferring  these 
duties,  does  not  operate  to  exempt  them 
from  the  effect  of  the  general  bankrupt 
laws.  Adams  v.  Boston,  H.  &*  E.  R.  Co.,  1 
Holmes  {U.S.)  30. 


2.  Jiirisclictionul  questions.'*'— The 

United  States  bankruptcy  court  has  juris- 
diction to  declare  a  railroad  company  a 
bankrupt  and  to  administer  its  property. 
New  Orleans,  S.  F.  &*  L.  R.  Co.  v.  Delamore, 
114  £/.  5.  501,  5  Sup.  Ct.  Rep.  1009.— Fol- 
lowing Adams  v.  Boston,  H.  &  E.  R.  Co.. 
I  Holmes  (U.  S.)  30;  Sweatt  7/.  Boston,  H. 
&  E.  R.  Co.,  5  Bankr.  Reg.  234;  Alabama 
&  C.  R.  Co.  V.  Jones,  5  Bankr.  Reg.  97; 
Winter  v.  Iowa,  M.  &  N.  P.  R.  Co.,  2  Dill. 
(U.  S.)  487. 

In  the  absence  of  an  express  provision, 
the  question  of  where  corporations  may  be 
sued  will  be  determined  by  the  judiciary  act 
of  Sept.  24,  1789,  §  II,  which  forbids  that 
any  civil  suit  shall  be  brought  in  either  the 
district  or  circuit  courts  of  the  United 
States,  by  original  process,  against  an  in- 
habitant of  the  United  States,  except  in  the 
district  where  he  is  an  inhabitant  or  in 
which  he  may  be  found  and  served ;  and 
therefore  a  railroad  corporation  must  be  pro- 
ceeded against  in  the  district  where  its  road 
is  built,  maintained,  and  operated.  In  re 
Alabama  &•  C.  R.  Co.,  9  Blatchf.  {U.  S.)  390. 

The  provision  of  the  general  bankrupt  act, 
§  37,  providing  that  suits  shall  be  brought  in 
the  district  in  which  the  debtor  "has  re- 
sided or  carried  on  business,"  when  applied 
to  a  railroad  corporation,  must  be  confined 
to  the  state  creating  the  corporation.  In  re 
Alabama  <S-  C.  R.   Co.,  9  Blatchf.  {U.  S.) 

390- 

Where  mortgaged  property  is  sold  under 
a  decree  of  a  court  of  bankruptcy,  the 
court  has  no  power  to  settle  the  accounts 
between  the  mortgage  trustee  and  his  cestuis 
que  trustent,  nor  to  ascertain  what  is  due  to 
the  trustee's  counsel.  In  re  Blue  Ridge  R. 
Co.,  2  Hughes  (U.S.)  224,  3  Fed.  Cas.  750. 

Where  a  bankrupt  court  authorizes  the 
sale  of  property  upon  which  there  are  liens, 
and  the  proceeds  of  sale  amount  to  no  more 
than  is  sufficient  to  discharge  such  liens, 
the  fund  is  not  chargeable  with  any  costs 
excepts  the  actual  costs  of  sale,  and  the 
court  has  no  power  to  divert  the  fu.ids 
from  the  payment  of  such  liens.  In  re  Blue 
Ridge  R.  Co.,  2  Hughes  (U.  S.)  224,  3  Fed. 
Cas.  750. 

Under  the  act  of  June  22,  1874,  amending 
the  general  bankrupt  laws,  a  single  creditor 


*  Exclusive  jurisdiction  of  court  appointing  re- 
ceiver as  against  assignee  in  bankruptcy,  see 
note,  20  L.  R.  A.  391. 


oi<i 


BANKRUPTCY,  3-B. 


of  a  (:<)rpf)ratif)ii  t"innot  subject  it  to  coin- 
pulsory  bankruptcy.  /«  re  Detroit  Car 
Works,  14  Banki .  Reg.  243. 

The  Boston,  H.  &  E.  R.  Co.  was  a  cor- 
poration chartered  by  the  state  of  Connect- 
icut. It  afterwards  received  a  grant  of 
corporate  privileges,  and  was  declared  a 
corporation  by  a  statute  of  Massachusetts, 
in  wiiich  state  it  had  an  office  and  carried 
on  business.  In  October,  1870,  a  petition 
was  filed  by  A.,  in  the  district  court  for 
Massachusetts,  in  bankruptcy,  upon  wliich 
the  corporation  was,  on  the  second  of 
March,  1871,  adjudged  bankrupt.  In  De- 
cember, 1870,  J.  filed  a  petition  in  the  dis- 
trict court  for  Connecticut,  praying  that  the 
corporation  be  adjudged  a  bankrupt  by  that 
court.  Pending  this  latter  petition  A.  pe- 
titioned the  district  court  for  Connecticut, 
and  set  forth  in  his  petition,  and  in  a  sup- 
plemental petition,  his  proceedings  in  Massa- 
chusetts and  the  adjudication  there  made, 
averring  also  that  the  proceedings  in 
Connecticut  were  collusive  between  the 
corporation  and  J.,  and  would  prejudice  the 
creditors  of  the  corporation,  create  expense 
and  conflict,  and  embarrass  the  settlement 
of  the  estate,  and  praying  that  he,  A.,  might 
be  allowed  to  appear  and  defend  against 
the  petition  of  J.  The  district  court  for 
Connecticut  dismissed  such  petition  of  A., 
and  proceeded  to  an  adjudication  of  bank- 
ruptcy against  the  corporation,  and  issued 
a  warrant.  Held:  (i)  that  A.  being  in  fact  a 
creditor  of  the  corporation,  his  petition  to 
the  district  court  for  Connecticut  should 
have  been  entertained,  and  that  the  facts 
set  forth  therein  warranted  his  interven- 
tion ;  (ii  that  whether  the  bankrupt  was  to 
^  jiarded  as  a  single  corporation  or  as 
til  .....poations  united  in  interest,  having 
O'lft  1;  '  iic  same  corporators,  and  common 
rccrr  .ifjhts,  and  franchises,  and  owing 
:;j  •:.  i.reditors,  the  district  court  for 
ivlassaciii  .etts  should  be  permitted  to  exer- 
cise the  jurisdiction  it  had  acquired  over 
the  bankrupt  and  the  estate,  and  carry  the 
proceedings  in  bankruptcy  to  their  final 
conclusion  without  the  interference  of  the 
district  court  for  Connecticut,  and  that  all 
proceedings  in  that  court  should  be  stayed. 
In  re  Boston,  H.  (S-  E.  R.  Co.,  9  Blatchf.  {U. 
S.)  10 1 ;  affirmed  ^  Blatchf  .  409. 

An  action  begun  in  a  state  court  by 
attachment  of  the  property  of  a  corporation, 
against  which,  pending  the  action,  but  not 
within  four  months  after  the  attachment 


had  been  made,  proceedings  in  bankruptcy 
have  been  instituted,  will  not  on  motion  of 
the  assignees  in  bankruptcy  of  the  corpora- 
tion be  dismissed  for  want  of  jurisdiction. 
Munson  v.  Boston,  H.  6-  E.  R.  Co.,  120 
Mass,  81. 

3.  Voluntary  bankruptcy. — A  cor- 
poration may  be  authorized  to  institute 
proceedings  in  bankruptcy  by  a  majority  of 
its  stockholders,  and  such  proceedings  can- 
not be  prevented  by  the  resignation  of  its 
directors  for  the  purpose  of  embarrassing 
stockholders  or  preventing  such  proceed- 
ings. Davis  V.  Alabama  &•  F.  R.  Co.,  i 
Woods  (U.  5.)  661. 

4.  Acts  of  bankruptcy.— It  is  not  an 
act  of  bankruptcy  for  a  railroad  corporation 
to  mortgage  its  property  and  franchise  in 
good  faith  to  raise  funds  to  equip  and  oper- 
ate the  road,  or  to  secure  other  unsecured 
debts.  Re  Union  Pac.  R.  Co.,  10  Bankr. 
Reg.  178. 

An  unexecuted  agreement  by  a  railway 
company  to  transfer  certificates  of  its  stock 
to  a  creditor  is  not  an  act  for  which  the 
company  can  be  forced  into  bankruptcy. 
Winter  v.  Iowa,  M.  6-  N.  P.  R.  Co.,  2  Dill. 
(:/.5.)487. 

It  is  not  an  act  of  bankruptcy  for  a  rail- 
road corporation  to  suspend  payment  of  its 
commercial  paper  for  a  period  of  14  days, 
under  the  general  bankrupt  act,  §  39,  as 
amended  July  14,  1870,  providing  that  any 
person  "residing  and  owing  debts  as  speci- 
fied in  the  act,  who  being  a  banker,  broker, 
merchant,  trader,  manufacturer,  or  miner, 
who  has  fraudulently  stopped  payment  or 
who  has  stopped  or  suspended  and  not  re- 
sumed payment  of  his  commercial  paper 
within  a  period  of  14  days,"  shall  be  subject 
to  the  act,  wl:ere  the  railroad  company  is 
chartered  without  any  power  to  act  as  a 
banker,  broker,  nuTchant,  trader,  manufact- 
urer, or  miner.  Winter  v.  lowq,  M.  &*  A'. 
P.  R.  Co.,  2  Dill.  (O.S.)  487. 

5.  Service  of  papers.-  Under  the  gen- 
eral  bankrupt  act  the  word  "  person  "  is  de- 
clared to  include  corporations,  and  the  pro- 
vision of  the  statute  requiring  service  of 
process  to  be  made  "  personally  "  is  suffi- 
ciently complied  with,  when  issued  against 
a  corporation,  by  delivering  it  to  its  head 
or  principal  officers ;  and  the  words  "  usual 
place  of  abode,"  describing  where  defendant 
may  be  served  with  process,  when  applied 
to  corporations,  mean  their  principal  place 
of  business,  where  only  they  can  be  said  to 


, 


BAXKRUl'TCY,  «-W. 


683 


nkruptcy 
lotion  of 
1  corpora- 
isdiction. 
Co.,   1 20 


Dill. 


abide.  Re  California  Pac.  R.  Co.,  3  Sa^iy. 
((/.  S.)  240,  II  Bankr.  Rejr.  193. 

O.  What  passes  to  the  assignees- 
Liabilities.  —  Assignees  in  banltruptcy, 
except  in  cases  of  fraud,  take  only  such 
rights  and  interest  in  the  property  of  the 
bankrupt  as  he  himself  had,  and  could 
have  himself  claimed  and  asserted  at  the 
time  of  his  bankruptcy ;  and  they  are  af- 
fected with  all  the  equities  which  would 
afTect  the  bankrupt  himself  if  he  were  as- 
serting those  rights  and  interests.  Barnard 
V.  Norwich  6-  W.  R.  Co.,  4  Cliff.  {U.  S.)  351. 

The  franchise,  or  right  to  lay  railroad 
tracks  on  streets,  under  an  ordinance  of  the 
city  council,  passes  to  the  assij^nee  in  a 
bankruptcy  .sale  of  the  road  and  franchises, 
and  does  not  revert  to  the  citj'.  New  Or- 
leans, S.  F.  &*  L.  R.  Co.  V.  Delamore,  1 14  U. 
S.  501,  5  Sup.  Ct.  Rep.  1009.— Followed 
IN  People  V.  O'Brien,  36  Am.  &  Eng.  R. 
Cas.  78,  III  N.  Y.  I,  18  N.  E.  Rep.  692,  19N. 
Y.  S.  R.  173  ;  reversing  10  N.  Y.  S.  R.  596, 
45  Hun  519. 

An  assignee  or  receiver  in  bankruptcy  of 
an  insolvent  railroad  corporation,  who,  as 
such  assignee,  is  running  and  operating  its 
road,  in  the  absence  of  evidence  that  he 
assumed  to  act  other  than  as  assignee,  or 
that  he  held  himself  out  as  a  carrier  of  pas- 
sengers other  than  as  an  officer  of  the 
court,  is  not  liable  in  an  action  for  negli- 
gence causing  the  death  of  a  passenger, 
where  no  personal  neglect  fs  imputed  to 
him,  either  in  the  selection  of  agents  or  in 
the  performance  of  any  duty,  but  the 
negligence  charged  was  that  of  a  subordi- 
nate whom  he  necessarily  and  properly 
employed  in  compliance  with  *he  order  of 
the  court.  Cardot  v.  Barney,  f  N.  V,  2S1. 
— Distinguished  in  Kain  v.  omith,  2  Am. 
&  Eiig.  R.  Cas.  545,  80  N.  Y.  458.  Limited 
IN  Little  V.  Dusenberry,  25  Am.  &  Eng.  R. 
Cas.  632,  46  N.  J.  L.  614. 

After  a  railroad  company  had  mortgaged 
its  present  and  after-acquired  property  to  a 
trustee,  it  leased  another  road  and  subse- 
quently went  into  bankruptcy,  and  the 
assignee  in  bankruptcy  brought  suit  to 
compel  the  lessors  to  account  to  him  for 
the  profits  of  the  leased  road,  //eld,  that 
the  property  in  the  lease  vested  in  the 
mortgage-trustee,  and  that  the  lessors  could 
not  be  compelled  to  so  account  for  such 

*  Powers  of  assignees  in  bankruptcy  and  of 
receivers,  with  respect  to  unpaid  subscriptions 
to  stock,  see  note,  3  Am.  St.  Rep.  833. 


profits.  Barnard  v,  Norwich  &»  W.  R.  Co., 
A  Cliff.  351. 

The  unpaid  subscriptions  to  stock  of  a 
lailroad  pass  to  the  assignees,  and  may  be 
recovered  by  them  from  the  stockholders 
in  default.  West  Chester  &>  P.  R.  Co.  v. 
Thomas,  2  Phila.  {Pa.)  z\*,- 

A  special  receiver  or  assignee  of  the  prop- 
erty of  a  railroad  ccipoiation,  appointed  in 
bankruptcy  proceedings,  involuntary  on  its 
part,  is  not  an  agent  or  servant  of  the  cor- 
poration, and  it  is  not  liable  for  damages 
occasioned  by  his  negligence.  Metz  v.  Buf- 
falo, C.  &^  P.  R.  Co.,  58  A^.  V.  61.— Fol- 
lowed IN  Davis  V.  Duncan,  17  Am.  &  Eng. 
R.  Cas.  295,  19  Fed.  Rep.  477. 

7.  Sales  by  assignee  —  Rights  of 
purchasers.— It  seems  that,  upon  a  sale 
by  an  assignee  in  bankruptcy  of  the  tracks, 
fixtures,  rolling  stock,  and  franchises  of  a 
railroad  corporation,  the  corporation,  as  a 
legal  entity,  does  not  vest  in  the  purchasers, 
and  they  do  not  become  stockholders  or 
corporators  therein.  Nor  are  the  pur- 
chasers liable  for  damages  resulting  from 
negligence  of  those  operating  the  road,  be- 
tween the  time  of  sale  and  the  confirma- 
tion thereof  by  the  court.  Metz  v.  Buffalo, 
C.  &^  P.  R.  Co.,  $8  N.  K.  61,  7  Am.  Ry.  Rep. 
92,9  Am.  Ry.  Rep.  480.— DISTINGUISHING 
Com.  V.  Central  Pass.  R.  Co.,  52  Pa.  St.  506. 

8.  Setting  aside  transfers  in  fraud 
of  the  act. — Where  an  insolvent  railroad 
company  makes  provision  for  paying  one  of 
its  creditors,  without  provision  for  the  other 
creditors,  and  it  appears  that  such  preferred 
creditor  is  one  of  the  company's  directors, 
and  was  present  at  the  meetings  that  de- 
vised and  carried  out  the  plan  for  such 
payment,  such  arrangement  will  beset  aside 
as  fraudulent  as  to  the  company's  assignees 
in  bankruptcy  subsequently  appointed,  and 
such  creditor  will  be  enjoined  from  setting 
up  any  claim  to  the  property  turned  over 
by  the  company  in  such  payment.  Bradley 
v.  Farwell,  i  //olmes  ( U.  5.)  433.— Quoting 
European  &  N.  A.  R.  Co.  v.  Poor,  59  Me. 
277. — Bradley  \,   Converse,  4  Cliff.   {17.  S.) 

375- 

0.  Discontinuance  proceedings- 
Securing  creditors. — After  proceedings 
in  bankruptcy  were  instituted  against  a 
railroad  company,  its  stockholders  bought 
up  all  the  indebtedness  of  the  company 
except  a  very  few  small  claims,  and  asked 
that  the  bankruptcv  proceedings  be  discon- 
tinued,   //eld,  that  their  petition  should  be 


# 


584 


BANKRUPTCY,   lO,  11. 


A : 


k^ 


Asite:.'LL 

granted,  upon  giving  security  to  the  few 
minority  creditors  securing  their  claims. 
In  re  Indianapolis,  C\  &*L.  F.  R.  Co.,  I  £iss, 
(i/.  5.)  287. 

A  court  of  bankruptcy  will  not  retain  pos- 
session of  the  property  of  a  railroad  to  assist 
a  few  small  creditors  to  coerce  payment, 
where  the  stockholders,  after  bankruptcy 
proceedings  have  been  instituted,  have 
bought  up  all  of  the  debts,  and  desire  that 
the  bankruptcy  proceedings  be  discontinued. 
In  re  Indianapolis,  C.  &*  L.  F.  R.  Co.,  5 
Biss.  {U.  S.)  287. 

A  court  of  bankruptcy  may  allow  the  dis- 
continuance of  proceedings  against  a  railroad 
company  where  all  the  debts  have  been  ad- 
justed except  a  very  few,  but  it  will  require 
a  deposit  sufficient  to  recover  such  claims, 
and  require  them  to  be  prosecuted  in  a  rea- 
sonable time.  In  re  Indianapolis,  C.  &*  L, 
F.R.  Co.,  I  Biss.  {U.S.)2Z7. 

10.  Bights  of  company  on  bank- 
ruptcy of  persons  dealing  with  them. 
— One  who  contracts  with  a  railroad  com- 
pany to  grade  and  build  its  road  is  not,  by 
virtue  of  such  contract  and  his  acts  under  it, 
a  merchant  or  trader  within  §  39  of  the 
bankrupt  act ;  and  the  suspension  of  his 
commercial  paper  is  therefore  not  an  act  of 
bankruptcy.    In  re  Smith,  2  Low.  {U.  S.)  69. 

The  proper  procedure  defined  where  bank- 
rupts hold  certain  shares  of  stock  in  a  cor- 
poration, where  the  mortgage  bondholders 
of  the  corporation  are  proceeding  to  compel 
the  corporation  to  make  assessments  on 
stockholders  to  pay  accrued  interest  on 
bonds,  where  the  charter  provides  that  stock 
shall  be  forfeited  to  the  company  upon  a 
failure  to  pay  assessments,  charging  that 
fictitious  certificates  have  been  issued  for 
stock  not  paid  for.  Gibson  v.  Lewis,  11 
Bankr.  Reg.  247. 

A  railroad  company  transported  and  deliv- 
ered coal  to  the  consignee,  agreeing  to  waive 
a  lien  thereon  for  freight,  so  long  as  there 
was  no  default  in  payment  of  such  freight. 
Certain  coal  was  delivered,  and  before  there 
was  any  default  the  consignee  went  into 
bankruptcy.  Held,  that,  after  default,  and 
after  the  property  in  the  coal  became  vested 
in  the  assignee  in  bankruptcy,  the  railroad 
company  could  not  set  up  a  lien  on  it  for  its 
freight  as  against  such  assignee.  Sicardv, 
Buffalo,  N.  V.  &*  P.  R.  Co.,  15  BlalcA/.  (£/. 
5.)  525. 

The  bankrupts,  while  solvent,  agreed  to 
build    an  engine   for  a  railroad    company. 


and  about  the  time  the  engine  should  have 
been  completed  informed  the  president  of 
the  company  that  the  engine  had  been 
shipped  and  drew  on  the  company  for  the 
price,  which  was  paid.  As  a  matter  of  fact, 
the  engine  at  that  time  had  not  been 
completed  or  shipped,  but  there  were  two 
engines  in  the  shops  which  were  nearing 
completion,  one  of  which  was  subsequently 
finished  and  sold  to  third  parties,  but  which 
seemed  not  to  be  the  one  intended  for 
the  railroad  company.  Before  the  second 
engine  was  shipped  the  builders  went  into 
bankruptcy.  Held,  in  an  action  by  the  com- 
pany to  obtain  possession  of  the  engine 
from  the  assignees,  that  as  the  bankrupts 
themselves  would  have  been  estopped  from 
claiming  that  the  engine  in  the  shops  was 
not  the  one  intended  for  the  company,  the 
assignees  were  also  estopped,  as  tliey  held  no 
better  title  than  the  bankrupts,  and  that  the 
company  therefore  might  claim  the  engine. 
Ex  parte  Rockford,  R.  I.  &*  St.  L.  R.  Co.,  i 
Low.  {U.  S.)  345. 

A  shareholder  became  bankrupt,  and 
afterward,  and  before  he  obtained  his  cer- 
tificate, calls  were  made.  The  assignees 
possessed  themselves  of  the  scrip,  and  a  cor- 
respondence took  place  between  the  official 
assignee  and  the  trade  assignee,  in  the 
course  of  which  the  latter  sent  the  former 
a  statement  of  the  bankrupt's  property,  com- 
prising in  it  the  value  of  the  shares,  and 
resulting  in  an  estimate  of  the  probable 
amount  forthcoming  to  work  the  fiat  and 
pay  dividends.  The  trade  assignee  subse- 
quently wrote  to  the  official  assignee,  sug- 
gesting the  propriety  of  selling  the  shares, 
which  continue<l  in  the  possession  of  the  as- 
signees. Held,  that  there  was  no  sufincient 
evidence  to  warrant  a  jury  in  concluding  that 
the  assignees  had  accepted  the  shares.  South 
Staffordshire  R.  Co.  v.  Burnside,  6  Railw. 
Cas.  611,  5  Exch.  129,  20  L.  J.  Exch.  120. 

11.  Bights  of  creditors.— A  contract 
between  an  express  company  and  a  railroad 
corporation  for  carrying  express  matter  pro- 
vided that  the  corporation  should  furnish 
transportation,  and  that  the  company  should 
credit  it  with  forty  per  cent  of  the  gross 
receipts  of  the  business  as  compensation; 
that  this  forty  per  cent  should  be  credited 
on  promissory  notes  due  from  the  corpora- 
tion to  the  company  for  sums  to  be  ad- 
vanced ;  and  that,  when  these  notes  were  dis- 
charged, the  share  of  the  corporation  in  the 
gross  receipts  should  be  paid  to  it  monthly 


HERGKN    TUNNKL,   1. 


JS.-) 


in  cash  until  such  notes  were  paid.  Before 
the  notes  were  paid,  pending  the  foreclosure 
of  a  mortgage,  which  provided  that  until 
default  the  control  of  the  premises  should 
remain  with  the  corporation,  and  that  on  a 
default  continuing  for  six  months  the  trus- 
tees should  operate  the  railroad,  receivers 
were  appointed  to  run  the  railroad.  On 
petition  of  the  express  company  that  the 
/eceivers  should  carry  out  the  contract,  the 
court  ordered  the  performance  of  the  service 
required  by  the  contract,  but  that  the  com- 
pensation therefor  should  not  be  credited 
on  the  notes.  Afterward  the  railroad  cor- 
poration was  adjudged  bankrupt,  and  the 
trustees  placed  in  possession  of  the  property. 
The  receivers  and  the  trustees  both  claimed 
the  compensation  due  for  carrying  express 
matter.  Held,  that  the  lien  of  the  mort- 
gagees attached  to  the  earnings  of  the  rail- 
road only  from  the  time  of  their  being  put 
into  possession  of  the  property  of  the  cor- 
poration, but  that  they  were  entitled  to  be 
repaid  their  advance  to  the  receivers  so  far 
as  it  was  applied  to  the  expenses  and  charges 
of  the  receivers  in  managing  the  ordinary 
business  of  the  cor|)oration  in  their  hands, 
and  also,  with  the  assent  of  the  assignees, 
to  all  the  compensation  which  was  earned 
after  the  date  of  the  bankruptcy,  not  needed 
for  the  expenses  of  the  receivers ;  and  that 
as  to  the  compensation  earned  before  the 
bankruptcy,  the  express  company  must  pay 
so  much  as  was  necessary  to  reimburse  the 
receivers  for  their  expenses  and  charges, 
and  the  balance,  if  any,  they  could  apply  to 
tlie  reduction  of  the  debt  of  the  corporation 
to  them.  Ellis  v.  Boston,  H.  &*  E.  R.  Co., 
107  Mass.  I. — Approved  in  WilmerT/.  At- 
lanta &  R.  A.  L.  R.  Co.,  2  Woods  (U.  S.) 
409.  Followed  in  Smith  v.  Eastern  R. 
Co.,  124  Mass.  154;  Union  L.  &  T.  Co.  v. 
Southern  Cal.  M.  R.  Co.,  49  Fed.  Rep.  267. 
Quoted  in  Brown  v.  Warner,  78  Tex. 
543;  Douglass  V.  Cline,  12  Bush  (Ky.)  608. 


BEDS  AND  BEDDINO. 
When  deemed  "  baggage,"  see  Baggacb,  31. 


BANKS. 

Protection  of,  against  overdrafts,  see  Indem 
NiTY  Bonds,  1. 


BARBED-WIRE  FENCES. 

Injuries  to  animals  caused  by,  see  Animals, 
Injuries  to,  80. 

BARS. 
Necessity  of,  at  farm  crossings,  see  Farm 
Crossings,  13. 


BELL  AND  WHISTLE. 

See  places  referred  to  under  SIGNALS. 


BENEFICIARIES. 

Who  are,  their  rights,  etc.,  in  actions  for 
causing  death,  see  Death,  etc.,  III. 

Pecuniary  loss  to,  the  measure  of  damages, 
see  Death,  etc.,  XIII,  2. 


BENEFITS. 

Deductions  for,  see  Elevated  Railways,  III, 

6;  Eminent  Domain,  XI,  11. 
What  recoverable  from  Relief  Associations, 

see  Relief  Associations,  1,  2. 


BERGEN  TUNNEL. 

See  also  Tunnels. 

1.  Precedence  of  trains.— Under  the 

acts  of  March  4th  and  iith,  1858  (Pamph. 
Laws  N.  J.  204  and  312),  the  Delaware, 
Lackawanna,  and  Western  Railroad  Com- 
pany have  a  right  of  way  through  the  Ber- 
gen tunnel,  and  the  consequent  right  to 
connect  their  tracks  with  those  running 
through  the  tunnel.  Delaware, L.&*  W.R. 
Co.  v.  Erie  R.  Co.,  21  N.  J.  Eq.  298. 

Under  the  acts  of  1858,  the  Erie  Railway 
Company's  trains  of  every  description  have 
the  right  of  precedence  over  those  of  the 
Delaware,  Lackawanna,  and  Western  Rail- 
road Company  through  the  Bergen  tunnel. 
But  any  unlawful  use  of  this  privilege,  with 
a  view  to  embarrass  or  impede  the  Dela- 
ware, Lackawanna,  and  Western  Railroad 
Company  in  the  use  of  the  tunnel,  or  the 
road  connected  with  it,  will,  upon  a  proper 
case  being  made,  be  a  ground  of  interference 
by  this  court.  Such  case,  however,  is  not 
made  by  the  present  pleadings.  Delaware, 
L.  6-  W,  R.  Co.  v.  Erie  R.  Co.,  21  N.J.  Eq. 
298. 

The  contract  of  November  ist,  1859,  be- 
tween the  Long  Dock  Company  and  the 
Hoboken  Land  and  Improvement  Company 
(the  grantors  of  the  defendants  and  the  com- 
plainants respectively)  limits  the  trains  hav- 
ing precedence  through  the  tunnel  to  those 
run  in  conformity  with  the  time-tables,  and, 
at  the  present  stage  of  these  proceedings, 
those  trains  only  will  be  allowed  prece- 
dence. Delaware,  L.  &*  W.  R.  Co.  v.  Erie 
R.  Co.,  21  N.J.  Eq.  201%. 


u8ti 


BILLS,  NOTES,  AND   CHIiCKS,  1.  2. 


Is 


I 


That  part  of  the  regulations  of  tlie  Erie 
Company  giving  preference  to  extra  or  ir- 
regular trains  enjoined.  Delaware,  L.  &* 
IV.  K.  Co.  V.  Erie  A'.  Co.,  21  N.  /.  Eq.  298. 


BBS!  AND  SECONDARY  EVIDENCE. 

Generally,  see  Kvidrnck,  IV. 
In  stock-killing  cases,  see  Animals,  Injuries 
TO,  408. 


BILL. 


By  judgment-creditors,  see  Creimtors'  Bill. 
For  injunction,  see  iNjUNcrioN,  10. 
lu  equity,  sufficiency  of,  see  Equity,  28. 
Of  discovery,  see  Discovery,  1. 
—  interpleader,  see  Interpleader,  1,  2. 
To  quiet  title,  sufficiency  of,  see  Clovd  on 
Title,  6. 


BILL  OF  EXCEPTIONS. 

Sufficiency  of,  generally,  see  Appeal,  etc., 
136. 

When  the  evidence  must  appear  in,  see  Ap- 
peal, ETC.,  114. 


BILLS,  NOTES,  AND  CHECKS. 

Debentures,  how  far  analogous  to,  see  Deben- 
tures, 2. 
Effect  of  taking  in  payment,  see  Payment,  3. 
Guaranty  of  payment  of,  see  Guaranty,  4. 

I.  GOMMOK-LAW  REftUIBITEB 536 

II.  VALIDITY  AND  INTEBPBETATI05.   590 
m.   TBAKSFERB,      AND      CONSEQUENT 

BIGHTS  AND  LIABILITIES.......   593 

IV.  ACTIONS  ON  BILLS  AND  NOTES 596 

I.  COHMON  LAW  REQUISITES. 

1.  What  is  a  bill  or  uote. — An  order 
drawn  by  the  secretary  of  a  corporation 
upon  the  treasurer  thereof,  for  the  payment 
of  a  sum  of  money  actually  due  from  the 
corporation  to  the  payee,  may  be  treated  by 
the  holder,  at  his  option,  as  the  mere  prom- 
issory note  of  the  corporation,  payable  at  a 
particular  place,  or  perhaps  as  a  bill  of  ex- 
change. Indiana  &*  I.  C.  R.  Co.  v.  Davis,  20 
Ind.  6— Overruling  Wardens,  etc.,  v, 
Moore,  1  Ind.  289;  English  v.  Board,  etc., 
6  Ind.'  437  ;  Marion  &  M.  R.  Co.  v.  Dillon,  7 
Ind.  404 ;  Marion  &  L.  R.  Co.  v.  Lomax,  7 
Ind.  648  ;  Marion  &  M.  R.  Co.  v.  Hodge,  9 
Ind.  163. 

Where  the  president  of  a  company  draws 


upon  its  treasurer  for  a  certain  sum  in  favor 
of  a  creditor,  the  draft  is  in  the  np^.urc  of 
a  promissory  note,  and  is  not  u  bill  of 
exchange ;  and  where  it  is  made  payable  at 
the  office  of  the  treasurer  it  need  not  be 
presented  there  for  payment.  Fairchild  v. 
Ogdensburgh,  C.  &*  R.  R.  Co.,  1 5  A\  V.  337. 
— Following  Miller  7'.  Thomson,  3  M.  & 
G.  576. 

Orders  drawn  by  employes  of  a  railroad 
company  on  its  paymaster  f'>r  a  certain  sum 
of  money,  after  deducting  whatever  credits 
the  company  may  be  entitled  to,  as  having 
been  paid  to  the  employes  themselves,  being 
payable  upon  a  contingency  and  for  a  less 
sum  than  the  face  of  the  order,  are  not  bills 
of  exchange.  Slebbinsv.  Union  Vac.  R.  Co., 
2  Wyoin.  71. 

A  writing  reciting  that  the  treasurer  of  a 
railroad  company  named  would  pay  to  A.  or 
order  $1700,  and  purporting  to  be  executed 
by  the  board  of  directors,  and  signed  by  the 
company's  president  and  secretary,  is  a  bill 
or  note  within  the  meaning  of  Wagn.  Mo. 
St.  p.  1014,  §  5,  providing  that  where  the 
suit  is  founded  upon  "a  bond,  bill,  or  note  " 
for  the  direct  payment  of  money  or  property, 
and  the  defendant  has  been  served  with 
process,  he  shall  demur  or  answer  before 
the  second  day  of  the  term.  Gihtrap  v.  St. 
Louis,  M.  &*  O.  A.  L.  R.  Co.,  50  Mo.  491,  3 
Am.  Ry.  Rep.  245. 

A  paper  in  the  following  words  is,  f.rima 
facie,  a  good  promissory  note,  viz.:  "  Rome, 
September  10,  1846,  $500.  Due  the  Mem- 
phis Branch  Railroad  and  Steamboat  Com- 
pany of  Georgia  five  hundred  dollars,  paya- 
ble on  demand.  D.  R.  Mitchell."  Mitchell 
V.  Rome  R.  Co.,  17  Ga.  574. 

2.  "What  is  a  negotiable  bill  or 
note. — The  essentials  of  a  negotiable 
promissory  note  are,  that  it  must  be  paya- 
ble at  all  events,  and  not  dependent  on  any 
contingency,  nor  payable  out  of  a  particular 
fund ;  and  that  it  must  be  fur  the  payment 
of  money  only,  and  not  for  the  performance 
of  any  other  thing  or  in  the  alternative. 
Arnold  v.  Rock  River  V.  U.  R.  Co.,  5  Duer 
{N.  V.)207. 

The  obligations  of  a  municipal  corpora- 
tion, acknowledging  it  to  be  indebted  to  a 
certain  railroad  company  in  a  certain  sum 
with  interest,  as  set  forth,  in  the  coupons  at- 
tached, Hnd  agreeing  to  pay  the  sum  to  the 
order  of  the  railroad  company,  and  properly 
signed  by  the  municipal  officers,  are  nego- 
tiable instruments  under  the  law-merchant. 


MIF.I.S,  NOTES,  ANU   CIIIXIKS,  ;i,  4. 


:)8r 


the    same    as    oidiiiaiy   promissory   notes. 
Burleigh  v.  Rot/ifsdr,  5  /Vv/.  Ref>.  667, 

A  note  given  by  a  railroad  company, 
which  is  otherwise  negotiable,  is  not  a  fleeted 
by  a  provision  reciting  the  deposit  of  bonds 
as  collateral  security,  with  power  to  sell 
them  if  the  note  is  not  paid  on  maturity, 
and  a  further  provision  for  the  payment  of 
the  balance  of  the  note,  if  the  bonds  should 
not  sell  for  enough  to  pay  it  in  full.  Arnold 
V.  Roik  River  V.  U.  R.  Co.,  5  Duer  {N.  V.)  207. 

Where  an  instrument  is  drawn  in  the 
form  of  an  ordinary  promissory  note,  its 
negotiability  is  not  afTected  by  a  recital  tliat 
it  is  one  of  a  series  given  for  cars,  and  pro- 
viding that  the  title  thereto  shall  remain  in 
the  payee  until  all  of  the  series  are  paid,  and 
that  upon  a  failure  to  pay  any  one  of  the 
series  all  should  at  once  become  due.  Mer- 
chants'  Nat.  Hank  v.  Chicago  R.  Equipment 
Co.,  25  Fell.  Rep.  809. 

An  instrument  in  writing,  having  in  every 
respect  the  form  of  a  promissory  note,  ex- 
cept that  the  corporate  seal  was  impressed, 
whrreby  a  railroad  corporation  promised  to 
pay  to  the  order  of  A.  a  certain  sum  of 
money — held,  to  be  a  negotiable  promissory 
note.  Central  Nat.  Bank  v.  Charlotte,  C.  &* 
A.R.  Co.,  s  So.  Car.  156. 

A  railroad  company  issued  instruments  in 
writing,  by  which  it  agreed  to  pay  at  a 
place  named  and  to  a  certain  person  "  or 
order  $1000,  with  interest  semi  annually,  as 
per  interest-warrants  hereto  attached,  as  the 
same  shall  become  due;  or  upon  the  sur- 
render of  this  note  together  with  the  inter- 
est-warrants not  due  to  the  treasurer  at  any 
time  until  six  months  of  its  maturity,"  in 
which  case  it  would  exchange  stock  there- 
for. /Md,  that  the  writings  were  negotiable 
promissory  notes.  Hodges  v.  Shuler,  22  A'^, 
Y.  1 14;  affirming  24  Barb.  68. 

A  note  falling  due  in  four  months  con- 
tained a  further  provision  that  it  was  one  of 
a  series  of  25  given  for  the  price  of  a  lot  of 
cars,  the  title  to  which  was  retained  in  the 
vendor,  and  that  it  should  fall  due  upon  a 
failure  to  pay  principal  and  interest  of  any 
one  of  the  series.  Held,  a  negotiable  prom- 
issory note,  under  the  law  of  Illinois  and 
the  general  mercantile  law,  unaffected  by 
the  condition  that  it  might  fall  due  before 
the  lapse  of  four  months  on  a  failure  to  pay 
anyone  of  the  series, or  that  the  title  to  the 
cars  was  retained  by  the  vendor.  Chicago  R. 
Equipment  Co.  v.  Merchants'  Bank,  136  U.S. 
268,  10  Sup.  Ct.  Rep.  999. 


.'t.  What  iiiNlrniiiviitN  an'  not  iit>- 
K»tial>l(>.  Interest  warrants  payable  to 
bearer,  detached  from  bonds,  convertible 
into  stock  at  maturity,  if  not  sooner  paid, 
are  not  negotiable  notes  within  Mass,  Pub. 
St.  §  9,  and  are  not  entitled  to  days  of 
grace.  Chaffee  v.  Middlese.v  R.  Co.,  146 
Mass.  224,  6  A'.  Eng.  Rep.  59,  16  A'.  E.  Rep. 
34. 

A  pronjise  to  pay  money  by  a  corporation, 
signed  by  its  officers  and  under  seal,  is  a 
specialty,  and  not  a  promissory  note  nego- 
tiable by  the  law-merchant;  and  where  the 
payee,  on  account  of  citizenship,  could  not 
sue  in  the  federal  courts  thereon,  his  as- 
signee cannot  do  so,  u  ndcr  the  act  of  congress 
March  3,  1875,  §  i,  providing  that  no  circuit 
court  shall  have  cognizance  of  any  suit 
founded  on  contract  in  favor  of  an  assignee, 
unless  a  Suit  might  have  been  prosecuted 
in  such  court  to  recover  thereon  if  no  as- 
signment had  been  made,  except  in  cases  of 
promissory  notes  negotiable  by  the  law-mer- 
chant and  bills  of  exciiange.  Coe  v.  Cayuga 
Lake  R.  Co.,  19  Blatchf.  (U.  S.)  522,  8  Fed. 
Rep.  534.  —  DlSTlNCUiSHED  IN  Farr  v. 
Town  of  Lyons,  21  Blatchf.  (U.  S.)  116. 

4.  Execution. — Prima  facie  a  corpora- 
tion has  the  power  to  execute  notes,  and  as 
such  notes  can  only  be  executed  through 
agents  or  officers,  a  complaint  in  a  suit 
thereon  need  not  allege  that  such  agents  or 
officers  were  appointed  by  a  written  or 
sealed  commission.  Hamilton  v.  Newcastle 
&*  D.  R.  Co.,  9  Ind.  359. 

Where  the  charter  of  a  railroad  company 
authorizes  it  to  make  contracts,  this  ex- 
tends to  the  power  to  contract  by  executing 
promissory  notes,  and  where  such  notes  do 
not  disclose  on  their  face  the  object  for 
which  they  were  made,  it  will  be  presumed, 
until  the  contrary  be  shown,  that  they  were 
executed  for  purposes  authorized  by  the 
charter.     Mitchell  v.  Rome  R.  Co.,  17   Ga. 

574. 

Where  a  railroad  company  is  authorized 
by  its  charter  to  contract  for  the  use  of 
other  roads,  it  is  impliedly  authorized  to 
execute  bills  or  notes  for  the  expense  of 
altering  the  gauge  of  a  road  so  contracted 
for,  so  that  its  cars  can  be  run  over  it. 
Smead  v.  Indianapolis,  P.  &r^  C.  R.  Co.,  11 
Ind.  104. 

If  a  corporation  is  empowered  by  an 
amendment  to  its  charter  to  draw  bills  of 
exchange,  and  afterward  draws  a  bill,  an 
acceptance  of  the  amended  charter  will  be 


588 


BILLS,  NOTES,  AND   CIIKCKS,  5. 


1  ~ 


\ 


presumed  without  showing  any  direi  i  act 
uf  acceptance  by  the  crjrporatioii  or  its 
authorized  agents.  IVetiinip/iu  -^r*  C.  A'.  Co. 
V.  Binghatn,  5  Ala.  657. 

Under  the  original  charter  of  tlie  Indian- 
a|>olis  and  Ik-llefontaine  Railroad  Company 
that  corporation  liad  no  genera!  power  to 
execute  promissory  notes  and  bills  of  ex- 
change. Smcaii  v.  Indianapolis,  /'.  &*  C.  A'. 
Co.,  II  /«</.  104. 

A  company  chartered  for  the  specific  pur- 
pose of  constructing  a  railroad  from  Indian- 
apolis to  the  Ohio  state  line,  to  connect 
there  with  a  certain  (iliio  railroad,  —  no 
ex|>ress  power  to  execute  bills  and  notes 
being  given, — could  make  only  such  as 
migiit  be  necessary  or  proper  in  carrying 
tlirough  that  undertaking.  Sineaii  v.  Jndi- 
anapolis,  P.  &*  C.  A'.  Co.,  11  /ml.  104.— Ah- 
I'l.lKl)  IN  Tod  V.  Kentucky  Uniorf  Land  Co., 
57  Fed.  Rep.  47.  Distinguished  in  Board 
of  Coni'rs  v,  Lafayette,  M.  &  li.  R.  Co.,  50 
Ind.  85. 

And  could  not  execute  accommodation 
paper,  or  paper  to  aid  an  undertaking  not 
contemplated  by  its  cliarter ;  and  such  paper, 
if  executed,  would  be  void  in  the  hands  of 
an  assignee.  Sinead  v.  Indianapolis,  P.  &* 
C.  K.  Co.,  II  Ind.  104. 

A  railway  company  has  no  power  to  draw, 
accept,  or  indorse  bills  of  exchange.  Bate- 
man  V.  Mid -Wales  A'.  Co..  35  L./.  C.  P.  205, 
12  /ur.  N.  S.  453,  L.  Ji.  I  C.  P.  499,  I  //.  &* 
A'.  508,  14  H^.  A'.  672. 

All  companies  registered  under  the  Com- 
panies Act  1862  do  not  have  power,  by  §  47 
of  such  act, to  issue  negotiable  instruments; 
such  power  exists  only  when  it  appears  that 
it  was  intended  to  be  conferred  by  the  mem- 
orandum and  articles  of  association.  Peru- 
vian Ji.  Co.  v.  Thames  6-  M.  At.  I.  Co.,  L. 
R.  2  Ch.  617,  36  L.J.  CIt.  864.  16  L.  T.  N.  S. 
644,  1 5  IV.  A'.  1002. 

Where  the  articles  of  association  of  a 
railway  company  give  the  directors  power 
to  do  all  things  and  make  all  contracts 
which  in  their  judgment  are  necessary  and 
proper  for  carrying  into  eflfect  the  object 
mentioned  in  the  memorandum,  they  have 
power  to  issue  negotiable  instruments. 
Peruvian  A'.  Co.  v.  Thames  &»  M.  M.  I.  Co., 
L.  K.  2  CIt.  617,  36  L.  J.  Ch.  864,  16  L.  T. 
N.  5.644,  15  ^-  A".  1002. 

The  defendant  railway,  desiring  to  raise 
money,  drew  a  bill  and  requested  the  plain- 
tiff railway  to  endorse  it  for  their  accommo- 
dation, which  the  plaintiffs  did,  and  defend- 


ants having  discounted  and  failed  to  meet 
it,  the  plaiiitifTs  paid  it  to  the  bank.  Held 
that,  assuming  that  the  defendants  had  no 
power  to  draw  the  bill,  they  were  neverthe- 
less liable  to  the  plaintitTs  as  for  money  paid 
for  them.  Hrockville  &*  O.  A'.  Co.  v.  Canada 
C.R.  CV.,41  U.  C.  Q.  H.  431. 

A  railway  company,  chartered  with  cer- 
tain enumerated  powers,  but  without  any 
provision  conferring  power  on  the  company 
or  its  officers  to  make  or  sign  promissory 
notes,  will  be  deemed  not  to  have  the  power. 
A  provision  in  the  charter  that  "  in  case  of 
the  absence  or  illness  of  the  president,  the 
vice-president  shall  have  all  the  powers  of 
the  president,  and  shall  be  competent  to 
sign  all  notes,  bills,  debentures,  or  other  in- 
struments," will  not  confer  such  power  in 
the  absence  of  some  direct  provision  to  show 
that  the  president  possessed  such  power 
when  present  and  not  ill.  Topping  v.  Buf- 
falo, B.  &>  G.  R.  Co.,  6  U.  C.  C.  /».  141. 

5.  Acceptance  of  bills.  —  Where  a 
written  order  for  the  payment  of  money,  or 
a  bill  of  exchange,  is  drawn  upon  a  corpo- 
ration in  the  name  of  its  vice-president  and 
is  accepted  by  the  corporation,  either  orally 
or  in  writing,  such  acceptance  binds  the 
corporation.  Louisville,  E.  6-  .SV.  L.  R.  Co. 
V.  Caldwell,  98  Ind.  245. 

Where  a  bill  of  exchange  or  written  order, 
drawn  on  a  corporation  by  its  creditor  in 
favor  of  a  creditor  of  the  drawer,  is  orally 
accepted  by  the  corporation,  the  acceptance 
is  not  within  the  second  clause  of  §  4904, 
Rev.  St.  1881,  of  the  statute  for  the  pre- 
vention of  frauds  and  perjuries,  and  is  valid 
and  binding,  though  not  in  writing,  and  its 
payment  may  be  enforced  by  action  against 
the  acceptor.  Louisville,  E.  &*  St.  L.  R.  Co. 
V.  Caldwell,  98  Ind.  245.  , 

The  provisions  of  Louisiana  act  of  1880, 
ch.  134,  form  part  of  a  contract  between 
railroad  companies  and  other  parties  under- 
taking public  works  and  their  contractors. 
Hence,  a  railroad  company  cannot  be  held 
liable  on  an  order  for  money  drawn  by  one 
of  its  contractors  before  the  latter  has  made 
provision  for  the  payment  of  the  wages  due 
to  his  laborers,  as  provided  by  the  statute, 
or  to  those  of  his  subcontractors,  when  the 
company  has  refused  to  accept  such  order. 
Meyer  v.  Vicksburg,  S.  6-  P.  R.  Co.,  35  La, 
Ann.  897. 

A  railway  company  with  the  usual  powers 
cannot  accept  bills  of  exchange.  Bateman  v. 
Mid-  Wales  R.  Co.,  L.  R.  i  C.  P.  499,  35  L.  J. 


BILLS,  NOTliS,  AND   CHECKS,  «. 


fitJU 


C.  p.  205,  13 /«r.   N.   S.   453.    «4  H^.    A*. 
673. 

Under  Companies  Act  of  1863,  if  47,  a 
corporation  not  otherwise  authorized  can- 
not accept  bills  of  exchange.  Peruvian  A*. 
Co.  V.  Thames  6-  M,  At.  I.  Co.,  36  L.  J.  Ch. 
864,  L.  R.  2  Ch.  617,  15  W.  R.  1002. 

Under  7  &  8  Vic.  c.  no,  §  45,  if  a  bill 
drawn  upon  a  company  regulated  by  that 
act  is  accepted  by  two  directors,  the  accept- 
ance is  void  if  not  expressed  to  be  accepted 
by  such  dit'ccluis  on  behalf  of  the  company, 
though  the  clause  does  not  contain  any 
words  of  nullification.  But  where  a  bill 
drawn  upon  the  company  by  its  corporate 
name  and  sealed  with  its  seal,  having  the 
name  of  the  company  circumscribed,  was 
accepted  by  two  persons  styling  themselves 
directors,  appointed  to  accept  the  bill,  and 
the  acceptance  was  countersigned  by  the 
company's  secretary  —  held,  that  such  ac- 
ceptance was  sufTiciently  express.  Halford 
V.  Cameron sC,  etc.,  R.  Co.,  16  Q.  li.  442,  15 
Jur.  335,  20  L.J.  Q.  B.  160  S.  P.,  Edwards 
V.  Cameron's  C,  etc.,  R.  Co.,  16  Q.  li.  336  note, 
6  Exch.  269. 

A  person  doing  a  banking  business  ac- 
cepted drafts  of  a  railroad  company  under 
an  agreement  that  he  should  hold  bonds  of 
the  company  as  collateral,  which  he  might 
sell  to  reimburse  himself  if  the  company 
failed  to  provide  funds  to  pay  the  drafts  as 
they  fell  due,  and  that  in  the  meantime  he 
might  use  the  bonds,  to  be  replaced  by  others 
if  the  drafts  were  paid  before  maturity.  It 
was  agreed  that  the  money  realized  on  the 
drafts  was  to  be  used  in  completing  the 
company's  road.  Held,  that  the  acceptances 
were  not  merely  as  an  accommodation,  but 
were  for  value  on  the  part  of  the  banker, 
where  there  was  nothing  to  show  that  he 
used  the  bonds,  or  lost  anything  thereon ; 
and  that,  being  so,  it  was  immaterial 
whether  the  company  used  the  money  to 
complete  its  road  or  not,  or  whether  persons 
to  whom  they  were  indorsed  paid  value 
therefor  or  not.  Moore  v.  IVard,  i  Hilt, 
(N.  Y.)  337. 

A  bill  of  exchange  addressed  "To  the 
President,  Midland  Railway,"  was  accepted 
in  these  words:  "  For  the  Midland  Railway 
of  Canada,  accepted,  H.  Read,  Secretary; 
Geo.  A.  Cox,  President."  Held,  that  de- 
fendant Cox  (who  was  admitted  to  be  the 
president)  was  personally  liable,  the  bill  not 
being  drawn  on  the  company.  Madden  v. 
Cox,  44  U.  C.  Q.  B.  543. 


O.  C'oiisl<l<>rutluii>— Where  a  note  is 
given  ill  consideration  of  stock  in  a  railroad, 
a  subsequent  illegal  incrcastMif  tlie  stock  by 
the  company's  dliectors  may  be  set  up  as 
a  good  defense  to  an  actiim  on  the  note. 
Merrill  v.  Reaver,  46  loiva  646.— Follow- 
ing Merrill  v.  Gamble,  46  Iowa  615. 

Hut  such  defense  is  good  only  iipmi  proof 
that  the  stcjck  illegally  issued  could  not  he 
disiiiiguishefl  from  the  legal  stock.  Merrill 
v.  Reaver,  50  Imva  404. 

A  promissory  note  given  as  a  volunliiry 
contribution  in  aid  of  a  radroiid  will  iwjt  be 
held  invalid  for  want  of  consideration  where 
the  pro|)osed  road  has  been  construrted 
and  put  in  operation.  ll'rit;/it  w./nviii,  35 
Mich.  347. 

Notes  given  to  induce  a  railway  company 
to  construct  its  road  to  a  given  point  are 
not  void  as  against  public  policy,  and  the 
construction  of  the  road  constitutes  a  suffi- 
cient consideration  therefor,  /'irst  Nat. 
Rani'  V.  Hendrie,  49  hnva  402. — Disiin- 
OUISHINO  Pacific  R.  Co.  v.  Seely,  45  Mo. 
212;  Fuller  A  Dame,  18  Pick.  (Mass.)  472; 
St.  Joseph  &  D.  C.  R.  Co.  v.  Ryan,  1 1  Kan. 
602;  Butternuts  &  O.  T.  Co.  v.  North,  1 
Hill  (N.  Y.)  S18;  Ft.  Kdward  &  Ft.  M,  P. 
R.  Co.  V.  Payne,  15  N.  Y.  583.  Nor  fol- 
lowing Holladayi'.  Patterson,  5  Oieg.  177. 

The  consideration  of  a  note  given  to  a 
railroad  for  the  payment  of  money  when 
the  road  shall  have  been  completed  is  such 
completion  of  the  road,  and  a  plea  averring 
that  the  only  consideration  was  a  contem- 
poraneous parol  agreement  of  the  railroad  to 
complete  the  road  within  a  given  time  is 
bad.  Were  such  plea  allowed  to  alter  the 
written  agreement  of  the  parties,  the  parol 
agreement  to  complete  the  road  within  a 
given  time  would  have  been  only  a  condi- 
tion, and  not  the  consideration  for  the  note. 
Cairo  &*  V.  R.  Co.  v.  Parker,  84  ///.  613.— 
Followed  in  Cairo  &  V.  R.  Co.  v.  Delap,  7 
III.  App.  60. 

A  note  was  given  to  aid  in  the  construc- 
tion of  a  railroad  which  was  to  be  payable 
on  the  arrival  of  the  first  train  of  cars  on 
the  road  at  a  certain  place,  and  if  the  road 
was  not  completed  by  a  certain  day  and  the 
cars  running,  the  note  was  to  be  null  and 
void.  It  appeared  that  the  cars  did  run  to  the 
place  named  on  the  day  named  over  a  tem- 
porary track  laid  down  for  the  purpose,  but 
that  it  was  some  four  months  afterward  be- 
fore they  were  running  regularly.  Held,  that 
the  road,  though  not  finished  in  every  par- 


590 


BILLS,  NOTES,  AND   CHECKS,  7,8. 


9 


a 


I V 


ticular,  should  have  been  so  far  completed 
that  the  cars  might  have  been  run  with 
reasonable  regularity,  and  that,  not  being 
so  finished  at  the  time  specified,  the  note 
was  void.  Freeman  v.  Matlock,  67  Ind. 
99. 

The  defendants  gave  their  notes  in  1869 
for  balances  of  subscriptions  made  by  them 
to  aid  in  the  building  of  a  railway.  The 
work  on  the  road  had  ceased  for  want  of 
funds,  and  the  notes  were  given  for  the  pur- 
pose of  raising  funds  for  the  prosecution  of 
thft  work,  and  they  were  payable  when  the 
cars  were  running  between  certain  named 
points  on  the  road.  The  cars  were  not  so 
running  until  more  than  fourteen  years 
after  the  notes  were  givT..  Held,  that  the 
notes  contemplated  that  the  condition  of 
payment  should  be  fulfilled  within  a  reason- 
able time,  that  the  consideration  had  failed, 
and  that  defendants  were  not  liable  thereon. 
Blake  v.  Brown,  80  Iowa  rjT,  45  N,  IV.  Rep. 

75'- 

Defendants  took  an  assignment  of  a  gov- 
ernment contract  for  carrying  ma'is,  the 
contract  being  one  which,  under  the  law, 
might  be  cut  down  and  the  pay  reduced, 
which  was  done  after  tne  assignment  and 
after  a  promissory  note  had  been  executed 
for  such  assignment.  Held,  that  the  reduc- 
tion by  the  government  could  not  be  set  up 
in  a  suit  on  the  note  as  a  partial  failure  of 
consideration,  and  that  parol  evidence  was 
inadmissibl  to  show  a  verbal  agreement  that 
if  the  pay  were  cut  down  defendants  should 
only  be  liable  for  a  corresponding  propor- 
tion of  the  nc '^  Wells  v.  Curr,  11  Sawy. 
{U.  5.)  272. 

7.  Renewals.— A  note  given  by  a  direc- 
tor of  a  railway  company  as  a  renewal  of  a 
similar  note  originally  given  as  accommo- 
dation paper  to  raise  money  to  pay  the 
debts  of  the  corporation  incurred  in  the 
course  of  its  legitimate  business,  and  trans- 
ferred by  the  company  in  payment  of  a  debt 
due,  ^^/d/ valid,  as  against  the  maker.  Lucas 
V.  Pitney,  27  N.  J.  L.  221. 

A  common  carrier  who,  by  a  written 
agreement  with  the  owner  of  notes,  has  un- 
dertaken to  procure  their  renewal  or  to 
return  them,  cannot  excuse  himself  for  the 
non-performance  of  his  undertaking  by 
proving  that  an  indorser,  to  whom  he  had 
delivered  them  for  examination  and  com- 
parison prior  to  the  renewal,  was  summoned 
as  trustee  of  a  subsequent  indorser,  and 
thereupon  refused    to    give    them    up    or 


renew  them.     Wareham  Bank  v.  Burt,  5 
Allen  (Mass.)  113. 

II.  VALIDITY  AND  INTERPRETATION. 

8.  Validity,  generally.— The  charter 
of  a  railroad  corporation  authorized  the 
corporation  to  '*  make  contracts."  The 
corporation  took  a  promissory  note.  Held, 
that  prima  facte  the  note  is  to  be  considered 
evidence  of  such  a  contract  as  the  corpora- 
tion was  authorized  to  make.  Mitchell  v. 
'iome  R.  Co.,  17  Ga.  574. 

In  a  promissory  note  in  the  following 
word  j,  "  For  value  received,  I  promise  to 
pay  to  Quincy  Railway  Company  or  order 
one  thousand  and  thirty  dollars,  in  six 
months,"  the  inserting  of  the  words  "  the 
order  of  E.  P."  over  "Quincy  Railroad 
Company  or  order,"  without  erasing  the 
latter  words,  by  the  treasurer  of  said  com- 
pany, unknown  to  the  maker,  in  an  action 
brought  by  the  payee  against  the  maker — 
held,  in  the  absence  of  fraud,  not  to  be  an 
alteration  affecting  the  validity  of  the  note. 
Granite  R.  Co.  v.  Bacon,  15  Pick.  {Mass.)  239. 

A  railroad  corporation,  by  its  ciiarter,  was 
prohibited  from  issuing,  for  circulation,  any 
notes  or  bills,  or  from  making  contracts  for 
the  payment  of  money  except  under  its  cor- 
porate seal,  and  then  only  for  debts  con- 
tracted by  it.  The  railroad  corporation 
subsequently  made  a  contract  with  the 
Branch  Bank  of  the  State  of  Alabama  at 
Montgomery,  by  which  the  latter  agreed  to 
receive  in  payment  of  debts  and  to  pay  out  in 
circulation,  such  notes  as  the  former  should 
issue  in  payment  of  its  debts.  The  railroad 
corporation  issued  certain  bills  single,  in 
sums  of  from  one  to  twenty  dollars,  engraved 
as  bank  notes,  in  payment  of  debts  due  from 
it,  and  these  were  received  by  the  bank 
under  its  contract  with  the  railroad  corpora- 
tion. Afterward  the  bank  loaned  the  bills 
single  thus  received  and  certain  bills  of  ex- 
change, at  the  request  of  the  borrower,  the 
bills  being  made  for  the  purpose  of  effecting 
the  loan.  Held,  that  these  transactions  on 
their  face  were  not  illegal  so  as  to  prevent 
the  bank  from  recovering  in  a  suit  on  the 
bills  of  exchange  ;  that  if  the  bills  were  law- 
fully issued  by  the  railroad  corporation  they 
could  be  lawfully  received  by  the  bank  and 
again  loaned  by  it ;  but  if  the  contract  was 
a  mere  pretext  to  avoid  the  prohibition  of 
the  charter,  it  would  be  void,  and  the  bills 
single  invalid  in  the  hands  of  any  one 
connected  with  the  illegal  contract.     Held, 


BILLS,  NOTES,  AND   CHECKS,  0-11. 


591 


also,  that  the  validity  or  invalidity  of  the 
transaction  depended  upon  the  intention 
with  which  tlie  bills  single  had  been  issued 
and  received,  and  that  that  was  a  question 
for  the  jury.  Branch  Bank  v.  Crocheron,  5 
Ala.  250. 

9.  of  checks. — A  check  drawn  to 

the  order  of  an  individual  as  treasurer  of  a 
corporation,  before  he  is  elected  to  that 
office,  which  check  is  in  payment  of  the  10 
per  cent  on  stock  necessary  to  be  paid, 
under  the  statute,  before  tiling  articles  of 
association,  does  not  atfect  the  validity  of 
the  payment.  In  re  Staten  Island  R,  T.  K.  Co., 
38  Nun  (,N.  Y)  381. 

A  check  drawn  by  a  committee  of  a  rail- 
way company,  not  dated  as  drawn  at  any 
place,  but  headed  with  the  name  of  the 
company,  does  not  indicate  any  place  so  as 
to  satisfy  the  terms  of  the  statute  exempting 
checks  from  duty,  and  is  void.  Ward  v. 
Oxford  K.  Co.,  2  DeG.  AI.  &•  G.  750,  22  L. 
J.  Ch.  905. 

Three  directors  of  a  railway  company,  in 
fraud  of  the  company,  drew  a  check  upon 
the  company's  bankers  in  favor  of  one  of 
them.  This  check,  though  bearing  the 
company's  stamp  and  countersigned  by  the 
secretary,  did  not  purport  to  be  drawn  on 
behalf  of  the  company,  nor  did  the  drawers 
describe  themselves  as  directors.  Held, 
that  the  company  was  not  liable  for  the 
amount  to  a  bona-fide  holder  for  value. 
Serrell  v.  Derbyshire,  S.  &>  W.J.  R.  Co.,  9 
C.  B.  8n,  19  Z./.  C.  P.  371. 

10.  How  construed,  generally.— In 
interpreting  obligations  or  subsidy  notes 
given  by  citizens  to  a  railroad  as  an  induce- 
ment to  the  latter  to  build  to  a  certain 
place,  the  railroad's  charter,  with  all  its 
obligations  thereunder,  is  to  be  considered 
as  entering  into  and  forming  a  part  of  the 
agreen-.;nt.  Miller  v.  Gulf,  C.  &*  S.  F.  R. 
Co.,  24  Am.  Gr»  Eng.  R.  Cas.  158,65  Te.r.  659. 

V^here  money  is  borrowed  to  pay  interest 
on  .  ailroad  bonds,  provisions  in  notes  given 
therefor  to  the  effect  that  a  certain  part  of 
the  gross  earnings  of  th;  company  was 
pledged  in  liquidation  of  tiie  notes,  do  not 
give  such  notes  any  priority  over  its  bonded 
debt.  Mcllhenny  v.  Bins,  80  Tex.  i,  13  5. 
W.  Rep.  655. 

A  promissory  note,  payable  to  the  treas- 
urer of  the  Chicago  &  C.  S.  R.  Co.,  was 
made  "  in  consideration  of  the  construction 
of"  the  railway  through  or  within  half  a 
mile  of  the  village  of  D.  "  within  three  years 


after  this  dote,  and  the  building  of  a  passen- 
ger and  ireighi  depot"  at  D.;  and  it  was  made 
payable  "  in  thirty  days  after  said  road  and 
depot  are  constructed  as  aforesaid."  The 
articles  of  incorporation  of  the  railway  com- 
pany named  Chicago  as  one  of  the  termini. 
The  track  was  laid  through  D.  and  the 
depot  put  up,  but  instead  of  extending  the 
road  to  Chicago  it  was  connected  with  other 
routes  at  a  point  beyond  D.,  so  as  to  form 
a  through  line.  Hi/d,  that  the  note  was 
made  to  afford  aid  in  constructing  the  road, 
and  was  intended  to  be  payable  in  case  of 
the  completion,  as  agreed,  of  the  portion 
built,  regardless  of  the  failure  to  extend  it 
to  Chicago  within  three  years,  as  stipulated. 
Stowell  V.  Stffwell,  o  Am.  &*  E'lg-  R.  Cas. 
598,  45  A/ich.  364,  8  iV.  W.  Rep.  70.— Fol- 
lowing Swartwout  v.  Michigan  A.  L.  R. 
Co.,  24  Mich.  389.— Followed  in  Gardner 
V.  Walsh,  95  Mich.  505. 

1 1 .  Conditions.— A  condition  in  a  note 
given  in  aid  of  a  railroad  that  the  road  shall 
be  completed  within  a  designated  time  is  of 
the  essence  of  the  contract.  (Paterson,  J., 
dissenting.)  AtcLaughlin  v.  Clausen.  85  Cal, 
322,  24  Pac.  Rep.  636.— Overruling  Front 
St.,  M.  &  O.  R.  Co.  V.  Butler,  50  Cal.  574. 

When  a  note  is  executed  payable  to  a 
railroad  company,  but  to  be  held  by  a  trustee 
and  not  delivered  unless  the  road  is  com- 
pleted to  a  certain  place  within  a  given  time, 
a  delivery  by  the  trustee  in  violation  of  the 
contract  does  not  make  the  note  binding 
on  the  maker.  (Paterson,  J.,  dissenting.) 
McLaughlin  v.  Clausen,  85  Cal.  322,  24  Pac. 
Rep.  636. 

Where  a  note  is  given  for  stock  in  a  rail- 
way company,  payable  on  condition  that  a 
depot  be  established  within  so  many  rods  of 
a  town,  the  question  whether  the  depot  was 
established  within  that  distance  must  be  de- 
termined by  the  corporate  limits  of  the  town 
at  the  time  when  the  note  was  given,  and 
not  according  to  a  subsequent  extension  of 
the  corporate  limits.  Davenport  &*  St.  P. 
R.  Co.  v.  Refers,  39  Iowa  298, 9  Am.  Ry.  Rep. 
92,  20  Am.  Ry.  Rep.  85. 

Where  a  note  is  executed  for  stock  in  a 
railroad  company,  payable  on  condition  that 
a  depot  be  located  at  a  designated  place, 
the  maker,  when  sued  on  it,  cannot,  in  the 
absence  of  anything  to  show  fraud  or  mis- 
take, recover,  by  way  of  countercfaim,  par- 
tial payments  voluntarily  made  on  it,  upon 
showing  that  such  depot  had  not  been  es- 
tablished.    Davenport  »S-  St.  P.  R.  Co.  v. 


592 


BILLS,  NOTES,  AND  CHECKS,  12. 


I 


A'o^i-fs,  39  /ouia  298,  9  Am.  Ry.  Rep.  92,  20 
Am.  Ry.  Rep.  85. 

Defendant  gave  his  note  to  a  railroad 
company,  agreeinj?  to  pay  a  certain  sum  of 
money  if  it  would  build  its  depot  on  a  cer- 
tain lot.  Subsequently  the  company  pro- 
cured such  an  amendment  to  its  charter  as 
to  make  it  substantially  a  difTerent  corpora- 
tion, among  other  things  materially  ciiang- 
ing  the  route  of  the  road  ;  but  the  road  was 
built  and  the  depot  erected  on  the  lot 
designated.  Held,  that  it  being  substan- 
tially a  different  corporation  the  maker  of 
the  note  was  not  bound,  and  that  the  fact 
that  the  depot  was  of  the  same  benefit  to 
him  as  it  would  have  been  had  the  corpora- 
tion remained  the  same  was  of  no  impor- 
tance. Carlisle  v.  Tcrre  Haute  &^  R.  R.  Co., 
6  /lid.  316.— Approved  in  Pacific  R.  Co.  v. 
Seely,  45  Mo.  212. 

A  promissory  note  was  executed  by  the 
defendant,  payable  to  the  Grinnell  &  M.  R. 
Co.  upon  the  completion  of  its  road  and  the 
running  of  trains  thereon  within  a  given 
time.  The  initial  point  of  said  road,  as 
designated  by  the  articles  of  incorporation 
of  the  company,  was  the  town  of  G.  Held, 
that  the  construction  of  the  road  from  a 
point  on  another  line,  three  and  one-half 
miles  from  G.,  and  the  running  of  trains 
from  G.  over  such  other  road  for  that  dis- 
tance, did  not  constitute  a  compliance  with 
the  conditions  of  the  note  authorizing  its 
collection.  Cooper  v.  McKee,  53  Iowa  239, 
S  N.  W.  Rep.  121. 

Where  a  note  executed  on  the  5th  of  July, 
1869,  was  made  "  demandable  and  payable 
as  soon  as,  and  not  before,  the  legislature 
shall  pass  an  act  recognizing  a  certain  class 
of  bonds  " — held,  in  an  action  on  the  note: 
(1)  that,  by  the  provisions  of  ch.  175,  acts 
1874-75,  the  state  recognized  the  bonds  so 
issued  as  valid ;  (2)  that  the  note,  in  legal 
effect,  imported  a  promise  to  pay  on  that 
contingency;  and  {3)  that,  according  to  the 
true  construction  of  the  contract,  a  right 
of  action  accrued  to  the  plaintiff  upon  said 
recognition,  and  that  he  was  entitled  to  judg- 
ment for  the  value  of  the  note.  Leak  v. 
Bear,io  N.  Car.  271. 

12.  Bills  and  notes  executed  by 
agentn  and  officers.— A  bill  drawn  as  of 
a  railroad  company,  signed  by  its  president 
with  the  abbreviation  of  his  office  added  to 
his  signature,  is  the  bill  of  the  company, 
where  it  appears  that  it  was  for  the  benefit 
of  the  company  and  was  to  be  charged  to  it. 


Olcott  v.  Tioga  R.  Co.,  27  N.  V.  546 ;  aj^rm- 
ing  i^o  Barb.  179.— Quoted  in  Hirschmann 
V.  Iron  Range  «&  H.  B.  R.  Co.,  97  Mich.  384. 

Where  a  draft  is  drawn  which  purports  to 
be  that  of  a  railroad  company,  and  is  signed 
by  the  president,  with  the  words  "  Prest.  T. 
N.  Co."  after  it,  his  signature  will  be  deemed 
official,  where  there  is  proof  that  such  per- 
son was  the  president  of  the  company,  and 
that  he  drew  the  draft  in  his  official  capacity 
for  the  benefit  of  the  company,  which  re- 
ceived the  proceeds  of  the  draft.  Thompson 
v.  Tioga  R.  Co.,  36  Barb.  (.V.  F.)  79. 

Where  the  directors  of  a  corporation  gave 
authority  to  its  president  and  secretary  to 
execute  a  note  for  a  certain  sum  and  in- 
terest, the  insertion  of  an  attorney-fee  clause 
in  the  note  was  in  excess  of  the  authority 
given,  and  did  not  bind  the  corporation, 
Hardin  v.  Iowa  R.  Sf  C.  Co.,  40  Am,  &* 
Eng.  R.  Cas.  394,  78  Iowa  726,  6  L.  R.  A.  52, 
43  N.  IV.  Rep.  543. 

Where  one  made  a  promissory  note  com- 
mencing, "  I  promise  to  pay,"  etc.,  and 
signed  it  with  his  own  name,  adding,  "  Agt. 
Bellamy  Man.  Co.,"  and  at  the  same  time 
executed  a  mortgage  in  the  name  of  the 
company  to  secure  the  payment  of  it — Ae/d, 
that  the  note  would  bind  the  company,  as 
their  promissory  note,  if  the  individual  had 
authority  at  the  time  to  execute  the  note,  or 
if  the  transaction  was  subsequently  ratified 
by  the  company.  Despatch  Line  of  Packets 
v.  Bellamy  Mfg.  Co.,  1 2  A'.  H.  205. 

A  note  running  "  We  promise  to  pay," 
and  signed  "  B.  &  S.  R.  Co.,"  with  the 
words  "  V.  K.  Moore,  A.  Tr.,"  underneath, 
'\%  prima  facie  the  note  of  the  company,  and 
does  not  bind  the  estate  of  Moore.  Turner 
V.  Potter,  56  Iowa  251,  9  A'.  W.  Rep.  208. 

"  I,  G.  W.  C,  land  agent  of  the  Ohio  and 
Mississippi  Railroad  Co.,  agree  to  pay  to  A. 
six  hundred  dollars  for  waste  grounds, 
which  cover  some  eight  town  lots  on  the 
south  side  of  the  railroad ;  also,  two  hun- 
dred and  fifty  dollars  for  waste  grounds  and 
wood-yard  on  the  north  side  of  the  road, 
making  a  total  of  $850.  Witness  my  hand 
and  seal."  (Signed) "  G.  W.  C,  land  agent." 
[Seal.]  Held,  that  this  document  was  the 
personal  contract  of  the  signer.  Prather  v. 
Ross,  17  Ind.  495. 

A  superintendent  of  a  railroad  belonging 
to  a  state  was  authorized  by  statute  to  con- 
tract in  sums  not  exceeding  $3000  in  connec- 
tion with  the  management  of  the  road,  but 
the  statute  provided  that  "  all  contracts  for 


BILLS,  NOTES,  AND   CHECKS,  13,  14. 


593 


a  sum  above  that  amount  must  be  submitted 
to  the  governor  and  approved  in  writing." 
Held,  that  notes  executed  by  the  superin- 
tendent above  $3000,  without  having  been 
approved  by  the  governor,  were  void  in  the 
hands  of  innocent  purchasers,  and  that  this 
was  so  although  other  similar  notes  had 
been  paid  by  the  superintendent.  Elliott 
Nat.  Bank  v.  Western  &*  A.  R.  Co.,  2  Lea 
(Tenn)  676. 

The  fact  that  the  president  and  manager 
of  a  corporation  had  executed  negotiable 
notes  in  the  corporate  name,  which  they 
had  taken  care  of  without  the  knowledge  of 
the  board  of  trustees,  will  not  render  the 
corporation  liable  on  other  notes  issued  by 
such  officers  without  the  authority  of  the 
board  of  trustees,  although  the  president 
and  manager  were  two  of  the  five  trustees. 
Elwell\.  Puget  Sound  Sf  C.  R.  Co.,  7  Wash. 
487,  35  Pac.  Rep.  376. 

13.  Bills  aud  notes  payable  to 
agents  aud  ofScers.— A  note  made  pay- 
able to  a  person,  as  treasurer  of  a  railroad 
company,  is  payable  to  him  as  an  individual, 
and  not  to  the  company,  the  addition  to 
the  name  of  such  person  being  but  descrip- 
tive of  the  individual.  Chadsey  v.  McCreery, 
27  ///.  253. 

A  note  payable  to  the  president  of  a  rail- 
road company  individually  can  be  assigned 
so  as  to  give  the  holder  the  rights  of  an  as- 
signee, but  only  in  his  own  name.  In  no 
other  way  can  the  legal  title  to  the  note 
pass.    Peck  V.  Bligh,  37  ///.  317. 

m.  TBAKSFERS  AND  CONSEa^ENT  BiaHTB 
AND  LIABILITIES. 

14.  Power  to  transfer  or  indorse.— 

A  railroad  company  has  power  to  take  notes 
originating  in  a  transaction,  or  to  secure  an 
indebtedness  within  the  scope  of  its  cor- 
porate undertaking;  and  as  a  general  prop- 
osition a  corporation  has  power  to  assign  a 
note  that  it  has  power  to  take.  Hardy  v, 
Merriweather,  14  Ind.  203. 

A  corporation  may  authorize  its  proper 
officer  to  assign  a  note  by  delivery.  Blake 
V.  Holley,  14  Ind.  383. 

A  railroad  company  has  necessarily  the 
right  to  take  a  promissory  note  and  nego- 
tiate it  in  the  ordinary  course  of  business, 
and  an  assignment  by  the  secretary  \% prima 
facie  the  act  of  the  company.  Frye  v. 
Tucker,  24///.  180. 

It  is  within  the  powers  of  the  president  of 
a  railroad  company  to  assign  notes  and 
I  D.  R.  n.— 3r. 


mortgages  by  indorsement  which  are  given 
to  aid  in  the  construction  of  the  road,  and 
where  so  transferred  before  maturity  the 
holder  will  take  them  freed  from  any  equi- 
ties existing  between  the  maker  and  the 
company.    Irwin  v.  Bailey,  8  Biss.  {U.  S.) 

523- 

Where  a  note  and  mortgage  are  trans- 
ferred as  collateral  to  a  bond  of  a  corpora- 
tion, a  subsequent  indorsement  by  the  com- 
pany's president  will  pass  the  legal  title  to 
the  equitable  owner.  A  subsequent  indorsee, 
though  he  has  no  actual  interest  in  the  noic, 
may  sue  in  his  own  name  if  it  was  indorsed 
to  him  for  that  purpose.  Irwin  v.  Bailey, 
8  Biss.  {[/.  S.)  523. 

An  indorsement,  on  a  promissory  note 
made  payable  to  a  railroad  company,  of  the 
name  of  the  company  "per  M.  S.Henry, 
Prest."  in  assigning  the  note,  \s  prima  facie 
the  act  of  the  corporation  by  its  authorized 
officer.     Goodrich  v.  Reynolds,  31  ///.  490. 

A  note  was  executed  to  aid  in  the  con- 
struction of  a  railroad,  with  the  understand- 
ing that  it  and  others,  executed  for  the 
same  purpose,  should  be  delivered  to  the 
company  if  they  aggregated  a  certain 
amount.  The  notes  did  not  aggregate  the 
amount,  and  the  company  to  which  they 
were  payable  did  not  build  the  road,  but  the 
note  was  assigned  to  another  company  which 
did.  Held,  that  the  note  was  collectible 
upon  complying  with  the  conditions  im- 
posed upon  the  first  company.  Merrills. 
Gamble,  ^6  Iowa  615,  16  Am.  Ry.  Rep.  65. 

The  president  of  a  corporation  indorsed 
and  transferred  a  note  In  the  name  of  the 
cotnpnny,  and  also  indorsed  it  individually. 
There  was  evidence  that  he  paid  the  amount 
of  the  note  to  the  company  himself.  When 
sued  the  company  claimed  that  the  president 
was  not  authorized  to  indorse  notes,  and  the 
evidence  showed  that  his  act  of  so  indorsing 
had  been  approved  by  a  vote  of  three  of  the 
five  directors,  at  an  impromptu  meeting, 
without  notice  to  the  other  two.  Held,  that 
if  the  president  paid  for  the  note  he  could 
transfer  it  by  his  individual  indorsement; 
but  that  in  any  event  a  judgment  for  plaintiffs 
would  not  be  disturbed  because  the  trial 
court  instructed  the  jury  that,  as  a  rule,  the 
three  directors  could  not  act  without  notice 
to  all,  but  that  the  jury  "  might  take  into 
consideration  the  course  of  dealing  of  a  par- 
ticular corporation."  Hitchings  v.  St,  Louis, 
N.  0.  &'O.C.&'  T.  Co.,  52  N.  Y.  S.  R.  247. 
22  N.  V.  Supp.  719,  68  Hun  33. 


I 


1  I 


594 


BILLS,  NOTES,  AND   CHECKS,  16. 


I 

a 


is 

I 


The  New  York  act  of  1866,  ch.  433,  pro- 
vided that  a  certain  city  might  issue  bonds 
in  aid  of  a  railroad,  and  §  4  provided  that 
they  should  be  paid  by  a  tax  upon  the  tax- 
able property  in  the  city,  and  when  collected 
should  be  paid  to  the  railroad  commission- 
ers and  by  them  applied  to  the  discharge  of 
such  bonds.  Held,  that  an  indorsement  to 
a  bank  by  such  commissioners  of  an  order 
on  the  city  treasurer,  to  be  paid  out  of  such 
fund,  drawn  by  the  county  commissioners, 
did  not  give  the  bank  title  to  the  fund  so  as 
to  authorize  a  mandamus  to  the  city  treas- 
urer to  pay  over  the  amount  of  the  order. 
Feo^U  v.  S/upp.  18  iV.  v.  S.  Ji.  500,  49  //un 
544.  2  JV.  V.  Supp.  537. 

15.  Kigrhts  of  bona-fide  holders.— 
The  transfer,  before  maturity,  of  negoti- 
able paper  as  security  for  an  antecedent 
debt  merely,  without  other  circumstances — 
if  the  paper  be  so  indorsed  that  the  holder 
bL'comes  a  party  to  the  instrument — although 
the  transfer  is  without  express  agreement 
by  the  creditor  for  indulgence,  is  not  an  im- 
proper use  of  such  paper,  and  is  as  much  in 
I  lie  usual  course  of  commercial  business  as 
its  transfer  in  payment  of  such  debt.  In 
ci  Jicr  case  the  bona-fide  holder  is  unaffected 
by  equities  or  defenses  between  prior  parties 
ol  wliich  he  had  no  notice.  Brooklyn  City 
<S^  A^.  A'.  Co.  v.  National  Bank,  102  U.  S.  14. 
— Followed  in  St.  Paul  R.  M.  Co.  v.  Great 
Western  D.  Co.,  27  Fed.  Rep.  434. 

A  bill  or  note  executed  within  the  power 
of  a  corporation,  but  by  an  abuse  of  that 
power  in  the  particular  instance,  would,  if 
governed  by  the  law-merchant,  be  valid  in 
the  hands  of  a  bona-fide  holder;  but  if  exe- 
cuted entirely  without  the  corporate  power 
it  would  not,  if,  indeed,  there  could  be  a  bona- 
fide  holder  of  such  paper.  Smeadv.  Indian- 
apolis,  P.  <^  C.  R.  Co.,  1 1  Ind.  104. 

A  bona-fide  purchaser  of  paper  assets  for- 
merly owned  by  a  corporation  and  indorsed 
by  the  proper  officers  thereof  may  assume 
that  the  indorsement  was  duly  authorized, 
and  is  not  bound  to  search  the  corporation 
books  for  such  authority  before  completing 
his  purchase.  Walker  v.  Detroit  Transit 
Ji.  Co.,  47  Mick.  338,  II  N.W.  Rep.  187. 

If  the  directors  of  a  railway  company  which 
has  no  power  to  accept  bills  accept  a  bill  for 
the  company  and  put  it  within  the  power  of 
the  drawer  to  negotiate  it,  they  are  guilty  of 
the  false  representation  that  they  have  au- 
thority to  accept,  and  are  personally  liable 
to  the  innocent  purchaser.     West  London 


Commercial  Bank  v.  Kitson,  L.R.13  Q.  B.  D. 
360.  53  L.  J.  Q.  B.  Div.  345.  5°  L.  T.  N.  S. 
656,  32  W.  R.  757 ;  affirming  S.  C.  L.  R,  I3 
Q.  B.  Div.  157,  53  L.J.  Q.  B.  Div.  218,  50 
L.  T.  N.  S.  208,  32  W.  ./e.  431.  47/  P-  824. 

The  trustees  and  managers  of  a  railroad 
company  issued  notes  to  raise  money  to  pay 
a  floating  debt  for  the  construction  of  the 
road,  reciting  that  they  were  issued  under 
a  vote  of  stockholders  and  a  special  act  of 
the  state  legislature  and  a  decree  of  the 
court  of  chancery.  By  an  indorsement 
thereon  the  company  guaranteed  their  pay- 
ment, and  ordered  the  contents  to  be  paid 
to  the  bearer.  Held,  tliat  the  company  was 
bound  by  this  guarantee  to  an  innocent  pur- 
chaser for  value  of  the  notes,  but  that  it  was 
not  be  bound  to  pay  a  rate  of  interest  speci- 
fied in  the  notes  above  the  legal  rate.  Cod- 
man  v.  Vermont  &•  C.  R.  Co.,  16  Blatchf.  (.1/. 
S.)  165. 

Defendants  were  engaged  in  the  construc- 
tion of  a  railroad,  and  procured  a  charter  for 
a  construction  company,  which  was  never 
organized,  and  was  irresponsible,  and  they 
drew  a  draft  on  such  pretended  company, 
and  procured  certain  bankers  to  cash  it  on 
false  representations  that  the  construction 
company  had  secured  large  funds  from 
abroad.  Held,  that  the  assignees  of  the 
bank  could  sue  for  damages  based  upon 
such  false  representations.  /Celly  v.  Gould, 
6  N.  Y.  Supp.  845 ;  affirming  2  N.  Y.  Supp. 
600. 

A  note  was  given  to  a  railroad  company 
with  a  condition  that  it  was  to  be  negotiated 
and  that  the  proceeds  were  to  be  applied 
solely  to  the  construction  of  the  railroad,  but 
before  maturity  it  was  negotiated  or  pledged, 
and  the  money  obtained  was  not  spent  in  the 
construction  of  the  road.  Held,  that  the 
holder  of  the  note,  having  taken  it  before 
maturity  and  without  any  knowledge  of  the 
facts  impeaching  its  validity,  was  a  bona-fide 
holder  to  the  extent  of  the  amount  paid  for 
it.    Bondv.  Wiltse,  12  Wis.  611. 

A  railroad  company  executed  to  plaintiff 
its  bond  for  a  certain  sum,  and  attached 
thereto  a  certain  note  payable  to  the  com- 
pany, in  the  same  amount,  and  a  mortgage 
securing  it,  reciting  in  the  bond  that  the 
note  and  mortgage  were  transferred  as  se- 
curity, and  that  both  should  be  transferable 
in  connection  with  the  bond  and  not  other- 
wise. Held,  (1)  a  sufficient  indorsement  to 
pass  -  he  legal  title  to  the  note,  and  that  parol 
evidence  was  not  admissible  to  show  that 


BILLS,  NOTES,  AND   CHECKS,  10-18. 


595 


the  company  transferred  it  for  the  purpose 
of  having  a  different  effect ;  (2)  that  plain- 
tiff being  a  purchaser  fur  value  took  the  note 
freed  from  all  defenses,  as  against  the  rail- 
road company,  of  which  he  had  no  notice. 
Crosby  v.  Roub,  16  Wis.  616.— Followed  in 
Andrews  v.  Hart,  17  Wis.  297. 

10.  Transferee,  when  put  upon 
inquiry. — One  who  takes  the  notes  or 
securities  of  a  corporation  from  one  of  its 
officers  in  payment  of,  or  as  security  for, 
his  individual  liability  is  bound  to  inquire 
into  the  circumstances  under  which  the  offi- 
cer obtained  possession  of  the  notes  or 
securities,  and  if  he  fails  to  make  such  in- 
quiry he  does  so  at  his  peril.  Cheever  v. 
Pittsburgh,  S.  &>  L.  E.  R.  Co.,  55  A^.  Y.  S.R. 
181,  72  Hun  380.  —  FoLLOV'NG  Wilson  z/. 
Metropolitan  El.  R.  Co.,  120  N,  Y.  145,  30 
N.  Y.  S.  R.  787. 

The  purchaser  of  a  promissory  note  pur- 
porting to  have  been  issued  by  a  corpora- 
tion, who  makes  the  purchase  under  circum- 
stances which  impose  upon  him  the  duty  of 
inquiry  as  to  its  validity,  assumes  no  greater 
risk,  by  his  failure  to  make  inquiry,  than  the 
burden  of  proving  tha  the  facts  he  could 
have  discovered,  had  he  made  inquiry,  would 
have  protected  him.  Wilson  v.  Metropoli- 
tan El.  R.  Co.,  120  A^.  Y.  145,  24  N.  E.  Rep. 
384,  30  A'.  Y.  S.  R.  787 ;  affirming  14  Daly 
171,6  N.  Y.  5./?.  234. 

Where  a  railroad  negotiated  one  of  its 
bonds  and  delivered  with  it  the  note  of 
defendant  as  security,  but  without  indorse- 
ment, but  the  bond  contained  an  assignment 
of  such  note,  which  was  made  transferable 
with  the  bond  and  not  otherwise — held,  that 
the  bond  of  the  company  was  the  principal, 
and  the  note  the  incident,  and  was  not 
transferred  as  an  independent  instrument, 
and  that  such  a  transfer  of  the  note  should 
have  put  the  party  receiving  it  upon  his 
guard  as  to  any  defenses  the  maker  miglit 
have.     Haske .'/ '  v.  Brown,  6$  ///.  29. 

A  railroad  company  executed  notes  to 
enable  its  president  to  purchase  rolling 
stock,  the  notes  being  payable  to  the  presi- 
deni's  private  secretary.  The  president  used 
the  notes  in  his  private  affairs,  and  they 
came  to  the  hands  of  plaintiff,  after  matur- 
ity, from  the  one  to  whom  the  president 
had  transferred  them.  Held,  in  an  action 
thereon,  that  the  first  transferee  was  bound 
to  inquire  into  the  circumstances  under 
which  the  notes  were  held,  and  that,  having 
failed  to  do  so,  and  it  appearing  that  inquiry 


would  have  revealed  the  fact  that  the 
president  was  not  authorized  to  transfer 
tiiem  as  he  did.  neither  lie  nor  those  holding 
under  him  after  maturity  could  recover. 
Cheever  v.  Pittsburgh,  S.  &-  L.  E.  R.  Co.,  55 
A^.  Y.S.R.  181,72  Hun  380. 

17.  Transfers  after  maturity.— A 
subscriber  to  railroad  stock  took  a  negoti- 
able promissory  note  from  the  company, 
with  the  understanding  that  it  be  paid  out 
of  the  next  assessments  on  his  stock.  A 
subsequent  assessment  was  made  larger  than 
the  amount  of  the  note.  The  subscriber 
paid  the  difference  but  did  not  surrender 
the  note.  Held,  that  one  taking  the  note 
from  him  when  overdue  could  not  recover. 
Paine  v.  Central  Vt.  R.  Co.,  25  Ami.  &» 
Eftg.  R.  Cas.  37,  118  U.  5.  152,  6  Sup.  Ct. 
Rep.  1019;  affirming  14  Fed.  Rep.  269. — 
Applied  in  Bound  v.  South  Carolina  R. 
Co.,  47  Fed.  Rep.  30. 

18.  Presentment  and  demand.  — 
If  the  certificate  of  a  notary  who  protested  a 
note  shows  that  notice  of  demand  and  non- 
payment was  served  on  the  indorser  at  any 
time  during  the  day  following  demand,  it  is 
sufficient  to  bind  him  as  indorser ;  it  need 
not  show  that  it  was  during  business  hours. 
Bonner  v.  New  Orleans,  2  Woods  {U.S.)  135. 

A  bill  drawn  by  the  president  of  a  railroad 
company  on  the  treasurer  of  the  company, 
payable  on  demand,  is,  when  dishonored, 
properly  sued  on  as  a  bill  of  exchange,  and 
to  recover  on  it  in  a  suit  against  the  com- 
pany, presentment  for  payment  and  notice  of 
the  dishonor  must  be  proved  or  an  excuse 
for  failing  to  do  so  shown.  Wetumpka  &*  C. 
R.  Co.  V.  Bingham,  5  Ala.  657. 

In  such  a  case,  if  it  be  doubtful  from  the 
face  of  the  bill  whether  it  was  drawn  by  one 
in  his  private  character  or  as  agent  of  the 
corporation  and  by  its  authority,  parol  evi- 
dence is  admissible  to  show  the  true  nature 
of  the  transaction.  Wetumpka  &*  C.  R.  Co. 
V.  Bingham,  5  Ala.  657. 

A  complaint  in  an  action  on  drafts  drawn 
by  the  president  of  a  railroad  company  on 
the  treasurer  is  bad  on  demurrer  if  it  does 
not  allege  that  the  drafts  had  been  pre- 
sented or  state  the  excuse  for  not  present- 
ing them.  Marion  &*  M.  R.  Co.  v.  Dillon,  7 
Ind.  404. 

Where  a  debt  is  due  from  a  corporation, 
and  it  is  the  duty  of  one  officer  or  set  of  offi- 
cers to  allow  demands  and  draw  for  pay- 
ment upon  another  officer,  who  has  the 
custody  of  and  is  charged   with   the   duty 


^  r 


596 


BILLS,  NOTES,  AND  CHECKS,  19,20. 


I' 


I 

II 

a 


ii 


of  disbursing  the  funds,  the  order  must,  as 
a  general  rule,  be  presented  in  a  reasonable 
time  for  payment.  Marion  &*  M.  R.  Co.  v. 
Dillon,  7  Ind.  404.— Followed  in  Marion 
&  M.  R.  Co.  V.  Spence,  8  Ind.  415 ;  Marion 
&  M.  V.  R.  Co.  V.  Lomax,  8  Ind.  459. 
Overruled  in  Indiana  &  I.  C.  R.  Co.  v. 
Davis,  20  Ind.  6. 

Where  the  secretary  of  a  corporation 
draws  an  order  upon  the  treasurt^r  for  a  debt 
actually  due  from  th'i  coic  t  to  the 

payee,  the  latter  need  hcr  p  .  ,  »t  ♦  to  the 
treasurer  for  payment  with-i;  w  r<  .  ;jnable 
time  after  receiving  it,  or  at  any  time  befi  re 
suing  upon  it,  as  a  conditin  precedent  to 
such  suit.  Indiana  &'  I.  C.  R.  Cc  v.  Da-  , 
20  Ind.  6. 

Plaintiff,  a  ticket  agent,  acting  on  his  indi- 
vidual responsibility,  accepted  from  various 
persons  sums  of  money  and  a  bank  draft  on 
deposit,  with  a  right  in  the  depositors  to  re- 
call their  money  or  take  tickets  for  an  ex- 
cursion which  was  to  leave  on  the  14th  of 
April,  the  draft  being  received  on  the  9th. 
On  the  14th  the  parties  took  their  tickets, 
and  plaintiff,  on  the  next  day,  in  the 
usual  course  of  business,  made  up  his  ticket 
account  and  forwarded  the  draft.  The  referee 
held  the  delay  reasonable.  Held,  that  this 
finding  was  not  legally  erroneous.  Nutting 
V.  Burked,  48  Mich.  241,  12  A'.  W.  Rep.  184. 

An  agent,  residing  in  New  York,  who  was 
charged  with  the  collection  of  certain  divi- 
dends upon  railroad  stock,  requested  a  per- 
son in  another  state  to  collect  the  dividends 
and  transmit  them  to  him  by  draft.  The 
dividends  were  collected  and  remitted  by 
New  York  draft,  but  the  agent  left  New 
York  before  receiving  it.  Held,  that  it  was 
his  duty  to  have  left  some  one  to  receive  the 
check  and  present  it  for  payment,  and  that  a 
failure  to  present  the  check  for  four  days, 
during  which  time  the  drawee  failed,  dis- 
charged the  drawer.  Brady  v.  Little  Miami 
R.  Co.,  34  Barb.  (N.  V.)  249. 

IV.  ACTIONS  05  BILLS  AND  NOTES. 

19.  The  right  of  action.— An  order 
drawn  by  an  incorporated  company  upon  its 
own  treasurer  in  favor  of  a  third  person  is  a 
clear  acknowledgment  of  an  indebtedness  in 
favor  of  the  drawee,  and  may  be  the  founda- 
tion of  an  action.  Such  orders  must  be  pre- 
sented for  payment.  Marion  <S»»  M.  R.  Co. 
V.  Hodge,  9  Ind.  163.— Overruled  in  Indi- 
ana &  I.  C.  R.  Co.  V.  Davis,  20  Ind.  6. 

Where  a  promissory  note  given  to  aid  in 


the  construction  of  a  railroad  provides  that 
on  the  payment  of  the  money  the  maker 
shall  receive  certihcates  of  stock  therefor, 
the  payee  or  indorsee  must  prove  a  tender  of 
the  stock  certificates  to  entitle  him  to  re- 
cover. Cooper  V.  McKee,  49  Iowa  286. — 
Followed  in  Lawrence  v.  Smith,  50  Iowa 

703. 

Where  a  note  is  executed  by  a  railroad 
company  at  its  office  in  Iowa,  but  is  made 
payable  at  a  particular  place  in  New  York, 
a  failure  to  pay  it  in  New  York  constitutes 
a  breach  of  contract,  but  not  a  "  cause  of 
action  "  in  New  York,  within  the  meaning 
of  the  attachment  laws  of  that  state.  The 
"  cause  of  action  "  is  the  contract  or  promise 
male  in  Iowa.  Cantwell  v.  Dubuque  IV, 
R.  Co.,  17  How.  Pr.  (N.   K)  16. 

A  railroad  company  in  Vermont  drew  a 
bill  of  exchange  upon  its  treasurer  in  Boston, 
which  was  accepted  by  him,  payable  in  New 
York.  Held,  in  an  action  on  the  note,  that 
the  cause  of  action  arose  in  New  York,  and 
that  the  holder  of  the  bill  might  sue  there 
and  attach  the  company's  property.  Bank 
of  Commerce  v.  Rutland  &*  W.  R.  Co.,  10 
How.  Pr.  {N.  V.)  I. 

A  bill  of  exchange  was  drawn,  indorsed, 
and  accepted  by  some  of  the  trustees  of  a 
Masonic  corporation  for  the  purpose  of 
raising  money  to  pay  a  debt  incurred  by 
them  for  its  benefit,  and  was  discounted  by 
a  railroad  company  without  any  authority 
under  its  charter,  and  the  money  so  raised 
by  the  Masonic  corporation  was  expended 
by  it  in  paying  the  debt  incurred  by  the 
trustees.  Held,  that  the  railroad  company 
might  maintain  an  action  for  money  had 
and  received  against  the  drawer,  although 
no  recovery  could  be  had  on  the  bill  of 
exchange.  Waddill  v.  Alabama  &•  T.  R. 
R.  Co.,  35  Ala.  323.— Followed  in  Wilks 
V.  Georgia  Pac.  R.  Co.,  79  Ala.  180. 

An  instrument  executed  by  the  treasurer 
of  a  railroad  company,  in  the  form  of  an 
advance  receipt  for  taxes  voted  in  a  certain 
township  in  aid  of  the  company,  which 
provided  that  it  should  be  received  by  the 
company  from  the  county  treasurer  in  pay- 
ment of  so  much  of  such  taxes— //^/</,  not 
to  be  collectible  from  the  company  or  an 
indorser  until  it  had  been  tendered  in  pay- 
ment of  the  taxes  specified,  and  refused  by 
the  county  treasurer.  Lisle  v.  Iowa,  M.  &* 
N.  P.  R.  Co.,  54  Iowa  499,  6  A^.  W.  Rep.  696. 

20.  Parties.  —  Where  the  assets  of  a 
railroad  company  are  sold   in   bankruptcy, 


BILLS,  NOTES,  AND   CHECKS,  ai. 


59'; 


and  the  purchaser  transfers  them  to  an- 
other, who  organizes  a  new  company,  and 
in  the  papers  the  purchaser  expressly  recog- 
nizes the  new  company  as  assignee  from 
him  of  the  assets,  this  is  a  sufficient  assign- 
ment to  enable  the  new  company  to  bring 
suits  upon  obligations  given  to  the  old 
company.  IVilcox  v.  Toledo  &^  A,  A.  R. 
Co.,  9  Am.  &•  Eng.  A\  Cas.  518,  43  M:'cA. 
584,  5  N..  IV.  Rep.  1003. 

A  railroad-aid  note  was  given  whereby 
the  makers,  in  considerati(  n  of  the  building 
of  the  Van  Buren  division  of  the  Toledo  & 
S.  H.  R.,  promised  to  pay  to  said  com- 
pany or  order  $200,  in  thirty  days  after 
notice  of  its  completion.  When  the  note 
was  given  the  Toledo  &  S.  H.  R.  Co.  was 
not  in  existence,  and  no  company  of  that 
name  was  ever  organized,  but  an  indepen- 
dent corporation  by  the  name  of  the  Van 
Buren  Division  of  the  Toledo  &  S.  H.  R, 
Co.  was  afterwards  created,  with  a  different 
purpose  from  tiiat  of  the  original  under- 
taking. Held,X.\\;\\.  the  promisee  in  the  note 
was  the  Toledo  &  S.  H.  R.  Co.,  and  that 
the  Van  Buren  Division,  as  afterwards  or- 
ganized, could  not  recover  upon  it  without 
showing  that  the  promisors  had  consented 
to  the  change  of  scheme,  nor  without  de- 
claring on  the  new  agreement.  Van  Buren 
Division,  T.  &*  S.  H.  R,  Co.  v.  Lamp/tear,  20 
Am.  &*  Eng.  R.  Cas.  643,  54  Mich.  575,  20  N. 
IV.  Rep.  590. 

Plaintiff  executed  to  a  railroad  company 
his  note  for  $800,  which,  together  with 
subscriptions  by  other  citizens  of  a  munici- 
pal corporation,  amounted  to  $25,000,  which 
was  given  to  a  railroad  company  as  a  bonus, 
and  which  was  payable  each  in  four  install- 
ments as  the  work  of  constructing  the  road 
progressed.  At  the  same  time  the  company 
executed  its  bond  with  sureties  in  the  same 
amount  to  trustees,  to  secure  the  persons 
furnishing  the  bonus.  Plaintiff  paid  the 
first  and  second  installments  of  his  note, 
and,  when  sued  upon  the  others,  defended 
on  the  ground  that  the  company  had  not 
maintained  a  station  in  the  municipality  as 
agreed  upon,  and  by  reconvention  made  the 
sureties  upon  the  companies  bond  parties, 
and  asked  to  recover  back  what  he  had 
already  paid,  and  for  damages  for  the  fail- 
ure to  maintain  the  depot.  The  bond  was 
given  only  to  cover  the  obligation  of  the 
company  to  construct  the  road.  Held:  (i) 
that  there  could  be  no  recovery  for  failing 
to  maintain  the  depot,  as  the  bond  did  not 


cover  it ;  (2)  that  the  trustees  in  the  bond 
were  necessary  parties,  and  there  could  not 
be  a  recovery  without  making  them  parties; 
(3)  that  all  the  parties  interested  in  the 
bond  should  have  been  brought  in,  and  that, 
if  there  was  a  liability  on  the  company,  one 
judgment  should  be  taken  for  the  benefit  of 
all.  Williams  v.  Ft.  Worth  6-  N.  0.  R. 
Co.,  82  Tex.  553,  1 8  5.  W.  Rep.  206. 

21.  Declaration  or  complaint.— 
Where  a  railroad  company  sues  on  promis- 
sory notes,  a  complaint  which  sets  up  a 
good  cause  of  action  is  not  affected  by  a 
further  statement  that,  under  an  agreement 
with  the  defendant,  the  plaintiff  had  trans- 
ported certain  freights,  and  had  drawn  the 
bills  in  suit  as  payment  of  the  freight,  which 
had  been  accepted.  Central  Ohio  R.  Co.  v. 
Thompson,  2  Bond  ( U.  S.)  296. 

In  a  complaint  against  a  corporation  it  is 
not  necessary  to  aver  that  the  agent  of  the 
company  who  made  the  note  sued  on  was 
appointed  by  a  written  or  sealed  commis- 
sion. Hamilton  v.  Newcastle  &*  D.  R.  Co., 
9  Ind.  359. 

In  an  action  against  a  railroad  company, 
upon  certain  orders  for  the  payment  of 
money  drawn  by  their  proper  officers  upon 
the  treasurer  of  the  company,  the  complaint 
did  not  allege  that  the  orders  had  ever  been 
presented  to  the  treasurer  for  payment. 
Judgment  was  given  against  the  company 
by  default.  Held,  that  the  judgment  was 
erroneous.  Marion  &*  L.  R.  Co.  v.  Lomax, 
7  Ind.  648.— Followed  in  Marion  &  L.  R. 
Co.  V.  Lomax,  9  Ind.  162.  Overruled  in 
Indiana  &  I.  C.  R.  Co.  v.  Davis,  20  Ind.  6. 

Complaint  upon  a  promissory  note.  The 
first  paragraph  alleged  that  the  note  was 
made  payable  tr  the  Madison,  I.  &  P.  R.  Co. ; 
that  the  Peru  &  I.  R.  Co.  then,  etc.,  became 
the  owner  of  the  note,  and  then,  etc.,  sold 
and  assigned  the  same  to  the  plaintiffs,  who 
are  now  the  owners,  etc.  Held,  substantially 
good  on  demurrer.  Farnsworth  v.  Drake, 
II  Ind.  loi. 

The  second  paragraph  alleged  the  making 
and  transfer,  as  in  the  first,  and  added  that 
the  Madison,  I.  &  P.  R.  Co.,  the  payee,  was 
formed  by  a  union  of  the  M.  &  I.  and  the 
P.  &  I.  companies;  that  the  union  was  sub- 
sequently judicially  declared  iUegal  and 
void ;  and  that  this  note  was  awarded  to  the 
P.  &  I.  Co.  Held:  (i)  that  if  the  Madison, 
I.  &  P.  R.  Co.  is  to  be  regarded  as  existing  de 
facto  before  it  was  declared  illegal,  etc.,  so 
that  its  assignment  of  the  note  would  have 


bm 


nns 


BILLS,  NOTES,  AND   CHECKS,  iiii. 


1 

a 


f 


Ir:' 


I' 


1  1?: 


passed  the  title,  tlien  tlie  delivery  of  the 
note  by  it,  pursuant  to  an  order  of  court 
at  its  dissolution,  to  the  P.  &  I.  Co.  was 
sufficient  and  is  well  pleaded;  (3) but  if  that 
company  is  to  be  regarded  as  never  having 
had  even  a  <fe  facto  existence,  then  the 
note  was  made  payable  to  a  fictitious  payee, 
and  hence  that  any  bona-fide  holder  might 
sue  upon  it  and  need  not  aver  in  his  com- 
plaint that  he  is  a  bona-fide  holder.  Farm- 
worth  V.  Drake,  ii  Ind.  loi. 

The  third  paragraph  of  the  complaint  al- 
leged a  partnership  between  the  companies, 
and  that  the  note  was  made  to  them  as 
such  by  the  name,  etc.;  that  afterward  the 
partnership  was  dissolved  ;  that  the  M.  &  I. 
Co.  assigned  its  interest  by  delivery  to  the 
P.  &  I.  Co.,  and  that  the  latter  assigned  to 
the  plaintiffs  by  indorsement— the  M.  &  I. 
Co.,  the  equitable  assignor,  being  made  a 
party.  Held,  that  if  the  companies  were 
legally  in  partnership  the  paragraph  was 
good  ;  but  that  if  they  were  not,  and  yet  had 
ii  joint  interest  in  the  subject-matter  of  the 
note,  perhaps  it  inured  to  them  as  joint 
payees,  and  thus  the  transfer  might  be  good. 
Farnsworth  v.  Drake,  ii  Ind.  loi. 

Where  a  declaration  alleged  that  a  rail- 
road company,  by  its  treasurer.  P.,  made  a 
promissory  note  payable  to  the  order  of  P., 
for  the  purpose  of  being  sold  on  the  market 
in  order  to  raise  money  to  meet  the  liabili- 
ties of  the  said  company ;  that  said  note 
was  at  the  same  time  approved  by  the  direc- 
tors, and  was  indorsed  by  P.;  that  defen- 
dants entered  into  a  contract,  which  was 
indorsed  on  the  note  as  follows :  "  We 
hereby  guarantee  the  payment  of  the  within 
note,  waiving  demand,  notice,  and  protest ; " 
that  said  note  was  delivered  to  plaintiff  for 
a  valuable  consideration  by  P.,  as  treasurer 
of  said  company  ;  that  plaintiff  received  the 
same  before  it  was  due  and  payable ;  and 
that  said  note  was  not  paid — held,  that  there 
was  not  a  fatal  variance  between  said  declara- 
tion and  proof  that  notes  similar  to  the  one 
in  suit  had  been  authorized  by  the  directors 
of  the  company,  and  similar  guarantees  had 
been  indorsed  upon  them  by  tiie  defendants, 
and  that  the  plaintiff  had  loaned  to  P.  cer- 
tain sums  of  money  soon  after  the  date  of 
the  notes,  taking  the  note  in  suit  as  collateral 
to  secure  another  note  signed  by  P. — P. 
stating  that  the  money  borrowed  was  for 
the  use  of  the  company,  Jones  v.  Dow, 
26  Am.  6-  Eng.  R.  Cas.  98,  142  Mass:  130,  7 
N.  E.  Rep.  839. 


22.  Pica  or  answer.— Since  the  adop- 
tion of  Ala.  Code  of  1833,  an  objection  to  an 
averment  in  a  complaint  against  a  corpora- 
tion, that  the  defendant  indorsed  a  bill  of 
exchange  by  its  president,  A.  S.,  involving  a 
denial  of  the  execution  of,  or  of  authority 
to  bind  by,  the  indorsement,  can  only  be 
taken  advantage  of  by  plea  verified  by 
affidavit.  Montgomery  &-  E.  R.  Co.  v.  Tre- 
bles,^ Ala.  255. 

Where  a  note  given  to  a  railroad  com- 
pany is  sued  on,  an  answer  setting  up  an 
agreement  by  which  it  was  to  be  held  by 
a  trustee,  and  not  delivered  to  the  company 
until  the  road  was  completed  to  a  certain 
place  within  a  designated  time,  which  was 
not  done,  and  alleging  that  the  company 
was  not  avoidably  prevented  from  so  doing, 
that  the  note  was  therefore  without  con- 
sideration, and  that,  by  reason  of  the  com- 
pany failing  to  build  the  road  as  agreed,  the 
defendant  had  been  damaged  by  failing  to 
sell  his  land  for  as  much  as  he  might  have 
done  had  the  road  been  built,  sets  up  a 
good  defense,  and  is  not  demurrable. 
McLaughlin  v.  Clausen,  85  Cal,  322,  24 
Pac.  Rep.  636. 

A  plea  to  an  action  on  a  note  given  to  a 
railroad  company  that  the  only  considera- 
tion of  the  note  was  that  a  railroad  should 
be  built  within  a  certain  time,  which  was  not 
done,  is  bad  on  demurrer,  where  the  note  is 
made  payable  "  when  the  track  of  said  rail- 
road shall  be  laid  through  White  county, 
and  cars  shall  have  run  thereon."  Cairo  &• 
V.  R.  Co.  V.  Delap,  7  III  App.  60.— FOLLOW- 
ING Cairo  &  V.  R.  Co,  -v.  Parker,  84  111, 
613, 

In  an  action  against  a  railway  company  on 
an  acceptance,  a  plea  denying  the  accept- 
ance properly  raises  the  question  of  the 
power  of  the  company  to  give  it,  although 
in  fact  the  acceptance  was  given  by  order  of 
the  directors  and  under  the  company's  seal, 
Bateman  v.  Mid-  Wales  R.  Co.,  L.  R.  i  C. 
P.  499,  \  H.  &•  R.  508,  12  Jur.  N.  S.  453, 
35  L.J.  C.  P.  205,  14  W.  R.  672, 

A  railroad  company  transported  certain 
animals  to  defendant,  and  drew  on  him  for 
the  freight,  which  bills  were  accepted  but 
not  paid.  In  an  action  thereon  defendant 
filed  a  plea  alleging  injury  to  the  animals 
through  the  carelessness  of  the  cor  '  ..ny, 
whereby  the  same  were  injured  in  a  sum 
greater  than  the  amount  of  the  bills.  Held, 
that  such  plea  was  defective  in  not  respond- 
ing to  the  cause  of  action  set  out  in  the 


BILLS,  NOTliS,  AND   CIIliCKS,  23. 


690 


declaration.    Central  Ohio  K.  Co.  v.  Thomp- 
son, 2  Bond.  ( I/.  S.)  296. 

A  railroad  company  drew  on  the  con- 
signee for  freight  charges,  and  the  bills 
were  accepted  but  not  paid.  When  sued 
thereon  the  consignee  filed  a  plea  claiming 
damages  in  a  sum  larger  than  plaintifT's 
claim,  by  reason  of  injuries  to  the  freight 
while  being  carried.  HM,  that  the  plea 
was  open  to  the  objection  of  duplicity, 
being  an  attempt  both  to  plead  in  bar  and 
to  recover  damages  sustained.  Central 
Ohio  R.  Co.  V.  Thompson,  2  Bond.  {U.  S.)  296. 

Suit  was  brought  on  a  conditional  promise 
to  pay  money  to  the  order  of  a  railroad  com- 
pany. The  promise  was  in  writing,  and  was 
filed  with  the  justice  as  the  sole  cause  of 
action.  Upon  it  was  endorsed  the  name  of  a 
person,  who  added  to  his  name  the  word  "  as- 
signee." The  defendant  pleaded  the  general 
issue,  and  went  to  trial.  It  was  shown  on  the 
trial  that  the  payee  in  the  promise  had  been 
put  in  bankruptcy,  and  that  the  indorser  of 
the  paper  was  assignee  in  bankruptcy  there- 
of. Held,  that  the  objection  that  the  plain- 
tiff did  not  by  its  declaration  aver  its  right 
to  recover  as  assignee  would  not  be  sus- 
tained on  the  final  submission  of  the  case. 
Wilcox  V.  Toledo  &*  A.  A.  R.  Co.,  9  Am.  &- 
Eng.  R.  Cas.  518,  43  Mich.  584,  5  N.  W. 
Rep.  1003. 

23.  Defenses.— (1)  What  available.— 
Where  a  note  is  given  for  stock  of  a  railroad 
company,  an  illegal  increase  of  the  stock 
thereafter  is  a  good  defense  to  an  action 
on  the  note.  Merrill  v.  Gamble,  46  Iowa 
615,  16  Am.  Ry.  Rep.  65.— Followed  in 
Merrill  v.  Beaver,  46  Iowa  646. 

The  note  of  a  corporation,  though  in  its 
form  of  words  strictly  negotiable,  is  a 
specialty  if  attested  by  the  seal  of  the  cor- 
poration, and,  in  an  action  upon  it  by  the 
holder,  is  subject  to  the  defense  of  a  want 
of  consideration.  Hopkins  v.  Cumberland 
Valley  R.  Co.,  3  Watts  &»  S.  (Pa.)  410. 

Directors  have  no  power  to  dispose  of 
stock  below  the  price  fixed  by  charter, 
and  where  stock  is  sold  at  a  less  price,  and 
a  note  given  therefor,  such  fraudulent  sale 
is  a  good  defense  to  an  action  on  the  note. 
Sturges  V.  Stetson,  3  Phila.  (Pa.)  304. 

(2)  What  not  available. — An  agreement 
by  the  Branch  Bank  of  the  State  of  Ala- 
bama to  receive  such  bills  as  a  railroad 
company  could  lawfully  issue,  and  to  pay 
the  same  out  as  circulation,  will  not  avoid  a 
recovery  on  bills  of  exchange  given  for  the 


loans  by  the  bank  of  such  bills,  as  being 
contrary  to  the  policy  of  the  laws  of  the 
state  with  reference  to  its  banking 
institutions.  Branch  Bank  v.  Crocheron,  % 
Ala,  250. 

A  note  given  for  the  purchase-money  of 
town  lots,  at  a  place  which  was  the  contem- 
plated terminus  of  a  railroad  then  in  pro- 
cess of  construction,  was  made  payable 
"when  the  first  locomotive  engine  on  the 
M.  railroad  shall  arrive  "  at  the  town.  Held, 
that  the  fact  that  the  railroad  company  was 
sold  out  and  the  road  completed  by  another 
company  subsequently  incorporated  is  avail- 
able (if  at  all)  as  a  defense  at  law,  and  there- 
fore constitutes  no  ground  for  a  resort  to 
equity.    Askeiv  v.  Hooper,  28  Ala.  634. 

Where  the  board  of  directors  of  a  railroad 
company,  at  a  regular  meeting,  directed  its 
promissory  note  to  be  executed  by  the  presi- 
dent of  the  company,  in  payment  of  the 
salary  of  one  of  its  officers,  when  a  by-law 
of  the  company  provided  that  notes  should 
be  drawn  by  the  auditor  to  the  president, 
etc.,  it  is  not  a  good  defense  to  an  action 
on  the  note  that  there  had  not  been  a 
strict  compliance  with  all  the  require- 
ments of  the  by-law,  in  the  execution  of 
the  note.  The  services  having  been  per- 
formed for  the  payment  of  which  the  note 
was  issued  by  the  company,  any  matter  of 
form  and  not  of  substance  ought  not  to  de- 
feat the  recovery.  St.  Louis,  Ft.  S.  &■»  W. 
R.  Co.  V.  Pieman,  40  Am.  6-  Eng.  R.  Cas. 
525,  37  /Can.  606,  1 5  Pac.  Rep.  544. 

A  person  who  buys  railroad  bonds  and 
gives  his  promissory  note  in  payment 
thereof,  cannot,  when  sued  upon  the  note, 
defend  on  the  ground  that  the  company 
agreed  to  have  the  bonds  indorsed  by 
another  company  before  maturity,  but  had 
failed  to  do  so.  Stanton  v.  Maynard,  7 
Allen  {Mass.)  335. 

Where  a  note  is  given  to  a  railroad  com- 
pany, the  only  consideration  being  the  build- 
ing of  the  road,  the  maker  of  the  note 
cannot  defend  on  the  ground  that  the  road 
was  built  by  another  company.  Toledo  &* 
A.  A.  R.  Co.  V.  Johnson,  55  Mich.  456,  21  A\ 
W.  Rep.  888 ;  former  appeal,  49  Mich.  148. 

The  maker  of  a  note  given  in  aid  of  the 
construction  of  a  railroad,  the  payment  of 
which  is  conditioned  upon  the  running  of 
cars  on  the  road  by  a  certain  date,  becomes 
liable  for  such  payment  if  the  railroad  com- 
pany begins  to  run  construction  trains  over 
the  road  by  the  date  named,  although  the 


m 

•ill 


1^^ 


'I 


!■■  \' 


(iOO 


BILLS,  NO'lliS,  AND   CHECKS,  24. 


III 


road  is  not  ballasted  nor  in  lit  condition  for 
use,  and  freight  and  passenger  trains  are 
not  run  thereon  until  some  months  after 
said  date.  Pontiac,  O.  &*  P.  A.  R.  Co,  v. 
King,  68  Mich,  in,  12  West.  Rep.  422,  35 
A^.  W.  Rep.  705. 

Under  the  statute  a  corporation  may  con- 
tract to  pay  more  than  the  legal  rate  of  in- 
terest; hence  a  note  given  by  a  railroad 
company  at  12  per  cent  interest,  payable 
semi-annually,  is  binding  on  the  corpora- 
tion, and,  being  binding  on  it,  is  binding 
on  its  guarantors,  who  sustain  the  relation 
of  sureties.  Rosa  v.  Butterfield,  33  N.  Y. 
665. 

Suit  upon  promissory  notes.  Answer, 
that  the  defendant,  on,  etc.,  subscribed  for 
sixty  shares  of  the  stock  of  a  railroad  com- 
pany, upon  condition  that  the  road  should 
be  located  within  a  mile  of  B.  ;  that  on,  etc., 
the  agent  of  the  company,  to  induce  him  to 
execute  notes  for  the  nominal  amount  of 
said  stock,  falsely  represented  that  the  com- 
pany were  about  to  locate  and  construct 
the  road  according  to  the  condition,  and 
that  to  enable  them  to  do  so  it  was  nec- 
essary that  they  should  have  such  notes; 
tiiat  defendant,  relying  upon  such  repre- 
sentations, executed  the  notes  in  suit ;  that 
the  company  have  not  located  nor  con- 
structed the  road  within  a  mile,  etc.,  nor  did 
tiiey,  when  such  representations  were  made, 
intend  to  do  so.  The  defendant  failed  to 
pay  the  notes  at  maturity.  It  did  not  ap- 
pear that  the  company  had  abandoned  the 
work,  nor  that  they  had  incapacitated  them- 
selves in  any  way  from  complying  with  the 
condition.  Held:  (i)  that  the  performance 
of  the  condition  by  the  company  was  not 
intended  to  precede  the  payment  of  the 
notes ;  (2)  that  the  defendant,  having  failed 
to  pay  the  notes  at  maturity,  could  not  set 
up  the  failure  of  the  company  to  perform  the 
condition.    Keller  v.  Johnson,  11  Ind.  337. 

24.  Evidence. —  The  execution  of  a 
note  to  a  corporation  by  its  corporate  name 
is  an  admission  of  the  fact,  and  is  prima- 
facie  evidence  of  the  existence  of  the  charter 
of  the  company,  and  of  user  under  it, 
under  the  plea  of  nul  tiel  corporation. 
Montgomery  R.  Co.  v.  Hurst,  9  Ala.  513. 

When  a  note  was  made  payable  at  the 
"  Branch  Bank  of  Montgomery,"  parol  evi- 
dence to  prove  that  at  the  time  the  note 
had  been  made  it  had  been  agreed  that  if  the 
note  were  sent  to  the  bank  the  maker  should 
be  exonerated  from  payment,  is  inadmissible 


because  it  contradicts  one  of  the  terms  of 
contract.  The  case  might  be  varied  by 
proof  that  under  this  promise  the  note 
was  fraudulently  obtained.  Montgomery 
R.  Co.  V.  Hurst,  9  Ala.  513. 

Evidence  to  establish  the  relation  in 
which  defendant  stood  to  the  railway  com- 
pany is  competent.  Delaware  County  Bank 
V.  Buncombe,  48  Iowa  488. 

Proof  of  the  conversation  between  the 
engineer  who  procured  the  acceptance  of 
the  draft  and  defendant  at  the  lime  the 
draft  was  accepted,  is  admissible.  Delaware 
County  Bank  v.  Duncombe,  48  Iowa  488. 

The  authority  of  the  officers  of  a  rail- 
road company  to  execute  a  note  having 
been  put  in  issue  by  the  sworn  answer  of 
the  company,  some  preliminary  proof  of 
their  authority  should  have  been  j;iven  be- 
fore the  note  was  read  in  evidence  ;  but  this 
error  was  cured  by  the  subsequent  introduc- 
tion of  evidence  tending  to  show  all  the 
circumstances  under  which  the  note  was 
executed.  St.  Louis,  Ft.  S.  5-  W.  R.  Co. 
V.  Tiernan,  40  Am.  &>  Eng.  R.  Cas.  525,  37 
Kan.  606,  1 5  Pac.  Rep.  544. 

Where  a  bill  of  exchange  is  so  drawn  as 
to  leave  it  doubtful  whether  a  railroad 
company  or  its  president  individually  is 
the  drawer,  it  will  be  presumed  that  it  is 
the  individual  bill  of  the  president,  but  it 
may  be  shown  by  parol  evidence  what  the 
intention  of  the  parties  was.  Kean  v.  Davis, 
21  N.J.  L.  683. 

The  defendant,  the  general  manager  of 
a  railroad  company,  made  a  contract  with 
I.  for  the  grading  of  a  part  of  the  road,  and 
I.  sublet  some  of  the  work  to  D.,  who,  hav- 
ing performed  a  portion  of  what  he  had 
agreed  to  do,  by  a  fraudulent  collusion  with 
the  engineer  procured  the  acceptance  of  a 
draft  by  the  defendant  for  work  done  under 
the  subcontract,  notwithstanding  such  work 
had  already  been  paid  for  by  the  contractor. 
Held,  in  an  action  upon  the  draft,  that  the 
defendant  might  be  permitted  to  testify  to 
the  particulars  of  the  contract  between  the 
contractor  and  the  railway  company.  Del- 
aware County  Bank  v.  Duncombe,  48  Iowa 
488. 

A  railroad  company  of  which  plaintiff 
was  president  drew  drafts  on  the  defendant 
in  favor  of  the  plaintiff,  which  defendant 
accepted.  In  an  action  on  the  drafts  it  ap- 
peared that  plaintiff,  as  president  of  the 
railroad  company,  made  a  demand  upon  the 
defendant  for  settlement  for  bonds  sold. 


r 


BILLS,  NOTLS,  AM)   ClIliCKS,  25.— BILLS    OI"    LADIN(i,  1,2.  <)0l 


and  the  evidence  tended  to  show  that  the 
defendant  was  then  owing  the  railroad  com- 
pany on  occount  of  bonds  much  more  than 
the  amount  of  the  drafts,  and  that  the 
drafts  were  given  in  settlement.  Held,  that 
a  general  verdict  for  plaintiff,  and  a  special 
finding  that  the  drafts  were  accepted  in  set- 
tlement of  a  disputed  claim  made  by  the 
railroad  company,  and  that  defendant  had 
not  paid  the  company  the  amount  due  for 
its  bonds,  were  sufficiently  supported  by  the 
evidence.  Gafford  v.  American  M.  &*  I. 
Co.,  77  Iowa  736,  42  N.  IV.  Rep.  550. 

25.  DuniU{;eM.— In  a  suit  upon  a  prom- 
issory note  payable  in  certain  railroad  scrip, 
where  the  maker  had  failed  to  pay  in  such 
scrip,  the  market  value  of  the  scrip  is  the 
measure  of  damages.  Parks  v.  Marshall, 
10  Ind.  20. 


BILLS  OF  LADING. 

Power  of  agents  to  issue,  see  Agency,  07. 
Power   to  bind  company   by,    see  Station 

Agents.  4. 
See  also.  Carriage  of  Live  Stock,  V. 

Carriage  of  Merchandise,  VIII. 

Express  Companies,  II,  9. 

I.  OENEBAL     NATUBE,    INTEBPBXTA- 

TIOM,  AND  EFFECT 601 

1.  Definition;    Execution;    Issu- 

ance    601 

2.  The  Bill  Considered  as  a  Re- 

ceipt   603 

3.  The  Bill  Considered  as  a  Con- 

tract   608 

4.  The  Bill  Considered  as  a  Mu- 

niment of  Title 624 

II.  CONDITIONS,  LIMITATIONS,  EXCEP- 

TIONS, Etc  625 

1 .  In  General 625 

2.  Limiting  Liability  for  Loss  by 

Fire , 631 

3.  Stipulations  as  to  Amount  of 

Recovery  in  Case  of  Loss. . .  635 

4.  Effect  of  Various  Particular 

Stipulations  and  Clauses —  638 

ni.  NEGOTIABILITY  AND  TBAN8FEB..  643 

1.  Negotiability    and    Mode   of 

Transfer 643 

2.  Rights  of  Transferee 645 

3.  Transfer  as  Collateral  Secur- 

ity   647 


I.  OENIBAL    NATUBE,     INTEBPEETATION, 
AND  EFFECT. 

I .  Definition ;  Execution  ;  Issuance, 

1.  What  deemed  to  be  a  bill  of 
lading.'*' — A  bill  of  lading  is  a  memoran- 
dum  or  acknowledgment  in  writing,  signed 
by  the  captain  or  master  of  a  ship  or  other 
vessel,  that  he  has  received  in  good  order, 
on  board  of  his  ship  or  vessel  therein  named, 
at  the  place  therein  mentioned,  certain 
goods  therein  specified,  which  he  promises 
to  deliver  in  like  good  order  (the  danger  of 
the  seas  excepted)  at  the  place  therein  ap- 
pointed for  the  delivery  of  the  same,  to  the 
consignee  therein  named,  or  to  his  assigns, 
he  or  they  paying  freight  for  the  same. 
Union  R.  &•  T.  Co.  v.   Yeager,  34  Ind.  1 . 

The  instrument  in  writing  provided  for 
by  Texas  Rev.  St,  art.  280,  enacting  that 
"  Common  carriers  are  required,  when  they 
receive  goods  for  transportation,  to  give  to 
the  shipper,  when  it  is  demanded,  a  bill  of 
lading  or  memorandum  in  writing  stating 
the  quantity,  character,  order,  and  condition 
of  the  goods,"  constitutes  a  bill  of  lading, 
and  is  binding  upon  both  the  shipper  and 
the  carrier.  Schloss  v.  Atchison,  T.  &*  S. 
F.  R.  Co.,  85   Tex.  601,  22  S.   IV.  Rep.  1014. 

An  account  for  freight,  usually  called  a 
freight-bill,  is  not  a  bill  of  lading.  Coosa 
River  Steamboat  Co.  v.  Barclay,  30  Ala.  120. 

Where  Y.  purchased  flour  to  be  manu- 
factured by  a  mill  in  St.  Louis,  and  agreed 
orally  with  L.  for  the  sale  of  such  flour, 
terms  cash  on  delivery  an  instrument 
styled  a  bill  of  lading,  dat(  d  before  the  flour 
was  manufactured,  given  to  L.  by  a  freight 
company,  acknowledging  the  receipt  of  the 
flour  by  the  company  and  agreeing  to  trans- 
port it  to  M.  in  Boston,  cannot  be  regarded 
as  a  bill  of  lading.  Union  R.  &*  T.  Co.  v. 
Yeager,  34  Ind.  i . 

2.  Analogry  of  the  bill  to  a  bill  of 
excliangef  —  Alteration.  —  Where  the 
maker  of  a  note  uses  a  printed  blank  and 
fills  in  the  amount  for  which  he  intends 
to  become  liable,  leaving  a  space  to  the 
left  of  the  amount,  in  which,  after  the 
note  has  been  put  in  circulation,  words  are 
fraudulently  inserted,  which  increase  the 
amount  of  the  note,  the  maker'-    iability  is 


*  What  is  a  bill  of  lading,  see  note,  38  Am. 
Dec  407. 

Nature  of  a  bill  of  lading,  see  note,  40  AM, 
&  Eng.  R.  Cas.  89;  23  Id.  701. 

tSee/0f/,  108-128. 


coa 


miJ.S  OK    I.ADINC,  ;»-«. 


I 


extinguished,  and  no  recovery  (an  1)"  had 
tlicreon  against  him ;  and  tills  rule  applies 
with  even  greater  force  to  bills  of  lading, 
Lehman  v.  Central  1^.  Sf  />'.  Co., 4  Woods  {V. 
S.)  560,  12  /•></.  A'e/>.  595. 

A  carrier  is  no  more  bound  by  a  bill  of 
lading  issued  by  his  agent,  for  goods  not 
received  by  him,  than  a  person  is  bound  by 
a  bill  of  exchange  signed  in  his  name  by 
one  who  has  no  authority  to  sign  it.  Hunt 
V.  Mississippi  C.  R.  Co.,  29  /.a.  Ann.  446. 

3.  Execution  of  bill  by  carrier's 
nifciit.*— Tlie  agent  of  a  carrier  has  no 
authority  to  execute  a  bill  of  lading  for 
goods  which  he  has  not  received.  Nun/  v. 
Mississippi  C.  A'.  Co.,  29  La.  Ann.  446. 

As  between  a  carrier  and  third  persons, 
the  true  limit  of  a  railway  agent's  authority 
to  bind  his  company  by  a  bill  of  lading  is 
the  apparent  authority  with  which  he  is  in- 
vested. Brooke  v.  A^env  York,  L.  E.  &*  W. 
K.  Co.,  21  Am.  6-  Eng.  A'.  Cas.  64,  108  Pa, 
St.  529,  I  Atl.  Kep.  206. 

Express  authority  of  an  agent  to  make  a 
receipt  or  bill  of  lading  for  goods  need  not 
be  shown,  he  having  acted  as  such  agent  in 
the  proiHir  place  for  receiving  goods  for  the 
company,  and  having  been  in  possession  of 
the  company's  stamp  to  be  used  on  such 
receipts,  and  the  company  having  taken 
possession  of  the  goods  and  caused  them 
to  be  shipped,  presumably  with  knowledge 
of  the  receipt.  Hansen  v.  Flint  &*  P.  M. 
R.  Co.,  37  Am.  &*  Eng.  K.  Cas.  628,  73  IVis. 
346,  41  A^.  IV.  Kep.  529. 

The  position  of  one  authorized  to  make 
contracts  for  the  transportation  of  freights 
for  a  carrier  is  one  of  special  trust  and  con- 
fidence, and  cannot  be  discharged  by  a  sub- 
stitute. So  a  bill  of  lading  which  should 
have  been  signed  by  such  person  is  not 
valid  if  signed  by  a  substitute.  Pendall  v. 
Rench,  4  McLean  {U.  S.)  259. 

4.  Execution  by  one  carrier  as 
agent  for  another.— A  bill  of  lading  for 
goods  received  to  be  carried  over  more  than 
one  line  recited  that  "  the  several  railroad 
companies  between  Boston  and  Zanesville 
agree  to  carry,"  etc.,  and  was  signed  by  the 
defendant  in  his  own  name,  "  for  the  corpo- 
rations," but  the  names  of  the  several  rail- 
road companies  were  not  given.  Held,  that 
defendant  was  not  personally  bound  thereby. 
Lyon  V.  Williams,  5  Gray  {Mass.)  557. 

*  Limitation  of  agent's  authority  to  issue  bills 
of  lading,  see  note,  21  Am   k  Eng.  R.  Cas.  68. 


Whi-ri-  a  second  ( arricr  is  sued  for  the  loss 
of  goods,  and  the  complaint  sets  up  the 
making  of  a  bill  of  lailing  by  the  initial  car- 
rier, but  does  not  charge  any  partnership  or 
arrangement  between  the  initial  ran  ier  and 
defendant,  or  that  the  latter  authoii^sed  the 
execution  of  the  bill  of  lading,  the  defendant 
may  deny  that  it  is  bound  thereby  without 
filing  a  plea  of  non  est  factum.  Dillingham 
V.  I'ischl,  I  Tex.  Civ.  App.  546,  21  .V.  W. 
Kep.  554. 

Where  a  railroad  company  delivers  to  a 
shipper  a  bill  of  lading  guaranteeing  a  cer- 
tain rate  over  connecting  lines,  it  holds 
itself  out  to  the  shipper  as  authorized  to 
enter  into  a  binding  contract  on  behalf  of 
the  connecting  carriers,  and  if  their  charges 
exceed  those  guaranteed  it  is  liable  to  re- 
fund the  excess.  Little  Rock  &^  Ft.  S.  R. 
Co.  V.  J>aniels,  32  Am.  &*  Eng.  R.  Cas.  479, 
49  Ark.  352.  5  .S-.   W.  Rep.  584. 

A  statutory  penalty  for  refus.il  to  deliver 
freight  upon  the  payment  of  the  charges 
shown  in  the  bill  of  lading  applies  only 
where  the  railroad  sought  to  be  ciiarged  has 
either  executed  the  bill  of  lading  or  author- 
ized another  company  to  do  so,  or  has  rati- 
fied it  by  voluntary  act;  and  the  acceptance 
of  freight  by  the  railroad  company  from  a 
connecting  company  being  compulsory  un- 
der the  statutes,  such  acceptance  cannot  be 
deemed  a  ratification  of  the  bill  of  lading; 
nor  can  an  acceptance  of  the  terms  of  the 
bill  of  lading  be  presumed  from  the  fact 
that  the  defendant  offered  to  deliver  up  the 
goods  upon  the  payment  of  the  freight 
specified  therein,  provided  the  shipper 
would  surrender  the  bill  of  lading  and  exe- 
cute a  receipt  to  the  railroad  company  for 
the  overcharge  demanded  by  reason  of 
freight  rates  over  its  own  line,  the  purpose 
of  the  carrier  evidently  being  to  look  for 
reimbursement  to  the  connecting  carrier. 
Gulf,  C.  6"-  S.  F.  R.  Co.  v.  Dwyer,  55  Am. 
<S^  Eng.  R.  Cas.  442,  84  Tex.  194. 

5.  Signature  of  carrier  a  qucNiion 
of  fact. — Whether  a  carrier  did  or  did  not 
sign  a  bill  of  lading  is  a  question  of  fact  for 
the  determination  of  the  jury.  Royal  Cana- 
dian Bank  V.  Grand  Trunk  R.  Co.,  23  (/.  C. 
C.  P.  225. 

O.  Execution  by  shipper  —  Signa- 
ture.*—It  is  not  necessary  for  the  shipper 
of  goods  to  sign  the  bill  of  lading  issued 
therefor  by  the  carrier.    Piedmont  M.  Co.  v. 

•  See  post,  28. 


HILLS   Ol-    LAI)|N(i.  7  la. 


eo8 


Columbia  C-'  (r.  A',  Co.,  id  A»i.  C-^  /-"A'.  />'• 
Ciis.  i(;4,  i9  5'<;.  Car.  353.  .Uatiis  Exp.  Co. 
V.  Haynes,  42  ///.  89.  Cincinnati,  //,  &•  D. 
A'.  Co.  V.  Pontius,  19  O/z/o  .SV,  221. 

Under  I  1261,  Dak.  Civ.  Code,  providing 
that  "the  obli>;ati<)ns  of  a  common  carrier, 
etc.,  may  be  limited  by  special  contract,' 
bills  of  lading  must  be  signed  by  the  con- 
signor or  consignee,  llarlwill  v.  Northern 
I'll! .  Exp.  Co.,  37  /////.  &*  /','//(,■.  A'.  Cas.  635,  5 
yAfX-.  463, 3  L.  A'.  A.  342,  41  N.  ir.  Kip.  732. 

Where  the  consignee  brings  his  action  in 
the  state  of  Illinois  aj^ainst  a  carrier,  he  is 
bound  by  a  bill  of  lading  issued  in  New 
York,  executed  and  signed  by  the  consignor 
as  the  agent  of  the  consignee,  containing 
the  stipulation  to  the  effect  that  only  the 
connecting  lino  over  which  the  goods  are  to 
be  transported  shall  be  liable  for  their  loss 
by  fire  while  in  transportation,  lirown  v. 
Louisville  &*  N.  A'.  Co..  36  ///.  Apfi.  140. 

7.  Leaving'  blank  N|m<'«  for  voii- 
Hii^iice'H  nanus— The  execution  of  a  bill 
of  lading  with  the  space  for  the  name  of  the 
consignee  left  blank  is  equivalent  to  a  con- 
tract on  the  part  of  the  carrier  to  deliver 
the  goods  therein  mentioned  to  the  con- 
signor or  his  assignee.  Gartlen  Grove  Bank 
V.  Humeston  &^  S.  H.  Co.,  23  Ant.  &*  Eng. 
R.  Cas.  695,  67  Iowa  526,  25  A'.  IV.  Rep. 
761. 

8.  Execnted  In  clnplloato.*— Where 
two  papers  are  executed  in  duplicate  as  a 
bill  of  lading  limiting  a  carrier's  liability, 
one  of  the  parties  signing  one  of  the  papers 
and  the  other  party  signing  the  other,  both 
papers  together  are  to  be  treated  as  one 
document.  Richmond &*D.  R,  Co.  v.  Shomo, 
90  Ga,  496. 

O.  Carricr'8  duty  to  isHuc  the  bill. 
— An  undertaking  by  a  railroad  company 
to  accept  freight  and  deliver  it  at  a  point 
beyond  its  own  line  is  a  matter  of  contract 
between  it  and  the  shipper;  but  it  cannot 
be  compelled  to  give  a  bill  of  lading  for  the 
safe  delivery  of  the  goods  beyond  its  own 
line.  Lotspeichv.  Central  R.  &^  B.  Co.,  18 
Am.  Sf  Eng.  R.  Cas.  490,  73  Ala.  306. 

There  is  no  rule  of  the  common  law,  and 
no  provision  of  the  Massachusetts  statutes, 
which  requires  a  railroad  company  to  give 
bills  of  lading.  When  such  companies  trans- 
port goods  in  connection  with  carriers  by 
water  it  is  a  convenient  and  proper  arrange- 
ment, but  it  can  only  be  made  essential  by 

•  See  post,  61. 


contract  or  <;ustom.  Johnson  v.  SiodJanf, 
100  Mass.  306. 

10.  Penalty  for  ref  UHal  to  Imhuo.*— 

If  a  bill  of  lading  is  demanded  and  refused 
the  party  injured  has  his  remedy  under  the 
Tecas  statute  in  a  penalty  of  from  $5  to 
$500.  Missouri  Pac.  R.  Co.  v.  Douglass,  16 
Am.  &*  Eng.  R,  Cas,  98,  2  Tex.  App.  (C'/t. 
Cas.)  32. 

Where  a  railroad  company  gives  a  bill  of 
lading  for  lumber,  described  as  a  carload 
when  the  shipper  demands  that  the  weight 
be  stated,  the  company  incurs  the  penalty 
provided  by  Texas  Rev.  St.  1879,  art.  280, 
imposing  a  penalty  on  common  carriers  for 
refusing  m  give,  on  demand,  a  bill  of  lading 
stating  tlie  quantity,  character,  and  condi- 
tion of  the  goods  shi|)pcd.  Texas  &*  P.  R, 
Co.  V.  Cuteman,  4  Tex.  App.  (Civ,  Cas.)  17, 
14  5.  /('.  Rep.  1069. 

Under  Texas  Rev.  St.  art.  280,  prescribing 
a  penalty  <  f  from  $5  to  $500  for  refusing 
to  execute  and  deliver  a  bill  of  lading, 
an  action  to  recover  the  penalty  may  be 
maintained  by  the  shipper,  whether  he 
is  the  owner  of  the  goods  or  not;  but  if 
the  action  be  under  art.  279,  then  it  can 
only  be  maintained  where  the  plaintiff  is  the 
owner  of  the  goods.  Missouri  Pac.  R.  Co.  v. 
Price,  3  Tex.  App.  (Civ.  Cas^  430. 

11.  SellerN  duty  to  procure  and 
forward  to  purcliascr.— There  is  no  rule 
of  law,  in  the  absence  of  custom,  which 
makes  its  obligatory  upon  the  seller  of 
goods  delivered  to  be  carried  on  a  railroad, 
and  by  the  railroad  forwarded  by  steam- 
boat, to  take  out  an  "  internal  bill  of  lad- 
ing," and  forward  it  to  the  purchaser  at  or 
about  the  time  of  sending  the  goods.  John' 
son  V.  Stoddard,  100  Mass.  306. 

2.   The  Bill  Considered  as  a  Receipt. 

12.  Generally.!— A  bill  of  lading  par- 
takes of  the  nature  both  of  a  receipt  and  of  a 
contract.  Wayland  v.  Moseley,  5  Ala.  430. 
Mc  Tyer  v.  Steele,  26  Ala.  487.  Louisville, 
E.  &*  St.  L.  R.  Co.  V.  Wilson,  40  Am.  &* 
Eng.  R.  Cas.  85,  119  Ind.  352,  21  N.E.Rep. 
341.  Steamboat  Missouri  V.  Webb,  f)  Mo.  193. 
Wolfe  V.  Myers,  3  Sandf.  (N.  V.)  7.  Cafero 
V.  Welsh,  8  Phila.  (Pa.)  130.     Van  Etten  v. 

*  Penalty  for  refusing  to  give  a  bill  of  lading 
under  ihe  Texas  statute,  see  45  Am.  &  Enc  R. 
Cas.  311  nbstr. 

f  Bill  of  lading  regarded  in  double  aspect  of  a 
receipt  and  a  contract,  see  note,  4  L.  R.  A.  244. 


i  Li 


004 


BILLS   OF   LADING,   i:J,  14. 


^!! 


Newton,  134  A'.  Y.  143,  45  A'.  Y.  S.  /?.  768, 
y  N.E.  Rep.  334. 

A  bill  of  ladin<;  issued  by  a  carrier  is  to  be 
treated  as  a  receipt  and  subject  to  explana- 
tion in  that  respect.  Tibbiis  v.  Rock  Island 
&»  P.  R.  Co.,  49  ///.  App.  567,  B/ssel  v. 
Price,  16  ///.  408. 

So  far  as  n  fleets  the  carrier's  liability 
there  is  no  difference  between  a  carrier's 
receipt  and  a  bill  of  lading.  The  receipt  of 
the  carrier  is  really  a  bill  of  lading  for  goods 
to  be  transported  by  land.  Dodge  v.  Meyer, 
61  Cal.  405. 

13.  Parol  evidence  to  vary  or  ex- 
plaiD.* — A  bill  of  lading,  so  far  as  it  is  in 
the  nature  of  a  receipt,  may  be  contradicted, 
varied,  or  explained  by  parol  evidence.  Way- 
land  V.  Mosely,  5  Ala.  430.  Louisville,  E.  &* 
St.  L.  R.  Co.  V.  IVilson,  40  Am.  6-  Eng.  R. 
Cas.  85,  H9  Iftd.  352,  21  A^.  E.  Rep.  341. 
Steamboat  Missouri  v.  Webb,  9  Mo.  193. 
Cafiero  v.  Welsh,  8  Phila.  {Pa.)  130.  Tib- 
bit  ts  V.  Rock  Islands^  P.  R.  Co.,\()  III.  App. 
567.  Meyer  v.  Peck,  28  N.  Y.  590,  26  How. 
Pr.  601 ;  affirming  33  Barb.  532.  Van  Etten 
V.  Neivton,  134  N.  Y.  143,  45  A';  Y.  S.  R. 
768,  31M.E.  Rep.  334. 

A  bill  of  lading  stating  that  the  article 
carried  is  "at  owner's  risk  of  breakage" 
may  be  explained  by  proof  of  a  verbal  con- 
tract between  the  shipper  and  the  com- 
pany's agent  that  in  consideration  of  the 
payment  of  extra  freight  on  delivery  by  the 
carrier,  the  risk  shall  be  borne  by  the  lat- 
ter ;  the  shipper  being  told  by  the  agent,  at 
the  time  of  handing  him  the  bill  of  lading, 
that  it  was  "a  receipt"  for  the  goods 
shipped,  and  the  shipper  taking  the  paper 
without  reading  it.  Union  Pac.  R.  Co.  v. 
Marston,  30  Neb.  241. 

14.  As  evidence  that  carrier  re- 
ceived goods,  generally.— A  bill  of  lad- 
ing is //■/■;/«-/«<:/<?  evidence  of  the  receipt  by 
the  carrier  of  the  articles  enumerated  in  it 
and  of  the  terms  of  the  contract  of  car- 
riage. Little  Rock  &*  Ft.  S.  R.  Co.  v.  Hall, 
33  Ark.  669. 

That  part  of  a  bill  of  lading  which  relates 
to  the  receipt  by  the  carrier  of  the  goods 
therein  specified  may  be  explained  by 
parol  evidence.  Meyer  v.  Peck,  28  N.  Y. 
590,  26  How.  Pr.  601 ;  affirming  33  Barb. 
532. 

In  a  case  free  from  fraud,  a  receipt  given 
by  a  common  carrier  for  a    barrel,  box, 

•  See  post,  40-44. 


trunk,  or  other  article,  shown  to  be  hollow 
and  to  contain  goods,  means  that  the  party 
who  executes  it  has  received  the  contents  of 
the  barrel,  box,  trunk,  or  other  hollow  arti- 
cle, as  well  as  the  article  itself.  Harmon  v. 
New  York  Sr»  E.  R.  Co.,  28  Barb.   {N.  Y.) 

323- 

The  Mississippi  act  of  1886,  which  makes 
a  bill  of  lading  in  the  hands  of  an  innocent 
purchaser  conclusive  evidence  of  the  receipt 
of  the  items  mentioned  therein,  is  not  a 
mere  rule  of  evidence,  but  changes  the 
character  and  legal  effect  of  the  coi  tract 
evidenced  by  the  bill  of  lading,  and  is  not 
retroactive.  Hazard  v.  Illinois  C.  R.  Co., 
42  Am,  &*  Eng.  R.  Cas.  455,  67  Afiss.  32,  7 
So.  Rep.  280. 

Defendant  having  received  from  a  person, 
representing  himself  to  be  a  member  of  the 
firm  of  E.  W.  P.  &  Co.,  thirty  barrels  for 
transportation  over  its  road,  delivered  to 
him  a  bill  of  lading,  certifying  that  it  had 
received  from  said  firm,  consigned  to  their 
order,  "  the  following-described  packages  in 
apparent  good  order,  contents  and  value 
unknown ;"  this  part  was  printed  ;  following 
it,  and  before  the  signature  of  defendant's 
agent,  was  written,  "  articles  :  30  bbls.  eggs." 
The  person  receiving  the  bill  indorsed  it  in 
blank  in  the  name  of  E.  W.  P.  &  Co.  and 
annexed  it  to  a  draft  drawn  upon  plaintiffs, 
who,  upon  the  faith  and  security  thereof, 
accepted  and  paid  the  draft.  The  barrels,  in 
fact,  were  filled  with  sawdust  and  contained 
no  eggs.  In  an  action  to  recover  plaintiffs' 
damages — Aeld,  that  the  description  of  the 
articles  was  not  a  representation  that  the 
barrels  contained  eggs,  but  that,  taking  the 
whole  instrument  together,  it  imported  only 
that  defendant  had  received  thirty  packages 
described  as  containing  or  purporting  to 
contain  eggs,  but  the  actual  contents  of 
which  were  unknown  to  defendant.  Miller 
v.  Hannibal  &*  St.  J.  R.  Co.,  12  Am.  &*  Eng. 
R.  Cas.  30,  90  A'^,  Y.  430,  43  Am.  Rep.  179 ; 
reversing  24  Hun  fxfj. 

Where  a  railroad  company  issues  through 
bills  of  lading  in  exchange  for  receipts  of  a 
compress  company  for  cotton  stored  with 
the  compress  company,  the  issuance  of  such 
bills  does  not  constitute  the  compress  com- 
pa.y  the  agent  of  the  railroad  company, 
nor  is  it  equivalent  to  a  taking  possession  of 
the  cotton  by  the  railroad  company.  St. 
Louis,  I.  M.  &*  S.  R.  Co.  v.  Commercial  U. 
Ins.  Co.,  49  Am.  &*  Eng.  R.  Cas.  137,  139  U. 
S.  223,  ti  Sup.  Ct.  Rep.  554. 


BILLS  OF   LADING,  15. 


605 


15.  Carrier  wlieu  estopped  from 
denying  receipt  of  goods.'*'— A  com- 
pany is  estopped  from  denying  that  it  re- 
ceived goods  represented  by  a  bill  of  lading 
issued  by  it,  as  against  an  indorsee  wlio  has 
made  advances  on  the  faith  of  the  bill  of 
lading.  Wichita  Sav.  Bat.k  v.  Atchison,  T. 
<&-  S.  F.  R.  Co.,  2o  Kan.  519,  20  Am.  Ry.  Rep. 
299. — Reviewed  and  quoted  in  Sioux 
City  &  P.  R.  Co.  V.  First  Nat.  Bank,  i  Am. 

6  Eng.  R.  Cas.  278,  10  Neb.  556. 

An  agent  of  a  company,  authorized  to 
issue  bills  of  lading,  issued  certain  bills  to  a 
shipper  for  five  cars  of  wheat.  In  fact  less 
than  one  car-load  of  wheat  and  about  the 
same  quantity  of  barley  were  shipped.  Drafts 
were  drawn  by  the  shipper  against  the  bills 
and  attached  thereto,  and  were  delivered  to 
a  bank,  which  in  good  faith  discounted  the 
same  and  forwarded  them  for  payment. 
The  drafts  being  protested  and  the  shipper 
^aving  absconded,  leaving  no  property  in 
the  state — held,  that  as  against  the  bank 
the  railroad  company  was  estopped  from 
denying  that  it  had  received  the  wheat. 
Sioux  City  &*  P.  R.  Co.  v.  First  Nat.  Bank, 
I  Am.  &•  Eng.  R.  Cas.  278,   10  Neb.   556, 

7  N.  W.  Rep.  311.— Reviewing  Armour 
7>.  Michigan  C.  R.  Co.,  65  N.  \.  in.  Re- 
viewing AND  QUOTING  Wichita  Sav.  Bank 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  20  Kan.  519. 
—Not  followed  in  National  Bank  v. 
Chicago,  B.  &  N.  R.  Co.,  44  Minn.  224. 

A  bill  of  lacing  was  issued  by  the  agent 
on  what  turned  out  to  be  a  forged  ware- 
house receipt — no  goods,  in  fact,  being  de- 
livered. Plaintiffs  paid  drafts  with  the  bills 
of  lading  attached.  It  appeared  that  the 
issuing  of  bills  of  lading  was  within  the 
scope  of  the  employment  of  the  railroad 
agent.  Held,  that  the  company  was  bound 
by  the  agent's  act,  and  was  estopped  from 
denying  the  receipt  of  the  goods.  Armour 
\ .  Michigan  C.  R.  Co.,  6^  N.  V.  iii ,  22  Am. 
Rep.  603 ;  reversing  3  /.  &*  S.  563. — Fol- 
lowing Haille  v.  Smith,  i  B.  &  P.  563. 
Overruling  Grant  v.  Norway,  10  C.  B.66s. 
—Distinguished  in  Dean  v.  Driggs,  137 
N.  Y.  274.  Explained  in  Lake  Shore  & 
M.  S.  R.  Co.  V.  Foster,  104  Ind.  293,  54  Am. 
Rep.  319.  Not  followed  in  National 
Bank  v.  Chicago,  B.  &  N.  R.  Co.,  44  Minn. 
224.    Reviewed  in  Sioux  City  &  P.  R.  Co. 

•  Whether  carrier  is  estopped  from  denying 
receipt  of  goods  as  against  a  bona-fide  holder, 
see  45  Am.  &  Eng.  R.  Cas.  308  abstr. 


V.  First  Nat.  Bank,  i  Am.  &  Eng.  R.  Cas. 
278,  10  Neb.  556. 

Where  a  shipping-clerk,  in  collusion  with 
the  consignor,  issues  a  fictitious  bill  of  lad- 
ing, the  goods  represented  by  it  not  having 
been  received,  the  railway  company  is  liable 
to  an  innocent  third  person  deceived  there- 
by. Brooke  v.  New  York,  L.  E.  &•  W.  R.  Co., 
21  Am.  &*  Eng.  R.  Cas.  64,  108  Pa.  St.  529, 
I  Atl.  Rep.  206.— Disapproved  in  National 
Bank  v.  Chicago,  B.  &  N.  R.  Co.,  44  Minn. 
224. 

The  defendants,  having  received  a  con- 
signment of  wheat,  sent  to  the  consignees 
an  advice  note,  which  described  the  con- 
signment as  "  sacks  wheat,  four  trucks,"  and 
did  not  contain  any  details  as  to  weight, 
rates,  or  charges,  but  across  the  printed 
form  was  written,  "account  to  follow."  The 
consignees  gave  to  B.  a  delivery  order  in  re- 
spect to  this  wheat,  and  he  obtained  an 
advance  from  the  plaintiffs  upon  it;  the 
plaintiffs  sent  this  delivery  order  to  the 
defendants,  and  they  accepted  it.  On  the 
following  day  the  defendants  sent  to  B.  an- 
other advice  note  on  a  printed  form  similar 
to  the  one  already  sent,  but  across  the  upper 
part  was  written  the  words,  "  charges  only :" 
the  invoice  number  was  different ;  the  con- 
signment was  described  as  151  sacks  of 
wheat ;  the  weight,  the  rate,  and  the  amount 
of  charges  were  filled  in.  B.  filled  up  the 
delivery  order  at  the  bottom  in  favor  of  the 
plaintiffs,  produced  it  to  them,  and  obtained 
a  second  advance  from  them,  as  they  be- 
lieved it  to  relate  to  a  second  parcel  of 
wheat.  The  plaintiffs  delivered  this  order 
to  the  defendants,  who  accepted  it,  and  who 
allowed  the  plaintiffs  on  both  occasions  to 
take  samples  of  the  wheat.  There  was,  in 
fact,  only  one  parcel  of  wheat,  and  the  two 
advice  notes  related  to  the  same  parcel.  B. 
went  into  liquidation,  and  the  plaintiffs 
having  lost  the  amount  of  one  of  the  ad- 
vances so  made  by  them,  sued  the  defend- 
ants for  the  amount.  //>/rf,  that  the  plaintiffs 
were  entitled  to  recover  the  amount  claimed, 
for  the  defendants  had  so  dealt  with  the 
wheat  and  advice  notes  as  to  lead  the  plain- 
tiffs to  believe  that  there  were  in  fact  two 
consignments  of  w  heat,  and  the  defendants 
were  in  consequence  estopped  from  after- 
ward alleging  that  there  was  in  fact  but  one 
consignment  of  wheat.  Coventry  v.  Great 
Eastern  R.  Co.,  11  Q.  B.  D.  776,  ^2  L. /.  Q. 
B.  D.  {App.)  694,  4  Jiy-  6-  C.  T.  Cas. 
xiii. 


fi 


GOG 


BILLS   Ol'    LADING,  10,  17. 


16.  Currier  when  not  estopped 
ilrom  denying:  receipt  of  goods.***-  As 

a  rule  bills  of  lading  issued  for  goods  not  yet 
delivered  to  tlie  carrier  are  void.  Stone  v. 
Wabash,  St.  L.  &*  P.  R.  Co.,  9  ///.  App.  48. 

A  carrier,  liaving  given  a  bill  of  lading  for 
goods,  cannot  relieve  himself  from  liability 
on  the  ground  that  the  goods  were  never 
received  by  him.  except  by  the  clearest  proof 
of  that  fact.  Little  Miami,  C.  &*  X.  R.  Co. 
V.  Dodds,  I  Cin.  Super.  Ct.  47. 

Under  the  Arkansas  act  approved  March 
15,  1887,  which  prohibits  carriers  from  issu- 
ing bills  of  lading  except  for  goods  actually 
received  into  their  possession,  and  gives  a 
right  of  action  against  the  carrier  to  the 
party  aggrieved,  a  railway  company  which 
has  issued  bills  of  lading  to  the  owners  of 
cotton  in  the  hands  of  a  compress  company 
is  not  estopped,  as  to  third  persons,  from 
denying  that  the  cotton  was  in  its  possession 
or  control.  Martin  v.  St.  Louis,  f.  M.  <S>»  S. 
R.  Co.,  55  Ark.  510,  19  S.  W.  Rep.  314. 

Carrier  is  not  responsible  for  the  value  of 
goods  described  in  a  bill  of  lading  executed 
by  its  station  agent,  when  such  property 
was  never  received  by  the  carrier.  Hunt  v. 
Mississippi  C.  R.  Co.,  29  La  Ann.  446. 
Williams  v.  Wilmington  &*  W.  R.  Co.,  93 
JV.  Car.  42. 

And  in  such  a  case  the  principal  is  not 
estopped  thereby  from  showing,  by  parol, 
that  no  goods  were  in  fact  received,  although 
the  bill  las  been  transferred  to  a  bona-fide 
holder  for  value.  Williams  v.  Wilmington 
&*  W.  R.  Co.,  93  JV.  Car.  42. 

A  bill  of  lading  issued  by  a  station  or 
shipping  agent  of  a  railroad  company  or 
other  common  carrier,  without  receiving  the 
goods  named  in  it  for  transportation,  im- 
poses no  liability  upon  the  carrier,  even  to 
an  innocent  consignee  or  indorsee  for  value ; 
and  the  carrier  is  not  estopped  by  the 
statements  in  the  bill  from  showing  that  no 
goods  were  in  fact  received  for  transporta- 
tion. National  Bank  v.  Chicago,  B.  6-  A^. 
R.  Co.,  ^  Minn.  224,46  A^.  W.  Rep.  342,  560. 
—Not  following  Armour  t/.  Michigan  C. 
R.  Co.,  65  N.  Y.  \\\;  Bank  of  Batavia  v. 
New  York,  L.  E.  &  W.  R.  Co.,  106  N.  Y.  195 ; 
Sioux  City  &  P.  R.  Co.  v.  First  Nat.  Bank, 
10  Neb.  556;  St.  Louis  &  I.  M.  R,  Co.  v. 
Larned,  103  111.  293 ;  Brooke  v.  New  York, 

*  Company  may  deny  receipt  of  goods  as 
against  bona-fide  holder  of  bill  of  lading,  see 
note,  53  Am.  Rep.  453. 


L.  E.  &  W,  R.  Co.,  108  Pa.  St.  529 ;  McCord 
V.  Western  Union  Tel.  Co.,  39  Minn.  181. 

17.  As  evidence  of  quantity  of 
Hliipnieut.i'— A  bill  of  lading  is  a  receipt 
as  to  the  quantity  of  the  articles  shipped. 
Wolfe  V.  Myers,  3  Sandf.  {N.  Y.)  7. 

A  bill  of  lading  is  not  conclusive  as  10  the 
amount  of  goods  received.  Bronty  v.  Five 
Thousand  Two  Hundred  and  Fifty- Six 
Bundles  of  Elm  Staves,  21  Fed.  Rep.  590. 
Pereira  v.  Central  Pac.  R.  Co.,  18  Am.  &• 
Eng.  R.  Cas.  565. 66  Cal.  92, 4  Pac.  Rep.  988. 
Meyer  v.  Peck,  28  N.  Y.  590,  26  How.  Pr. 
601  ;  affirming  33  Barb.  532.  Abbe  v.  Eaton, 
^i  N.  Y.  410. 

A  bill  of  lading  as  a  receipt  is  open  to  ex- 
planation or  contradiction  as  to  the  quan- 
tity of  the  goods  specified  therein.  Bissel 
V.  Price,  16  ///.  408.  Wolfe  v.  Myers,  3 
Sandf.  {N.  Y.)  7.  Meyer  v.  Peck,  28  N. 
Y.  590,  26  How.  Pr.  601  ;  affirming  33  Barb. 
532.  Graves  v.  Harwood,  9  Barb.  {N.  Y.) 
^77.    Abbe  V.  Eaton,  51  ^V.  Y.  410. 

A  bill  of  lading  is  not  conclusive  as  be- 
tween the  shipper  and  carrier  as  to  the 
quantity  represented  to  be  delivered,  or  as 
to  the  goods  named ;  and  any  fraud  or  mis- 
take as  to  either  may  be  shown  by  outside 
evidence.  Meyer  v.  Peck,  28  N.  Y.  590,  26 
How.  Pr.  601 ;  affirming  33  Barb.  532. 

A  carrier  may  explain  a  bill  of  lading 
against  an  assign  e  thereof  for  value  when- 
ever the  bill,  taken  iis  a  whole,  shows  that 
the  carrier  does  not  vouch  for  the  correct- 
ness of  the  written  statement  of  quantity 
received.  Tibbits  v.  Rock  Island  «&*  P.  R. 
Co..  49  ///.  App.  567. 

7'he  material  part  of  a  bill  of  lading  on  the 
subject  of  the  freight  rate  is  that  which  fixes 
the  rate  per  one  himdred  pounds.  Weigh- 
ing the  freight  is  purely  a  mechanical  proc- 
ess, and  may  be  done  at  the  point  of  ship- 
ment or  at  the  pcint  of  delivery.  Where 
the  weight  of  the  merchandise  is  uniformly 
the  same,  the  carrier  c»-  the  consignee  may 
ask  to  have  the  weight  verified  up  to  the 
moment  of  delivery,  and  it  is  the  weight 
disclosed  by  the  scales,  and  not  the  weight 
marked  on  the  bill  of  lading,  that  controls. 
Baird  v.  St.  Louis,  L  M.  &>  S.  R.  Co.,  42 
Am.  &*  Eng.  R.  Cas.  281,  41  Fed.  Rep.  592. 

Notwithstanding  the  recital  of  a  bill  of 

*  Bill  of  lading  not  conclusive  as  to  quantity, 
see  note,  38  Am.  Dec  413. 

Effect  of  recitals  in  bill  of  lading  as  to  quantity 
of  goods  received,  set  note,  30  Am.  &  Eno,  R. 
Cas.  loi. 


BILLS   OF   LADING,  18-21. 


607 


lading  that  one  hundred  and  sixty-seven 
cattle,  *'  more  or  less,"  had  been  received  by 
the  carrier,  the  number  of  catilc  actually 
shipped  may  be  proved  by  parol.  Chapin 
V.  Chicago,  M.  6*  St.  P.  R.  Co.,  42  Am.  6- 
Eng.  R.  Cas.  542,  79  Iowa  582,  44  N.  W. 
Rep.  820. 

A  railway  company  is  not  estopped  from 
denying  the  correctness  of  the  weight  of 
iron  bundles  mentioned  in  a  bill  of  lading, 
and  upon  proving  delivery  of  all  bundles 
received  is  discharged  from  liability. 
Horsman  v.  Grand  Trunk  R.  Co.,  30  U.  C. 
Q.  B.  130. 

18.  As  evidence  of  quality  of  ship- 
ment.— A  bill  of  lading,  acknowledging 
the  receipt  by  a  carrier  of  "  the  following 
packages,  contents  unknown,  *  ♦  *  marked 
and  numbered  as  per  margin,  to  be  tran- 
sported "  to  the  place  of  destination,  is  not 
a  warranty,  on  the  part  of  the  carrier,  that 
the  goods  are  of  the  quality  described  in 
the  margin.  St.  Louis,  I.  M.  &^  S.  R.  Co.  v. 
Knight,  30  Am.  6-  Eng.  R.  Cas.  88,  122  U. 
S.  79,  7  Sup.  Ct.  Rep.  1 132. 

The  statements  in  a  bill  of  lading  refer- 
ring to  the  quality  of  the  goods  represented 
by  the  bill  may  be  explained  by  parol  testi- 
mony. Meyer  v.  Peck,  28  A^.  Y.  590,  26 
How.  Pr.  601 ;  affirming  33  Barb.  532. 

19.  As  evidence  of  value  of  ship- 
ment.*— Where  the  bill  of  lading  described 
the  freight  as  one  horse  and  one  colt,  and 
the  term  "  value  $100  "  was  so  placed  that 
a  question  arose  as  to  whether  it  applied  to 
the  horse  alone  or  to  the  horse  and  colt,  it 
was  held  that  the  pl.iintifl  was  not  entitled 
to  a  charge  that  "  the  statement  of  value 
affected  only  the  horse  and  had  no  refer- 
ence to  the  colt,"  but  that  it  was  for  the 
jury  to  say,  upon  an  inspection  of  the  bill 
of  lading,  which  was  meant.  Coupland  v. 
Housatonic  R.  Co.,  6f  Conn.  531,  23  All.  Rep. 
870. 

20.  As  evidence  of  condition  of 
shipment,  penerally.t— A  railroad  com- 
pany is  not  concluded  by  a  receipt  stating 
that  goods  were  received  in  good  order. 
Illinois  C.  R.  Co.  v.  Cowles.  32  ///.  116. 

That  part  of  a  bill  of  lading  which  relates 
to  the  condition  of  the  goods  is  to  be  treated 

*  Effect  of  recitals  in  a  bill  of  lading  as  to  the 
value  of  the  goods  received  by  the  carrier,  see 
note,  30  Am.  &  Eng.  R.  Cas.  ioi  ;  see  also 
post,  81-87. 

t  Bill  of  lading  not  conclusive  as  to  condition 
of  goods,  see  note,  38  Am.  Dec  415. 


as  a  mere  receipt,  and  not  as  a  written  con- 
tract, and  may  be  explained,  varied,  or 
even  contradicted.  Meyer  v.  Peck,  28  A^. 
Y.  590,  26  How.  Pr.  boi  ;  affirming  33  Barb. 
532.  Bissel  v.  Price,  16  ///.  408.  Hunt  v. 
Mississippi  C.  R.  Co.,  29  La.  Ann.  446. 

When  a  receipt  is  given  by  a  railroad 
company  for  goods  before  they  are  actually 
examined,  it  is  prima-facie  evidence  only 
of  what  it  contains.  The  receiptor  is  not 
concluded  from  shpwing  the  actual  condi- 
tion of  the  property.  Porter  v.  Chicago  &- 
N.  W.  R.  Co.,  20  Iowa  73. — Distinguish- 
ing Skinner  v.  Chicago  &  R.  I.  R.  Co.,  12 
Iowa  192. 

A  bill  of  lading  for  through  goods  is  only 
prima-facie  evidence  that  the  last  carrier 
received  them  in  good  condition  ;  and  it  is 
competent  for  him  to  show  that  they  were 
damaged  while  in  the  hands  of  a  previous 
warehouseman  or  carrier.  Great  IVestern 
R.  Co.  V.  McDonald,  18  ///.  172.  —FOLLOW- 
ING Bissel  V.  Price,  16  III.  408. 

21.  Recital  that  goods  were  re- 
ceived *<in  apparent  good  order."— 
A  provision  in  a  bill  of  lading  that  the 
goods  were  received  in  "apparent  good 
order"  is  not  conclusive  upon  the  carrier. 
Mitchell  V.  United  States  Exp.  Co.,  46  Iowa 
214. 

A  provision  in  a  bill  of  lading  that  the  . 
goods  were  received  in  "apparent  good 
order,"  where  the  goods  are  boxed,  has 
reference  only  to  the  external  condition  of 
the  boxes,  and  contains  no  admission  as  to 
the  quality  or  quantity  of  the  contents  be- 
yond what  is  visible  to  the  eye  and  from 
handling  the  boxes.  The  California,  2  Sawy. 
{[/.  5.)  12. 

A  recital  in  a  bill  of  lading  that  the 
freight  received  is  in  "apparent  good  order" 
does  not  preclude  the  carrier  from  showing 
that  the  goods  were  damaged  when  re- 
ceived, where  the  injury  was  invisible  or 
latent,  and,  as  between  the  original  parties, 
is  only  prima-facie  proof  of  the  condition 
of  the  goods  when  rect  ived.  St.  Louis,  A. 
<S-  T.  R.  Co.  V.  Neel,  55  Am.  6-  Eng.  R.  Cas. 
428.  56  Ark.  279,  195.  W.  Rep.  963. 

Where  goods  are  received  in  a  package,  a 
company  is  not  concluded  by  a  receipt  or 
bill  of  lading  stating  that  the  goods  were 
received  "in  apparent  good  order;"  and 
parol  evidence  is  admissible  to  show  the 
actual  condition  of  the  contents  of  the 
package.  Blade  v.  Chicago,  St.  P.  &*  F.  du 
L.  R.  Co.,  10  Wis.  4. 


608 


BILLS   OF  LADING,  22>26. 


li 


iiiii 


Where  a  carrier  receives  goods  for  ship- 
ment, and  gives  a  bill  of  lading  in  which 
the  goods  arc  described  to  be  in  apparent 
good  order,  the  bill  of  lading  \%  prima-/ acie 
evidence  that  the  goods  were  in  good  con- 
dition. Illinois  C.  R.  Co.  v.  Cobb,  72  ///. 
148. 

A  stipulation  in  a  bill  of  lading  to  the 
effect  that  the  carrier  received  the  goods 
therein  mentioned  "  in  good  order "  is 
prima-facie  evidence  only,  and  may  be  con- 
tradicted by  parol  evidence.  Seller  v.  Steam- 
ship Pacific,  I  Oreg.  409. 

22. received  "  in  good  order  and 

well  conditioned." — A  receipt, "  in  good 
order,"  by  a  carrier  of  goods  which  are 
boxed,  is  not  conclusive  upon  the  carrier, 
but  he  may  show  by  parol  evidence  that 
the  goods  were  in  fact  damaged  when 
shipped.  To  make  such  a  receipt  conclu- 
sive upon  the  carrier  would  subject  him  to 
the  necessity  of  examining  and  ascertaining 
the  condition  of  all  freight  shipped,  which 
would  be  inconvenient  and  impracticable. 
Gowdy  V.  Lyon,  9  B.  Mon.  {Ky.)  112. — FOL- 
LOWING Warden  v.  Greer,  6  Watts  (Pa.) 
424.— Followed  in  Keith  v.  Amende,  i 
Bush  (Ky.)  455- 

In  bills  of  lading  the  expression  that  the 
goods  were  shipped  "  in  good  order  and  well 
conditioned"  should  be  considered  as  re- 
ferring to  the  exterior  and  apparent  con- 
dition of  the  boxes,  and  to  their  internal 
condition  only  so  far  as  it  might  be  inferred 
from  appearances.  Keith  v.  Amende,  1 
Bush  (Ky.)  45$.— Following  Gowdy  v. 
Lyon,  9  B.  Mon.  (Ky.)  112. 

The  acknowledgment  in  a  bill  of  lading 
that  the  goods  wer^  shipped  "in  good 
order  and  well  conditioned"  is  conclusive 
against  the  master  and  owner  as  to  the 
external  order  and  condition  of  the  goods 
at  the  time  of  the  shipment,  unless  there  is 
evidence  of  fraud  or  mistake.  Benjamin  v. 
Sinclair,  i  Bailey  {So.  Car.)  174. 

23.  Burden  on  receiptor  to  show 
condition  other  than  that  stated 
in  the  bill. — A  bill  of  lading  is  prima- 
facie  evidence  that  the  goods  were  in  the 
condition  at  the  time  of  their  receipt  as 
described  therein,  and  the  burden  of  proof 
is  on  the  carrier  to  show  that  they  were  dif- 
ferent, or  that  he  was  deceived  or  defrauded 
when  he  signed  it.  Bissel  v.  Price,  16  ///. 
408.— Followed  in  Grean  Western  R.  Co. 
V.  McDonald,  18  111.  IJ2.— Illinois  C.  B.  C«. 
V.  Cffwles,  32  ///.  1 16. 


3.  The  Bill  Considered  as  a  Contract. 

24.  Generally.* — The  contract  to  carry 
goods  on  the  part  of  a  carrier  may  be  by 
parol  or  in  writing,  as  a  bill  of  lading. 
Mobile  &*  M.  R.  Co.  w.Jurey,  16  Am,  &*  Eng. 
R.  Cas.  132,  III  U.  S.  584,  4  Sup.  Ct.  Rep. 
566. 

The  terms  of  the  contract  of  shipment 
between  the  shipper  and  carrier  are  repre- 
sented by  the  bill  of  lading,  and  a  shipper  , 
is  bound  by  the  terms  of  the  bill  given  to 
him  at  the  time  of  the  shipment.  Bishop  v. 
Empire  Transp.  Co.,  48  How.  Pr.  (N.  Y.) 
119. 

Bills  of  lading  are  mere  contracts  between 
the  carrier  and  shipper,  not  representations 
to  the  public  that  they  may  advance  their 
money  thereon.  (By  Burton,  A.J. ;  contra, 
Pattenson,  A.J.)  Erbv.  Great  Western  R. 
Co.,  3  Ont.  App.  446 ;  affirming  42  U.  C.  Q. 
^.90. 

On  its  face  a  bill  of  lading  is  but  a  memo- 
randum, and  not  in  form  a  complete  con- 
ract  between  the  parties  thereto.  Baltimore 
&*  P.  S.  Co.  v.  Brown,  54  Pa.  St.  77. 

25.  Necessity  for  assent  by  shipper. 
— A  shipper  of  goods  is  not  bound  by  a 
clause  in  a  carrier's  bill  of  lading  given  on 
receipt  of  goods  for  transportation,  limitinij 
the  common-law  liability  of  the  carrier,  un- 
less the  shipper  assents  to  the  same.  Erie 
&*  JV.  Transp.  Co.  v.  Dater,  91  ///.  195. 
Merchants'  Despatch  Transp.  Co.  v.  Theilbar, 
86  ///.  71. 

A  company  cannot  limit  its  liability  by  in- 
serting a  provision  in  a  through  bill  of  lad- 
ing providing  that  in  case  of  loss  or  damage 
the  remedy  should  be  against  the  company 
only  in  whose  hands  the  goods  might  be  at 
the  time  of  such  loss  or  injury,  and  sending 
ittto  the  shipper  after  the  goods  were 
shipped  under  a  condition  making  it  liable 
as  at  common  law,  and  where  the  bill  of 
lading  was  neither  agreed  to  nor  signed  by 
the  shipper.  Central  R.  Co.  v.  Dw^ht  Mfg. 
Co.,  75  Ga.  609. 

26.  What  constitutes  absent  by  the 
shipper.f— (I)  Generally.— Iht.  fact  that  a 
shipper  sent  a  freight  contract  limiting  the 
carrier's  liability  under  a  misapprehension  of 
its  contents— it  having  been  executed  in 
auplicate,  and  one  copy  retained  by  him — 
will  not  in  the  absence  of  fraud  or  undue 
advantage  by  the  carrier  vitiate  the  limi- 

*See<iM/«,  12. 
fSee/M/,  31. 


BILLS  OF   LADING,  26. 


609 


tation  after  the  contract  has  been  acted 
upon  by  both  parties.  Si,  Lout's,  I.  M.  &*  S. 
R.  Co.  V.  Weakly,  35  Am.  &*  Eng.  R.  Cas.  635, 
50  Ark.  397, 7  Am.  St.  Rep.  104, 8  S.  W.  Rep. 

•34. 

Proof  that  shippers  have  bills  of  lading 
printed  according  to  forms  furnished  by  the 
carrier,  and  that  they  are  in  the  habit  of  fill- 
ing the.^  up  themselves  and  sending  them 
to  the  station  with  goods,  to  be  signed  by 
the  agent  and  returned,  is  conclusive  that 
they  have  not  entered  into  a  contract  for  the 
shipment  of  goods  under  any  threat  or  com- 
pulsion. Lawrence  v.  New  York,  P.  &•  B. 
R.  Co.,  36  Conn.  63. 

At  a  time  when  a  railroad  company  had 
but  little  rolling  stock,  it  refused  to  ship  ex- 
cept upon  contracts  limiting  its  liability ; 
and  agents  of  connecting  lines,  being  in- 
formed of  the  facts,  used  bills  of  lading  con- 
taining the  same  provision.  A  shipper 
went  to  the  agents  of  a  connecting  road, 
who  were  also  agents  of  the  shipper,  got  a 
blank  bill  of  lading,  filled  it  up  himself,  and 
got  it  signed.  Held,  that,  as  both  parties 
had  a  fair  opportunity  to  understand  its 
terms,  the  bill  of  lading  constituted  an 
express  contract  by  which  the  shipper,  as 
well  as  the  road,  was  bound.  Wallace  v. 
Matthews,  39  Ga.  617. 

Where  a  carrier  attempts  to  prove  that  the 
shipper  had  knowledge  of  and  assented  to 
the  terms  of  a  bill  of  lading,  it  is  competent  to 
prove  all  the  circumstances  surrounding  the 
transaction  which  have  any  legitimate  ten- 
dency to  establish  such  knowledge  or  assent. 
Lake  Shore  &•  M.  S.  R.  Co.  v.  Davis,  16  III. 
App.  425. 

(2)  Acceptance  without  objection. — The 
acceptance  of  a  bill  of  lading  by  a  shipper, 
with  knowledge  of  its  contents,  makes  it  a 
binding  contract,  and  defines  the  rights  and 
liabilities  of  the  parties  to  it.  Van  Etten  v. 
Newton,  134  N.  V.  143,  31  N.  E.  Rep.  334, 45 
N.  Y.  S.  R.  768. 

Where,  upon  the  delivery  of  goods  to  a 
carrier  for  transportation,  and  before  ship- 
ment, a  receipt  or  bill  of  lading  is  delivered 
to  the  shipper  and  received  by  him  without 
objection,  he  is  chargeable  with  notice  of  its 
contents  and  is  bound  by  its  terms;  prior 
parol  negotiations  cannot  be  resorted  to  to 
vary  them.  Hill  v.  Syracuse,  B.  &*  N.  Y.  R. 
Co.,  73  A^.  Y.  351  /  reversing  8  Hun  296. — 
Explaining  Bostwick  v.  Baltimore  &  O.  R. 
Co.,  45  N.Y.  712.  Following  German ia  Fire 
Ins.  Co.zf.  Memphis &C.  R.  Co..  72  N.Y.  90. 
I  D.  R.  D.— 39. 


If  a  shipper  accepts  a  receipt  or  biil  of 
lading  limiting  a  carrier's  liability,  with  full 
knowledge  of  its  terms,  intending  to  assent 
thereto,  it  becomes  his  contract  as  fully  as  if 
he  had  signed  it.  Adams  Exp.  Co.  v.  Haynes, 
42  ///.  89. 

If  a  shipper,  with  full  knowledge  of  the 
conditions  of  a  bill  of  lading  containing  a 
limitation  of  liability,  assents  to  and  accepts 
the  same  as  the  contract  under  which  the 
goods  are  shipped,  it  will  constitute  a  bind- 
ing contract  which  will  control  the  rights 
and  liabilities  of  the  parties.  Merchants'  De- 
spatch Transp.  Co.  v.  Leysor,  89  ///.  43. 

The  acceptance  of  a  bill  of  lading  contain- 
ing a  restriction  of  the  carrier's  liability  and 
the  previous  practice  of  giving  and  receiving 
similar  bills  of  lading,  are  evidence  tending 
to  show  that  the  limitation  of  liability  there- 
in was  assented  to  by  the  shipper,  but  neither 
one  nor  both  such  facts  would  be  conclusive 
evidence  thereof.  Erie  &»  W.  Transp.  Co. 
V.  Dater,  91  ///.  195.— Distinguishing  Op- 
penheimer  v.  U.  S.  Express  Co.,  69  III.  62; 
Field  V.  Chicago  &  R.  I.  R.  Co.,  71  111.  458. 
Explaining  Merchants'  D.  &  T.  Co.  v, 
Moore,  88  111.  138. 

Where  a  shipper  accepts  from  a  carrier  a 
bill  of  lading  containing  a  stipulation  to  the 
effect  that  the  company  should  be  exempted 
from  injury  to  the  goods  occurring  beyond 
the  terminus  of  their  own  line,  a.ssent  will 
be  presumed  upon  the  part  of  the  shipper 
in  the  absence  of  fraud  or  mistake,  and  he 
will  not  be  permitted  to  show  that  he  was 
ignorant  of  the  contents  of  the  bill.  Mulli- 
gan V.  Illinois  C.  R.  Co.,  36  Iowa,  181,  2 
Am.  Ry.  Rep.  322.— Following  Muschamp 
V.  Lancaster  &  P.  J.  R.  Co.,  8  M.  &  W.  421 ; 
Angle  V.  Mississippi  M.  R.  Co.,  9  Iowa,  487. 
Not  following  American  Merchants'  U. 
Exp.  Co.  V.  Schier,  55  111.  140. — Reviewed 
IN  St.  Louis,  K.  C.  &  N.  R.  Co.  v.  Cleary, 
16  Am.  &  Eng.  R.  Cas.  122,  77  Mo.  634,  46 
Am.  Rep.  13. 

A  through  bill  of  lading,  advantageous  to 
both,  received  by  the  plaintifi  without  ob- 
jection, stipulating  that  the  cotton  was  to 
be  shipped  "at  company's  convenience,"  is 
evidence  of  plaintiff's  assent  to  the  re- 
striction of  defendant's  common-law  lia- 
bility, equivalent  to  an  express  agreement, 
and  affects  plaintiff  with  legal  notice  of 
its  terms.  Whitehead  v.  Wilmington  &*  W. 
R.  Co.,  9  Am.  &*  Eng.  R.  Cas.  168,  87  N. 
Car.  255. 
(3)  After  negotiation  or  transfer, — Where 


:i 


OlO 


BILLS  OF    LADING,  27-29. 


m 


;'"ll 


a  sliipper  had  ample  opportunity  to  examine 
hills  of  lading  befure  accepting  tham,  and 
could  have  expressed  his  consent  to  their 
terms  if  he  had  so  desired,  his  failure  to  do 
so,  followed  by  his  delivery  of  the  bills 
to  one  from  whom  he  receives  advances 
thereon,  is  good  ground  for  the  conclu- 
sion that  he  fully  approved  of  their  terms. 
Bishop  V.  Empire  Transp.  Co.,  48  How.  Pr. 
{,N.  Y.)  119. 

Assent  to  and  ratification  of  the  terms  of 
a  bill  of  lading  made  out  after  the  shipment, 
which  might  otherwise  not  be  binding,  is 
shown  where  it  is  forwarded  to  the  consign- 
ees and  indorsed  to  the  shippers,  who  re- 
ceived it  without  objection  and  entered  the 
goods  in  the  custom  house  thereunder. 
Rubens  v.  Ludgate  Hill  Steamship  Co.,  20 
A''.  Y.  Supp.  481.— Quoting  Kenney  v.  New 
York  C.  &  H.  R.  R.  Co.,  125  N.  Y.  422,  26 
N.  E.  Rep.  626. 

The  shipper's  assent  is  conclusively  pre- 
sumed to  conditions  inserted  in  the  body  of 
a  bill  of  lading,  when  he  has  had  an  op- 
portunity to  know  its  contents,  has  received 
it  at  the  time  of  shipment,  and  the  carrier 
has  used  no  unfair  means  to  deceive.  If  the 
conditions  are  all  in  small  type  they  are  not 
void  for  that  reason  alone.  Ryan  v.  Mis- 
souri, K.  &*  T.  R.  Co.,  23  Am.&»  Eng.R, 
Cas.  703,  65  Tex.  13. 

27.  Assent  notwitlistandiiiK  fail- 
ure to  read  bill.* — When  the  owner  of 
goods  accepts  a  receipt  from  the  carrier  he 
is  conclusively  presumed,  in  the  absence  of 
fraud  or  imposition,  to  have  assented  to  all 
the  terms  and  conditions  contained  in  it, 
and  he  cannot  afterwards  be  heard  to  say 
that  he  did  not  read  the  receipt  and  did  not 
know  its  contents.  Tex.  &*  P.  R.  Co.  v. 
Scrivener,  2  Tex.  App.  (Civ.  Cas:)  284.  Grace 
V.  Adams,  100  Mass.  505.— DISTINGUISHING 
Brown  V.  Eastern  R.  Co.,  1 1  Cush.  (Mass.) 97 ; 
M  alone  v.  Boston  &  W.  R.  Co.,  12  Gray 
(Mass.)  38S;  Buckland  v.  Adams  Exp.  Co., 
97  Mass.  124;  Fillebrown  v.  Grand  Trunk 
R.  Co.,  55  Me.  462.  —  Disapproved  in 
American  Merchants*  U.  Exp.  Co.  v.  Schier, 
55  111.  140.  Distinguished  IN  Blossom  z/. 
Dodd,  43  N.Y.  264;  Madan  v.  Sherrard,  10 
J.  &  S.  (N.  Y.)  353- 

In  the  absence  of  fraud  or  mistake  a  bill 
of  lading  containing  special  stipulations, 
signed  by  the  shipper,  is  ..onclusive  as  to 

*  When  shipper  bound  by  conditions  in  bill  of 
lading  limiting  carrier's  liability,  whether  he 
reads  them  or  not,  see  note,  29  Am.  Rep.  166. 


the  terms  of  the  contract,  and  he  cannot  in- 
validate it  by  showing  that  he  signed  it 
without  reading  it,  and  that  his  animals 
were  already  on  the  cars.  Western  R.  Co. 
V.  Harwell,  45  Am.  &*  Eng.  R.  Cas.  358,  91 
Ala.  340,  8  So.  Rep.  649. 

An  express  stipulation  in  a  bill  of  lading, 
limiting  the  carrier's  liability  to  loss  or  in- 
jury suffered  on  his  own  road,  is  binding  on 
the  consignor  n^otwithstanding  his  igno- 
rance and  inability  to  read,  when  it  is  not 
shown  that  the  carrier  was  informed  of  such 
ignorance  or  was  asked  to  read  and  explain 
the  bill  of  lading,  /ones  v.  Cincinnati,  S.  &* 
M.  R.  Co.,  45  Am.  &*  Eng.  R.  Cas.  321,  89 
Ala.  376,8  So.  Rep.  61. 

Where  goods  are  delivered  to  a  carrier  for 
transportation,  and  a  bill  of  lading  or  re- 
ceipt is  given  before  the  goods  are  shipped, 
the  shipper  is  bound  to  examine  it  and  as- 
certain its  contents,  and  if  he  accepts  it 
without  objection  he  is  bound  by  its  terms. 
He  cannot  set  up  ignorance  of  its  contents, 
and  resort  cannot  be  had  to  prior  parol  evi- 
dence to  vary  them  ;  and  to  take  the  case 
out  of  this  general  rule  it  must  appear  that 
before  the  delivery  of  the  bill  of  lading  the 
goods  had  been  shipped,  so  that  the  shipper 
could  not  have  reclaimed  them  if  he  had 
objected  to  the  terms  of  the  bill  of  lading. 
Germania  Fire  Ins.  Co.  v.  Memphis  &*  C.  R. 
Co.,  72  A^.  Y.  90,  28  Am.  Rep.  115;  affirm- 
ing 7  Hun  233.— Distinguishing  Bost- 
wick  V.  Baltimore  &  O.  R.  Co.,  45  N.  Y. 
712.— Followed  in  Hill  v.  Syracuse,  B.  & 
N.  Y.  R.  Co.,  73  N.  Y.  351. 

28.  Assent  notwithstanding  fail- 
ure to  sign  bill.* — A  shipper  of  goods 
need  not  necessarily  sign  a  bill  of  lading  in 
order  to  assent  thereto  and  be  bound  by  its 
terms.  Piedmont  Mfg.  Co.  v.  Columbia  &• 
G.  R.  Co.,  16  Am.&'Eng.  R.  Cas.  194,  ig  So. 
Car.  353.  Adams  Exp.  Co.  v.  Haynes,  42  ///, 
89. 

The  consignor  of  goods  who  accepts  a 
bill  of  lading  signed  by  the  carrier's  agent 
is  bopnd  by  its  terms  though  he  does  not 
sign  <t;  and  the  terms  of  the  bill  of  lading 
cannot  be  contradicted  by  parol  evidence. 
Cincinnati,  H.  S-  D.  R.  Co.  v.  Pontius,  19 
Ohio  St.  221. 

29.  Acceptance  of  bill  by  shipper's 
agent. — The  agent  of  a  shipper  may  accept 
and  take  a  bill  of  lading  limiting  carrier's 
liability  when  he  has  authority  to  ship  the 

•  See  ante,  6. 


BILLS   OK    LADLNG,  30, 31. 


Oil 


goods  and  contract  as  to  the  terms  and 
conditions  of  the  shipment.  Root  v.  New 
York  Or*  N.  E.  A'.  Co.,  76  Nun  (JV.  V.)  23,  27 
A',   y.  Supp.  611. 

30.  What  does  not  constitute  as- 
sent by  shipper.— The  assent  of  a  ship- 
per to  the  conditions  in  a  bill  of  lading 
limiting  the  carrier's  liability  will  not  be 
inferred  from  the  mere  fact  of  acceptance  of 
the  bill  without  objection,  and  this  without 
regard  to  the  fact  whether  the  bill  of  lading 
is  used  in  trade  wholly  within  this  state,  or 
in  interstate  trade,  or  in  foreign  commerce. 
Erie  &•  IV.  Transp.  Co.  v.  Dater,  91  ///.  195. 

By  the  law  of  Massachusetts,  in  order  to 
limit  the  carrier's  common-law  liability  by  a 
clause  in  the  bill  of  lading,  the  bill  of  lading 
must  be  taken  by  the  consignor,  without 
dissent,  at  the  time  of  the  delivery  of  the 
property  for  transportation.  When  given  a 
few  days  after  the  delivery  of  the  goods,  and 
while  they  are  in  transit,  such  a  clause,  not 
assented  to  by  the  consignee,  will  not  be 
binding  on  the  latter.  Michigan  C.  K.  Co. 
V.  Boyd,  91  ///.  268. 

Assent  by  the  shipper  to  a  provision  in  a 
bill  of  lading  will  not  be  presumed  where 
the  bill,  being  incomplete  at  the  time  of  the 
delivery  of  the  goods  to  the  carrier,  was  not 
delivered  to  the  consignor  at  that  time,  but 
was  subsequently  corrected  and  forwarded 
by  mail  to  him  at  the  place  of  destination. 
Louisville  &*  A'.  R.  Co.  v.  Meyer,  27  Am.  &* 
Eng.  R.  Cas.  44,  78  Ala.  597. 

Mere  delivery  of  a  bill  of  lading  with 
printed  conditions  thereon,  attempting  to 
limit  the  carrier's  liability,  raises  no  pre- 
sumption that  the  shipper  knew  of  and 
assented  to  such  limitation ;  but  in  order 
to  establish  a  special  contract  such  knowl- 
edge and  assent  must  be  established  by  ad- 
ditional evidence.  Western  Transit  Co.  v. 
Hosking,  19  ///.  App,  607.— Quoted  in 
Hartmann  v.  Louisville  &  N.  R.  Co.,  39  Mo. 
App.  88, 

In  an  action  against  a  carrier  to  recover 
for  goods  lost  the  evidence  for  plaintiff 
tended  to  prove  that  the  goods  were  shipped 
under  a  previous  verbal  agreement,  without 
special  exemptions  in  favor  of  the  carrier, 
and  that,  after  the  goods  were  in  transit, 
the  bill  of  lading  containing  such  exemp- 
tions was  handed  to  the  shipper,  who,  with- 
out examination  or  objection,  forwarded  it 
to  the  consignee,  who  made  use  of  the  same 
to  receive  and  sell  the  goods  not  lost,  and 
accounted  to  the  shipper  for  the  proceeds. 


Held,  that  it  was  error  to  charge  the  jury 
that  such  acts  of  the  consignor  and  con- 
signee were  conclusive  on  the  former,  and 
bound  him  by  the  conditions  contained  in 
the  bill,  it  appearing  that  he  had  no  knowl- 
edge of  such  conditions,  and  never,  in  fact, 
assented  to  them.  Gaines  v.  Union  T.  iS*  /. 
Co.,  28  Ohio  St.  418,  14  Am.  Ry.  Rep.  158.— 
Followed  in  Baltimore  &  O.  R.  Co.  v. 
Campbell,  36  Ohio  St.  647. 

31.  Presumption  of  assent  by  ship- 
per.*— Acceptance  of  a  bill  of  lading  by  a 
shipper  which  contains  provisions  limiting 
the  carrier's  liability,  and  retaining  it  with- 
out objection,  raises  a  presumption  that  the 
shipper  knew  its  contends  and  assented 
thereto.  Dillard  v.  Louisville  &*  N.  R.  Co., 
2  Lea  (Tenn.)  288.— Quoted  in  Coward  v. 
East  Tenn.,  V.  &  G.  R.  Co.  16  Lea  (Tenn.) 
225,  57  Am.  Rep.  226.— Merchants'  Dispatch 
Transp.  Co.  v.  Bloc//,  35  Am.  &»  Eng.  R. 
Cas.  579,  86  Tenn.  392,  6  Am.  St.  Rep.  847, 
6  5.  IV.  Rep.  881. 

Acceptance  of  a  bill  of  lading  by  a  shipper 
containing  provisions  limiting  the  carrier's 
liability  authorizes  the  latter  to  infer  assent 
thereto  by  the  shipper,  and  the  shipper  will 
be  bound  by  it  so  far  as  a  loss  or  injury  is 
not  the  resijlt  of  the  carrier's  negligence. 
Hoadley  v.  Northern  Transp.  Co.,  1 1  $  Mass. 
304. — Following  Grace  v.  Adams,  100 
Mass.  505.  Not  following  Adams  Exp. 
Co.  v.  Haynes,  42  III.  89 ;  American  Mer- 
chant's U.  Exp.  Co.  V.  Schier,  55  III.  140; 
Illinois  C.  R.  Co.  v.  Frankenberg,  54  III.  88. 

By  accepting  a  bill  of  lading  without 
reading  it  or  without  objection  to  or  protest 
against  a  contract  therein  limiting  the  lia- 
bility of  the  carrier,  the  shipper  will  be  pre- 
sumed to  have  assented  to  its  terms ;  but 
the  shipper  is  not  bound  to  accept  such  a 
bill  of  lading.  Louisville  <S-  A'.  R.  Co.  v. 
Brownlee,  14  Bush  (Ky.)  590.— Quoting 
Mulligan  v.  Illinois  C.  R.  Co.,  36  Iowa,  181, 
2  Am.  Ry.  Rep.  322  ;  McMillan  7/.  Michigan 
S.  &  N.  I.  R.  Co.,  16  Mich.  79. 

Acceptance  of  a  bill  of  lading  at  the  time 
of  delivery  of  goods  to  a  carrier,  containing 
a  stipulation  limiting  the  liability  of  the 
company  to  losses  occurring  upon  its  own 
line,  is  presumptive  evidence  that  the  ship- 
per read  the  bill  and  acquiesced  therein. 
Louisiu'lle  6-  A'.  R.  Co.  v.  Meyer,  27  Am.  &* 
Eng.  R.  Cas.  44.  78  Ala.  597. 

Where  a  shipper  fills  up  a  blank  form  for 

*  See  ante,  26. 


m. 


61S 


BILLS  OF   LADING,  32-34. 


ml 


m 


m. 


m 


1 

\i 

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shipping  directions,  which  contains  the  same 
conditions  limiting  the  carrier's  liability  as 
a  bill  of  lading  which  he  receives  from  the 
carrier,  a  strong  presumption  is  raised  that 
he  has  knowledge  of,  and  has  assented  to, 
such  conditions ;  and  an  instruction  to  the 
effect  that  he  is  not  bound  by  such  liniita- 
taiions  unless  his  attention  was  called  to 
them  at  the  time  he  received  it,  is  error. 
LaJte  Shore  6-  M.  S.  A'.  Co.  v.  Davts,  i6  ///. 
App.  425. 

Plaintiflf,  a  shipper  of  goods,  sent  a  bill  of 
lading  made  out  to  be  signed  and  returned, 
which  provided  that  the  goods  were  to  be 
delivered  to  the  consignee  "at  Detroit, 
Mich.,"  but  the  company's  agent  inserted 
the  words  "  Toledo  for,"  so  as  to  make  it 
read  to  be  delivered  "  at  Toledo,  for  Detroit, 
Mich.,"  which  were  not  observed  until  after 
a  loss  of  the  property.  NeM,  that  the  ship- 
per was  presumed  to  nave  assented  to  this 
change  by  not  dissenting  within  a  reason- 
able time.  MuUer\.  Cincit.iati,  H.  &*  D. 
R.  Co.,  2  Cin,  Super.  Ct.  280.  — DISTIN- 
GUISHING Southern  Exp.  Co.  v.  Moon,  39 
Miss.  822  ;  Adams  Exp.  Co.  v.  Nock,  2  Duv. 
(Ky.)  562.  Reviewing  Van  Toll  v.  South 
Eastern  R.  Co.,  12  C.  B.  N.  S.  (104  E.  C.  L.) 
75 :  Grace  v.  Adams,  100  Mass.  505. 

The  assent  of  the  shipper  to  conditions 
in  a  bill  of  lading  or  other  contract  for  the 
carriage  of  goods,  limiting  the  carrier's  lia- 
bility, is  binding  upon  him  when  the  loss 
happens  without  fault  or  negligence  of  the 
carrier;  but  such  assent  will  not  be  implied 
or  presumed  from  facts  and  circumstances 
which  do  not  clearly  show  an  assent  to  such 
conditions  in  the  contract  on  which  the  ac- 
tion is  founded.  Pittsburgh,  C.  <S-  St.  L.  R. 
Co.  V.  Barrett,  3  Am.  <S-  Eng.  R.  Cas.  256, 
36  Ohio  St.  448.— Followed  in  Baltimore 
&  O.  R.  Co.  V.  Campbell,  36  Ohio  St.  647. 

32.  Shipper's  assent  is  a  question 
of  fact  for  the  Jury. — Whether  a  ship- 
per knew  of  the  conditions  of  a  bill  of  lad- 
ing and  assented  thereto,  are  questions  for 
the  jury.  Lake  Shore  <S-  M.  S.  R.  Co.  v. 
Davis,  16  ///.  App.  425.  Merchants'  De- 
spatch Transp.  Co.  v.  Leysor,  %^Ill.  43;  Mer- 
chants' Despatch  Transp.  Co.  v.  Theilbar,  86 
///.  71. 

And  the  question  must  be  determined 
upon  outside  evidence,  and  upon  all  the  facts 
and  circumstances  of  the  case.  Adams  Exp. 
Co.  V.  Haynes,  42  ///.  89.— Quoting  Michi- 
gan C.  R.  Co.  V.  Hale,  6  Mich.  244.— Fol- 
lowed IN   American  Merchants'  U.   Exp. 


Co.  t'.  Schier,  55  III.  140;  Anchor  Line  v. 
Dater,  68  III.  369.  Not  followed  in 
Hoadleyz/.  Northern  Transp.  Co.,  115  Mass. 

304- 

And  this  rule  applies  where  a  case  is  tried 
by  the  court  without  a  jury.  Field  v.  Chi- 
cago &*  R.  I.  R.  Co.,  71  ///.  458.—  Distin- 
guished IN  Erie  &  W.  Transp.  Co.  v.  Dater, 
91  III.  195. 

Where  a  bill  of  lading  is  given,  limiting 
the  carrier's  liability  to  its  own  line,  the 
question  whether  the  shipper  understood 
and  assented  thereto  is  for  the  jury.  Ohio 
(S-  M.  R.  Co.  V.  Emrich,  24  ///.  App.  245. 

Where  a  bill  of  lading  or  receipt  is  given 
by  the  carrier,  but  not  signed  by  tlie  ship- 
per, which  contains  proviisions  limiting  the 
carrier's  liability,  it  is  a  question  of  facr  for 
the  jury  whether  the  shipper  had  notice  of 
the  conditions  and  assented  thereto;  but 
where  the  goods  were  shipped  under  a  writ- 
ten contract  signed  by  the  shipper  also,  the 
contract  is  to  be  construed  by  the  court  as 
any  other  written  instrument.  Coles  v.  Louis- 
ville, E.  Of  St.  L.  R.  Co.,  41  ///.  App.  607. 

33.  Burden  of  proving  sliipper's 
assent.— It  is  error  for  the  court  to  charge 
that  the  burden  is  upon  a  carrier  to  prove 
the  shipper's  knowledge  of  and  assent  to  the 
stipulations  of  the  bill  of  lading  which  he 
has  accepted  without  objection ;  but  such 
error  is  not  material  where  the  stipulation 
to  which  the  charge  applied  was  void.  Afer- 
chants'  Dispatch  Transp.  Co.  v.  Bloch,  35 
Am.  (S-  Eng.  R.  Cas.  579,  86  Tenn.  392,  6 
Am.  St.  Rep.  847,  6  S.  W.  Rep.  881. 

34.  Rules  of  Interpretation,  gen- 
erally.—(i)  Generally.— h.  bill  of  lading  is 
a  contract,  the  language  of  which  is  subject 
to  the  rules  of  construction  which  govern 
other  contracts.  Logan  v.  Mobile  Trade 
Co.,  46  Ala.  514.  Lucesco  Oil  Co.  v,  Penn- 
sylvania R.  Co.,  2  Pittsb.  (Pa.)  477.  IVay- 
land  V.  Mosely,  5  Ala.  430.  Robinson  v. 
Merchants'  Despatch  Transp.  Co.,  45  Iowa 
470. 

The  whole  of  a  bill  of  lading,  like  other 
written  contracts,  is  to  be  construed  to- 
gether ;  and  where  a  bill  of  lading  contains 
a  provision  in  its  caption  that  the  goods 
were  to  be  sent  "  through  without  transfer, 
in  cars  owned  and  controlled  by  the  com- 
pany," the  carrier  is  not  entitled  to  the  ben- 
efit of  another  provision  exempting  it  from 
liability  from  loss  by  (ire,  where  it  appears 
that  a  loss  occurred  by  fire  by  reason  of  a 
change  of  cars.     Robinson  v.  Merchants'  De- 


BILLS  OF   LADING,  ;I5,  ;i«. 


613 


spiUih  Transp.  Co.,  45  Imva  470.— QUOTING 
Maghee  ta  Camden  &  A.  R.  Co.,  45  N.  Y.  514. 
--DiSTiNOUisHED  IN  Stcwart  V.  Merchants' 
Tr.insp.  Co.,  47  Iowa  229, 

(2)  Illustrations.*— Iha  clause  "he  [con- 
signee] paying  freight,*^  in  a  bill  of  lading, 
is  introduced  for  the  benefit  of  the  carrier, 
and  does  not  exempt  the  consignor  from 
liability.  Layng  v.  Stewart,  i  Watts  &*  S. 
(/'a.)  222. 

The  term  "  carriage,"  in  a  bill  of  lading, 
does  not  include  a  street-railroad  car. 
Cream  City  R.  Co.  v.  Chicago,  M.  &*  St.  P. 
Ji.  Co.,  21  Am.  &*Eng.  K.  Cas.  70,  63  Wis. 
93,  23  A'.  W.  Rep.  425,  53  Am.  Rep.  267. 

A  bill  of  lading  for  the  transportation  of 
goods  from  Rotterdam  to  London,  tVh  Har- 
wich— /leld,  to  be  such  a  special  contract  as 
would,  under  §  6  of  the  Carrier's  Act,  de- 
prive the  railway  company  of  the  protection 
offered  to  it  by  that  act,  owing  to  the  neg- 
lect of  the  owner  to  declare  the  value  of  the 
goods.  Baxendale  v.  Great  Eastern  R.  Co., 
38  L.  J.  Q.  B.  137,  L.  R.  4  Q.  B.  244,  17 
W.  R.  \\2. 

3C  Construed  strictly  against  the 
carrier. — A  bill  of  lading  given  by  a  car- 
rier for  the  safe  transportation  and  delivery 
of  goods  will  he  construed  most  strongly 
H.i;ainst  him,  a>iU  in  favor  of  the  shipper,  in 
every  case  of  doubt.  Alabama  G.  S.  R.  Co. 
V.  Thomas,  89  Ala.  294,  7  So.  Rep.  762. 

If  the  contract  of  a  railroad  company,  as 
expressed  in  its  bill  of  lading  for  shipping 
goods,  leaves  it  in  doubt  whether  the  com- 
pany was  exempted  from  liability  for  loss 
happening  by  fire,  the  doubt  must  be  re- 
solved against  the  company.  Little  Rock, 
M.  R.  &•  T.  R.  Co.  v.  Taldot,  18  Am.  &* 
Eng.  R.  Cas.  598,  39  Ark.  523. 

36.  Law  of  place.— Where  goods  were' 
received  by  a  railroad  company  in  another 
state,  where  it  is  lawful  for  carriers  to  limit 
their  liability,  to  be  shipped  to  Iowa,  where 
such  limitation  is  not  permitted,  in  case  of 
a  loss  without  the  fault  of  the  carrier  before 
the  goods  reach  Iowa,  the  contract  will  be 
held  valid.  Talbott  v.  Merchants'  Despatch 
Transp.  Co.,  41  Iowa  247.  —  Reviewing 
McDaniels  v.  Chicago  &  N.  W.  R.  Co.,  24 
Iowa  412.— Followed  in  Hazel  v.  Chicago, 
M.  &  St.  P.  R.  Co.,  82  Iowa  477.  Re- 
viewed in  Hartmann  v.  Louisville  &  N.  R. 
Co..  39  Mo.  App.  88.—  Western  &^  A.  R.  Co. 
V.  Exposition  Cotton  Mills,  35  Am.  &*  Eng. 

•  See  f>/'sf,  88-107. 


R.  Cas.  602,  81  Ga.  522,  7  S.  E.  Rep.  916,  a 
L,  R.  A.  102. 

Provisions  in  a  bill  of  lading  which  are 
authorized  by  the  law  of  a  state  in  which 
the  company  is  incorporated  will,  where  the 
bill  of  lading  is  accepted  by  the  shipper, 
constitute  a  special  contract  and  be  valid. 
Farnham  v.  Camden  &»  A.  R.  Co.,  55  Pa, 
St.  53. 

An  action  in  Pennsylvania  brought  on  a 
bill  of  lading  issued  in  New  York  is  gov- 
erned, as  to  matters  of  contract,  by  the  law 
of  the  latter  state,  and,  as  to  the  remedy,  by 
the  law  of  the  former.  Brooke  v.  New  York, 
L.  E.  &>  W.  R.  Co.,  21  Am.  &-  Eng.R.  Cas. 
64,  108  Pa.  St.  529.  I  Atl.  Rep.  206. 

A  clause  in  a  through  bill  of  lading,  ex- 
empting the  carrier  "  from  damages  or  loss 
by  fire  while  in  depot,"  made  in  the  state  of 
Tennessee  by  a  connecting  road,  being  ille- 
gal in  Texas,  will  not  be  passed  upon  in  the 
absence  of  allegation  and  proof  that  such 
limitation  was  legal  where  executed.  In- 
ternational &*  G.  N.  R.  Co.  V.  Moody,  71  Tex.' 
614,  9  S.  W.  Rep.  465. 

It  will  not  be  presumed  that  the  parties 
to  a  bill  of  lading  intended  to  have  their 
contract  governed  by  different  laws,  accord- 
ing as  a  loss  might  occur  in  one  or  in 
another  state,  unless  circumstances  were 
proved  showing  such  an  intention.  Ryan 
V.  Missouri.  K.  &*.  T.  R.  Co.,  23  Am.  &* 
Eng.  R.  Cas.  703,  65  Tex.  13. 

When  there  are  no  circumstances  attend- 
ing the  transaction,  except  the  mere  execu- 
tion, delivery,  and  acceptance  of  a  bill  of 
lading,  the  safest  rule  to  arrive  at  the  inten- 
tion of  the  parties  is  that  which  upholds, 
rather  than  that  which  defeats,  the  contract ; 
and  the  laws  of  the  state  under  which  the 
contract  is  valid  siiould  be  applied.  Ryan 
V.  Missouri,  K.  &*  T.  R.  Co.,  23  Am.  &» 
Eng.  R.  Cas.  703, 65  Tex.  1 3. 

If  a  bill  of  lading  is  given  in  one  state 
for  the  transportation  of  goods  from  a  point 
in  that  state  to  a  place  in  another  state,  and 
the  lex  loci  contractus  is  that  a  provision 
contained  in  a  bill  of  lading  and  limiting 
the  common-law  liability  of  the  carrier  is 
illegal  unless  the  shipper  knew  of  and 
assented  to  such  provision,  and  that  the 
mere  acceptance  of  the  bill  of  lading  is  not, 
of  itself,  evidence  of  such  assent,  the  suffi- 
ciency of  the  assent  is  a  matter  appertaining 
to  the  validity  and  effect  of  the  contract, 
and  is  to  be  adjudged  in  a  foreign  tribunal 
in  accordance  with  the  law  of  the  place  of 


■if. 


614 


BILLS   OF   LADING,  .•17-40. 


f   I 


I 


contract,  and  not  the  luw  of  the  forum. 
Hartmann  v.  Loiihville  <&«•  A'.  R.  Co.,  39  Mo. 
App.  88. 

Where  a  party  claims  to  recover  on  a  bill 
of  lading  issued  in  another  state,  the  burden 
is  on  him  to  sliow  its  validity.  Interna- 
tional &»  G.  N.  K.  Co.  V.  Moody,  71  Tex. 
614.  9  S.   W.  Rep.  465. 

!17.  CoiiKtriictiuii  of  the  bill  a 
qiieNtioii  of  law.— Where  goods  are  re- 
ceived by  a  carrier  for  transportation,  and  a 
bill  of  lading  is  given  to  the  shipper  showing 
the  contract,  it  is  error  for  the  court,  by  an 
instruction,  to  leave  it  to  the  jury  to  say 
what  the  contract  was.  The  court  should 
tell  the  jury  what,  by  the  bill  of  lading,  the 
contract  was.  Wabash,  St.  L.  &»  P.  R.  Co. 
V.  Jaggerman,  23  Am.  &*  Eng.  R,  Cas.  680, 
1:5  ///.  407,  4  iV.  E.  Rep.  641.  Compare 
Co/es  V.  Louisville,  E.  &*  St.  L.  R.  Co.,  41  III. 
App.  607.    Halffv.  Alljin,  60  Tex.  278. 

38.  CoiiHtriictiou  as  to  point  of 
destination,  route,  etc.—  A  bill  of  lad- 
ing for  goods  to  a  railroad  depot,  the  ship- 
ping point  for  a  neighboring  town  for  which 
they  were  destined,  cannot  determine  that 
depot  as  the  destination  contemplated  be- 
tween the  buyer  and  seller.  Were  it  other- 
wise, the  legal  ciTect  of  the  bill  of  lading 
would  be  for  the  court  and  not  for  the  jury. 
Halffv.  Allyn,  60  Tex.  278. 

Goods  were  received  in  New  York  marked 
to  a  consignee  in  Memphis,  Tenn.,  but  the 
bill  of  lading  given  recited  that  they  were 
to  be  transported  to  Philadelphia  and  there 
delivered  to  the  Pennsylvania  Railroad, 
"all  rail  to  Cincinnati,  Ohio."  The  goods 
were  duly  received  in  Cincinnati,  and  for- 
warded by  water  to  Memphis,  but  were  lost 
on  the  voyage.  Held,  that  prima  facie  the 
ultimate  destination  of  the  goods  was  Mem- 
phis and  not  Cincinnati ;  and  that,  in  the  ab- 
sence of  evidence  to  the  contrary,  the  agents 
were  justified  in  forwarding  them  to  Mem- 
phis, and  were  not  liable  to  the  owners  for 
their  loss.    Brown  v.  Mott,  22  Ohio  St.  149. 

Apples  were  shipped  at  Staunton,  under  a 
bill  of  lading,  by  which  the  company  ac- 
knowledged their  receipt,  "to  be  forwarded  to 
East  St.  Louis  station,  on  its  line,"  and  under 
the  heading"  Marks  and  Destination,"  in  the 
bill  of.  lading,  was  written,  "  G.  A.  B.,  St. 
Louis,  Mo."  Held,  that  the  words  in  the  bill 
of  lading,  "to  be  forwarded  to  East  St.  Louis 
station,  on  its  line,"  were  not  sufficient  to 
overcome  the  implied  undertaking,  arising 
from  the  "  marks  and  destination,"  to  carry 


to  St.  Louis,  Mo.  Wabash,  St.  L.  <S-  /'.  R. 
Co.  v.  Jaggerman,  23  Am.  Sf*  Eng.  R,  Cas. 
680,  115  ///.  407,  4  A'.  E.  Rep.  641. 

In  case  of  a  shipment  of  goods,  the  route 
and  point  of  delivery  called  for  by  the  bill 
of  lading  must  control,  though  diflcrirGr 
from  the  marks  on  the  boxes  of  goods 
shipped,  and  must  be  taken  to  be  the  con- 
tract between  the  parties  and  the  shipper. 
Moore  v,  Henry,  18  Mo.  App.  35. 

30.  Assliowlngrwlio  Is  consignee- 
Demurrage. — The  master  of  a  vessel  gave 
a  bill  of  lading  for  coal,  reciting  that  it  was 
to  be  carried  to  a  certain  point  and  there 
delivered  to  a  railroad  company,  or  order, 
"  they  paying  freight  for  the  same  at  |i  .40  per 
ton;  account  J.  P.  S.  Fitchburgh."  Held, 
that  the  railroad  company  was  not  liable  as 
consignee  for  demurrage  charges.  Miner 
V.  Norwich  ^  W.  R.  Co.,  32  Conn.  91. 

40.  Parol  evidence  to  contradict 
or  vary,  generally.'"— (i)  Statement 0/  the 
rule.— Vlhere  there  is  no  evidence  of  a 
special  contract,  a  bill  of  lading  will  be 
held  to  constitute  the  whole  contract  be- 
tween the  shipper  and  the  carrier.  Giles  v. 
Fargo,  iS/.  &*  S.  (N.  Y.)  117.— Follow- 
ING  Falkenau  v.  Fargo,  3  J.  &  S.  332; 
affirmed  in  55  N.  Y.  642. 

Where,  in  an  action  to  recover  for  goods 
lost  by  the  carrier,  a  bill  of  lading  is  pro- 
duced, such  production  is  an  admission  that 
the  undertaking  of  the  carrier  is  in  writing; 
and  parol  proof  that  the  goods  carried 
were  shipped  by  the  shipper,  as  the  agent 
of  the  plaintiff,  is  not  admissible.  Peck  v. 
Dinsmore,  4  Port.  (Ala.)  212. 

A  bill  of  lading,  when  executed  and 
delivered,  becomes  the  sole  expositor  of  the 
terms  of  the  contract  between  the  parties, 
and  its  terms  cannot  be  varied  by  proof  of 
a  verbal  agreement  to  allow  or  refund  a  re- 
bate ;  but  a  modification  of  this  principle 
gives  effect  to  a  general  order  published  and 
posted  by  the  carrier,  allowing  reduced  rates 
for  certain  classes  of  freight  to  be  used  for 
particular  purposes,  directing  the  regular 
rates  to  be  first  paid,  and  promising  to  re- 
fund the  overcharge  on  application.  Louis- 
ville &»  N.  R.  Co.  V.  Fulgham,  91  Ala.  555, 
8  So.  Rep.  803. 

The  bills  of  lading  being  silent  as  to  the 

*  See  ante,  13. 

Effect  nf  bill  of  lading  as  evidence,  and  how 
far  maybe  varied  or  contradicted  by  parol,  see 
note,  38  Am.  Dec.  409  ;  note,  40  Am.  &  Eng.  R. 
Cas.  90. 


BILLS   OF   LADIN(J,  40. 


615 


time  within  which  delivery  was  to  be  made 
at  New  York  and  Philadelphia,  the  law  pre- 
sumes it  was  to  be  made  in  a  reasonable  time, 
and  parol  evidence  is  not  admissible  to 
negative  this  presumption  by  showing  that 
a  definite  and  specific  time  was  agreed  upon 
either  expressly  or  by  implication.  Central 
A'.  6-  B.  Co.  V.  Hasselkus,  (Ga.)  55  Am.  &> 
Eng,  K.  Cas.  586,  17  S.  E.  Rep.  838. 

Where  a  bill  of  lading  contains  a  stipula- 
tion as  to  the  amount  to  be  charged  for 
transportation,  it  is  conclusive  upon  the 
shipper;  and  where  the  amount  to  be 
charged  is  not  stated  in  the  bill  of  lading, 
the  law  implies  that  the  carrier  shall  have  a 
reasonable  compensation,  such  as  is  com- 
monly or  customarily  charged  others  for 
like  services  under  like  conditions,  and  evi- 
dence of  a  previous  oral  contract  fixing  the 
charge  is  not  admissible.  Louisville,  E.  &* 
S/.  L.  Ji.  Co.  V.  Wilson,  40  Am.  &>  Eng.  K. 
Cas.  85.  119  Ind.  352,  21  A'.  E.  Hep.  341. 

If  a  bill  of  lading  does  not  stipulate  the 
price  to  be  paid  for  the  carriage  of  the  goods, 
the  law  imports  into  it  the  agreement  that 
the  compensation  shall  be  reasonable,  and 
such  as  is  customarily  charged  others  for 
like  service  under  like  conditions,  and  parol 
testimony  is  not  admissible  to  prove  a  verbal 
agreement  as  to  the  rate.  Louisville,  E.  &* 
Si.  L.  A\  Co.  V.  Wilson,  40  Am.  6-  Eng.  K. 
Cas.  85,  119  Ind.  352,  21  N.  E.  Rep.  341. 

A  carrier  and  his  customer  do  not  stand 
on  the  same  plane,  or  footing  of  equality, 
and  in  many  cases  the  latter  has  no  alter- 
native as  to  the  kind  of  bill  he  will  receive, 
and  cannot  be  estopped  by  its  contents. 
Lallande  v.  His  Creditors,  45  Am.  &•  Eng. 
R.  Cas.  301,  42  La.  Ann.  705,  7  So.  Rep. 
895. 

Parol  evidence  is  inadmissible  to  show 
that  a  company  was  not  a  common  carrier 
for  the  whole  distance  stated  in  the  bill  of 
lading,  as  the  distance  of  carriage  men- 
tioned therein.  Chouteaux  v.  Leech,\%  Pa. 
St.  224. 

(2)  Illustrations.— \ihttt  a  shipper  ac- 
cepts a  bill  of  lading  which  designates  no 
route  by  which  the  consignment  is  to  be 
forwarded  after  reaching  the  terminus  of 
the  contracting  company's  line,  it  is  not 
competent  to  prove  a  prior  parol  agreement 
to  forward  by  a  particular  line.  Snow  v. 
Indiana,  B.&*  W.  R.  Co.,  28  Am.  6-  Ettg.  R. 
Cas.  77,  109  Ind.  422,  9  A^.  E.  Rep.  702.— 
Distinguishing  Guillaume  v.  General 
Transp.  Co.,  100  N.  Y.  491.— Reviewed  in 


McAbsher  v.  Richmond  &  D,  R.Co.,  108  N. 
Car.  344. 

The  shipper,  in  such  case,  authorizes  the 
first  carrier  to  select  any  usual  or  reasonably 
direct  and  safe  route  by  which  to  forward 
the  consignment  beyond  its  line,  and  this 
provision,  being  imported  into  the  contract 
by  law,  is  as  unassailable  by  parol  as  the  ex- 
press terms  of  the  contract.  Stioiv  v.  Indi- 
ana, B.  6-  W.  R.  Co.,  28  Am.  6-  Eng.  R. 
Cas.  77,  109  Ind.  422.  9  A'.  E.  Rep.  702. 

Where  a  bill  of  lading  is  given  to  a  shipper 
showing  that  the  goods  are  to  be  transported 
to  the  end  of  the  carrier's  line,  the  shipper 
will  not  be  permitted  to  testify  to  an  oral 
contract  with  the  company's  agent  at  the 
place  of  shipment  by  which  the  goods  were 
to  be  transported  to  a  point  beyond  the 
terminus  of  the  carrier's  line.  Hewett  v. 
Chicago,  B.  6-  Q.  R.  Co.,  18  Am.  6-  Eng.  R. 
Cas.  568,  63  Iffwa  611,  19  A^.  W.  R:p.  790. 

Where  a  shipper  of  property  takes  from 
the  carrier  a  bill  of  lading,  receipt,  or  other 
voucher  expressing  the  terms  and  con- 
ditions upon  which  the  property  is  to  be 
transported,  the  writing,  in  the  absence  of 
proof  of  fraud  or  mistake,  must  be  taken  as 
the  evidence,  and  the  sole  evidence,  of  the 
final  agreement  of  the  parties,  and  by  it 
their  duties  and  liabilities  must  be  regulated. 
Resort  cannot  be  had  to  prior  parol  negotia- 
tions to  vary  its  terms.  Long  v.  New  York 
C.  R.  Co.,  so  A^.  r.  76,  3  Am.  Ry.  Rep.  350.— 
Distinguishing  Bostwick  v.  Baltimore  & 
O.  R.  Co.,  45  N.  Y.  712.— Followed  in 
Hinckley  v.  New  York  C.  &  H.  R.  R.  Co., 
56  N.  Y.  429;  Dana  v.  New  York  C.  &  H.  R. 
R.  Co.,  50  How.  Pr.  (N.  Y.)  428. 

A  bill  of  lading  stated  an  agreement  to 
transport  lumber  from  P.  to  C.  for  specified 
rates  per  thousand  feet.  Held,  that  parol 
evidence  was  inadmissible  to  prove  that 
these  rates  were  to  be  demanded  if  the  sale 
of  the  lumber  should  produce  so  much  ;  but, 
if  not,  that  the  charge  for  freight  should 
not  exceed  the  sum  realized  from  the  sale. 
Gardner  v.  Chace,  2  R.  I.  112. 

A  bill  of  lading  imported  on  its  face  an 
absolute  undertaking.  On  the  back  thereof 
were  printed  rules  and  regulations  that 
modified  such  undertaking,  but  it  did  not 
appear  that  the  shippers  had  knowled(>e 
thereof.  Held,  that  evidence  modifying 
such  unde: taking  should  come  from  the 
party  apparently  bound  thereby.  Neivellv. 
Smith,  49  Vt.  255,  17  Am.  Rv.  Rep.  100. 

Where  a  freight  bill  is  signed  by  certain 


fiit; 


BILLS   OF   LADINC;,  41.42. 


|: 


\  , '('    'j^ 


[•crsons  with  the  word  "agents"  after  their 
iiameH,  and  contains  nothing  un  its  face  to 
show  that  it  is  the  contract  of  a  railroad 
company,  parol  evidence  is  inadmissible  to 
show  it  to  be  such.  Dixon  v.  Columbus  &* 
I.  R.  Co.,  4  Diss.  {U.  S.)  137. 

A  railroad  company  received  wheat,  and 
gave  a  bill  of  lading  reciting  that  it  was  to 
be  carried  to  the  scacoast,  and  from  there 
to  a  foreign  port  "  upon  \.\,c  vessel  called  the 
*  Argosy,' or  other  vessel  of  equal  class  for 
marine  insurance."  Held,  that  the  bill  of 
lading  constituted  the  contract,  and  that  the 
railroad  company  had  a  ri^ht  to  ship  by  any 
vessel  of  equal  class  as  tn  insurance  with  the 
"  Argosy,"  and  that  it  was  not  competent  to 
prove  by  parol  that  the  shipment  was  to  be 
in  the  "  Argosy"  only.  HeUiwell\.  Grand 
Trunk  R.  Co.,  10  Biss.  (I/.  5.)  170,  7  Fed. 
Rep.  68. 

Parol  testimony  is  inadmissible  in  the  fol- 
lowing instances  : 

To  vary  the  terms  of  that  portion  of  a  bill 
of  lading  which  constitutes  the  contract  part 
as  distinguished  from  the  bill  as  a  receipt. 
Van  Etten  v.  Newton,  134  N.  V.  143,  45  JV.  V. 
S.  R.  768,  31  JV.  E.  Rep.  334.  Ger mania  Fire 
Ins.  Co.  v.  Memphis  Sf  C.  R.  Co.,  72  A^.  Y.  90, 
28  Am.  Rep.  115;  affirming  7  Hun  233. 
Louisville  &*  N.  R.  Co.  v.  Fulgham,  91 
Ala.  555,  8  So.  Rep.  803,  Grace  v.  Adams, 
100  Mass.  505.  Cox  V.  Peterson,  30  Ala. 
608. 

To  contradict  what  a  bill  of  lading  clearly 
expresses.  Baltimore  &*  P.  Steamboat  Co.  v. 
Brown,  54  Pa.  St.  77. 

To  contradict  or  vary  a  bill  of  lading  so 
far  as  it  relates  to  the  carrier's  liability  for 
loss.    Arnold  v.  Jones,  26  Tex.  335. 

To  contradict  or  vary  the  terms  of  a  bill 
of  lading  when  one  accepts  it  as  embracing 
the  terms  of  the  contract.  Cincinnati,  U.  &* 
Ft.  IV.  R.  Co.  V.  Pearce,  28  Ind.  502. 

To  show  that  a  shipper  did  not  read  the 
provisions  in  a  bill  of  lading  delivered  to 
him.     Grace  v.  Adams,  100  Mass.  505. 

To  add  to  or  vary,  in  behalf  of  the  shipper, 
the  terms  of  a  special  contract  contained  in 
a  bill  of  lading  accepted  and  signed  by  him 
before  the  goods  were  shipped,  it  not  ap- 
pearing that  his  siij;ning  was  the  result  of 
fraud  or  mistake.  Richmond &*  D.  R.  Co.  v. 
Shomo,  90  Ca.  496.— Distinguishing  Pur- 
cell  V.  Southern  Exp.  Co.,  34  Ga.  315 ;  Bost- 
wick  V.  Baltimore  &  O.  R.  Co.,  45  N.  Y.  712 ; 
Hamilton  v.  Western  N.  C.  R.  Co.,  96  N. 
Car.  398. 


41.  Purol  eviiloiici'  to  vnry  in  enN<>H 
ol'iyniid  or  nilNtako.  —  In  cases  of  fraud 
or  mistake  in  bills  of  lading,  parol  evidence 
is  admissible  to  contradict  or  vary  the 
terms  of  the  instrument,  just  as  in  other 
written  contracts.  Long  v.  New  York  C.  A'. 
Co.,  50  A^.  Y.  76,  3  Am.  Ry.  R,p.  350.  Jia/ti- 
more  &*  P.  Steamboat  Co.  v.  lUmun,  54  Pa. 
St.  77.  Louisville.  E.  &*  St.  L.  R.  Co.  v. 
IVilson,  40  Am.  &•  Eiig.  R.  Cas.  85,  1 19  ///(/. 
352.  21  N.  E.  Rep.  341.  Grace  v.  Adams, 
loo  Mass.  505.  Richmond  &*  D.  R.  Co.  v. 
Shomo,  90  Ga.  496. 

That  a  clause  in  the  bill  of  lading,  limiting 
the  responsibility  of  the  carrier,  was  inserted 
or  left  in  the  printed  bill  of  \ading  by  mis- 
take may  be  proved  by  circumstantial  as 
well  as  positive  evidence.  The  questi'>n  as 
to  mistake  was  for  the  jury;  the  burden  of 
proof  as  to  it  was  on  plainiids  who  alleged 
it.     Chouteaux  v.  Leech,  18  Pa.  St.  224. 

Where  the  Columbus  &  Indianapolis 
Railway  is  sued  for  the  loss  of  goods,  a  bill 
of  lading  which  contains  nothing  to  indicate 
that  the  defendant  road  constituted  a  part 
of  the  route,  except  the  initials  and  words 
"  I.  &  C.  Central  R.  R.,"  is  not  sufficient  to 
show  prima  facie  that  the  contract  was 
made  by  the  defendant  company,  in  the  ab- 
sence of  any  allegation  of  a  misnomer,  or  an 
ofTer  to  prove  that  the  initials  used  meant 
the  defendant  company.  Dixon  v.  Colum- 
bus <S-  /.  R.  Co.,  4  Biss.  (U.  S.)  137. 

42.  Parol  evidence  to  explain.*— 
Parol  testimony  may  be  received  to  <  f» 
plain  a  bill  of   lading.    Baltimore 
Steamboat    Co.   v.   Brown,  54  Pa.  i:  „ 
Chapin  v.  Siger,  4  McLean  (if.  S.)  37 

Evidence  is  competent  to  show  that  aifr 
a  biil  of  lading  had  been  issued  the  consignee 
had  notice  that  the  goods  belonged  to  an- 
other and  that  a  corrected  bill  of  lading  had 
been    sent.      Chapin  v.    Siger,  4    McLean 

(tr.  s.)  378. 

Viewed  as  a  contract  a  bill  of  lading  can- 
not be  varied  or  contradicted  by  parol  evi- 
dence ;  but  this  principle  does  not  apply  to 
parol  testimony  which  shows  that  it  is  the 
contract  of  other  persons  than  him  in  whose 
name  it  is  executed.  Mc  Tyer  v.  Steele,  26 
Ala.  487. 

A  bill  of  lading  was  issued  by  a  common 
carrier  for  live  stock  received  at  Coving- 
ton, Ky.,  and  consigned  to  East  St.  louis. 

*  See  ante,  13. 

Bills  of  lading,  as  contracts,  evidence  to  ex- 
plain terms,  see  note,  40  Am.  &  Eng.  R.  Cas.  90. 


'I  r 


HILLS   OF    LADLNG,  43. 


eir 


It  recited  tliat  tlic  slock  were  thus  con- 
signed, and  guaranteed  that  the  tlirough 
rate  of  freight  wouk!  not  exceed  a  specified 
amount.  It  wus  made  out  on  a  bhiiik  form 
used  for  ordinary  merchandise,  and  was  in- 
appropriate for  the  shipment  of  live  stock. 
Among  its  provisions  was  one  that  the 
packages  received  should  be  transported 
"  to  tlie  company's  freiglit  station  at  ," 

and  that  the  responsibihty  of  the  company 
should  cease  at  that  station.  Held,  that 
the  bill  of  lading  was  so  ambiguous  as  to 
render  parol  evidence  admissible  to  estab- 
lisii  an  undertaking  by  the  company  to 
carry  the  stock  through  to  East  St.  Louis. 
Wolfert  V.  Pittsburgh,  C.  <S-  St.  L.  A'.  Co.,  44 
A/o.  App.  330. 

4:1.  HIiuwiiiK  real  aKreviiieiit  by 
oxtriiiNic  evhlciice.— (I)  Generally. — A 
bill  of  lading  is  not  such  a  complete  con- 
tract as  to  exclude  all  testimony  of  what  is 
not  expressed  necessary  to  a  complete  con- 
tract, lialtimore  &*  P.  Steamboat  Co.  v. 
Brown,  54  Pa.  St.  77.— Followld  in  Penn- 
sylvania R.  Co.  V.  Berry,  68  Pa.  St.  272. 

Parol  testimony  may  be  admitted  to  show 
what  the  real  contract  is,  of  which  the  bill 
of  lading  is  merely  a  memorandum.  Balti- 
more &*  P.  Steamboat  Co.  v.  Brown,  54  Pa. 
St.  77. 

Parol  evidence  is  admissible  to  show  that 
a  company's  freight  agent  agreed  to  trans- 
port goods  free  from  a  restriction  as  to  lia- 
bility contained  in  the  bill  of  lading.  Baker 
V.  Michigan  S.  6-  N.  I.  R.  Co.,  42  ///.  73. 

If  it  appears  to  the  court  that  the  parties 
did  not  intend  that  a  bill  of  lading  should 
be  a  complete  and  final  statement  of  the 
whole  contract,  then  parol  evidence  is  ad- 
missible to  vary  the  terms  of  the  bill  of  lad- 
ing as  to  matters  on  which  it  is  silent. 
/  ''rchants'  Dispatch  Transp.  Co.  v.  Furth- 
tiutnn,  47  ///.  App.  561. 

A  statement  in  the  body  of  a  bill  of 
lading  showing  that  goods  were  to  be 
transported  between  certain  points,  is  not 
conclusive  when  the  heading  of  the  bill 
hows  that  the  goods  were  to  be  transported 
to  another  point;  and  acceptance  of  the 
bill  of  lading  does  not  prevent  the  shipper 
from  proving  what  the  real  contract  was. 
Saltsman  v.  New  York,  L.  E.  &*  W.  E.  Co., 
65  Hun  (N.  Y.)  448,  48  A^.  Y.  S.  R.  55,  20 
A^.   V.  Supp.  361. 

Where  goods  have  actually  been  shipped 
under  an  oral  contract,  the  subsequent  re- 
ceipt of  a  bill  of  lading  and  the  neglect  of  the 


shipper  to  point  out  errors  therein  do  not 
preclude  him  from  showing  the  oral  con- 
tract. Guitlaume  v.  General  Transp.  Co., 
100  A'.  )'.  491,  3  N,  E.  Rep.  489.— Distin- 
guished IN  Snow  V.  Indiana,  B.  &  W.  R. 
Co.,  28  Am.  &  Eng.  R.  Cas,  77,  109  Ind. 
422. 

(2)  Illustrations. — Where  the  shipper  is 
impliedly  bound,  from  the  face  of  the  bill,  to 
pay  the  freight  on  goods,  it  is  allowable  to 
show  that  the  carrier  received  them  under  an 
agreement  with  a  third  person  to  pay  the 
freight  if  the  latter  has  not  paid  it.  IVay- 
land  V.  Mostly,  5  Ala.  430. 

Where  a  shipper  marks  goods  to  a  cer- 
tain point,  and  makes  an  oral  agreement 
with  the  carrier  for  a  shipment  to  that 
point,  and  a  bill  of  lading  is  afterward 
forwarded  to  him  containing  a  provision 
that  they  are  not  to  be  carried  to  the  point 
agreed  upon,  but  to  a  point  less  distant,  the 
shipper  may  show  by  parol  evidence  the  oral 
contract,  and  that  when  delivered  he  did  not 
observe  the  change  from  the  oral  agree- 
ment ;  and  when  such  oral  agreement  is 
established,  the  rights  of  the  parties  will  be 
determined  thereby,  and  not  by  the  written 
bill  of  lading.  Missouri  Pac.  R.  Co.  v. 
Beeson,  12  Am.  &>  Eng.  R.  Cas.  52,  30  Kan, 
298,  2  Pac.  Rep.  496.— Followed  in  St. 
Louis  &  S.  F.  R.  Co.  v.  Clark,  48  Kan.  321. 

By  the  common  law  carriers  are  exempt 
from  "  inevitable  accidents,"  and  where  no 
such  exemption  is  provided  for  in  a  bill  of 
lading,  the  law  implies  it  in  favor  ot  the  car- 
rier ;  but  such  implication  may  be  repelled 
by  parol  evidence,  showing  a  contract  on 
the  part  of  the  carriers  guaranteeing  abso- 
lutely the  safe  delivery  of  the  goods.  Mor- 
rison v.  Davis,  20  Pa.  St.  171. 

Where  goods  are  received  marked  "  in 
cabin  state-room,"  and  receipted  foras  such, 
and  an  extra  price  is  paid  for  being  carried 
in  the  cabin,  the  owner  may  recover  from 
the  vessel  for  damages  to  the  goods  by  rea- 
son of  not  being  so  carried,  though  the  bill 
of  lading  was  in  the  usual  form,  and  the 
gocds  were  not  placed  in  the  cabin.  The 
Star  of  Hope,  2  Sawy.  {(/.  S.)  15. 

Where  a  bill  of  lading  to  carry  cotton  ex- 
cepted the  company's  liability  for  loss  by 
fire— held,  that  the  shippers  might  show 
that  the  true  contract  was  by  parol,  and 
contained  no  such  exception.  Mobile  6-  M. 
R.  Co.  V.  Jurey,  16  Am.  6-  Eng.  R.  Cas.  132, 
III  (/.  S.  584,  4  Sup.  Ct.  Rep.  566. 

In  a  suit  against  a  railroad  to  recover  for 


618 


BILLS   OF   LADING,  44. 


m 


w 

wi 


goods  destroyed  by  fire,  the  bill  of  lading  in 
evidence  showed  that  the  company  was  not 
liable  for  such  loss,  but  the  uncontradicted 
evidence  showed  an  independent  oral  con- 
tract containing  no  exemption  from  lia- 
bility. The  rate  paid  was  also  higher  than 
when  the  carrier  was  relieved  from  loss  by 
tire.  The  court  charged  the  jury  that  the 
paper  read  as  a  bill  of  lading  contained  no 
restriction  upon  the  liability  of  the  carrier. 
Helii,  that  the  instruction  must  be  under- 
stood to  mean  that  the  bill  of  lading,  as 
modified  by  the  oral  contract,  and  con- 
sidered in  connection  with  surrounding  cir- 
cumstances, contained  no  such  restriction. 
Mobile  &'  M.  R.  Co.  v.  Jurey,  id  Am.  &* 
Eng.  R.  Cas.  1 32,  i  u  U.  S.  584,  4  Sup.  Ct. 
.'{ep.  566. 

The  respondents  sued  the  appellants  for 
breach  of  contract  to  carry  petroleum  in  cov- 
ered cars  from  L.  to  H.,  alleging  that  they  neg- 
ligently carried  the  same  upon  open  platform 
cars,  whereby  the  barrels  containing  the 
oil  were  exposed  to  the  sun  and  weather, 
and  were  destroyed.  At  the  trial  a  verbal 
contract  between  plaintiffs  and  defendants" 
agent  at  L.  was  proved,  by  which  the  defend- 
ants agreed  to  carry  the  oil  in  covered  cars 
with  despatch.  The  oil  was  forwarded  in 
open  cars  and  delayed  in  different  places, 
and  in  consequence  a  large  quantity  was  lost. 
On  the  shipment  of  the  oil  a  receipt  note 
had  been  given  which  said  nothing  about 
covered  cars,  and  which  stated  that  the 
goods  were  subject  to  the  conditions  en- 
dorsed thereon,  one  of  which  was  "  that  the 
defendants  would  not  be  liable  for  leakage 
or  delays,  and  that  the  oil  was  carried  at  the 
owner's  risk."  //^A/,  per  Sir  W.J.  Ritchie, 
C.  J.,  and  FouRNiER  and  Henry,  J.  J.,  that 
the  loss  resulted  not  from  any  risks  by  the 
contract  imposed  on  the  owners,  but  from 
the  wrongful  act  of  the  carrier  in  placing  the 
oil  on  open  cars,  which  act  was  inconsistent 
with  the  contract  they  had  entered  into, 
and  in  contravention  as  well  of  the  under- 
taking as  of  their  duty  as  carriers.  Pe' 
Strong,  Fournier,  Henry  and  Gwynne, 
J. J.:  The  evidence  was  admissible  to  prove  a 
verbal  contract  to  carry  in  covered  cars, 
which  contract  the  agent  at  L.  was  author- 
ized to  enter  into,  and  the  non-compliance 
with  the  provisions  of  that  contract  pre- 
vented the  appellants  from  setting  up  the 
condition  that  "  oil  was  carried  at  owner's 
risk,"  as  exempting  them  from  liability. 
Grand  Trunk  R.  Co.  v.  Fitzgerald,  5  Can. 


Sup.  Ct.  204.— Applying  Malpas  v.  Lon- 
don &  S.  W.  R.  Co.,  L.  R.  I.  C.  P.  336. 
Quoting  Robinson  v.  Great  Western  R. 
Co.,  35  L.  J.  C.  P.  123;  Lewis  v.  Great 
Western  R.  Co.,  3  Q.  B.  D.  195, 

44.  Merger  of  previous  negotia- 
tions, etc.,  in  Hubsequent  bill  of  lad- 
ing.*— (i)  Merger  effe'ted.  —  All  previous 
parol  agreements  or  negotiations  touching 
the  shipment  of  goods  are  merged  in  a 
written  bill  of  lading,  made  out  by  the 
carrier,  delivered  to  the  shipper,  and  ac- 
cepted by  him.  Bostwick  v.  Baltimore  &* 
O.  R.  Co.,  SS  Barb.  {N.  Y.)  137  ;  reversed,  it 
seems,  in  45  A'.  Y.  712. 

A  bill  of  lading,  so  far  as  it  is  a  contract, 
merges  all  prior  and  contemporaneous 
agreements,  and,  in  the  absence  of  fraud, 
concealment,  or  mistake,  and  when  free 
from  ambiguity,  its  terms  or  legal  import 
cannot  be  explained  or  added  to  by  parol. 
Louisville,  E.  &*  St.  L.  R.  Co.  v.  Wilson,  40 
Am.  &•  Eng.  R.  Cas.  85,  119  Ind.  352,  21  A^. 
E.  Rep.  341. 

Where  a  shipper's  receipt,  delivered  to  the 
consignor  at  the  time  of  shipment,  states 
that  upon  application  a  bill  of  lading  will  be 
issued  at  a  place  designated,  and  that  the 
shipment  will  be  made  subject  to  conditions 
therein,  the  bill  of  lading  and  not  the  ship- 
ping receiot  will  embody  the  contract  of  the 
parties,  t  J  the  consignee  will  be  bound  by 
the  conditions  of  the  bill.  Wilde  v.  Mer- 
chants' Despatch  Trat:sp.  Co.,  47  Io7va  272. — 
Distinguishing  Bostwick  v.  Baltimore  & 
O.  R.  Co.,  45  N.  Y.  712. 

(2)  No  merger.— Ih^  rule  that  prior  ne- 
gotations  are  merged  in  a  subsequent  written 
contract  does  not  apply  where  goods  have 
been  shipped  under  a  verbal  contract,  and 
afterward  a  bill  of  lading  is  given  containing 
limitations  of  the  carrier's  liability,  which  is 
not  examined  by  the  shipper.  In  such  case 
the  shipper  may  show  the  actual  agreement. 
Bostwick  V.  Baltimore  6-  O.  R.  Co.,  45  A';  Y. 
712  ;  reversing  55  Barb.  137.— Following 
Corey  v.  New  York  C.  R.  Co.,  April  1871 
(not  reported).— Applied  in  Magnin  v. 
Dinsmore,  56  N.  Y.  168.  Approved  in 
Pruitt  V.  Hannibal  &  St.  J.  R.  Co.,  62  Mo. 
527.  Distinguished  in  Richmond  &  D. 
R.  Co.  V.  Shomo,  90  Ga.  496 ;  Wilde  v. 
Merchants'  Despatch  Transp.  Co.,  47  Iowa 
272;   Long   V.    New  York  C.    R.  Co.,   50 

•  MerRerof  previous  parol  aRreement  in  sub- 
sequent bill  of  lading,  see  note,  30  Am.  &  E'.o. 
R.  Cas.  7. 


BILLS   OF    LADING,  45-47. 


619 


V.  Lon- 

P.  336. 
stem  R. 
V.  Great 


N.  Y.  76;  Germania  Fin;  Ins.  Co.  v.  Mem- 
phis &  C.  R.  Co.,  72  N.  Y.  yo.  Explained 
IN  Hill  V.  Syracuse,  B.  &  N.  Y.  R.  Co.,  73 
N.  Y.  351.  Followed  in  Condict  v.  Grand 
Trunk  R.  Co.,  54  N.  Y.  500 ;  Lamb  v.  Cam- 
den &  A.  R.  Co.,  4  Daly  (N.  Y.)  483. 

Where  goods  are  shipped  under  a  verbal 
agreement,  sucli  agreement  is  not  merged  in 
a  subsequent  bill  of  lading  given,  partly 
written  and  partly  printed,  which  contains 
conditions  limiting  the  carrier's  liability, 
with  a  statement  that  by  accepting  it  tiie 
shipper  agrees  to  its  terms ;  and  mere  accept- 
ance of  such  bill  of  lading  does  not  prevent 
the  shipper  from  proving  the  actual  verbal 
agreement  under  which  the  goods  were 
shipped.  Schiff  v.  New  York  C.  &•  //.  /i. 
a:  Co.,  52  How.  Pr.  (N.  V.)  91. 

A  verbal  agreement  to  send  peaches  to 
Olean  without  changing  the  cars  is  not 
merged  in  a  shipping  bill  subsequently  ex- 
ecuted, when  there  is  no  reference  to  such 
agreement  in  the  bill,  /^t'/ey  v.  Neiv  York, 
L.  E.  &^  IV.  R.  Co.,  34  Him  {N.  Y.)  97. 

A  failure  to  object  to  limitations  in  a  bill 
of  lading  delivered  in  New  York  two  days 
after  the  goods  had  been  shipped  will  not, 
in  a  suit  in  Illinois,  be  held  to  be  a  waiver 
of  a  prior  oral  contract  containing  different 
terms.  Merchants'  Despatch  Transp.  Co.  v. 
Furthmann,  47  ///.  App.  561. 

A  bill  of  lading  issued  by  a  common 
carrier  only  determines  the  conditions  upon 
which  the  freight  is  to  be  transported  after 
it  passes  under  its  control ;  it  does  not 
abrogate  or  annul  any  contract  made  by  the 
common  carrier  before  it  was  issued,  in  re- 
gard to  receiving  and  forwarding  the  freight. 
Hamilton  v.  IVestern  N.  C.  fi.  Co.,  30  Am.  &» 
Eng.  R.  Cas.  1,  96  iV.  Car.  398,  3  S.  E.  Rep. 
164.- -Distinguished  in  Richmond  &  D. 
R.  Co.  V.  Shomo,  90  Ga.  496. 

The  agent  of  a  railroad  company  agreed  to 
have  cars  ready  to  forward  freight  on  a  cer- 
tain day.  The  cars  were  not  ready  on  that 
day.  HeM,  that  the  contract  was  not 
abrogated  by  the  terms  of  a  bill  of  lading 
issued  when  the  freight  was  shipped  on  a 
subsequent  day.  Hamilton  v.  IVestern  N. 
C.  R.  Co.,  30  Am.  (S-  Eng.  R.  Cas.  i,g6  N. 
Car.  398,  3  S.  E.  Rep.  164. — Followed  in 
McAbsher  v.  Richmond  &  D.  R.  Co.,  108  N. 
Car.  344. 

The  plaintifTs  made  an  oral  contract  with 
a  carrier  by  which  the  latter  a}<reed  to 
furnish  cars  for  the  transportation  of  plain- 
tiffs' property  on  a  certain  day,  but  failed  to 


do  so;  a  short  time  thereafter  the  carrier 
did  ship  the  goods,  for  which  it  gave  a  bill 
of  lading.  Held,  that  the  prior  oral  contract 
was  not  merged  in  the  latter,  and  that  the 
plaintiffs  could  maintain  an  action  for  dam- 
ages for  a  breach  thereof.  McAbasher  v. 
Richmond  iS>»  D.  R.  Co.,  108  A'.  Car.  344, 1 2  S. 
E.Rep.  892.— Following  Hamilton?/.  West- 
ern N.  C.  R.  Co.,  96  N.  Car.  398.  Reviewing 
Hopkins  v.  St.  Louis  &  S.  F.  R.  Co.,  16  Am. 
&  Eng.  R.  Cas.  126,  29  Kan.  544;  Snow  v, 
Indiana,  B.  &  W.  '  Co.,  28  Am.  &  Eng.  R. 
Cas.  77,  109  Ind.  <   i. 

45.  Effect  of  notices  printed  on 
the  bill. — In  America  it  is  generally  held 
that  a  mere  notice  printed  on  the  bill  of 
lading  will  not  bind  the  owner,  though 
brought  to  his  knowledge.  Rj^an  v.  Mis- 
souri, K.  &*  T.  R.  Co.,  23  AHLGfEitg.  R.  Cas. 
703,  f  5  Tex.  13. 

The  liability  of  the  carrier  cannot  be  lim- 
ited by  a  mere  notice  in  the  bill  of  lading; 
but  if  a  special  contract  be  incorporated  in 
the  bill  of  lading  and  signed  by  both  parties, 
it  is  sufficient.  Georgia  R.  Co.  v.  Spears,  66 
Ga.  485.— Quoted  in  Mitchell  v.  Georgia 
R.  Co.,  68  Ga.  644. 

4U.  Effect  of  memoranda  in  tlie 
margin  of  bill.— A  memorandum  written 
on  the  margin  of  a  bill  of  lading  requiring 
claims  for  loss  or  damage  to  be  presented 
to  the  delivering  line  within  thirty-six  hours 
after  the  arrival  of  freight  is  as  valid  as  if 
it  had  been  in  the  body  of  the  bill  of  lading, 
and  if  found  to  be  reasonable  will  be  held 
binding;  but  such  provisions  are  not  as  a 
matter  of  law  held  reasonable,  and  when  set 
up  as  a  defense  the  company  must  allege 
and  prove  facts  which  show  them  to  be 
reasonable.  Brown  v.  Adams,  3  Tex.  App. 
{Civ.  Cas.)  462. 

47.  Effect  of  bill  upon  the  manner 
and  validity  of  the  ilellvcry  by  the 
carrier.*— (i)  Generally. — A  bill  of  lading 
is  a  contract  to  deliver  the  goods  therein 
specified  at  a  certain  point  of  destination 
to  u  certain  person  as  consignee.  Wolfes, 
Myers,  3  Sandf.  (N.  Y.)  7. 

As  between  the  owner  and  shipper  of  the 
goods  and  the  common  carrier,  the  bill  of 
lading  fixes  and  determines  the  duty  of  the 
latter  as  to  the  person  to  whom  it  is  (at  the 
time)  the  pleasure  of  the  former  that  the 
goods  shall  be  delivered  ;  but  there  is  noth- 

*  Delivery  of  goods  without  requiring  pres- 
entation of  bill  of  lading,  see  note,  33  Au.  ft 
Eng.  R.  Cas.  508. 


620 


BILLS  OF   LADING,  47. 


s 

It 

a 


ing  final  or  irrevocable  in  its  nature.     Hal- 
seyv.  Warden,  25  Kan.  128. 

A  railroad  company  has  no  right  to  make 
a  delivery  of  freight  otherwise  than  in  strict 
accordance  with  the  bill  of  lading.  Penn- 
sylvania R.  Co.  V.  Stern,  35  Am.  &*  Eng.  R. 
Cas.  551,  iig  Pa.  St.  24,  12  At/.  Rep.  756. 

Where  the  space  for  consignee's  name  in 
a  bill  of  lading  is  left  blank  the  contract  is 
to  deliver  to  consignor  or  his  assigns,  and  a 
verbal  agreement  between  consignor  and 
railroad  company  to  ship  goods  to  a  third 
party  will  not  authorize  or  excuse  the  de- 
livery by  the  company  to  such  person,  as 
against  an  assignee  of  the  bill  of  lading 
without  notice.  Garden  Grove  Bank  v. 
Humeston  &*  S.  R.  Co.,  23  Am.  &■»  Eng.  R. 
Cas.  695,  67  Iowa  526,  25  A^.  W.  Rep. 
761. 

The  fact  that  a  bill  of  lading  contains  a 
direction  to  notify  a  person  named,  ^n  the 
arrival  of  the  goods,  is  no  indication  that  he 
has  any  interest  therein  ;  nor  is  it  authority 
to  deliver  the  goods  to  the  person  named, 
nor  enough  to  put  a  person  dealing  with 
the  bill  of  lading  on  inquiry.  Illinois  C.  R. 
Co.  V.  Southern  Bank,  41  ///.  App.  287. 

Where  a  railroad  company,  following  the 
usual  custom,  has  issued  a  bill  of  lading  for 
goods  upon  delivery  to  it  of  a  warehouse 
receipt  for  them,  it  is  a  good  defense  to  an 
action  against  it  for  a  failure  to  deliver  part 
of  the  goods  that  it  delivered  the  whole  of 
the  goods  which  it  received  from  the  ware- 
houseman ;  and  the  fact  that  the  action  is 
brought  by  an  assignee  of  the  bill  of  lading 
does  not  ailect  the  company's  right  to  plead 
such  defense.  Hazards.  Illinois  C.  R.  Co., 
42  Am.  &*  Eng.  R.  Cas.  455.  67  Miss.  32.  7  So. 
Rep.  280. 

(2)  Illustrations.— Cotton  was  shipped 
over  a  railroad  to  a  seaport  town,  whence  it 
was  to  go  to  a  foreign  country  by  vessel,  the 
through  bill  of  lading  reciting  that  it  was 
to  be  delivered  in  port  "  to  the  ship  T.  or 
to  some  other  steamship  company  or  line, 
or  vessels  chartered  thereby."  Hfld,  that, 
in  the  absence  of  actual  notice  that  the 
vessel  T.  was  under  a  charter-party,  the 
second  railroad  company  was  not  bound  to 
accept  from  that  vessel  a  bill  of  lading  with 
qualifications,  as  thp  bill  of  lading  given  by 
the  first  railroad  company  was  not  sufficient 
notice,  either  to  the  second  railroad  com- 
pany or  to  the  owner,  that  the  vessel  was 
under  charter.    Held,  also,  that  the  second 


railroad  company  could  maintain  a  libel 
against  the  vessel  T.  to  recover  the  cotton, 
upon  the  master's  refusal  to  sign  a  bill 
of  lading,  without  adding  the  additional 
qualification,  "  other  conditions  as  per 
charter-party."  TAe  Torgorm,  48  Fed.  Rep. 
584. 

F.  &  Co.,  carriers,  delivered  to  a  railway 
at  their  station  goods  for  conveyance  ad- 
dressed to  the  consignees.  With  such 
goods  a  consignment  note  was  handed  to 
the  railway  containing,  in  addition  to  the 
names  and  addresses  of  the  consignee,  the 
words  "  To  the  care  of  F.  &  Co."  The  com- 
pany refused  to  recognize  the  latter  words, 
and  delivered  the  goods  to  the  consignees 
by  their  own  agents  or  other  carriers.  Held, 
that  the  words  "  To  the  care  of  F.  &  Co." 
imported  that  the  goods  on  their  arrival  at 
the  terminal  stations  were  to  be  given  to  F. 
&  Co.  or  their  agents  for  delivery  to  the 
consignees:  that  as  between  the  railway 
and  F.  &  Co.  the  latter  were  the  consign- 
ors; and  that  the  company  accepted  the 
goods  upon*  the  terms  stated  in  the  con- 
signment note  and  were  precluded  from 
delivering  them  to  the  consignees,  and 
should  have  delivered  them  to  F.  &  Co.  or 
their  agents.  Fishbourne  v.  Great  Southern 
&*  W.  R.  Co.,  2  Ry.  *•  C.  T.  Cas.  224. 

Cotton  was  shipped,  and  the  consignors 
took  a  bill  of  lading,  making  the  cotton  de- 
liverable to  their  order,  and  forwarded  it 
with  a  draft  to  a  bank  for  collection,  with 
a  notice  to  notify  certain  parties  who  ap- 
peared to  be  the  consignees.  Held,  that  it 
was  the  duty  of  the  carrier  to  deliver  the 
cotton  only  upon  the  order  of  the  consign- 
ors, and  that  there  was  nothing  in  the  notice 
to  require  the  bank  to  notify  the  carrier  not 
to  deliver  to  the  consignees,  nor  to  inquire 
whether  the  cotton  would  be  so  delivered. 
Mational  Bank  v.  Atlanta  &*  C.  A.  L.  R. 
Co.,  2$  So.  Car.  216. 

A  bill  of  lading  recited  that  the  goods 
were  "to  be  delivered  without  delay  at  a 
certain  port  to  a  certain  person  named  or 
his  assigns,  he  or  they  paying  freight  for  said 
goods  at  the  rate  of  $274.40,  charges  payable 
when  collected  by  boat;  charges  to  be  col- 
lected," the  value  of  the  goods  being  stated. 
Held,  that  if  the  carrier  delivered  the  goods 
without  collecting  such  charges  he  is  liable 
therefor  to  the  shipper.  Meyer  v.  Lemcke, 
31  Ind.  208.  See  also  Canfieldv.  Northern  R. 
Co.,  18  Barb.  {N.  V.)  586, 


^ 


BILLS   OF   LADING,  48. 


G21 


48.  Delivery  by  carrier  without 
demanding  presentation  of  tlie  bill.* 

— (i)  Generally. — Where  a  carrier  delivers 
goods  without  the  production  of  the  bill  of 
lading  he  takes  upon  himself  the  burden  of 
showing  that  the  delivery  was  made  to  the 
proper  person.  National  Bank  v.  Atlanta 
6-  C.  A.  L.  R.  Co.,  2$  So.  Car.  216. 

Where  a  bill  of  lading  is  indorsed  in  blank 
and  negotiated  for  value  as  security  for  a 
draft  drawn  on  a  third  person  by  the  con- 
signor, to  whose  order  the  goods  are  con- 
signed, the  carrier  cannot  deliver  the  goods 
to  such  third  person  without  production  of 
the  bill  of  lading  or  authority  from  the 
holder  thereof.  Boatmen's  Sav.  Bank  v. 
Western  &*  A.  R.  Co.,  81  Ga.  221,7  S.  E. 
Rep.  125. 

The  effect  of  New  York  laws  1058,  ch. 
326,  as  amended  in  1859,  ch.  353,  prohibit- 
ing the  delivery  by  a  common  carrier  of 
property  covered  by  a  bill  of  lading,  except 
upon  surrender  and  cancellation  of  the  bill, 
and  authorizing  the  transfer  of  the  property 
by  indorsement  of  the  bill,  is  to  incorporate 
into  every  instrument  the  statutory  condi- 
tion and  make  it  an  element  of  the  contract, 
unless  the  case  is  within  the  exception  con- 
tained in  sec.  5  of  the  act,  by  having  the 
words  "not  negotiable"  written  or  stamped 
on  the  face  of  the  bills.  Colgate  v.  Pennsyl- 
vania Co.,  102  N.  Y.  120,  6  A^.  E.  Rep.  114, 
I  N.   V.  S.  R.  i66;  affirming  j'  Nun  297. 

Where  goods  are  shipped  to  the  order  of 
the  consignor,  the  railroad  company  is  not 
justified  in  delivering  them  to  a  third  per- 
son without  the  bill  of  lading,  and  merely 
upon  the  production  of  an  invoice  and  a 
letter  from  the  consignor  giving  him  notice 
of  a  draft,  which  is  to  accompany  the  bill  of 
lading,  drawn  upon  him  by  the  consignor 
and  which  he  is  required  to  protect.  Penn- 
sylvania R.  Co.  V.  Stern,  35  Am.  6-  Eng.  R. 
Cas.  sst,  119  Pa.  St.  24.  12  All.  Rep.  756. 

(2)  ///wj/ra/w/iJ.— Plaintiff  shipped  hay  to 
his  broker  and  telegraphed  him :  "  Do  the 
best  you  can.  Whatever  you  do  will  be 
satisfactory."  HeM,  that  the  telegram  was 
a  waiver  of  the  necessity  of  a  bill  of  lading 
in  the  hands  of  the  broker  as  a  condition 
precedent  to  his  right  to  obtain  possession 
of  the  hay,  and  the  carriers  were  not  liable 
as  for  a  wrongful  conversion  by  delivering 

*  See  pott,  04. 

Delivery  of  goods  without  requiring  presen- 
tation of  bill  of  lading,  see  note,  32  Am.  &  Eng. 
R.  Cas.  508. 


the  hay  to  the  broker.    Mitchell  v.  Chesa- 
peake d»  O.  R.  Co.,  17  ///.  App.  231. 

A  bill  of  lading  contuiniiig  a  provision 
that  the  goods  are  to  be  delivered  on  "  pres- 
entation of  duplicate  thereof,"  establishes 
the  fact  that  the  consignor  is  the  owner  of 
the  goods,  and  if  the  carrier  delivers  the 
goods  to  the  consignee  without  the  presen- 
tation of  any  bill  of  lading  the  carrier  be- 
comes liable  to  the  consignor.  Jeffersonville, 
M.  &*  I.  R.  Co.   v.  Irvin,  46  Ind.  1 80. 

If  such  condition  had  not  been  in  the  bill 
of  lading  the  title  to  the  goods  would  have 
vested  in  the  consignee  on  iheir  delivery  to 
the  carrier,  but  being  there,  the  property 
remained  in  the  consignor  until  the  goods 
were  paid  for  by  the  consignee.  Jefferson- 
ville, M.  &•  I.  R.  Co.  V.  Irvin,  46  Ind.  180. 

In  an  action  against  a  railroad  company 
for  damages  consequent  upon  the  loss  of 
merchandise  consigned  to  plaintiff,  occa- 
sioned by  its  improper  delivery  by  defendant 
to  a  third  person  before  the  production  by 
such  person  of  the  bill  of  lading,  and  before 
the  acceptance  by  him  of  a  draft  attached 
thereto,  the  fact  that  defendant  had  several 
times  previously  delivered  freight,  so  con- 
signed, to  such  third  party  before  the  ac- 
ceptance of  like  drafts,  such  drafts,  however, 
having  always  been  paid,  will  not  justify 
a  finding  that  there  was  a  course  of  dealing 
between  the  parties  which  would  take  the 
case  out  of  the  rule  requiring  that  the  de- 
livery must  be  in  accordance  with  the  bill  of 
lading  and  justify  defendant  in  delivering 
the  goods  before  payment  of  the  draft. 
Pennsylvania  R.  Co.  v.  Stern,  35  Am.  &•  Eng. 
R.  Cas.  551,  119  Pa.  St.  24,  12  Atl.  Rep.  756. 

Plaintiff's  assignees  delivered  to  the  B.  S. 
P.  Co.,  at  Norfolk,  Va.,  100  bags  of  peanuts, 
marked  "V,"  for  shipment  to  Denver,  re- 
ceiving a  bill  of  lading,  in  which,  after 
specifying  the  property,  the  weight,  and 
freight,  was  the  following:  "  Marked  Y,  or- 
der notify  Zucca  Bros."  In  the  course  of 
transportation  the  peanuts  were  delivered 
to  defendant.  It  received  no  bill  of  lading 
or  copy  thereof  from  the  preceding  carrier, 
and  it  was  not  notified  that  any  had  been 
issued.  It  received  a  "  transfer  sheet "  which 
contained  this  entry,  "Consignee  '  Y,'  Hup 
Zucca  Bros,"  The  same  entry  was  made  in 
the  way-bill  made  up  by  defendant's  agenis 
at  the  forwarding  station,  but  under  a  col- 
umn therein  headed  "consignee  and  desti 
nation,"  the  destination  but  no  consignee 
was  given.     Defendant  teceived  no  other 


622 


BILLS   OF   LADLNG,  40-63. 


fh 


-.1 


in    '   i 


h 


u 


I 


it 


notification  as  to  the  ownership  or  disposi- 
tion of  the  goods.  It  delivered  them  at 
Denver  to  Zucca  Bros,  without  the  produc- 
tion or  surrender  of  the  bill  of  lading,  That 
firm  had  no  title  to  or  interest  in  the  goods 
and  had  refused  to  pay  a  draft  drawn  upon 
them  by  the  shippers,  forwarded  for  collec- 
tion, which  was  attached  to  the  bill  of  lading ; 
these  papers  had,  in  consequence,  been  re- 
turned to  liie  shippers.  NM,  that  defend- 
ant, upon  failure  to  deliver  to  plaintiff  on 
demand,  became  liable  for  a  conversion  of 
the  goods ;  that  the  use  of  the  word  "  notify  " 
in  the  bill  of  lading  showed  that  Zucca  Bros, 
were  not  intended  as  the  consignees,  and  as 
none  were  named  no  delivery  could  be  safely 
made  without  production  ot  the  bill.  Ftir- 
man  v.  Union  lac.  R.  Co.,  32  Am.&' Eng R. 
Cits.  500,  106  A'.  V.  579,  13  N.  E.  Rep.  587, 
II  A'^,  V.  5.  R.  192;  reversing  35  Hun  669, 
mem. 

49.  Delivery  where  goods  ure  iu 
excess  of  amount  specified  in  bill.— 
Grain  was  shipped  and  a  bill  of  lading  given 
containing  a  provision  that  the  full  quantity 
mentioned  should  be  delivered,  and  that  if 
a  deficiency  occurred  it  should  be  paid  for 
by  the  carrier,  but  that  any  excess  should 
be  paid  for  to  the  carrier  by  the  consignee. 
Held,  that  in  case  of  an  excess  the  carrier 
was  not  entitled  to  the  excess,  but  that  the 
consignee  was  bound  to  pay  freight  on  it. 
Ford  V.  Head,  34  Hun  (JV.  V.)  146. 

Two  railroad  companies  shipped  on  plain- 
tiff's vessel  a  quantity  of  wheat  consigned 
to  a  bank  in  care  of  defendants.  The  bills 
of  lading  contained  the  following  provision  : 
"  All  deficiency  in  cargo  to  be  paid  for  by 
the  carrier,  and  deducted  from  the  freight 
and  any  excess  in  the  cargo  to  be  paid  for 
to  the  carrier  by  the  consignee."  The 
quantity  described  in  the  bills  of  lading  was 
)  5,338  bushels,  while  the  actual  quantity 
shipped  was  15,838  bushels,  and  the  dis- 
crepancy was  shown  to  have  occurred  by 
the  omission  by  mistake  to  include  500 
bushels.  Plaintiff  claimed  that  he  was  en- 
titled to  the  500  bushels  for  his  own  use. 
He/d,  that  the  provision  in  the  bill  of  lading 
did  not  give  it  to  him,  and  that  no  custom 
or  usage  was  proved  giving  the  provision 
such  meaning,  and  that  defendants,  who  had 
accounted  for  such  excess  to  the  shipper, 
were  therefore  held  not  liable  to  plaintiff. 
Murton  v.  Kingston  &•  M.  Forwarding  Co. , 
32  I/.  C.  C.  P.  366. 

50.  Shipper's   right  to  substitute 


consignee. — The  owner  of  goods  shipped 
may  change  his  purpose  before  the  delivery 
of  the  goods  or  the  bill  of  lading  to  the 
party  named  as  consignee  in  the  bill,  and 
order  the  delivery  to  be  made  to  some  other 
person.    Halsey  v.  Warden,  25  Kan.  128. 

A  debtor  shipped  goods  by  a  carrier  to 
his  creditor  to  sell  and  apply  the  proceeds 
on  his  debt,  and  forwarded  a  bill  of  lading. 
Held,  that  he  could  afterward  change  the 
shipment  to  another  person  without  making 
the  carrier  liable  to  the  first  consignee. 
Chaff e  V.  Mississippi &•  T.  R.  Co.,  9  Am.  &* 
Eng.  R.  Cas.  426,  59  Miss.  182. 

51.  Two  bills  issued  for  one  ship- 
ment.'*'— When  the  bill  of  lading  has  been 
executed  and  issued  in  duplicate,  one  signed 
by  the  shipper  and  the  other  by  the  car- 
rier, the  two  papers  must  be  treated  as  one 
document  and  construed  together  in  de- 
termining the  correct  interpretation  to  be 
put  upon  the  bill.  Richmond  &*  D.  R.  Co.  v. 
Shomo,  90  Ga.  496. 

Where  two  bills  of  lading  are  issued 
and  there  is  a  variance  between  them,  the 
one  given  to  the  shipper  will  control.  On- 
tario Bank  v.  Hanlon,  23  Hun  {N.  Y.)  283. 

52.  How  long  the  bill  remains  in 
force.t — A  bill  of  lading  issued  by  a  steam- 
ship company  in  England,  and  headed 
"  Montreal  Ocean  Steamship  Company, 
Allan  Line,  and  Grand  Trunk  Railway  of 
Canada,"  stated  that  the  goods  were  to  be 
delivered  at  Portland  "  unto  the  Grand 
Trunk  R.  W.  Co.,  and  by  them  to  be  for- 
warded thence  by  railway  to  the  station 
nearest  to  Hamilton,"  etc.  Held,  not  hav- 
ing been  superseded  byany  otherdocument, 
to  be  in  force  up  to  the  time  of  its  indorse- 
ment by  the  consignee  over  to  a  third  party. 
Clementson  v.  Grand  Trunk  R.  Co. ,  42  U. 
C.  Q.  li.  263.  Compare  also  Forbes  v.  Bos- 
ton (S-  L.  R.  Co.,  9  /////.  &*  Eng.  R.  Cas.  76, 
80,  133  Mass.  154.  Merchants'  D.  iS-  T.  Co. 
V.  Merriam,  31  Am.  &*  Eng.  R.  Cas.  78,  in 
Ind.  5,  II  A';  E.  Rep,  954.  Rawson  v. 
Holland,  59  A'.  Y.  611;  affirming  5  Daly 
155,  47  Houi.  Pr.  292. 

5.3.  Through  bills  of  lading.t- 
Where  a  bill  of  lading  specifies  a  rate  for 
freight  to  one  point  and  is  for  the  delivery 
of  the  goods  at  a  point  less  distant,  it  will 
be  taken  to  be  a  through  contract,  which 
will  bind  the  carrier  to  deliver  at  the  more 

•  See  ante,  O. 

fSee/w/,  110. 

iSee  ante,  4,  30;  post,  C5-0S. 


BILLS   OF   LADING,  53. 


688 


distant  point.  Woodward  v.  Illinois  C.  R. 
Co.,  I  Biss.  {U.  S.)  403. 

A  bill  of  lading  held  to  be  a  through  bill 
where  it  contains  among  other  provisions 
one  fur  a  continuous  shipment  between 
points  that  require  it  to  pass  over  different 
lines,  and  that  the  conditions  of  the  con- 
tract should  apply  to  and  govern  the  trans- 
portation over  any  and  all  roads  which 
form  a  part  of  the  route,  and  where  the  last 
carrier  receives  the  whole  of  the  freight 
charges.  Missouri  Pac,  R.  Co.  v.  Ryan,  2 
Tex  App.  (Civ.  Cas.)  378. 

A  bill  of  lading  acknowledging  the  re- 
ceipt of  goods  to  be  carried  to  the  consignee 
at  a  designated  point,  with  the  provision 
that  "  this  receipt  can  be  exchanged  for  a 
through  bill  of  lading,"  renders  the  carrier 
liable  for  the  transportation  of  the  goods  to 
the  place  of  destination,  though  that  be  be- 
yond its  own  line.  Myrick  v.  Michigan  C. 
R.  Co.,  ^  Biss.  {{/.  S.)  44. 

The  question  whether  a  common  carrier 
agrees  to  transport  beyond  its  own  line  is  to 
be  determined  from  the  bill  of  lading,  as  it 
regulates  and  determines  the  duties  and 
obligations  of  both  sliipper  and  carrier. 
Piedmont  Mfg .  Co.  v.  Columbia  &*  G.  R.  Co. , 
16  Am.  &*  Eng.  R.  Cas.  194,  19  So.  Car.  353. 

The  recitals  and  stipulations  of  a  bill  of 
lading  were  as  follows:  "Shipped  in  good 
order  and  condition  by  Jewett,  Hall  &  Co. 

(on  account  and  risk  of  whom 

it  may  concern)  on  board  the  good  steam- 
boat called  the  Virginia  and  Mobile  Trade 

Company,  whereof  is  master 

for  the  present  voyage,  now  lying  at  the 
port  of  St.  Louis,  Mo.,  and  bound  for  Mont- 
gomery, Ala.,  the  following  packages  or 
articles  marked  and  numbered  as  below, 
which  are  to  be  delivered,  without  delay,  in 
like  good  order  and  condition  at  the  afore- 
said port  (the  damages  of  the  river,  fire,  and 
unavoidable  accident  only  excepted),  unto 
Rufus  L.  Logan  or  his  or  their  assigns,  he 
or  they  paying  freight  for  said  goods  at  the 
r.ite  of  30  cents  per  100  lbs.  to  New  Orleans, 
$1.98  per  bbl.  flour  (through),  and  $6.35  per 
cask,  $3. 15  per  tierce  bacon,  and  93  cents  per 
box  crackers,  thence  to  Montgomery.  In 
witness  whereof  the  owner,  master,  or  clerk 
of  said  steamboat  subscribes  to  four  bills 
of  lading,  all  of  this  tenor  and  date,  one 
of  which  being  accomplished,  the  others 
stand  void.  Dated  at  St.  Louis,  Mo.,  this 
2d  day  of  October,  1866."  (Here  follows  a 
description    and    wrsght    of    the    goods.) 


"  Privilege  of  re-shipping  at  New  Orleans 
and  Mobile."  (Signed)  "Jewett,  Hall  & 
Co.,  Agt's  M.  T.  Co."  "It  is  understood 
and  agreed  that  the  above  goods  are  to 
be  sent  through  at  above  rates,  if  any 
boats  are  going  through  to  Wetumpka." 
(Signed)  "  Jewett,  Hall  &  Co.,  Agt's,  Mo- 
bile Trade  Co."  Held,  that  it  imposed  an 
obligation  on  the  party  making  it  to  send 
the  goods  therein  named  "  through  to 
Wetumpka,"  either  from  Mobile  or  Mont- 
gomery, "  if  any  boats  are  going  through  to 
Wetumpka,"  when  the  goods  are  delivered 
either  at  Mobile  or  Montgomery.  Logan  v. 
Mobile  Trade  Co.,  46  Ala.  514. 

According  to  Central  R.  Co.  v.  Dwight 
Manuf'g  Co.,  75  Ga.  609,  and  Falvey  v. 
Georgia  Railroad  Co.,  76  Ga.  597,  the  valid 
contracts  embraced  in  the  bills  of  lading 
involved  in  the  present  case  were  through 
contracts  for  shipment  from  Griihn,  Ga.,  to 
New  York  and  Philadelphia,  and  the  com- 
pany with  whom  they  were  made  was  re- 
sponsible for  performance  both  to  and  be- 
yond the  terminus  of  its  own  road.  The 
first  of  these  authorities  cuts  off  the  com- 
pany from  availing  itself  of  any  limitations 
or  restrictions  of  its  general  liability  ex- 
pressed in  the  bills  of  lading,  the  shipper 
not  having  expressly  assented  thereto,  and 
there  being  no  evidence  to  prove  his  assent, 
save  the  mere  acceptance  by  him  of  the  bills 
of  hiding.  Central  R.  &•  B.  Co.  v.  Hassel- 
kus,  {Ga.)  55  Am.  &•  Eng.  R.  Cas.  586,  17 
5.  £.  Rep.  838. 

A  bill  of  lading  for  transportation  of 
goods  from  Hillsboro,  Texas,  to  Galveston, 
in  the  same  state,  and  for  the  delivery  at 
the  latter  place  to  the  consignee  or  a  con- 
necting carrier,  is  not  a  contract  for  carriage 
beyond  that  place,  notwithstanding  it  guar- 
antees a  through  rate  to  a  town  in  another 
state,  named  as  the  ultimate  point  of  desti- 
nation. Bennitt  v.  Missouri  Pac.  R.  Co.,  46 
J/o. ..4/1/. 656.— Reviewing Coatesz/.  United 
States  Exp.  Co.,  45  Mo.  238,  241  ;  Snider  v. 
Adams  Exp.  Co.,  63  Mo.  376.— Quoting 
Wheeler  t>.  St.  Louis  &  S.  E.  R.  Co.,  3  Mo. 

App.  359- 

A  bill  of  lading  is  a  through  contract  of 
carriage  where,  containing  no  limitation  of 
liability  to  the  initial  carrier's  line  only,  it 
in  effect  provides  for  the  shipment  of  goods 
by  the  "  C.  Line  of  Propellers,"  to  be  deliv- 
ered "  a»  addressed  on  the  margin,  or  to  his 
or  their  consignees,  upon  paying  freight  and 
charges,  etc.,"  and  on  the  margin  are  these 


624 


BILLS  OF   LADING.  S4-50. 


m 


r'V ' 


t 


if 

(5 


words,  '"G.  F.  W.,  Providence,  .  .  .  Care 
A.  T.  Co.,  Buffalo.  .  .  .  Rate  to  Provi- 
dence per  loo  lbs.,  45  cents,  ...  to  be 
landed  at  Jndia  Wharf,"  and  isduly  sig.?ed 
by  the  agent  of  the  initial  line.  IVa/t/  v. 
Ho//,  26  ^Vts.  703.— Following  Peet  v. 
Chicago*  N.  W.  R.  Co.,  19  Wis.  118.— Dis- 
tinguished IN  Tolman  v.  Abbot,  78  Wis. 
192. 

Evidence  is  sufficient  to  show  a  through 
contract  where  the  bill  of  lading  stipulates 
that  in  case  of  loss  or  injury  to  the  mer- 
chandise named  therein,  for  which  any  car- 
rier under  the  same  might  be  liable,  such 
carrier  might  have  the  benefit  of  any  insur- 
ance taken  out  by  or  for  tiie  benefit  of  the 
owner.     lVah/\.  Ho//,  26  IVt's.  703. 

54.  Guaranteed  bills  of  lading.*— 
Where  a  carrier  in  a  bill  of  lading  guaran- 
tees a  certain  rate  over  connecting  lines, 
it  is  liable  to  refund  the  excess  if  its 
charges  exceed  those  guaranteed.  Li///e 
Rock  &*  F/.  S.  A\  Co.  v.  Danie/s,  49  Ar/c. 
352,  32  Am.  &•  Eng.  R.  Cas.  479,  5  5.  11^. 
Rep.  584.  Compare  also  Fry  v.  Louisv:7/e, 
N.  A.  &•  C.  R.  Co.,  22  Am.  <S-  Eng.  R.  Cas. 
442,  103  Ind.  265,  2  A'^,  E.  Rep.  744. 

The  guarantee  by  an  association  of  com- 
panies of  its  bills  of  lading  simply  meant 
that  each  company  of  the  association  stip- 
ulated that  it  would  be  bound  by  a  bill  of 
lading  issued  by  any  one  of  them  for  freight 
to  be  transported  over  each  and  all  of  the 
roads  constituting  the  line,  in  the  same 
manner  as  if  the  transportation  was  only 
over  its  own  road.  Ba//imore  &*  O.  R.  Co. 
V.  Wi/kens,^Md.  11.— Quoted  in  Erb  7/. 
Great  Western  R.  Co.,  3  Ont.  App.  466. 

Where  several  railroad  companies  form  an 
association  for  the  through  transportation 
of  freight,  by  the  guarantee  of  a  bill  of 
lading  by  such  association,  the  shipper,  be- 
sides other  benefits  and  conveniences,  de- 
rives the  advantage  of  the  responsibility  of 
each  and  all  the  associated  companies  for 
loss  or  damage  to  goods  occurring  on  any 
part  of  the  entire  line,  and  the  further  ad- 
vantage of  suing  the  company  nearest  his 
home  for  such  loss.  Ba//imore  &*  O.  R.  Co. 
V.  IVt'/Jbetis,  44  Ml/.  1 1 . 

A  carrier  issued  a  through  bill  of  lading 
limiting  its  liability  to  the  safe  carriage  of 
the  goods  over  its  own  road,  and  delivery  to 
the  next  connecting  carrier,  with  the  guar- 
antee of  a  through  rate,  as  stipulated  in  the 


Ste  post,  80. 


bill.  The  next  connecting  carrier  refused 
to  accept  the  goods  at  the  stipulated  rate. 
He/d,  that  the  initial  carrier,  as  guarantor, 
was  entitled  to  notice  of  such  refusal,  and 
that,  in  the  absence  of  such  notice,  it  was 
liable  in  damages  only  for  the  difference  be- 
tween the  rate  agreed  and  the  rate  demanded 
by  the  connecting  carrier.  Tardos  v.  C/ii- 
eago.S/.  L.  &*  N.  O.  R.  Co.,  35  La.  Ann.  15. 

55.  Domestic  and  interstate  bills 
of  lading. — Where  a  railroad  company  in 
Texas  receives  cotton  to  be  carried  beyond 
the  state  line,  it  is  not  a  domestic  shipment 
because  the  bill  of  lading  contains  a  clause 
limiting  the  company's  liability  to  a  certain 
point  within  the  state,  but  the  bill  of  lading 
is  interstate.  Missouri  Pac.  R.  Co.  v.  Sher- 
wood, 55  Am.  &*  Eng.  R.  Cas.  478,  84  Tex. 
125,  195.  IV.  /?<•/.  455- 

Where  the  bill  of  lading  described  in  the 
petition  provided  for  a  transportation  of 
cotton  from  a  point  in  Texas  to  New  Orleans, 
by  way  of  connecting  lines,  thence  to  Liver- 
pool, at  an  agreed  rate  of  freight  for  the 
whole  distance,  a  stipulation  that  the  lia- 
bility of  the  company  was  limited  to  its  own 
line  of  railway  did  not  so  affect  the  char- 
acter of  the  instrument  as  to  make  it  a 
domestic  bill  of  lading,  and  make  the  com- 
pany liable  under  the  statute  regulating  ship- 
ments within  the  state.  Missouri  Pac.  R. 
Co.  v.  Sherwood,  55  Am.  SfEng.  R.  Cas.  478, 
8^  Tex.  125,  19  S.  IV.  Rp.  455. 

4.   The  Bi/l  Considered  as  a  Muniment 
of  Ti//e.* 

56.  The  bill  a  symbol  of  the  prop- 
erty therein  described.f— A  bill  of  lad- 
ing, by  commercial  law,  is  regarded  as  a 
symbol  of  the  property  therein  described. 
Dodge  v.  Meyer,  61  Cal.  405.  Pennsy/vania 
R.  Co.  V.  S/ern.  35  Am.  &•  Eng.  R.  Cas.  551, 
15  9  •^«-  •S'/.  24,  12  A//.  Rep.  756.  Missouri 
Pac.  R.  Co.  V.  McLiney,  32  Mo.  App.  166. 
Dickson  v.  Merchan/s'  E/eva/or  Co.,  44  Mo. 
App.  498.  Evansvi/le  &*  T.  H.  R.  Co.  v. 
Erwin,  9  Am.  &*  Eng.  R.  Cas.  252,  S^/nd. 
457.  Missouri  Pac.  R.  Co.  v.  Heideuheimer, 
82  Tex.  195,  17  5.  W.  Rep.  608. 

Bills  of  lading  stand  in  the  place  of  the 
goods  they  represent.  Ba/timore  &*  O.  R. 
Co.  V.  Wi/kens,  44  Md.  1 1 .  Missouri  Pac. 
R.  Co.  V.  Heidenheimer,  82  Tex.  195,  17  S. 
W.  Rep.  608.     Dodge  v.  Meyer,  61  Ca/.  405. 

*Seealso,  generally, /m/,  108-128. 
\  Bill  of  lading  is  a  symbol  of  property,  see 
note,  23  Am.  &  Enu.  R.  Cas.  702. 


BILLS  OF    LADING,  57-02. 


G25 


57.  Eft'ect  (18  evidence  of  delivery 
to  holder.*— A  bill  of  lading  is  not  con- 
clusive proof  of  the  change  of  the  property, 
like  a  bill  of  sale;  it  is  a  question  of  evi- 
dence whether  such  an  operation  should  be 
given  to  it.  Kyle  v.  Buffalo  &*  L.  H.  R.  Co., 
i6  U.  C.  C.  P.,  76. 

The  presentation  of  a  draft  drawn  by  the 
seller  of  goods  upon  the  purchaser,  with  a 
bill  of  lading  attached,  is  sufficient  to  show 
that  the  goods  are  in  the  hands  of  the  car- 
rier, and  amounts  to  delivery  to  the  pur- 
chaser. Illinois  C.  R.  Co.  v.  Miller,  32  ///. 
App.  259. 

58.  Effect  to  pass  title  by  mere  de- 
livery.!—The  delivery  of  a  bill  of  lading 
by  one  having  an  interest  in  or  a  right  to 
control  the  property  is  equivalent  to  a  de- 
livery of  the  property  itself.  A  consignor 
who  has  reserved  the  jus  disponcndi  may 
effectuate  a  sale  or  pledge  of  the  property 
consigned,  by  delivery  of  the  bill  of  lading 
to  the  purchaser  or  pledgee,  as  completely 
as  if  the  property  were  in  fact  delivered. 
Dodge  v.  Meyer,  61  Cal.  405. 

The  delivery  of  an  unindorsed  bill  of  lad- 
ing to  the  acceptor  of  a  draft  is  sufficient  to 
transfer  the  title  to  the  property  covered 
thereby.'  In  such  case  the  carrier  is  not 
liable  to  the  shipper  for  the  value  of  the 
goods  should  the  acceptor  fail  to  pay  the 
draft.  Jordan  v.  Pennsylvania  Co.,  {Ind.)  18 
Am.  &*  Eng.  R.  Cas.  647. 

50.  Effect  to  pass  title  to  con- 
signee.— A  bill  of  lading  raises  a  presump- 
tion that  the  title  in  the  property  repre- 
sented by  it  is  in  the  consignee,  but  this 
presumption  may  be  rebutted  by  outside  or 
parol  evidence.  Hooper  v.  Chicago  &*  N.  W. 
R.  Co.,  rj  Wis.  81,  5  Am.  Ry.  Rep.  302. 

The  shipper,  when  he  actually  owns  the 
goods,  does  not  lose  title  thereto  by  insert- 
ing the  name  of  the  consignee  in  the  bill  of 
lading  when  he  ships  the  property,  but  the 
title  remains  in  him  unaffected,  and  the 
consignee  becomes  the  agent,  factor,  or 
commission  merchant  of  the  shipper. 
Michigan  C.  R.  Co.  v.  Phillips,  60  ///.  190. 

60.  Effect  to  pass  title  to  indorsee.} 
— The  indorsement  of  a  bill  of  lading  by  the 

*  Set  fast,  112-113. 

Effect  of  bill  of  lading  as  evidence  of  title  and 
parol  evidence,  see  note.  38  Am.  Dec  417. 

Bill  of  lading  as  evidence  of  ownership  of 
property.  Delivery  without  presenting.  Custom. 
See  3S  Am.  &  Eng.  R.  Cas.  554,  aistr. 

4  See  fiost,  113. 

X  See  post,  112. 

I  D.  R.  D.— 4a 


owner  of  the  goods  passes  the  property  in 
the  goods  to  the  indorsee.  Union  R.  &*  T. 
Co.  V.  Yeagir,  34  Ind.  i. 

When  property  is  in  the  hands  of  the  car- 
rier the  bill  of  lading  shows  to  whom,  he  is 
to  deliver  it.  The  delivery  of  the  bill  of 
lading,  properly  indorsed,  is  tantamount  to 
the  actual  delivery  of  the  goods  described  in 
it.  Illinois  C.  R.  Co.  v.  Southern  Bank,  41 
///.  App.  287. 

Bills  of  lading,  when  properly  indorsed, 
operate  as  a  delivery  of  the  property  itself, 
investing  the  indorsees  with  a  constructive 
custody  which  serves  all  the  purposes  of 
actual  possession,  and  so  continues  until 
there  is  a  valid  and  complete  delivery  of  the 
property,  under  and  in  pursuance  of  the  bill 
of  lading,  to  the  person  entitled  to  receive 
the  same.  Pennsylvania  R.  Co.  v.  Stern,  35 
Am.  (S-  Eng.  R.  Cas.  551,  119  Pa.  St.  24,  12 
Atl.  Rep.  756.  Heiskell  v.  Farmers  &*  M. 
Nat.  Bank,  89  Pa.  St.  155. 

61.  Delivery  of  bill  upon  accept- 
ance of  draft  thereto  attached.— 
Where  a  bill  of  lading,  making  goods  de- 
liverable to  the  order  of  the  shipper,  is  sent 
to  a  bank  with  a  draft  attached  marked 
"  for  acceptance  and  collection,"  without 
other  instructions,  it  is  rightly  delivered  to 
the  purchaser  upon  acceptance  of  the  draft, 
without  waiting  for  payment.  St.  Paul  R. 
M.  Co.  V.  Great  Western  Despatch  Co.,  27 
Fed.  Rep.  434.— Following  Brooklyn  City 
&  N.  R.  Co.  V.  National  Bank,  102  0.  S.  14. 

And  such  a  delivery  is  sufficient  to  trans- 
fer the  title  to  the  property  covered  by  the 
bill,  and  the  carrier's  liability  is  not  affected 
by  the  failure  of  the  acceptor  to  pay  the 
draft.  Jordan  v.  Pensylvania  Co.,  {Ind.)  18 
Am.  &»  En^.  R.  Cas.  647. 

n.  CONDITIONS,  LWITATIONS,  EXCEPTIONS, 

Etc. 

I.  In  General. 

62.  Limiting  liability  for  negli- 
gence.*—It  is  well  settled  that  common 
carriers  cannot  stipulate  in  a  bill  of  lading 
for  exemption  from  responsibility  for  losses 
occasioned  by  the  negligence  of  themselves 
or  their  servants.  Willis  v.  Grand  Trunk 
R.  Co.,  62  Me.  488.— FoLLGWiNC.  Sager  v. 
Portsmouth,  S.  &  P.  &  E.  R.  Co.,  31  Me. 
22i;  New  York  C.  R.  Co.  v.  Lockwood,  17 

*  New  York  law  as  to  clauses  in  bills  of  lading 
exempting  carrier  from  liability  for  loss  occur- 
ring through  negligence,  see  note,  21  Am.  & 
Eng.  R.  Cas.  1 50. 


m'\ 


626 


BILLS  OF   LADING,  03, 64. 


■  In    ; 


Wall.  (U.  S.)  357.— Approved  in  Runt  v. 
Herring,  si  N.  Y.  Supp.  2^.—Southern'Exp. 
Co.  V.  Seide,  42  Am.  &-  Eng.  R.  Cas.  398,  67 
Aftss.  609.  7  S<^-  R'P-  547- 

In  New  York  a  carrier  may,  by  proper 
stipulations  in  a  bill  of  lading,  limit  its  lia- 
bility for  the  negligence  or  wilful  and 
criminal  conduct  of  its  servants,  agents,  and 
officers,  other  than  the  directors  of  the 
corporation  itself.  Knell  v.  United  States  &* 
B.  Steamship  Co.,  \J.&*S.  {N.  Y.)  423. 

The  terms  of  a  bill  of  lading  will  not  be 
construed  to  exempt  a  carrier  from  liability 
for  negligence  unless  there  be  an  express 
stipulation  to  that  effect.  Mc Kinney  v,  Jew- 
ett,  9  Am.  &•  Eng.  R.  Cas.  209, 90  N.  V.  267 ; 
affirming  24  Hun  19. 

The  mere  occurrence  of  general  words  in 
a  printed  bill  of  lading  or  receipt  will  not 
operate  as  a  special  contract  limiting  a  car- 
rier's liability  for  the  negligence  or  wilful 
and  criminal  acts  of  its  servants.  Knell  w. 
United  States  &•  B.  Steamship  Co.,  i/.&'S. 

(N.  V.)  423. 

63.  Limiting  liability  for  gross  neg- 
ligence.— A  railroad  cannot  contract 
against  the  gross  negligence  of  its  servants, 
nor  limit  its  liability  in  this  regard  in  a  bill 
of  lading  or  shippers'  receipt.  Illinois  C.  R. 
Co.  V.  Adams,  42  ///.  474.— Following  Illi- 
nois C.  R.  Co.  V.  Morrison,  19  111.  139. 

Where  a  bill  of  lading  provided  that  the 
carrier  should  only  be  liable  for  loss  in 
transit  from  gross  negligence,  in  an  action  for 
loss  it  was  error  to  instruct  the  jury  that 
"  negligence  would  be  the  omission  of  such 
reasonable  and  ordinary  care  and  precaution 
as  would  have  averted  the  loss."  Adams 
Exp.  Co.  V.  Sharpiess,  77  Pa.  St.  516. 

64.  Limiting  common-law  liabil- 
ity.*— (i)  Generally. — At  common  law  a  car- 
rier can  limit  its  liability  by  contract.  Dymock 
V.  Missouri,  K.  &*  T.  R.  Co.,  i\Mo.  App.  400. 

Carriers  may  obviate  the  rigor  of  the  law 
applicable  to  them  by  inserting  the  proper 
exceptions  in  the  bill  of  lading.  Gilmore  v. 
Carman,  9  Miss.  279. 

A  stipulation  in  a  bill  of  lading  to  the  ef- 
fect that  the  carrier  shall  not  be  responsible 
for  loss  or  injury  to  goods  from  any  peril 
or  accident  not  resulting  from  its  negligence 
or  the  negligence  of  its  servants  is  valid. 
Camp  v.  Hartford  6-  N.  Y.  S.  Co.,  43  Conn. 
333- 

*  Right  of  carrier  to  limit  common-law  liabil- 
i'.y.  Effect  of  particular  stipulations  in  bill  of 
la-iing,  see  note,  38  Am.  Dec  424. 


Where  a  written  contract  is  entered  into 
and  signed  by  both  the  shipper  and  the  car- 
rier, it  is  competent  for  the  latter  to  limit  its 
liability  so  far  as  consistent  with  public 
policy ;  and  the  shipper  is  bound  by  the  con- 
tract whether  he  knew  of  its  terms  or  not, 
except  so  far  as  it  was  entered  into  through 
fraud  or  misapprehension.  Coles  v.  Louis- 
ville,  E.  6-  St.  L.  R.  Co.,  41  ///.  App.  607. 

By  the  common  law  a  carrier  is  an  in- 
surer of  the  goods  intrusted  to  him,  except 
so  far  as  they  are  damaged  by  the  act  of  God 
or  the  public  enemy.  By  a  contract  limiting 
his  liability  he  is  an  insurer  by  agreement 
and  according  to  its  terms.  If  there  is  a 
loss,  the  agreement  furnishes  the  extent  of 
liability  and  is  confined  to  that,  unless  the 
owner  can  show  that  the  loss  occurred  from 
the  wilfulness  or  negligence  of  the  carrier. 
Farnham  v.  Camden  &*  A.  R.  Co.,  55  Pa. 
St.  53. 

Bills  of  lading  exempting  a  carrier  from 
his  common-law  liability,  even  when  valid, 
are  not  favored,  and  should  be  strictly  con- 
strued. Cases  not  in  terms  included  by  the 
exemption  should  be  excluded  from  its  oper- 
ation. Deming  v.  Merchants'  C.  P.  &*  S. 
Co.,  90  Tenn.  306,  175.  IV.  Rep.  89. 

Slight  evidence  should  be  sufficient  to  set 
aside  a  provision  in  a  bill  of  lading  which 
is  designed  to  relieve  the  carrier  from  the 
ordinary  legal  responsibility.  Chouteaux  v. 
Leech,  18  Pa.  St.  224. 

Where  the  bill  of  lading  excepted  only 
certain  dangers,  gross  negligence  or  miscon- 
duct was  not  necessary  to  the  carrier's  liabil- 
ity, though  the  goods  were  to  be  carried  free 
of  charge.  McCauley  v.  Davidson,  13  Minn. 
162  (Gil.  150). 

Although  in  an  action  against  a  carrier 
for  damages  to  goods  it  is  shown  that  the 
carrier  issued  to  the  shipper  a  bill  of  lading 
embodying  a  limitation  of  his  common-law 
liability,  that  does  not  authorize  the  court 
to  take  the  case  from  the  jury.  Heilv.  St. 
Louis,  L  M.  <S-  S.  R.   Co.,  16  Mo.  App. 

363. 

A  clause  in  a  bill  of  lading  providingthat 
the  "carrier  shall  not  be  liable  for  loss  or 
damage  by  causes  beyond  its  reasonable 
control,  by  riots,  or  any  other  reason  not 
directly  traceable  to  the  negligence  of  the 
carrier's  servants,"  will  not  relieve  the  car- 
rier from  liability  for  the  loss  of  goods 
stolen  in  open  daylight  in  the  presence 
of  the  carrier's  employes,  who  make  no 
offer  to  resist  the  thieves  and  protect  the 


BILLS  OF   LADING,  65. 


627 


■J: 


public 


goods.    Lang  v.  Pennsylvania  K.  Co.,  1 54  Pa. 
St.  342,  26  All.  Rep.  370. 

A  bill  of  lading  provided  that  the  carrier 
should  not  be  liable  for  injury  or  loss  from 
certain  specified  causes,  "  however  these  or 
any  of  them  may  be  brought  about,  whether 
any  of  the  perils,  causes,  or  things  above 
mentioned,  or  the  loss  or  injury  arising 
therefrom,  or  from  any  other  specified  cause, 
be  occasioned  by  or  from  any  act  of  omis« 
soin,  negligence,  default,  or  error  in  judg- 
ment of  the  pilot,  master,  mariners,  engi- 
neers, stevedores,  or  other  persons  in  the 
service  of  the  ship's  owner " — keld,  that 
under  this  provision  the  carrier  was  not 
liable  for  damage  to  the  goods  caused  by 
improperly  stowing  oil  too  near  them. 
Rubens  v.  Ludgate  Hill  Steamship.  Co.,  20 
A'.  Y.  Supp.\i\. 

(2)  Must  be  by  express  contract.— \  gen- 
eral stipulation  or  notice  in  a  bill  of  lading 
will  not  limit  the  liability  of  a  carrier.  An 
express  contract  is  necessary  for  that  pur- 
pose, but  an  express  contract  will  not  pro- 
tect a  common  carrier  from  the  results  of  its 
own  negligence.  Georgia  K.  Co.  v.  Gann, 
68  Ga.  350. 

A  bill  of  lading  containing  provisions 
limiting  the  extraordinary  liability  of  the 
carrier,  and  accepted  by  the  shipper,  with 
knowledge  of  its  contents,  or  under  such 
circumstances  that  a  reasonably  prudent 
person  would  have  had  knowledge,  will  be 
deemed  a  special  contract  and  binding. 
Alabama  G.  S.  R.  Co.  v.  Little,  i  z  Am.  6- 
Eng.  R.  Cas.  37,  71  Ala.  611. 

(3)  Shipper's  right  of  choice  between  bills 
of  lading.— Pi.  provision  in  a  bill  of  lading 
limiting  the  carrier's  liability  is  void  where 
the  carrier  gives  the  shipper  no  opportunity 
to  ship  under  the  common-law  liability  of 
carriers;  and  this  is  so  where  the  shipper 
enters  into  the  contract  knowingly  and 
without  demanding  different  terms.  Little 
Rock  (S-  Ft.  S.  R.  Co.  V.  Cravens.  {Ark.)  20 
S.  W.  Rep.  803.— Approving  Louisville  & 
N.  R.  Co.  V.  Gilbert.  88  Tenn.  430,  12  S.  W. 
Rep.  ioi8.  Quoting  New  York  C.  R.  Co. 
7'.  Lockwood,  17  Wall.  (U.  S.)  379;  Michigan 
C.  R.  Co.  V.  Hale,  6  Mich.  258;  Little  Rock 
&  Ft.  S.  R.  Co.  V.  Eubanks,  48  Ark.  460,  3 
S.  W.  Rep.  808. 

Where  shippers  are  not  given  the  choice 
between  bills  of  lading,  both  with  and  with- 
out provisions  limiting  the  carrier's  liability, 
mere  acceptance  of  a  bill  of  lading  limiting 
the  carrier's  liability  is  not  enough  to  show 


the  reasonableness  of  the  limitations  and  to 
make  them  valid.  Louisville  &*  A'.  R.  Co. 
v.  Gilbert,  42  Am.  &*  Eng.  R.  Cas.  372,  88 
7V««.  430,  12  5.  W.Rep.  1018,  7  L.  R.  A. 
162. 

(l)  Invalid  limitations. — It  is  questioned 
whether,  even  in  the  absence  of  a  prohibit- 
ive statute,  an  agreement  in  a  bill  of  lading 
exempting  the  carrier  from  his  liability  at 
common  law  is  binding,  unless  it  is  sup- 
ported by  a  special  consideration,  licnnitt 
V.  Missouri  Pac.  R.  Co.,  46  Mo.  App.  656. 

A  bill  of  lading  providing  that  the  corpo- 
ration should  not  be  held  liable  for  wrong 
carriage  or  wrong  delivery  of  goods  that 
were  marked  with  initials,  numbered,  or 
imperfectly  marked,  docs  not  cover  a  failure 
to  duly  forward  goods  only  marked  with  an 
initial.  McGowan  v.  Wilmington  <S-  W.  R. 
Co.,  27  Am.  &*  Eng.  R.  Cas.  64,  95  A'.  Car. 
417. 

The  courts  will  not  enforce  a  provision  in 
a  bill  of  lading  for  an  interstate  shipment 
of  live  stock  which  contains  a  provision  re- 
leasing the  company  from  any  damages  that 
the  shipper  may  have  already  sustained  by 
reason  of  the  company  having  failed  to  fur- 
nish cars  as  it  agreed.  Cross  v.  Graves,  4 
Te.v.  App.  {Civ.  Cas.)  149,  16  S.  JV.  Rep.  102. 

Under  Texas  Rev.  St.  art.  278,  providing 
that  common  carriers  within  the  state  shall 
not  limit  or  restrict  their  liability,  as  it 
exists  at  common  law,  by  any  general  or 
special  notice,  or  by  inserting  exceptions  in 
a  bill  of  lading  or  memorandum  given  upon 
the  receipt  of  goods  for  transportation, 
or  in  any  other  manner  whatever,  a  com- 
mon carrier  cannot  relieve  itself  from  lia- 
bility as  to  shipments  within  the  state  by 
any  provision  in  the  bill  of  lading.  Houston 
6-  T.  C.  R.  Co.  V.  Ihirkc,  9  Am.  Cf  Eng.  R. 
Cas.  59,  55  Tex.  323,  40  Am.  Rep.  808. 

65.  Liniitint^Htatiitory  liability  Tor 
connecting  carrier's  iiegligrcnce.*— 
The  statutory  liability  ofa  carrier  for  damages 
to  goods  by  the  negligence  of  connecting 
carriers  cannot  be  evaded  by  issuing  a  bill 
of  lading  expressing  an  exemption  from  such 
liability.  Heil  v.  St.  Louis,  L  M.  6-  S.  R. 
Co.,  16  Mo.  App.  363.— Followed  in  Wit- 
ting V.  St.  Louis  &  S.  F.  R.  Co.,  28  Mo. 
App.  103;  Watkins  v.  St.  Louis,  I.  M.  &  S. 
R.  Co.,  44  Mo.  App.  245.  Limited  in  Drew 
Glass  Co.  V.  Ohio  &  M.  R.Co.,  44  Mo.  App. 
416.    Overruled  in  Hill  v.  Missouri  Pac 

•  See  ante,  4,  .36,  54  ;    /ox^  89. 


G28 


BILLS   OF   LADING,  00. 


nt'< 


:    '       ''' 


R.  Co.,  46  Mo.  App.  517.  Reviewed  in 
Orr  V.  Chicago  &  A.  R.  Co.,  21   Mo.  App. 

333- 

06.  LiiiiitiuK  liablltty  to  one  only 
of   Meverul    couuectiuv    carrlerH.— 

(I)  Generally. — Where  a  bill  of  lading  is 
given  for  a  through  transportation  of  goods, 
a  provision  in  it  to  the  effect  that  the  com- 
pany alone  shall  be  liable  in  whose  custody 
the  property  is  at  the  time  of  loss  or  injury, 
is  binding,  and  an  intermediate  carrier  is 
not  liable  after  the  goods  have  been  deliv- 
ered by  it  in  good  condition  to  the  next 
connecting  line.  Ricketis  v.  Baltimore  <S- 
O.  R.  Co.,  4  Lans.  {N.  V.)  446;  affirmed  in 
59  N.  V.  637,  mem.  Schiff  v.  New  York  C. 
A-  H.  R.  R.  Co.,  52  Htm.  Pr.  (iV.  K)  91. 
— Following  Rickeits  v.  Baltimore  &  O. 
R.  Co..  59  N.  Y.  637. 

Under  the  law  in  force  in  Texas,  a  clause 
in  the  bill  of  lading  limiting  the  lia- 
bility of  each  carrier  to  damage  done  to  the 
goods  while  in  transit  on  its  own  line  is 
invalid.  Even  assuming  the  validity  of 
such  a  clause,  the  defendant,  to  escape  lia- 
bility, must  prove  that  the  damage  to  the 
goods  was  not  done  while  they  were  in 
transit  on  its  line.  Gulf,  C.  &»  S.  F.  R.  Co. 
v.  Golding,  {Tex.)  23  Atn.  &*  Eng.  R.  Cas. 

732- 

But  where  goods  are  shipped  from  another 
state  to  be  delivered  at  a  point  in  Texas,  a 
provision  in  the  bill  of  lading  limiting  the 
liability  of  each  carrier  to  loss  or  damage 
on  its  own  line  is  valid ;  and  while  it  is  a 
presumption  of  law  that  the  injury  or  loss 
was  occasioned  by  the  delivering  carrier,  this 
presumption  may  be  rebutted.  Texas  &*  P. 
R.  Co.  V.  Adams,  78  Tex.  372,  14  S.  W.  Rep. 
666.— Distinguished  in  International  & 
G.  N.  R.  Co.  V.  Wolf,  3  Tex.  Civ.  .App.  383. 
Followed  in  McCarn  v.  International  &. 
G.  N.  R.  Co.,  84  Tex.  352 ;  International  & 
G.  N.  R.  Co.  V.  Thornton,  3  Tex.  Civ.  App. 
197;  International  &  G.  N.  R.  Co.  v.  Foltz, 
3  Tex.  Civ.  App.  644.  Quoted  in  Missouri 
Pac.  R.  Co.  V.  Childers,  i  Tex.  Civ.  App. 
302. 

A  provision  in  a  bill  of  lading  for  the 
through  carriage  of  freight,  that  each  car- 
rier will  be  liable  only  for  injuries  to  or  loss 
of  the  freight  while  on  its  own  line  is  not 
binding,  each  carrier  being  held  liable  for  its 
own  negligence  and  that  of  the  connecting 
lines.  Gulf,  C.  6-  S.  F.  R.  Co.  v.  Golding,  3 
Tex.  App.    (Civ.  Cas.)  60.  — Approving 


Bank  of  Ky.  v.  Adams  Exp.  Co.,  93  U.  S. 
174;  Cincinnati,  H.  &  D.  R.  Co.  v,  Pontius, 
19  Ohio  St.  221 ;  Condict  v.  Grand  Trunk 
R.  Co.,  54  N.  Y.  500.  Criticising  Houston 
&  T.  C.  R.  Co.  V.  Park,  i  Tex.  App.  (Civ. 
Cas.)  142. 

Even  if  it  be  conceded  that  a  provision 
in  a  through  bill  of  lading,  to  the  ctTect 
that  each  currier  shall  only  be  liable  for 
damages  while  the  goods  are  in  its  hands,  is 
binding,  still  when  one  of  the  carriers  is 
sued  for  a  loss  the  law  presumed  that  a  de- 
livery to  the  first  carrier  was  a  delivery  to 
all  the  carriers  over  whose  lines  it  should 
pass,  and  proof  of  loss  en  r<>///^  establishes 
prima  facie  the  liability  of  the  carrier  sued  ; 
and  to  avoid  liability  the  burden  is  upon  it 
to  prove  such  facts  as  would  constitute  a 
valid  defense.  Gulf,  C.  &>  S.  F.  R.  Co.  v. 
Golding.  3  Tex.  App.  {Civ.  Cas.)  60. 

(2)  Illustrations.— Pl  stipulation  in  a  bill 
of  lading  given  by  one  of  an  associated 
through  line  of  common  carriers  to  trans- 
port goods  beyond  its  own  line,  to  the  effect 
that  if  damage  to  the  goods  be  sustained 
by  the  shipper  that  company  alone  in  whose 
custody  the  goods  were  at  the  time  of  the 
loss  shall  be  answerable,  is  a  reasonable  one 
and  consistent  with  public  policy ;  and  the 
shipper  who  accepts  it  is  bound  b^  its  terms 
and  conditions,  whether  he  reads  it  or  not. 
Phifer  v.  Carolina  C.  R.  Co.,  89  N.  Car.  311, 
45  Am.  Rep.  687.— Quoting  York  Mfg.  Co. 
V.  Illinois  C.  R.  R.  Co.,  3  Wall.  (U.  S.)  113; 
Michigan  C.  R.  .Co.  v.  Mineral  Springs 
Mfg.  Co.,  16  Wall.  (U.  S.)  328.  Reviewing 
Myrick  v.  Michigan  C.  R.  Co.,  107  U.  S. 
102. — Distinguished  in  Knott  z/.  Raleigh 
&  G.  R.  Co.,  98  N.  Car.  73.— Followed  in 
Weinberg  v.  Albemarle  &  R.  R.  Co.,  18  Am. 
&  Eng.  R.  Cas.  597,  91  N.  Car.  31. 

Where  goods  were  received  by  what  is 
called  a  dispatch  company,  to  be  transported 
to  a  place  which  necessarily  requires  them 
to  pass  over  several  lines,  and  a  bill  of 
lading  is  given  which  does  not  disclose  the 
names  of  the  several  companies  forming  the 
dispatch  company,  but  does  contain  a  pro- 
vision that  "  the  company  shall  alone  be 
held  answerable  therefor  in  whose  actual 
custody  the  same  may  be  at  the  time  "  of 
loss  or  damage,  the  owner  need  not  sue  the 
road  on  which  the  loss  actually  occurs,  but 
may  sue  the  dispatch  company.  Plock  v. 
Fitchburg  R.  Co.,  21  Am.  &*  Eng.  R.  Cas.  i, 
139  Mass.  308,  I  A'.  E.  Rep.  348. 


BILLS   OF   LADING,  «7-«U. 


029 


U.S. 

ntlua, 
'runic 
uston 
(Civ. 


07.  Liiiiitiiiff  liability  to  Iohs  oi>- 
ciirrlutf  oil  initial   carrier's  line.— 

A  provision  in  a  bill  of  lading  that  the  carrier 
shall  not  be  held  liable  for  damage  to  goods 
after  they  have  left  its  own  line  has  no  re- 
lation to  that  part  of  the  contract  which 
fixes  and  guarantees  the  rate  of  carriage. 
Little  Rock  &*  Ft.  S.  A\  Co.  v.  Danieh,  32 
Am.  Sf  Eng.  R.  Las.  479,  49  Ark.  352,  5  S, 
W.  Rep.  584. 

At  common  law  carriers  are  not  required 
to  transport  goods  beyond  their  own  lines. 
The  obligation  to  so  carry  is  a  matter  of 
contract,  but  the  receipt  of  goods  marked 
to  a  point  beyond  the  initial  carrier's  line 
is  prima  •  facie  evidence  of  such  a 
contract;  but  a  provision  in  the  bill 
of  lading  limiting  the  carrier's  lia- 
bility to  its  own  line,  which  is  known  to 
the  shipper,  is  sufficient  to  rebut  siich//-////<i- 
facie  evidence.  Chicago  &*  N.  W.  R.  Co.  v. 
Church,  12  III.  App.  17.— FOLLOWING  Illi- 
nois C.  R.  Co.  V.  Frankenberg,  54  111.  88. 

When  the  receipt  on  a  bill  of  lading  of 
goods  marked  to  New  York  recited  that 
the  goods  were  to  be  transported  over  de- 
fendant's road  to  a  certain  station  and 
there  delivered  in  good  order  to  another 
company  whose  line  was  a  part  of  the  route 
to  the  place  of  destination,  and  that  the 
liability  of  defendant,  as  a  common  carrier 
should  cease  when  the  goods  were  so  deliv- 
ered, and  the  shipper  accepted  such  receipt 
with  knowledge  of  its  contents,  the  respon- 
sibility of  the  company  ended  with  the 
delivery  of  the  goods  at  the  station  named. 
Field  \.  Chicago  **  R.  I.  R.  Co.,  71  ///.  458. 

A  condition  on  the  back  of  a  through 
bill  of  lading  relieving  a  railway  company 
from  responsibility  as  soon  as  goods  en- 
trusted to  them  for  carriage  have  been 
delivered  to  the  next  succeeding  carrier  at 
the  extremity  of  the  line  of  the  railway 
company  issuing  said  bill  of  lading,  is  a 
legal  and  reasonable  condition,  and  is  bind- 
ing on  the  shipper  who  either  has,  or  from 
the  circumstances  is  presumed  to  have, 
knowledge  thereof,  and  to  have  accepted 
the  contract  subject  to  such  condition. 
Beaumont  v.  Canadian  Pac.  R.  Co.,  5  Montr. 
L.  R.  {Sup.  a.)  255. 

It  is  competent  for  a  railway  company 
which  undertakes  to  carry  goods  over  their 
line  destined  for  a  point  beyond  their  own 
line,  and  receives  the  freight  for  the  whole 
distance,  to  stipulate  by  an  express  condi- 
tion in  the  bill  of  lading  that  they  will  not 


be  responsible  for  any  loss  or  damage  to  the 
goods  other  than  that  which  may  occur 
while  the  goods  are  being  carried  on  their 
line ;  and  where  such  condition  exists  and 
the  defendants  prove  that  the  goods  were 
carried  safely  over  their  line  and  delivered 
in  good  order  to  the  connecting  company, 
they  will  be  relieved  from  responsibility  for 
any  damage  sustained  thereafter.  Canadian 
Pac.  R.  Co.  v.  Charbonneau,  6.  Montr,  L.  R. 
(Q.  B.)  287. 

08.  CunncctlnK  carrlor'it  right  to 
claim  benefit  of  liniitationti.— Where 
a  bill  of  lading  furnishes  upon  its  face  evi- 
dence of  the  invalidity  of  the  clauses  limit- 
ing the  carrier's  liability,  a  connecting 
carrier  can  claim  no  more  under  it  than  the 
currier  who  issued  it.  St.  Louis,  /.  M,  6- 
S.  R.  Co.  V.  Spann,  57  ArA'.  127. 

A  bill  of  lading  issued  by  a  steamboat, 
agreeing  to  carry  goods  to  a  certain  point 
by  water  and  specifying  a  through  rate  to  a 
point  beyond  on  a  connecting  railroad, 
will,  where  it  is  signed  by  the  railroad 
agents,  be  regarded  as  a  through  ship- 
ment, entitling  the  railroad  company  to 
the  benefit  of  any  limitation  as  to  the  car- 
rier's liability  contained  therein.  IVood- 
ward  V.  Illinois  C.  R.  Co.,  t  Btss.  ((/.S.)  447. 

Where  a  railroad  company  issues  a 
through  bill  of  lading,  in  which  its  liability 
is  limited  to  an  agreed  valuation,  and  which 
contains  aclause  declaring  that  thiscarrier's 
responsibility  is  to  cease  upon  delivery  in 
good  order  to  a  connecting  carrier,  and  an 
accident  results  while  the  property  is  in 
the  hands  of  the  connecting  carrier,  the 
limitation  of  liability  applies  in  favor  of  such 
carrier.  Fairchild  v.  Philadelphia,  IV.  &* 
B.  R.  Co.,  148  Pa.  St.  527.  24  Atl.  Rep.  79. 

A  bill  of  lading  provided  :  "  This  oil  is 
carried  only  on  open  cars  and  entirely  at 
the  owner's  risk  from  fire  and  leakage  while 
in  possession  of  the  railroad  company  or 
carriers."  The  oil  in  transit  was  to  pass 
over  more  than  one  line.  Neld,  that  the 
limitation  of  liability  applied  only  to  the 
road  first  receiving  the  goods.  Camden  &■• 
A.  R.  Co.  v.  Forsyth,  61  Pa.  St.  81.— Ap- 
plied IN  iGtna  Ins.  Co.  v.  Wheeler,  49  N. 
Y.  616.  Approved  in  Hinkley  v.  New 
York  C.  h  H.  R.  R.  Co.,  3  T.  &  C.  (N.  Y.) 
281.  Not  followed  in  Babcock  v.  Lake 
Shore  &  M.  S.  R.  Co.,  43  How.  Pr.  (N.  Y.) 

317. 

00.  Excepting  liability  formlHcon- 
duct  of  subordinate    employei*.— A 


- 


(* 


I:        >|1- 


I 


I'  ^ 


«30 


BILLS  Ol'    Iw\DIN(i,  70  72. 


provision  in  a  bill  of  lading  uxcmpting  the 
carriers  from  liability  (or  loss  resulting  from 
the  misconduct  of  its  subordinate  employes 
is  valid.  McMillan  v.  Michigan  S.  &*  A'. 
/.  A".  Co.,  1 6  Mhh,  79. 

70.  Kxccptloii  ol'  loHN  caiiHt'd  by 
••iK't  of  Oo«L"— A  loss,  occasioned  by 
accidental  tire,  not  arising  from  negligence 
or  carelessness,  is  not  within  the  exemption 
of  a  li;ss  caused  by  "  act  of  God."  Gilmore 
V.  Carman,  9  J//jv.  279. 

71.  NeuoHMity  ol'vliurgiiig  a  lower 
riitc— A  provision  in  a  bill  of  lading  limit- 
ing the  carrier's  liability,  which  is  not  made 
in  consideration  of  a  lower  rate  of  freight, 
is  not  valid  as  against  a  loss  or  injury  result- 
ing from  the  carrier's  negligence.  Adams 
Express  Co.  v.  //arris,  40  /Im  &*  Eng.  A\ 
Ciis.  151.  120  /nd.  73,  21  A^.  A",  /if p.  340. 

To  make  valid  a  provision  in  a  bill  of 
lading  exempting  the  shipowners  from 
liability  for  loss  through  "any  act  or  omis- 
sion, negligence,  default,  or  error  in  judg- 
ment "  of  employes,  it  is  not  necessary  that 
there  be  a  stipulation  for  a  lower  rate  of 
freight.  Rubens  v  Ludgate  //ill  Steamship 
Co.,  20  N.  Y.  Supp.ifix. 

Where  no  reduction  in  freight  is  made 
upon  goods  shipped  under  bills  of  lading 
containing  a  fire  clause,  there  is  no  con- 
sideration for  the  stipulation,  and  it  is  in- 
valid. Louisville  &*  N,  K.  Co.  v.  Gilbert,  42 
Am.  &*  Eng.  A'.  Cas.  372,  88  Tenn.  430,  12 
S.  W.  A'ep.  1018,  7  L.  /{.  A.  162. 

72.  Showing  Iomm  or  liijiiry  to  be 
within  the  llnilttitlonH  or  exceptions. 
— As  it  is  not  competent  for  carriers  to 
limit  their  liability  for  their  own  negli- 
gence, where  goods  are  shipped  under  a 
bill  of  lading  attempting  to  limit  the  car- 
rier's liability,  the  burden  of  proof,  in  case 
of  injury  or  loss,  is  upon  the  carrier  to  show 
that  the  injury  or  loss  wiis  without  its  fault 
or  negligence.  Southern  Exp.  Co.  v.  Seide, 
42  Am.  &•  Eng.  K.  Cas.  398,  67  Miss.  609,  7 
So.  Rep.  547.  See  also  Little  Rock,  M.  R. 
6-  T.  R.  Co.  v.  Talbot,  18  Am.  &-  Eng.  R. 
Cas.  598,  39  Ark.  523. 

Where  goods  are  shipped  under  a  bill  of 
lading  containing  exceptions  as  to  the  car- 
rier's liability,  in  order  to  relieve  it  in  case 
of  loss  or  damage,  it  must  clearly  appear 
that  the  excepted  causes  were  the  proxi- 
mate and  sole  cause  of  the  loss  or  injury ; 
and  if  it  appears  that  the  carrier's  negligence 
contributed  to  the  injury  or  loss  as  an  ac- 
tive ciiusc,  the  carrier  is  liable.     Ready.  St. 


Louis.  A'.  C.  *•  JV.  R.  Co..  60  Mo.  199.-- 
QuoTKD  IN  Davis  v.  Wabash,  St.  L.  &  P. 
R.  Co.,  26  Am.  &  Eng.  R.  Cas.  315.  89  Mo. 
340.  Rrconcilkd  in  Drew  v.  Red  Line 
Transit  Co.,  3  Mo.  App.  495. 

Where  the  bill  of  lading  exempts  the  car- 
rier from  liability  for  breakage  of  the  goods 
carried,  it  is  the  duty  of  the  carrier,  in  an 
action  for  damages  for  such  breakage,  to 
bring  himself  in  the  first  instance  within  iho 
exemption;  the  burden  of  proof  is  then 
upon  pliiiiitifl  to  prove  the  carrier's  negli- 
gence.    IVitting  V.  .St.  Louis,  6-  S.  F.  R.  Co., 

45  Am.  &*  Eng.  R.  Cas.  369,  101  Afo.  631,  14 
S.  IV.  Rep.  743.— Approving  Read  v.  St. 
Louis,  K.  C.  &  N.  R.  Co., 60  Mo.  199.  Foi,- 
LOWiN(>  Lamb  v.  Camden  &  A.  R.  &  F.  Co., 

46  N.  Y.  271  ;  Whitworth  v.  Erie  R.  Co..  87 
N.  Y.  413  ;  Farnham  v.  Camden  &  A.  R.Co., 
55  Pa.  St.  53;  Patterson  v.  Clyde,  67  Pa. 
St.  500 ;  Little  Rock,  M.  R.  &  T.  R.  Co.  v. 
Talbot,  39  Ark.  526;  Memphis  &  C.  R.  Co. 
V.  Reeves,  10  Wall.  (U.  S.)  176.  Nor  fol- 
lowing Brown  v.  Adams  Exp.  Co.,  15  W. 
Va.  812 ;  Berry  i>.  Cooper,  28  Ga.  543 ;  Chi- 
cago, St.  L.  &  N.  O.  R.  Co.  V.  Moss,  45  Am. 
Rep.  428,  60  Miss.  1003  ;  Graham  v.  Davis, 
4  Ohio  St.  362  ;  Union  Express  Co.  v.  Gra- 
ham, 26  Ohio  St.  595.  Overruling  Lever- 
ing V.  Union  Tp.  &  I.  Co.,  42  Mo.  89; 
Ketchum  v.  American  Merchant's  U.  Exp. 
Co.,  52  Mo.  390.  Reviewed  in  Hance  v. 
Pacific  Exp.  Co.,  48  Mo.  App.  179. 

In  an  action  against  a  carrier  upon  a  bill 
of  lading  containing  an  exception  of  the 
dangers  of  the  river  navigation  and  inevit- 
able accidents,  after  the  non-delivery  of  the 
goods  is  shown,  the  burden  of  proof  is 
upon  the  carrier  to  show  not  only  a  loss 
within  the  terms  of  the  exception,  but  also 
that  proper  care  and  skill  were  exercised  to 
prevent  it.  Graham  v.  Davis,  4  Ohio  St. 
362. — Not  followed  in  Witting  v.  St. 
Louis  &  S.  F.  R.  Co.,  ioi  Mo.  638, 

Goods  were  shipped  by  a  carrier  under  a 
bill  of  lading  stipulating  that  they  were 
carried  at  the  owner's  risk  of  breakage, 
chafing,  etc.,  and  under  a  standing  release 
of  all  damage  "  from  any  cause  not  the  re- 
sult of  collision  of  trains,  or  of  cars  being 
thrown  from  the  track  while  in  transit." 
There  was  evidence  tending  to  show  that 
the  goods  were  carefully  packed  when 
shipped,  that  plaintiff's  goods  so  packed 
uniformly  reached  the  place  of  delivery  in 
good  condition,  and  that  the  goods  in  con- 
troversy were  injured  when  at  their  destina- 


ii:  ;  i 


BILLS   OF   LADING.  73-74. 


m 


tion.  //eM,  that  it  was  for  the  jury  to  say 
whether  the  injury  was  not  the  result  of  de- 
fendant's negligence;  that,  to  entitle  the 
plaintiff  to  recover,  under  the  terms  of  the 
release,  he  was  not  restricted  to  proof  of  such 
gross  negligence  as  would  result  in  collision 
or  derailment;  and  that,  in  the  absence  of 
such  proof,  the  question  whether  the  carrier 
was  guilty  of  negligence  in  the  transportation 
of  the  goods  was  a  question  of  fact  for  the 
jury.  Phanix  Pot  Works  v.  Pittsburgh  &» 
L.  E.R,  Co.,  139  Pa.  St.  284,  20  Atl.  Rep. 
1058. 

2.  Limiting  Liability  for  Loss  by  Fire. 

73.  Validity  niid  cfTect,  generally. 

—  A  provision  in  a  bill  of  lading  exempting 
the  carrier  from  liability  for  loss  by  fire  is 
valid  if  the  loss  does  not  occur  through  the 
carrier's  negligence.  Little  Rock,  M.  R.  &» 
T.  R.  Co.  V.  Talbot,  18  Am.  <S-  Etig.  R.  Cas. 
598,  39  Ark.  523.  Germofiia  Fire  Ins.  Co. 
V.  Memphis  <S-  C.  R.  Co.,  72  A^.  Y.  90,  28 
Am.  Rep.  115,  affirming  7  Hun  233. — AP- 
PLIED IN  Piatt  V.  Richmond,  Y.  R.  &  C.  R. 
Co.,  32  Am.  &  Eng.  R.  Cas.  517,  108  N.  Y. 
358,  If  Cent.  Rep.  loi,  15  N.  E.  Rep.  393, 
13  N.  Y.  S.  R.  660. 

If  a  shipper  receives  a  bill  of  lading,  with- 
out dissent,  containing  a  provision  exempt- 
ing the  carrier  from  liability  for  loss  by  fire, 
he  cannot  recover  for  such  loss  unless  it  be 
due  to  the  carrier's  negligence.  Grace  v. 
Adams,  100  Mass.  505.  —  Followed  in 
Hoadlcy  V.  Northern  'Transp.  Co.,  115  Mass. 
304.  Reviewed  in  Muller  v.  Cincinnati, 
H.  &  D.  R.  Co.,  2  Cin.  Super.  Ct.  280. 

A  condition  in  the  bill  of  lading  of  an 
express  company  exempted  it  from  liability 
for  loss  by  fire  in  transit  unless  from  the 
gross  negligence  of  the  company  or  its 
servants.  Held,  that  it  was  not  responsi- 
ble to  owner  of  goods  for  loss  by  fire  un- 
less occasioned  by  negligence.  Adams  Exp. 
Co.  V.  Sharpless,  77  Pa.  St.  516. 

Prima  facie  a  fire  clausr  exemption  is 
valid  and  supported  by  suffic'jnt  considera- 
tion when  it  is  found  in  a  through  bill  of 
lading  wherein  through  freight  rates  are 
granted  over  two  or  more  distinct  carrier 
lines.  Lancaster  Mills  v.  Merchants'  Cotton- 
Press  Co.,4S  Am. &•  Eng.  R.  Cas. 423, 89 Tenn. 
I,  14  S.  W.  Rep.  317. 

A  provision  in  a  bill  of  lading  relieving 
the  carrier  from  liability  for  loss  of  goods 
caused  by  fire  is  binding,  if  the  loss  is  not 
oecasioned  by  any  want  of  due  care  on  the 


part  of  the  carrier.  York  Mfg.  Co.  v.  Illi- 
nois C.  R.  Co.,  3  Wall  (U.  S.)  107,— Ap- 
proved in  Dillard  v.  Louisville  &  N.  R. 
Co.,  2  Lea  (Tenn.)  288.  Followed  in 
Phoenix  Ins.  Co.  v.  Erie  &  W.  Transp.  Co., 
10  Biss.  (U.S.)  18;  Eells  v.  St.  Louis,  K.  & 
N.  W.  R.  Co.,  52  Fed.  Rep.  903 ;  Levy  7: 
Southern  Exp.  Co.,  4  So.  Car,  234.  Quo  ted 
IN  Chicago,  St.  L.  &  N.  O.  R.  Co.  v.  Moss, 
21  Am.  &  Eng.  R.  Cas.  98,  60  Miss.  1003; 
Craycroft  v.  Atchison,  T.  &  S.  F.  R.  Co., 
18  Mo.  App.  487;  Phifer  v,  Carolina  C.  R. 
Co.,  89  N.  Car.  31 1,  45  Am.  Rep.  687. 

If  otherwise  free  from  objection,  a  fire- 
clause  exemption  contained  in  a  through 
bill  of  lading,  stipulating  for  shipment  at 
special  rates  over  several  distinct,  indepen- 
dent connecting  lines,  is  not  void  for  want 
of  consideration  because  the  contracting 
carrier  charged  and  received,  in  addition  to 
usual  rates  for  transportation  with  restricted 
liability,  reasonable  compensation  for  effect- 
ing insurance  upon  the  goods  and  for  pro- 
curing carriage  beyond  his  own  line. 
Denting  v.  Merchants'  C.  P.  S-  S.  Co.,  90 
Tenn.  306,  17  5".  W.  Rep.  89. 

A  special  and  mutual  contract  between  a 
shipper  and  a  carrier,  limiting  the  liability 
of  the  latter,  is  shown  by  evidence  that 
under  the  usual  course  of  business  for  the 
shipper  to  send  his  goods  by  a  teamster  to 
the  depot  and  for  the  carrier  to  give  in  return 
to  the  teamster  a  bill  of  lading,  a  bill  was  so 
obtained  and  delivered  to  the  shipper  and 
by  him  retained,  containing  a  limitation  of 
liability  for  loss  by  fire.  Yan  Schaach  v. 
Northern  Transp.  Co.,  3  Biss.  {U.  S.)  394. 

Such  a  fire-clause  exemption  is  not  void 
because  the  several  carriers  had  no  arrange- 
ment inter  sese  whereby  the  shipper  could, 
upon  demand,  have  obtained  continuous 
through  transportation  over  all  their  lines 
upon  terms  of  unrestricted  liability  of  the 
carriers.  Deming  v.  Merchants'  C.  P.  &  S, 
Co.,  90  Tenn.  306,  17  6\  W.  Rep  89. 

The  several  d  istinct,  independent  connect- 
ing lines  are  not,  for  this  purpose,  treated  as 
constituting  a  single  carrier.  And  it  is 
wholly  immaterial,  in  this  regard,  whether 
the  contracting  carrier  be  an  initial  or  other 
carrier  in  the  line,  or  a  mere  transportation 
company  owning  no  part  of  the  line.  Dem' 
ing  V.  Merchants'  C.  P.  **  S.  Co.,  90  Tenn. 
306,  17  5.  W.  Rep.  89. 

74.  What  losses  are  Included 
within  the  limitation,  generally.— 
Where  cotton  is  shipped  under  a  bill  of  lad- 


^1 


632 


BILLS  OF  LADING,  75. 


^.' 


Hi 

1 

1-  ■■ 

ing  exempting  the  carrier  from  liability  for 
loss  or  damage  by  fire  or  water,  the  com- 
pany is  liable  (or  the  loss  of  the  cotton 
by  fire  while  upon  flat  cars,  though  other 
cotton  in  box-curs  was  not  burned.  New 
Organs,  S.  L.  <S-  C.  R.  Co.  v.  Faler,  9  Atn.  &» 
Etig.  A'.  Cas.  96,  58  Miss.  911.— Following 
Mobile  &  G.  P.  Co.  v.  Weiner,  49  Miss.  732. 

Where  ^\  railroad  company  receives  cotton 
to  be  ship  ped  and  gives  a  bill  of  lading  with 
the  clause  ?liat  it  is  at  the  "owner's  risic  of 
f.re,"  it  is  not  rendered  liable  for  a  loss  by 
fire  by  proof  that  an  officer  of  the  company 
had  said  to  the  shipper,  in  a  prior  conversa- 
tion, that  he  did  not  like  the  exemption 
clause  contained  in  their  bills  of  ladin;:;, 
where  there  was  nothing  to  show  that  the 
conversation  was  intended  to  vary  the  le^al 
effects  of  any  provisions  or  subsequent  con- 
tracts for  transpoitation.  Peinlu-rton  Co. 
V.  New  York  C.  R.  Co..  104  Mass.  144. — 
FoLLOWl^G  Squire  v.  New  York  C.  R. 
Co.,  98  Mass.  239;  Judson  v.  Western  R. 
Co.,  6  Allen  (Mass.)  486.— Followed  in 
Armstrong  v.  Grand  Trunk  R.  Co.,  18  New 
Brun.  445. 

Defendant  received  a  case  of  goods  from 
the  plaintiff's  agent  at  W.  consigned  to  the 
plaintilT  at  M.,  and  issued  a  bill  of  lading, 
among  the  conditions  of  which  were  that  the 
company  would  not  be  responsible  for  loss 
by  fire,  or  while  the  goods  were  not  on  the 
defendant's  railway.  The  plaintiff's  agent  at 
W.  signed  a  shippi ng  bill  request  i ng  the  com- 
pany to  receive  the  goods  on  these  condi- 
tions. The  goods  were  destroyed  by  fire  on 
a  steamer  running  from  A.  through  Lake 
Superior — a  route  connecting  two  portions 
of  the  defendant  s  railway,  but  the  steamer 
was  not  und(*'.  the  defendant's  control. 
Htld,  that  the  conditions  were  reasonable, 
that  the  plaintiff  had  sufficient  notice  and 
was  bound  thereby,  and  that  the  company 
were  relieved  from  responsibility,  in  the  ab- 
sence of  any  averment  or  proof  that  the  loss 
was  caused  by  the  fault  of  the  defendant 
or  of  those  for  whom  it  was  responsible. 
Dionne  v.  Canadian  Pac.  R.  Co.,  i  Montr. L. 
R.  {Sup.  w/.)  168. 

75.  Goods  biirued  in  depot  await- 
ing shipment.— The  railroad  company 
was  exonerated  from  liability  for  three  hogs- 
heads of  tobacco,  destroyed  by  the  burning 
of  the  depot  at  which  they  were  received  for 
shipment,  by  the  stipulation  inserted  in  the 
bills  of  lading  that  the  company  "shall  not 
be  liable  for  loss  or  damage  by  fire  or  other 


casualty  while  in  transit,  or  while  in  depots 
or  landings  at  points  of  delivery,  etc."  The 
shipper  received  and  retained  the  bills  of 
lading  until  after  the  tobacco  was  destroyed 
by  the  buruingof  the  depot,  though  he  might 
have  returned  them  before  the  burning. 
Louisville  &*  N.  R.  Co.  v.  Broivnlee,  14  Bush 
(Ky.)  590.— Quoted  and  Applied  in 
Little  Rock,  M.  R.  &  T.  R.  Co.  7-.  Talbot,  47 
Ark.  97. 

PlaintitT  directed  C.  &  Co.  to  ship  to  him, 
at  J.,  certain  goods  by  defendant's  line. 
The  goods  were  marked  with  plaintiff's  ad- 
dress and  delivered  at  defendant's  depot, 
and  receipts  were  taken  in  a  book  kept  for 
that  purpose  by  C.  &  Co.  No  special  con- 
tract for  transportation  was  inaile  at  the 
time.  After  shipment  of  the  packages,  C. 
&  Co.,  who  had  been  large  shippers  by 
defendant's  line,  in  accordance  with  an 
habitual  course  of  business  between  them, 
sent  the  receipts  to  defendant's  office  and 
received  bills  of  lading,  the  giving  of  which 
was  entered  upon  the  receipts.  The  bills  of 
lading  limited  defendant's  liability  to  its 
own  line,  which  terminated  at  C,  and  also 
excepted  them  from  lijibility  for  loss  by  fire. 
The  goods  arrived  safely  at  C,  and  were 
there  destroyed  by  fire.  Upon  trial  before 
a  referee,  these  facts  appearing,  he  refused 
to  find  the  facts  as  to  the  usual  course  of 
business,  or  that  defendant's  route  termin- 
ated at  C,  and  did  not  extend  to  J.,  on  the 
ground  that  they  were  immaterial.  Held, 
error;  that  it  was  within  the  authority  of 
C.  &  Co.  to  contract  in  this  case  in  accord- 
ance with  their  usual  method  of  business, 
and  that  they  having  so  done  made  the 
findings  refused  essential  to  the  disclosure 
of  the  actual  contract.  Shelton  v.  Mer- 
chants'  Despatch  Transp.  Co.,  59  A'.  Y.  258 
48  Ho^u.  Pr.  257  ;  reversing  xJ.&'S.  527. 

The  bills  <if  lading,  being  taken  as  above 
stated  by  C.  &  Co.  in  the  exercise  of  their 
original  authority  to  contract,  di:>p1aced  the 
common-law  relation  between  the  parties 
and  controlled  their  rights.  Shelton  v.  Mer- 
chants' Despatch  Transp.  Co.,  59  A^.  Y.  258. 
48  How.  Pr.  257 ;  reversing  4/.  &*  S.  527. 

A  carrier  is  released  fron  liability  for  losr 
of  goods  by  fire  while  p.waiting  tranship 
ment  in  the  company's  depot  under  a  bill  of 
lading  issued  in  -.mother  state,  stipulating 
that  no  carrier  shall  be  liable  for  loss  by 
fire  from  any  cause,  or  that  no  carrier  shall 
be  liable  fov  loss  by  fire  while  goods  are 
awaiting  transhipment  to  any  point.    Brown 


BILLS   OF   LADING,  7«-78. 


633 


V.  LohisTilU'  &^  A'.  K.  Co..  36  '///.  App. 
140. 

70.  Cotton  burned  In  warehouse 
of  n  coiupreNM  company. — A  carrier  is 
excused  where  his  bill  of  lading  contained 
a  valid  tire-clause  exempting  him  from 
liability  for  loss  "  by  tire  or  other  casualty  in 
or  at  any  cotton  press  or  during  transporta- 
tion to  or  from  press."  Denting  v.  Mer- 
chants' C.  P.  &»  S.  Co.,  90  Tenn.  306,  17  S. 
W.  Rep.  89. 

A  valid  stipulation  in  a  bill  of  lading  ex- 
empting the  carrier  from  liability  for  loss  of 
cotton  by  tire  "while  at  depots,  stations, 
yards,  landings,  warehouses,  or  in  transit," 
exempts  him  from  liability  for  loss  thereof 
by  fire  occurring  without  fault  of  himself  or 
agent,  while  the  cotton  is  in  the  warehouse 
for  compression  by  his  agent — the  ware- 
houseman .  Lancaster  Mills  v.  Merchants' 
Cotton-Press  Co.,.^j  Am.&* Eng.K.  Caj. 423, 
89  Tenn.  i,  14  i".  ]V.  Rep.  317. 

Carriers  are  not  excused,  however,  from 
liability  for  loss  of  cotton  by  lire,  caused 
without  their  negligence,  after  its  delivery 
to  the  Carrie.'  and  while  it  remained  in  the 
warehouse  of  a  compress  company  for  com- 
pression for  shipment,  although  their 
respective  bills  of  lading  contained  valid  fire- 
clauses,  providing  for  exemption  from  liabil- 
ity for  loss  by  fire,  in  genera!  terms,  or 
"while  in  depots  or  places  of  tranship- 
ment," or  "while  in  transit  or  at  stations." 
The  warehouse  of  a  compress  company  is 
not  included  in  any  of  said  clause.  Deniing 
V.  Merchants  C.  P.  i'f  S.  Co.,  90  Tenn.  306, 
17  5.  IV.  Rep.  89. 

77.  Goods  burned  by  a  lawlesH 
mob. — A  provision  in  a  bill  of  lading  ex- 
empting the  carrier  from  liability  for  "loss 
or  damage  of  any  article  or  property  what- 
ever by  fire  or  other  casualty  while  in  transit 
or  while  in  depots  or  places  of  tranship- 
ment," applies  to  a  case  where  a  lawless  mob 
takes  the  goods  while  in  transit  and  burns 
them,  where  the  negligence  of  the  carrier 
does  not  contribute  to  such  loss.  Hall  v. 
Pennsylvania  R,  Co.,  3  Am.  iS-  Eng^.  R.  Cas. 
274,  I  Fed.  Rep.  226. 

Goods  were  shipped  under  a  provision  in 
a  bill  of  lading  that  the  carrier  should  not 
be  liable  for  "  loss  or  damage  by  tire,  unless 
it  could  be  shown  that  such  loss  or  damage 
occurred  through  negligence  or  default  of 
the  agents  of  the  company."  Upon  the  ar- 
rival of  the  goods  at  their  place  of  destina- 
tion, ihe  car  in  which  they  were  stored  \<ras 


taken  possession  of  by  a  mob  of  strikers^ 
against  the  military  power  of  the  state, 
and  was  burned.  NelJ,  that  the  owner 
must  prove  that  the  loss  was  the  result  of 
the  negligence  or  default  of  the  company's 
agents,  and  that  without  such  proof  the 
company  was  not  liable.  IVertheimer  v. 
Pennsylvania  R.  Co.,  1 7  Blalchf.  ( U.  S.)  42 1 , 
I  Peil.  Rep.  232. -Distinguishing  Ayres?'. 
Western  R.  Corp.  14  Blaichf.  (U.  S.)  9. 

78.  Wbat  losHes  are  not  included 
within  the  limitation,  {generally.— 
Where  a  bill  of  lading  contains  a  provision 
in  its  caption  that  the  goods  are  to  bi.  sent 
"  through  without  transfer,  in  cars  owned 
and  controlled  by  the  company,"  the  carrier 
is  not  entitle'd  to  the  benefit  of  another  pro- 
vision exempting  it  from  liability  from  loss 
occasioned  by  fire  by  reason  of  a  change 
of  cars.  Robinson  v.  Merchants'  Despatch 
Transp.  Co.  45  lo^va  470. — Quoting  Maghee 
V.  Camden  &  A.  R.  Co.,  45  N.  Y.  514. — 
Distinguished  in  Stewart  v.  Merchants', 
Despatch  Transp.  Co.,  47  Iowa  229. 

A  provision  in  a  bill  of  lading  that  goods 
are  to  be  carried  through  without  a  change 
of  cars  binds  the  carrier,  and  upon  a  failure 
to  so  carry  them,  in  the  event  of  loss  the 
carrier  cannot  avail  itself  of  any  limitation 
upon  its  common-law  liability  contained  in 
the  bill  of  fading.  So  held,  where  goods 
vf  .e  shipped  from  Massachusetts  to  a  point 
ir  liwa  and  were  detained  in  Chicago  by 
reason  of  a  Sunday  law,  while  waiting  to  be 
transferred  from  one  station  to  another,  and 
were  there  destroyed  by  fire.  Stewart  v. 
Merchants'  Despatch  Transp.  Co.,  47  Iowa 
229.— Distinguishing  Robinson  v.  Mer- 
chants Despatch  Transp.  Co.,  45  Iowa  470 — 
Revif.wkd  in  Galveston,  H.  &  H.  R.  Co.  v 
Allison,  59  Tex.  193;  McCarn  v.  Interna- 
tional &  G.  N.  R.  Co.,  84  Tex.  352. 

Where  carriers  by  water  receive  goods 
and  issue  a  through  bill  of  lading,  including, 
in  addition  to  their  vessels,  transportation 
over  a  railroad,  a  provision  in  the  bill  of 
lading  to  the  effect  that  the  goods  were 
to  be  delivered  at  the  place  of  destination, 
"  the  damages  of  navigation,  fire,  and  colli- 
sions on  the  lakes  and  rivers  and  the  Wei- 
land  can.\l  excepted  " — held,  not  to  include 
loss  by  file  while  on  the  railroad.  Barter  v. 
Wheeler,  49  N.  H.  9. 

A  provision  in  a  bill  of  lading  guarantee- 
ing a  delivery  of  the  goods  in  good  order, 
"  the  dangers  of  the  railroad,  fire,  leakage, 
and  unavoidable  accidents  excepted,"  oniy 


■;«s 


m 


II 


'^ 


Rl 


(Vdl 


HII.LS   OF    LADIMi,  71>,  80. 


n  i 


relates  to  the  condition  of  the  goods,  and 
docs  not  allecl  ilic  liability  ot  llic  carrier  for 
a  failure  to  deliver  witliiii  the  time  specified 
in  another  provision  of  the  bill  of  lading. 
Hiiruiony  v.   lUn^ham,  i  Dtter  (A'.   J'.)  209. 

A  bill  of  lading  issued  by  a  railroad  com- 
pany contained  a  clause  exempting  the 
company  from  liability  "  for  damage  or  loss 
to  any  article  from  or  by  fire  or  explosion  of 
any  kind."  Hclii.  not  to  a[)ply  to  a  loas  by 
fire  started  \i\  sparks  from  the  company's 
locomotive,  '.hrougli  a  failure  to  provide  the 
{(jcomotive  with  spark-arresters,  which  were 
known  and  in  actii:i>  use;  but  the  company 
was  not  bound  to  resort  to  the  use  of  all  the 
contrivances  known  t<j  science  to  prevent 
the  escape  of  sparks.  S/eimvcf^  v.  /iV/>  A'. 
Co.,  43  A'.  )■.  123.  -  Kkvikwino  Ford  v.  Lon- 
don &  S.  VV.  K.  Co.,  2  F.  iS[  F.  730;  Hege- 
man  v.  Western  K.  Co.,  13  N.  Y.  9. — AiM'LiKD 
IN  Magnin  t-.  Dinsmore,  56  N.  Y.  168;  My- 
nard  v.  Syracuse,  li.  &  N.  V.  K.Co.,  71  N.  Y. 
180.  DisTlNGUisiiKD  IN  Jacksonville,  T.  & 
K.  \V.  R.  Co.  7'.  Peninsular  L..  T.  &  M.  Co., 
27  Fla.  I.  yuoTKi)  IN  Bevier  v.  Delaware 
&  H.  C.  Co.,  13  Hun  (N.  Y.)  254;  Manson 
7\  Manhattan  K.  Co  ,  23  J.  &  S.  (N.  Y.)  18; 
babcock  7/.  Fitchburg  R.  Co.,  46  N.  Y.  S.  R. 
796.  Reviewku  in  Caldwell  v.  New  Jersey 
Steamboat  Co.,  47  N.  Y.  282. 

The  bill  of  lading  contained  a  clause  ex- 
empting defendant  from  liability  for  loss  by 
fire.  HcU,  that,  if  the  fxemi)tion  applied 
to  the  goods  after  th<ir  arrival  at  Detroit, 
the  violation  of  duty  in  not  delivering  them 
to  the  next  carrier  deprived  defendant  of 
the  benefit  of  it.  Raivson  v.  Holland,  59  N.  V. 
61 1  ;  affirming  5  Daly  i  55,  47  Ho^v.  Pr.  292. 

79.  L0S8  by  tire  oct'iiHioiiiMl  by  tbo 
carrler'H  own  iii'ifUffe"*"**'  —  A  provi- 
sion in  a  hill  of  lading  exempting  the  car- 
rier from  liability  for  loss  "by  fire  or  other 
casualty,"  docs  not  relieve  it  from  liability 
for  a  loss  that  is  the  result  of  a  want  of  care 
or  of  negligence.  Rintoul  v.  Nm>  York  C. 
**  //.  A'.  A".  Co.,  21  lilatchf.  (U.  S.)  439, 
17  Fed.  Rep.  905.— Foi.i.owino  New  York 
C.  R.  Co.TA  Lockwood,  17.  Wall.  (U.  S.  357. 
North  American  Ins.  Co.  v.  Si.  Louis,  I.  Af. 
&•  S.  R.  Co.,  3  MtCrary  ( U.  S.)  233,  1 1  Fed. 
Rep.  380.  Little  Rock,  AI.  R.  6-  T.  R.  Co. 
V.  Tallot,  18  Am.  &>  F.ng.  R.  Cas.  598,  39 
Ark.  523.  Germania  Fire  Ins.  Co.  v.  Mem- 
phis &*  C.  R.  Co.,  72  A'.  V.  90,  28  Am.  Rep. 
"  5  ;  affirming  7  Hun  233.  Grace  v.  Adams, 
100  Mass.  505.  Adams  Ftp.  Co.  v,  Sharp- 
Itss,  77  Pa,  St.  516.     York  M/g.  Co.  v,  Illinois 


C.   R.  Co.,  3    IVall.  (U   5.)   107.     See  also 
Levering  v.  Union  P.  &*  I.  Co.  42  Mo.  88, 

A  provision  in  a  bill  of  lading  excn'.pting 
the  carrier  from  liability  for  loss  by  fire  is  not 
absolute  even  where  valid.  It  is  the  carrier's 
duty  to  exercise  reasonable  care  to  prcvv-nt 
tires,  and  if  a  fire  occurs  it  is  bound  to  do 
all  that  prudent  men  would  do  under  tiie 
same  circumstances  to  stop  it,  so  as  to  pr::- 
vent  an  entire  loss;  and  if  it  fails  to  do  so  it 
is  liable  to  the  extent  that  goods  might  have 
been  saved.  Woodward  v.  Illinois  C.  R.  Co., 
I  Hiss.  (U.  S.)  403. 

A  provision  in  a  bill  of  lading  issued  by 
an  express  company  to  the  etlect  that  the 
company  is  not  to  bi:  liable  "  in  any  manner, 
or  to  any  extent,  for  any  loss  or  damage  or 
detention  of  such  package  or  its  contents,  or 
of  any  portion  thereof,  occasioned  by  lire," 
docs  not  relieve  the  company  from  liability 
if  the  goods  be  destroyed  by  lire  caused  by 
its  negligence  or  the  negligence  of  a  rail- 
road company  to  which  the  express  com- 
pany had  delivered  the  goods  to  be  carried 
over  part  of  the  route.  Public  policy  de- 
mands that  the  right  of  owners  to  absolute 
security  against  the  negligence  of  carriers, 
and  of  all  persons  engaged  in  performing 
the  carrier's  duty,  shall  noi  be  taken  away 
by  any  reservation  iti  the  carrier's  receipt  or 
by  any  arrangement  between  him  and  the 
performing  company.  Hank  of  Ky.  v.  Ad- 
ams F..-p.  Co.,  93  U.  S.  174. 

80.  Iliirdoii  of  showliif;  tbat  rar- 
ri(>rN  iio8^1it(eiice  oaiiMiMl  tbc  loss.— 
Where  bills  of  lading  contain  a  general 
exemption  from  liability  for  loss  by  fire  it  is 
incuml>ent  on  the  owner  of  the  propcrtv,  in 
order  to  avoid  the  effect  of  the  exemption, 
to  show  that  the  loss  resulted  from  the 
carrier's  negligence  or  some  breach  of  duty 
which  contributed  to  the  loss.  W'hituwth 
V.  Frie  R.  Co.,  6  .-/;;/.  <S^  F»g-  A'.  Cas.  349, 
87  A'.  K.  413;  affirming  13/.  Sr*  S.  602.— 
Followed  in  Witting?'.  St.  Louis  &  S.  F. 
R.  Co.,  101  Mo.  6iS.— Little  Rock,  AI.  R.  &* 
T.  R.  Co.  V.  Talbot,  18  Am.  &-  Fng.  R.  Cas. 
598.  39  Ark.  523. 

Where  a  bill  of  lading  exempts  from  lia- 
bility from  loss  by  lire,  unless  caused  by  the 
carrier's  fraud  or  gross  negligence,  the  bur- 
den is  on  the  plaintiff  to  show  th.-it  the 
fire  was  occasioned  by  the  carrier's  fraud  or 
gross  negligence.  Piatt  v.  Richmond,  Y.  R. 
<V  C.  R.  Co..  32  Am  &^  Fng.  R.  Cas.  517,  108 
A^,  Y.  358,  II  Cent.  /V-  ^  loi,  ij  N.  F.  Rep. 
39J'  1 3  •'V-  ^'  ^-  ^'  660 ;  affi>  ming  20  J.  &*  S. 


I 


F 


BILLS   OF   LADLNC,  Hi. 


685 


I 


496.— Applying  Lamb  t.  Camden  &  A.  R. 
&  T.  Co.,  46  N.  Y.  271;  Cuchran  v.  Dins- 
more,  49  N.  Y.  249;  Germania  Fire  Ins.  Co. 
V.  Memphis  &  C.  R.  Co.,  72  N.  Y.  90. 

Where  a  bill  of  lading  relieves  the  carrier 
from  liability  for  loss  by  fire,  in  case  of  a 
loss  by  tire  the  burden  is  on  the  owner  to 
show  fault  on  the  part  of  the  carrier.  Colton 
V.  Cleveland  &*  P.  R.  Co.,  67  /'<i.  S/.  211.— 
Foi.r.owiNG  Farnham  v.  Camden  &  A.  R. 
Co.  55  Pa.  St,  ii.—Imlt\fnrtpolis,  I).  6-  IV. 
J\\  Co.  V.  Forsylhe,  4  Ind.  App.  326,  29  A'.  E. 
Rep.  1138.— yuoTiNc;  Hall  t/.  Pennsylvania 
**o.,  90  Ind.  459. 

Where  the  cction  against  a  carrier  is  to 
recover  on  its  common -law  liability  for 
losses  occurring  to  gtx  ds  by  fire,  and  it 
claims  exemption  from  liability  for  such 
loss  by  virtue  of  a  condition  iu  the  bill  of 
lading  to  that  elTi-ct,  it  must  aver  and  prove 
that  the  loss  hajipened  without  any  fault 
or  neglect  on  its  part ;  and  failure  to  show 
due  and  proper  care  to  prevent  the  loss 
eniitles  the  plaintifT  to  recover.  Gaines  v. 
Union  T.  &•  I.  Co.,  28  Ohio  St.  418,  14  Am. 
Ry.  Rep.  158.— Quoting  President,  etc.,  v. 
Adams  Exp.  Co.,  Sup.  Ct.  U.  S.  Oct.  Term, 
1876.— Followed  in  Erie  R.  Co.  v.  Lock- 
wood,  28  Ohio  St.  358. 

Where  cotton  was  shipped  under  a  bill  of 
lading  upon  which  was  stamped  the  words 
"at  owner's  risk  of  lire,"  the  burden  is 
upon  the  carrier  to  sho'-'  that  the  cotton 
was  not  lost  by  want  of  care  upon  ts  part 
or  by  fire  occasioned  through  the  nej  ligence 
of  the  company.  Leiierint^  v.  Union  T.  Sf 
I.  Co.,  42  Mo.  88. 

Where  a  railroad  company  by  the  bill  of 
hiding  reserved  to  itself  the  i)rivilcge  of 
compressing  the  cotton  which  it  contracted 
to  transport,  such  reservation  being  evi- 
dently for  its  own  convenience,  the  placing 
of  the  cotton  in  the  hands  of  the  compress 
company  to  be  compressed  made  that  com- 
pany the  carrier's  agent,  for  whose  negli- 
gence the  carrier  was  liable  the  same  as  for 
its  own  negligence;  so  it  was  proper  co 
lefiisc  an  instruction  which  asserted  that  it 
was  incumbcnl  on  tiie  plaintiff,  in  order  to 
avoid  llie  exception  in  the  bill  of  lading  as 
to  loss  by  lire,  to  show  that  the  fire  was  the 
result  of  the  defenda:ii's  negligence,  be- 
cause this  instruction  excluded  a  liability  for 
the  negligence  of  the  compress  company, 
OUs  Co.  v.  Missouri  I'ac.  R.  Co.,  55  /////.  &• 
Eng,  R.  Cas,  636,  112  Mo.  622,  20  H.  IV.  Rep. 
675. 


3.  Stipulations  as  to  Amount  of  Recovery  in 
Case  oj  Loss. 

81.  Vnlidity  niulett'ect,  ifciiernlly.* 

— A  stipulation  in  a  bill  of  lading  tiiat  when 
a  valuation  as  agreed  upon  shall  be  named 
in  it,  such  valuation  shall  cover  loss  or 
damage  for  any  cause  whatever,  is  invalid 
in  sc  far  as  it  exempts  the  carrier  from  lia- 
bility for  his  own  negligence  or  limns  his 
liability  therefor.  U'eiller  v,  Pennsylvania 
R.  Co.,  42  Am.  (S-  En^t^.  R.  Cas.  390,  134  Pa. 
St.  310,  19  Att.  Rep.  702.— Distinguishing 
Elkins  V.  Eric  Transp,  Co.,  81*  Pa.  St.  315. 
— Following  Grogan  v.  Adams  Exp.  Co., 
1 14  Pa.  St.  523. 

A  shipper  accepting  a  bill  of  lading  con- 
taining a  provision  limiting  the  carrier's 
liability  to  $50,  which  was  be'.  ■  the  actual 
value  of  the  goods,  is  bound  thereby  where 
he  accepts  it  without  objectjon  and  without 
making  known  tlic  actual  value  of  the 
goods ;  and  where  he  did  not  apply  for  any 
information  as  to  the  contents  of  the  bill  of 
lading,  the  fact  that  he  could  not  read,  which 
was  not  known  to  the  carrier,  will  not  afTect 
the  carrier's  liability.  Fibel  v.  Livingston, 
e^Jiarb.  {N.  Y.)  179. 

In  a  bill  of  lading  for  the  transportation 
of  a  car-load  of  mules  by  railroad,  a  stipula- 
tion limiting  the  carrier's  liability,  in  the 
event  of  injury,  to  $100  for  a  mule  is  just 
and  reasonable,  especially  when  the  shipper 
agrees  to  accompany  and  care  for  the  ani- 
mals, and  is  allowed  reduced  rates  on  that 
account.  Western  R.  Co.  v.  Harwell,  45 
Am.  &>  Eng.  R.  Cas.  358,  91  Ala.  340,  8  So. 
Rep.  649. 

A  r.iilroad  company  received  certain  wines 
for  transportation,  giving  a  bill  of  lading  in 
which  it  was  stated  that  the  wines  were 
"  shipped  at  an  agreement  valuation  of  $20 
per  barrel."  The  wines  were  lost  in  transit 
by  the  negligence  of  the  company's  servant. 
Held,  that  the  company  was  liable  only  in 
the  sum  of  $20  per  barrel.  Graves  v.  Lai-e 
Shore  6f  M.  S.  R.  Co.,  16  Am.  &"  Eng.  R. 
Cas.  1 08.  137  A/ass.  33,  50  Am.  Rep.  282. — 
Ari'ROVKD  IN  Hart  v.  Pennsylvania  R,  Co., 
H2  U.S.  331.  Distinguishkd  in  Louis- 
ville &  N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng. 

*  Validity  of  stipulations  limiting  carrier's  lia- 
bility to  particul.'ir  amoiini,  aRret-cl  valiuitions, 
see  note,  45  Am  &  V.sc.  R.  Cas.  319,  21  /</.  gi, 
18  /</.  613. 

Effect  upon  c.irrier's  liability  of  statements  in 
bill  of  lading  as  to  value  of  goods,  see  note,  30 
Am.  8c  Eng.  R.  Cas.  12. 


m 


(JUG 


BILLS   OF    LADLNG,  «2  »4. 


If 


B    ' 


R.  Cas.  312,  88  Tenn.  320. 14  S.  VV.  Rep.  311, 
Followed  in  Hill  7:  Boston.  H.  T.  &  W. 
R.  Co.,  28  Am.  &  Eiig.  R.  Cas.  87, 144  Mui,6. 

A  shipper  entered  into  a  contract  with  the 
carrier  by  which  the  latter  agreed  to  carry 
u!!  goods  ill  the  former  at  a  specified  rate, 
regardless  oi  value.  While  this  agreement 
was  in  force  a  package  was  shipped  and  a 
bill  of  lading  issued  limiting  the  carrier's 
liability  to  $50.  unless  the  shipper  had  the 
true  value  inserted  in  the  bill  of  lading;  but 
no  value  was  asked  for  and  none  inserted. 
Nf/t/,  in  case  of  loss,  that  the  carrier  was 
liable  for  the  full  value  of  the  goods. 
Scruggs  V.  liii/tniiore  &»  O.  A*.  Co.,  5  Afc- 
Crary  (U.  S.)  590,  18  Fei.   Rep.  318. 

82.  Itiile  where  value  flx'ul  is  I'  ss 
than  actual  worth.— A  stipulation  in 
the  bill  of  ladi  ig  that  the  measure  of  dam- 
ages for  loss  or  injury  to  live  stock  shipped 
shall  not  exceed  $30  per  head,  when  baited 
upon  the  consideration  of  a  reduction  from 
the  ordinary  freight  road  to  a  lower  one  is 
reasonable,  and  will  be  maintained,  although 
an  animal  killed  may  have  been  more 
valuable.  St.  Louis,  I.  M.  6-  .S:.  R.  Co.  v. 
Weakly,  35  Am.  &*  Eng.  R.  Cas.  635,  50 
■^rJi:  397,  7  Am.  S/.  Rep.  104,  8  S.  W.  Rep. 
134.— Quoting  and  following  Hart  v. 
Pennsylvania  R.  Co.,  U2  U.  S.  331.  Re- 
viewing New  York  C.  R.  Co.  v.  Lockwood, 
17  Wall.  (U.  S.)  357;  South  &  N.  Ala.  R. 
Co.  V.  Henlein,  52  Ala.  606. 

A  stipulation  in  a  bill  of  lading,  for  the 
shipment  of  live  stock  fixing  values  of 
the  animals  delivered  for  transportation 
is  valid,  if  fair  and  reasonable  in  itself, 
based  upon  a  sufficient  consideration,  and 
freely  and  understandingly  assented  to  by 
the  shipper,  although  the  values  thus  fixed 
are  materially  less  than  those  shown  by  the 
proof.  Starnes  v.  Louis7>ille  &•  N.  R.  Co., 
91   7enH.  516,  ig  S.  IV.  Rep.,  67^. 

83. or  less  than  luarkct  value 

at  destination.— If  a  bill  of  lading  is 
issued  containing  a  provision  limiting  the 
carrierVi  liability  to  a  certain  amount  for 
damaf,es  for  loss  or  injury,  the  damages  are 
limitrd  to  such  amount,  regardless  of  the 
mark't  value  of  the  goods  at  the  place  of 
destiration.  Brown  v.  Cunard  Steamship 
Co.,  147  Mass.  58, 16  .V.  E.  Rep.  717.— Crh- 
icisiNc  The  Lydian  Monarch,  23  Fed.  Rep. 
298;  Pear.se  v.  Quebec  Steamship  Co.,  24 
Fed.  Rep.  285. 

84.  Limiting  amount  to  value  at 


point  and  time  of  shipment.— A  pro- 
vision in  a  bill  of  lading  that  in  the  event 
of  a  loss  of  any  properly  for  which  the 
carrier  might  be  responsible  the  value  and 
cost  of  the  same  at  the  point  and  time  of 
shipment  should  govern  in  the  settlement 
for  the  same  is  not  inoperative  as  an  attempt 
to  limit  a  coinmon-law  liability.  Titbits  v. 
Rock  Island  &-  P.  R.  Co.,  49  ///.  App.  567. 

A  stipulation  in  a  bill  of  lading  that  the 
cost  of  property  at  the  point  of  shipment 
shall  govern  in  the  case  of  loss  does  not 
refer  to  damage  or  deterioration  while  in 
transit.  Heil  v.  St.  Louis,  I.  At.  S»  S.  R. 
Co.,  16  Afo.  App.  363. 

The  bill  of  lading  stipulated  that  "  in  the 
event  of  the  lo.*s  of  any  property,"  etc., 
"  the  value  or  cost  of  the  same  at  the  point 
and  lime  of  the  shipment  is  to  govern," 
and  that  the  company  in  such  case  was  to 
h?.ve  the  benefit  of  any  insurance  on  the 
pi-operty  lost.  Held,  that  the  delivery  of 
the  flour  at  the  point  of  destination  to  a 
wrong  person  was  not  a  loss  within  the 
iiitentof  the  bill  of  ladi  ig,  and  that  the  proof 
of  value  was  not,  thet  :fore,  limited  to  the 
point  of  shipment.  Haiti  more  &•  O.  R.  Co. 
V.  Mc  Whinney,  36  Ind.  436,  5  Am.  Ry.  Rep. 
312. 

By  a  bill  of  lading,  loss  occurring  during 
the  transportation  was  to  be  "  computed  at 
the  value  of  the  cost  of  the  goods  at  the 
time  and  place  of  shipment.''  A  tarifT  of 
rates  of  freight  put  "  high  wines "  in  the 
first  class,  and  in  the  fourth  class  "  high 
wines  '"''''''  at  an  agreed  valuation  not 
exceeding  $20  per  barrel ; "  the  freight  for 
flrst  class  was  $1.60,  for  fourth  class  50 
cents  per  100  pounds.  The  rate  of  freight 
written  in  the  bill  was  "  50  cents  per  100 
pounds,"  and  valuation  $20  per  barrel." 
Held,  that  this  valuation  and  rate  were 
controlling  parts  of  the  b.li,  and  t.iat  loss 
to  the  goods  was  to  be  estimated  at  %zo 
per  barrel.  Efkins  v.  Empire  Transp,  Co., 
81  Pa.  St.  315.— Approved  in  Hart  v. 
Pennsylvania  R.  Co.,  112  U.S.  331.  Dl.s- 
tinguished  in  Weiller  v.  Pennsylvania 
R.  Co.,  42  Am.  &  Eng.  R.  Cas.  390,  134  Pa. 
St.  310. 

S.  shipped  at  special  rates  four  horses 
under  bill  of  lading  containing  this  clause: 
"  And  it  is  further  agreed  that  should  dam- 
ages occur  for  which  the  railroad  company 
may  be  liable,  the  value  at  the  place  and 
date  of  shipment  shall  govern  the  settle- 
ment, in  which  the  amount  claimed  shall 


Ai 


\> 


ir  I 


t.— A  pro- 
ihe  event 
which  the 
value  and 
nd  time  of 
settlement 
an  attempt 
Titbits  V. 
4pp.  S67. 
ig  that  the 
shipment 
s  does  not 
n  while  in 
«S-  S.  R. 

Iiat "  in  the 
rty."  etc., 
t  ihe  point 
o  govern," 
case  was  to 
ice  on  the 
delivery  of 
lUtion  to  a 
within  the 
It  the  proof 
ted  to  the 
^  O.  R.  Co. 
w.  Ry.  Rep, 

ring  during 
Dmputed  at 
)ods  at  the 
A  tariflr  of 
cs"  in  the 
:lass  "  high 
Uiition  not 

freiglit  for 
h  class  50 
!  of  freight 
ts  per  100 
jr  barrel." 

rate  were 
I  t^jat  loss 
ed  at  $20 
'ransp,  Co., 
i  Hart  V. 
33'-  Dis- 
nnsylvania 
10,  134  Pa. 

)ur  horses 
his  clause: 
ould  dam- 
company 
place  and 
he  settlc- 
med  shall 


BILLS   OF   LADING,  85,86. 


63: 


not  ezceeed  for  a  stallion  or  jack,  200;  for 
a  horse  or  mule,  $100;  *  *  '*'  which  amounts, 
it  is  agreed,  are  as  much  as  such  stock  as 
are  herein  agreed  to  be  transported  are 
reasonably  worth.''  S.  sued  for  injury  to 
one  of  the  horses  and  recovered  $550.  Held, 
that  the  clause  quoted  tixes  tiie  value  of 
each  animal  separately,  and  is  in  form  a 
valid  contract.  Louisville  &*  N.  R,  Co.  v. 
Sowell,  49  Am.  &*  Eng.  R.  Cas.  166,  90  Tenn. 
17,  IS  S.  iy.Rep.8i7. 

Such  contract  is  valid,  although  the 
carrier  did  not  actually  tender  another 
without  the  clause  as  to  value  of  animals,  if 
he  offered  to  ship,  upon  reasonable  ternib, 
under  a  bill  of  lading  containing  no  limita- 
tion as  to  value,  or  was  ready  to  do  so  upon 
di  mand  being  made  by  the  shipper.  Louis- 
vil'e  6-  N.  R.  Co.  v.  Sot^/ell,  49  Am.  &•  Eng. 
R.  Cas.  166,  90  I'enn.  17,  15  S.   IV.  Rep.  837. 

Where  goods  were  shipped  with  a  provi- 
sion in  the  bill  of  lading  that  the  value  or 
cost  of  the  property  at  the  point  of  ship- 
ment should  govern  in  the  settlement  of  any 
claim  for  loss  or  damage,  a  judgment,  where 
suit  is  brought  for  a  loss,  in  accordance  with 
such  provision  is  proper.  Missouri  Pac.  R. 
Co.  v.  Rarnes,  2  Tex.  App.  (Civ.  Cas.)  507. 

Where  it  is  expressly  stipulated  in  a  bill 
of  lading  that  in  the  event  of  loss  or  dam- 
age, the  value  or  cost  at  the  point  of  ship- 
ment shall  govern  the  settlement  of  the 
same,  the  insertion  by  the  carrier,  without 
the  knowledge  or  consent  of  the  shipper,  of 
almost  illegible  abbreviations,  which  are  in- 
terpreted by  the  carrier  to  mean  "  Leaks 
and  outs  excepted,  $20  railroad  valuation," 
will  not  bind  the  shipper,  and  he  may  re- 
cover the  actual  value.  Rosen/eld  v.  Peoria, 
D.  5-  E.  R.  Co.,  21  Am.  &>  Eng.  R.  Cas.  B7, 
103  /nd.  121,  S3  Am,  Rep.  soo,  2  A'.  E.  Rep. 
344.--QUOTED  IN  I  eonard  v.  Chicago  &  A. 
R.  Co.,  54  Mo.  App.  293. 

A  bill  of  lading  for  shipment  of  live  stock 
provided  that  in  case  damage  should  oc- 
cur for  which  the  carrier  would  be  liable, 
"  the  value  at  the  place  and  date  of  ship- 
ment shall  govern  the  settlement,  in  which 
the  amount  claimed  shall  not  exceed  for  a 
stallion  or  jack,  $200;  for  a  horse  or  mule, 
$100;  ♦  *  ♦  which  amounts,  it  is  agreed, 
are  as  much  as  such  .stock  as  are  herein 
agreed  to  be  transported  are  reasonably 
worth."  The  proof  showed  that  the  thirteen 
horses  shipped  were  worth,  at  date  and 
place  of  shipment,  from  $130  to  $235  each  ; 
and   that    nine  of   these   were    injured    in 


course  of  transportation.  Of  the  injured 
horses  one  died  and  the  value  of  the  other 
eight  was  impaired  from  $2$  to  $100  each. 
All  the  injured  horses  brought  over  $100, 
except  one  that  brought  $90.  The  court  in- 
structed the  jury  that  the  shipper  could  re- 
cover only  $100  for  the  dead  horse,  and  $10 
for  the  injured  horse  that  brought  only  $90. 
Held,  error,  and  that  under  said  contract  the 
carrier  was  liable  for  damage  done  to  each 
horse  to  the  extent  of  $100,  without  regard 
to  his  value  after  receiving  the  injury. 
Starnes  v.  Louisville  &*  N.  R.  Co.,  91  Tenn. 
S16,  19  S.  IV.  Rep.  67s. 

85.  Effect  of  luNH  caii8ed  by  car- 
rier's actiiul  ncg:li{;eiice. — A  provision 
in  a  bill  of  lading  issued  by  an  express  com- 
pany providing  that  the  liability  of  the  com- 
pany should  be  limited  to  a  certain  amount, 
unless  the  true  value  of  the  property  should 
be  stated  and  inserted  in  the  bill  of  lading  at 
the  time  of  shipment,  is  valid  only  so  far  as 
a  loss  or  injury  occurs  without  the  fault  or 
negligence  of  the  carrier.  Southern  Exp. 
Co.  v.  Seide,  42  Am.  &*  Eng.  R.  Cas.  398,  67 
A/iss.  609,  7  So.  Rep.  $47. 

A  carrier  is  not  exempted  from  paying 
full  value  for  goods  lost  through  its  own 
negligence,  although  the  bill  of  lading 
stipulates  that  "  in  consideration  of  rates  in- 
serted it  is  agreed  that,  in  case  of  loss  or 
damage,  the  same  shall  be  adjusted  at  a 
valuation  of  $20  per  barrel. '  Alabama  (S.  S. 
R.  Co.  v.  Little,  1 2  Am.  &>  Eng.  R.  Cas.  37, 
71  Ala.  611. 

A  common  carrier  is  liable  for  the  value 
of  the  goods  lost  through  his  negligence, 
notwithstanding  the  bill  of  lading  provides 
that  the  carrier  shall  not  be  liable  beyond  an 
amount  named  therein,  when  it  is  under- 
^  ood  by  the  parties  that  the  sum  so  agreed 
on  is  less  than  the  value  of  the  goods. 
Such  an  agreement  can,  at  most,  cover  a 
loss  arising  from  some  cause  other  than  the 
negligence  or  default  of  the  carrier  or  his 
servants,  and  the  rule  of  damages  is  the 
same,  although  less  is  charged  and  paid  for 
the  transportation  than  when  the  exempting 
clause  is  omitted.  United  States  Exp.  Co. 
v.  Backman,  28  Ohio  St.  144,  14  Am.  Ry. 
Rip.  82.— Kf.vikwing  neck  v.  Evans,  16 
East  243.— DrsAPPROVED  in  Hart  v.  Penn- 
sylvania R.  Co.,  112  U.  S.  331.  Followed 
IN  Baltimore  &  O.  R.  Co.  v.  Campbell,  36 
Ohio  St.  647. 

86.  GfTect  of  the  stipulation  where 
o.'irricr  l.s  guilt)*  of  <'onvorsloii.— Al- 


M««iV 


G38 


BILLS  OF   LADING,  87-91. 


f  . 


though  a  bill  of  lading  contains  a  stipula- 
tion that  in  case  uf  loss  the  measure  of 
damages  shall  bu  the  value  of  the  goods  at 
the  place  of  shipment,  such  stipulation  does 
not  limit  the  liability  of  the  currier  for  the 
wrongful  conversion  of  the  goods,  and  he  is 
liable  for  their  value  at  the  place  of  destina- 
tion. Erie  Dispatch  v.  Johnson,  40  Am.  &* 
Eng.  R.  Cas.  113,  87  Ti-nn.  490,  11  S.  IV. 
Rep.  441. 

87.  Waiver  uf  limitation  by  pay- 
ment of  lart;cr  miimi. — A  provision  in  a 
bill  of  lading  limiving  the  carrier's  liability 
with  respect  to  the  amount  of  damages  in 
case  of  loss  or  injury  to  a  horse  is  waived 
by  the  carrier  takinj;  the  iiorse  after  he  is 
injured,  and  paying  a  larger  sum  than  tlic 
limit  fixed  in  the  bill  of  lading.  Chicago  &* 
E.  I.  R.  Co.  v.  Katsenbach,  38  Am.  tS-  Eng. 
R.  Cas.  375,  1 18  Ind.  174,  20  N.  E.  Rep.  709, 

4.  Particular  Stipulations  and  Clauses.* 

88.  Fixinj;  rates. — Where  a  shipper  is 
familiar  with  the  published  tariff  rates  of  a 
railroad  company,  a  bill  of  lading  contai''  - 
ing  the  provision  that  it  was  issued  "  sub- 
ject to  the  published  tariff  of  said  company 
and  its  connections,"  the  rates  specified  in 
the  tariff  schedule  relating  to  the  kind  of 
goods  shipped  forms  part  of  the  contract. 
Atchison,  T.  &»  S.  F.  R.  Co.  v.  Kobens,  3 
Tex.  Civ.  App.  370,  22  5.  W.  Rep.  1S3. 

89.  Guaranteeiiiif  Rates.t— A  pro- 
vision in  a  through  bill  of  lading  guarantee- 
ing a  certain  rate  of  carriage  is  not  affected 
by  a  provision  limiting  the  issuing  carrier's 
liability  for  damage  to  that  which  occurs 
while  the  goods  are  in  transit  over  its  own 
line.  Little  Rock  <&*  Ft.  S.  R.  Co.  v.  Daniels, 
32  Am.  5-  Eng.  R.  Cas.  479.49  ^rk.  352.  5  S. 
IV.  Rep.  584.  See  also  Baltimore  &*  O.  R. 
Co.  V.  Wilkens,  44  Md.  11.  Tardos  v.  Chi- 
cago, St.  L.  &•  N.  O.R.  Co.,  35  /.<!.  Ann.  15. 

A  bill  of  lading  for  a  carload  of  freight 
guaranteed  that  the  rate  should  not  exceed 
ti3oper  car,  and  contained  a  provision  that 
the  goods  shipped  were  for  "  farm  purponun. " 
The  goods  passed  over  more  than  one  line, 
and  thedelivpfv  rarrier  charged  I235  per  car. 
which  was  p  ,  I  under  protest,  and  the  ini- 
tial carrier  was  sued  to  recover  back  the 
overcharge.  //<•'/.  that  an  answer  by  the 
company,  showing  that  the  rate  of  $120  per 


*9,eeanff.  21,  22,  34. 
f  Sec  ante,  04. 


car  was  a  special  rate  upon  goods  "  for  farm 
purposes  "  only,  and  that  the  shipper  falsely 
represented  the  goods  shipped  to  be  for 
such  purpose,  states  a  good  defense,  and  a 
recovery  cannot  be  had.  Fry  v.  Louisville, 
N.  A.  &*  C.  R.  Co.,  22  Am.  <S-  Eng.  R.  Cas. 
442,  103  Ind.  265,  2  A'.  E.  Rep.  744. 

90.  Limitini;  duration  of  liability 
as  carrier— WurvlioMNcman.— The  lia- 
bility of  a  railroad  company  as  a  common 
carrier  continues  after  the  goods  have  been 
carried  to  the  place  of  destination  and  siored 
in  the  depot  until  the  consignee  has  had  no- 
tice and  a  reasonable  time  to  remove  then), 
after  which  it  is  only  liable  as  warehouse- 
man ;  yet  it  may  stipulate  by  contract  that 
its  liability  as  carrier  shall  cease  when  the 
goods  have  been  stored  in  its  depot  at  tlh 
place  of  destination,  when  it  shall  be  liable 
as  warehouseman.  Western  R,  Co.  v. 
Little,  37  Atn.  &^  Ent^  R.  Cas.  659,  86  Ala. 
159,  5  So.  Rep.  563.~-Al'l'l.vlNU  South  &  N. 
Ala.  R.  Co.  V.  Wood,  66  Ala.  167 ;  Buck- 
ley V.  Great  Western  R.  Co.,  18  Mich.  121. 
Approving  Alabaina&T.  R.  R.  Co.t/.Kidd, 
35  Ala.  209.  Tdi. LOWING  Louisville  &  N.  R. 
Co.  7'.  Oden,  80  Ala.  38.  Not  roi.i.owiNd 
Rice  7'.  Hart,  n8  Mass.  201  ;  Gashweiler  7'. 
Wabash,  St.  L.  &  V.  R.  Co..  83  Mo.  ir 2  , 
Rothschild  v.  Michigan  C.  R.  Co.,  69  III. 
164;  McCarty  v.  New  Vork  A  E.  R.  Co., 
30  Pa.  St.  ^47  ;  Mohr  v.  Chicago  and  N.  W. 
R.  Co..  4^'>  Iowa  580;  Butler  7/.  East  Tenn. 
&  V.  R,  Co.,  8  Lea  (Tenn.)  32. 

A  stipulation  in  a  bill  of  lading  issued  by 
a  transportation  company  that  goods  re- 
ceived for  shipment  at  Boston  are  '  to  be 
forwarded  to  Louisville  depot  only,''  does 
not  relieve  the  carrier  from  its  duty  to 
properly  care  for  them  after  their  arrival  at 
the  latter  place.  Merchants'  D  <S-  T.  Co. 
V.  Aferriam,  31  Am.  <S^  Eng.  R.  Cas.  78,  1 1 1 
Dui.  5,  1 1  A'.  /•;.  Rep.  954. 

91 .  Limiting  liability  for  loss  fk-oiii 
dela.vH.— A  stipulation  in  a  bill  of  lading 
of  non-liabiliiy  for  loss  frf)in  delays  for  any 
cause  is  unreasonable  and  will  not  relieve 
the  carrier  frf)m  liability  for  losses  caused 
by  negligent  c.  Rerje  v.  Te.ras  &•  P.  R.  Co., 
37  La.  Ann.  468, 

A  provision  in  a  bill  of  lading  that  the 
carrier  shall  not  be  liable  for  delays  in  the 
transportation  occasioned  by  over-pressure 
of  freight,  gives  him  no  greater  exemption 
than  he  is  entitled  to  by  law.  f/elliwcll  v. 
Grand  Trunk  R.  Co.,  10  Biss.  (U.  S.)  170,  7 
Fed.  Rep.  68.— DlST'NOUlsHF.D  IN  Petersen 


'  i:  ! 


BILLS  OF   LADING,  02-97. 


(>39 


113 


V.  Case,  1 8  Am.  &  Eng.  R.  Cas.  $78,  21  Fed. 
Rep.  885. 

In  an  action  by  the  shipper  of  apples 
under  a  bill  of  lading  exempting  the  carrier 
from  liability  for  damage  to  |)erisliuble  prop- 
erty from  delay,  it  is  competent  for  the  de- 
fendant to  prove  that  prior  to  such  ship- 
ment the  plaintiff  had  filled  up  similar 
blank  bil's  for  shipments,  which  contained 
the  same  stipulation  in  regard  to  perishable 
property,  as  going  to  show  plaintiff's  knowl- 
edge of  and  assent  to  such  provision.  IVa- 
dash,  St,  L.  &»  P.  /i,  Co.  v.  Jaggerman,  23 
Am.  6t*  Eng.  R.  Cas.  680,  1 1 5  ///.  407,  4  A'. 
E.  Rep.  641. 

Notwithstanding  a  provision  in  a  bill  of 
lading  that  the  carrier  should  not  be  re- 
sponsible for  "damage  to  perishable  properly 
of  any  kind  occasioned  by  delays  from  any 
cause,"  he  may  and  will  become  liable  for 
delay  as  the  result  of  actual  negligence.  But 
proof  of  delay,  merely,  is  not  sufficient  to 
show  negligence  in  transporting  the  goods. 
Wabash,  St.  L.  &>  P.  R.  Co.  v.  Jaggerman, 
23  Am.  &*  Eng.  R.  Cas.  680,  1 1 5  ///.  407,  4 
N.E.  Rep.  641. 

A  provision  in  a  bill  uf  lading  providing 
that  the  carrier  shall  not  be  liable  for  loss 
of  perishable  goods  caused  by  delay  does 
not  apply  to  a  loss  through  delay  which  is 
caused  by  the  negligence  of  the  carrier, 
where  there  is  no  provision  in  the  bill  of 
lading  exempting  the  carrier  from  liability 
for  such  negligence.  McKay  v.  New  York 
C.  &•  H.  R.  R.  Co.,  50  Hun  {N.  Y.)  563.  20 
N.  Y.  S.  R.  816, 3  N.  Y.  Supp.  708.— Apply- 
ing Condict  V.  Grand  Trunk  R.  Co.,  54  N. 
Y.  500;  Lamb  v.  Camden  &  A.  R.  &  T.  Co.. 
46  N.  Y.  271  ;  Mynard  v.  Syracuse.  B.  &  N. 
Y.  R.  Co..  71  N.  Y.  180. 

02.  Liinitiiiir  liability  for  Iohh  by 
freezing. — Where  a  carrier  agrees  to  trans- 
port perishable  fruits  through,  in  refrigerator 
cars,  without  a  change,  it  is  liable  for  a  loss 
occurring  by  the  fruit  freezing  by  reason  of 
being  transferred  to  common  box  cars,  not- 
withstanding the  delivery  of  a  bill  of  lading 
^.fier  the  shipment  containing  a  provision 
that  the  carrier  would  not  be  liable  for  in- 
juni  or  ios«  occasioned  by  the  weather. 
Mil  chants'  D.  5*  T.  Co.  v.  Cornforth,  3  Colo. 
280. 

A  provision  in  a  bill  of  lading  providing 
that  potatoes  were  to  be  carried  at  the 
owner's  risk  of  freezing  does  not  relieve  the 
carrier  from  liability  for  a  loss  c.iused  by  a 
failure  to  carry  them  promptly.     Read  v,  St. 


Louis,  K.  C.  &>  N.  R.  Co.,  60  Mo.  199,  9  Ant. 
Ry.  Rep.  201. 

93.  Limiting  liability  for  injuries 
to  Mtock  while  being:  loaded.— A  pro- 
vision in  a  bill  of  lading  exempting  the 
carrier  from  liability  for  injuries  to  live 
stock  while  being  loaded  does  not  relieve  it 
from  liability  for  an  injury  caused  by  a  failure 
to  provide  safe  and  sufficient  accommoda- 
tions for  loading  it.  Potter  v.  Sharp,  24 
Hun  (.V.  Y.)  179. 

04.  Requiring  bill  to  be  presented 
indoFMed.* — A  provision  in  a  bill  of  lading 
requiring  the  bill  uf  lading  to  be  presented 
indorsed  as  a  condition  precedent  to  the 
right  to  demand  delivery  of  the  goods  is 
valid,  but  a  provision  requiring  it  to  be 
indorsed  and  presented  before  the  goods 
reached  their  place  of  de.stination  is  not 
valid.  Bishop  v.  Empire  Transp.  Co.,  \  J. 
&-  S.  (N.  J'.)  99. 

05.  Restrivtini;  liability  for  Iohs  of 
packngfcs. — Seventy  thousand  pounds  of 
corn  in  bulk  is  not  a  "package  "  within  the 
meaning  of  a  printed  clause  in  a  bill  of  lad- 
ing restricting  the  carrier's  liability  for  the 
loss  of  packages.  Rosenstein  v.  Missouri 
Pac.  R.  Co.,  16  Mo.  App.  225. 

00.  Stipulation  aw  to  place  of  pre- 
senting claim  for  loss.— The  "  place  of 
delivery"  within  the  meaning  of  a  bill  of 
lading  issued  by  the  first  of  a  line  of  through 
carriers  and  requiiing  notice  of  a  claim  for 
damages  for  loss  or  delay  to  be  made  to  the 
agent  "at  the  place  of  delivery  "  is  the  place 
of  ultimate  destination  and  not  the  place 
where  the  carrier  issuing  the  bill  of  lading 
turns  the  goods  over  to  a  connecting  line. 
Mason  v.  Grand  Trunk  R.  Co.,  37  U.  C.  Q. 
n.  163. 

07.  As  to  the  time  within  which 
to  present  such  claim.— A  provision  in 
a  bill  of  lading  requiring  a  claim  for  loss  or 
damage  to  be  presented  within  thirty  days 
:■*  valid  and  binding.  Kaiser  v.  Hoey,  i6 
A'.  Y.  S.  R.  803,  I  N.  Y.  Sup/).  429. 

A  provision  in  a  bill  of  lading  that  a  claim 
for  loss  or  damage  should  be  presented 
within  forty  days  does  not  apply  to  dam- 
ages resulting  from  a  failure  of  the  carrier 
to  furnish  cars.  Gulf,  C.  &■>  S.  F.  R.  Co.  v. 
McCarty.  82  Tex.  608,  18  S.  IV.  Rep.  716.— 
Following  McCarty  v.  Gulf,  C.  &  S.  F.  R. 
Co.,  79  Tex.  33. 

Stipulation  in  bill  of  lading  as  to  notice 

*  See  anit,  48. 


I'll.  . 


W\ 


S40 


BILLS   OF   LADING,  «7. 


of  claim  for  damage  done  to  goods  while  /n 
transitu,  and  before  delivery,  held  not  to 
apply  where  owner  refused  to  receive  goods. 
Gulf,  C.  &>»  S.  F.  R.  Co.  V.  Golding,  23  Am. 
&»  Eng.  K.  Cas.  73a.  3  Tex.  App.  (Civ.  Cas) 
60. 

A  carrier  cannot  require  a  shipper  who 
sustains  a  loss  to  give  notice  of  his  claim 
within  a  short  period  of  the  date  of  the  bill 
of  lading  without  reterence  to  the  time  of 
the  loss.  Pacific  Exp.  Co,  v.  Darnell,  ( Tex.) 
32  Am.  &•  Eng.  R.  Cas.  543.  6  S.  IV.  Rep. 
765. 

A  stipulation  in  a  bill  of  lading  as  to 
notice  of  a  claim  for  damages  to  the  goods 
shipped  is  valid  and  binding,  and  must  be 
complied  witii  by  the  shipper  before  he  has 
a  right  of  action  for  damages.  Texas  &*  P. 
R.  Co.  V.  Jackson,  3  Tex.  App.  {Civ.  Cas.) 
65. 

A  stipulation  in  a  bill  of  lading  which 
exempts  the  carrier  from  liability  unless 
notice  is  given  of  the  damage  within  a 
specified  time  is  one  of  the  matters  for- 
bidden by  $  2068  of  the  Georgia  Code,  and 
is  not  effectual  without  proof  of  assent 
thereto  by  the  shipper.  Central  R.  &*  B. 
Co.  V.  Hasselkus  (Ga.),  55  Am.  &»  Eng.  R. 
Cas.  586.  17  S.  E.  Rep.  838. 

Provisions  requiring  claims  for  loss  or 
damage  to  be  presented  within  thirty-six 
hours  after  the  arrival  of  the  goods  are  not 
as  a  matter  of  law  reasonable.  Bro7un  v. 
Adams,  3  Tex.  App.  {Civ.  Cas.)  462. 

Five  barrels  of  whiskey  were  shipped,  and 
a  bill  of  ladingwastaken  containing  the  pro- 
vision :  "  Claims  for  loss  or  damage  must  be 
presented  to  the  delivering  line  within  tliirty- 
six  hours  after  the  arrival  of  the  freight." 
One  of  the  barrels  was  never  delivered. 
Held,  in  an  action  for  failure  to  deliver  the 
one  barrel,  that  the  provision  did  not  apply  ; 
and  that  an  assurance  by  the  local  agent, 
upon  delivering  the  four  barrels,  that  the 
other  would  be  delivered  in  a  few  days  was 
a  waiver  of  such  notice.  Galveston,  H.  &*  S. 
A.  R.  Co.  v.  Ball,  80  Tex.  602,  16  S.  IV.  Rep. 

441. 

An  express  company  undertook  to  carry 
C.  O.  D.  goods  under  a  bill  of  lading  stipu- 
lating that  in  no  event  should  the  company 
be  liable  for  loss  or  damage  unless  theclaim 
should  be  presented  in  writing  within  thirty 
days  after  the  date  of  the  bill  of  lading, 
with  a  further  provision  that  "  if  nny  sum  of 
money  besides  the  cliarge  of  transportation 
is  to  be  collected  from   the  consignee  on 


delivery  of  the  property,  and  the  sum  is  not 
paid  within  thirty  days  from  the  date  of  the 
bill  of  lading,  the  shipper  agrees  that  this 
company  may  return  such  property  to  him 
at  the  expiration  of  that  time,  subject  to 
the  conditions  of  its  receipt,  and  that  he 
would  pay  the  charges  for  transportation 
both  ways,  and  that  the  liability  of  the  com- 
pany while  in  this  position,  for  the  purpose 
of  making  such  collection,  should  be  that  of 
warehouseman  only."  The  company  failed 
to  collect  the  amount  or  to  return  the 
property,  //eld,  that  the  owner  of  the 
property  was  not  restricted  to  thirty  days  in 
the  presentation  of  his  claim,  but  was  en- 
titled to  a  reasonable  time  in  which  to  do 
so.  Smit/t  V.  Dinsmore,  9  Daly  {N.  Y.)  188. 
— Applied  in  Hirshberg  v.  Dinsmore,  12 
Daly  (N.  Y.)  429,  67  How.  Pr.  103. 

A  stipulation  in  a  bill  of  lading  that  in 
case  any  claim  for  damage  should  arise  for 
the  loss  of  articles  mentioned  in  the  receipt, 
while  in  transitu  or  before  delivery,  the 
extent  of  such  damage  or  loss  shall  be  ad- 
justed before  removal  from  the  station,  and 
the  claim  therefor  made  in  thirty  days  to  a 
"trace  agent"  of  the  carrier,  is  an  un- 
reasonable provision  which  the  courts  will 
not  uphold.  Capehart  v.  Seaboard  &*  R. 
R.  Co.,  81  A^.  Car.  438.— Followinc.  New 
Jersey  Sleam  Nav.  Co.  v.  Merchants'  Bank, 
6  How.  (U.  S.)  344;  Bank  of  Ky.  v.  Adams 
Exp.  Co.,  93  U.  S.  174. 

A  provision  in  a  bill  of  lading  that  any 
claim  fur  injury  thereto  shall  be  adjusted 
in  the  presence  of  an  officer  before  the 
goods  arc  removed  from  the  station,  and 
requiring  notice  to  be  given  within  ten  days 
from  the  time  the  goods  are  del.vered,  ha? 
no  application  where  the  goods  are  so  dam- 
aged as  be  entirely  worthless  and  the  con- 
signee refuses  to  receive  them.  Gulf,  C,  &* 
S.  F.  R.  Co.  V.  Golding,  23  Am.  &•  Eng.  R. 
Cas.  732,  3  Tex.  App.  (Civ.  Cas.)  60. 

The  carrier  must  allege  and  prove  the 
reasonableness  of  a  provision  requiring 
claims  for  loss  or  damage  to  be  presented 
within  thirty-six  hours  after  the  arrival  of 
the  goods.  Brown  v.  Adam,  3  Tex.  App. 
{Civ.  Cas.)  462. 

A  condition  in  a  bill  of  lading  that  no 
claim  for  damages  for  loss  or  detention  of 
goods  will  be  allowed  "  unless  notice  in 
writing  and  the  particulars  of  the  claim  for 
said  loss,  damage,  or  detention  "  are  given 
within  thirty-six  hours,  is  not  complied  with 
by  writing  to  the  agent  "  that  the  delay  has 


BILLS   OF   LADING,  U8-102. 


641 


been  unreasonable  and  loss  siifTered  through 
the  detention,  that  plaintiff  has  been  com- 
pelled to  reorder  goods,  and  will  imld  the 
company  accountable,"  such  notice  contain- 
ing no  purticiilars  of  the  loss.  Mason  v. 
Grand  Trunk  A'.  Co.,  37  I/.  C  Q.  />'.  163. 

98.  Cuiiditioii  iiH  to  iHiyiiiciit  of 
t'roiglit  cliuri;eH  by  coiiNiKiieeM  before 
ih'llvepy.*— A  clause  in  ii  bill  of  lading 
making  the  payment  of  freight  by  the  con- 
sij^nec  a  condition  of  the  delivery  of  the 
gr)od.s  is  inserted  for  the  benefit  of  the 
carrier.  It  is  regarded  as  a  letter  of  request 
from  the  consignor,  and  the  reception  of 
the  property  causes  an  implication  that  the 
consignees  intend  to  comply  with  the  re- 
quest, and  the  law  implies  a  promise  upon 
which  the  carrier  may  found  an  action  for 
the  freight;  and  this  rule  applies  to  every 
consignee  named  in  the  bill  of  lading, 
whether  final  or  intermediate.  Canfidd 
V.  Northern  A\  Co..  18  Bard.  (/V.  V.)  586. 
Compare  also  Meyer  v.  Lemcke,  31  Ind.  208. 

1M>.  Stipiilutioii  for  benefit  of  iii- 
siiriiii<;c.f — .\  carrier  may  stipulate  in  his 
.(ontract  of  shi|)ment  for  the  benefit  of  any 
insurance  that  may  have  been  effected  upon 
the  goods  to  be  transported,  and,  in  the  ab- 
sence of  notice  to  the  contrary,  a  carrier 
has  the  right  to  presume  that  an  agent  of 
the  shipper  has  authority  to  contract  for 
such  a  stipulation  ;  and  such  an  agreement 
by  the  agent  defeats  the  insurer's  right  of 
subrogation.  Furthermore,  the  subroga- 
tion clause  in  the  bill  of  lading  cannot  be 
held  invalid  on  account  of  lack  of  consider- 
ation, simply  because  there  was  no  corre- 
sponding reduction  of  the  freight-charges. 
Missouri  Pac.  R.  Co.  v.  International 
Marine  Ins.  Co.,  55  Am.  <S««  Eng.  R.  Cas. 
548,  84  7V.r.  149,  19  S.  IV.  Rep.  459. 

A  bill  of  lading  contained  a  provision 
that  the  carrier  should  have  the  benefit  of 
insurance  effected  by  the  insurers  in  case  of 
liability  for  loss,  but  provided  that  the  car- 
rier should  not  be  liable  for  loss  by  perils  of 
navigation.  A  loss  occurred  through  the 
perils  of  navigation  as  the  proximate  cause, 
but  to  which  the  negligence  of  the  carrier 
remotely  contributed,  and  '.he  insurers  paid 
the  loss  to  the  shippers.  Held,  that  the  in- 
surers were  not  subrogated  to  the  rights  of 
the  shippers,  and    could   not  maintain  an 

•  See  ante,  47. 

f  Subrogation  of  insurer  to  insured's  right  to 
.-kctinn:  effect  of  stipulation  for  benefit  of  insur- 
ance, see  42  Am.  &  Knc;.  R.  Cas.  344  abitr. 

I  t).  R.  I).— 41. 


action  against  the  carrier.  Phaeni.x  Ins. 
Co.  V.  Erie  6-  W.  Transp.  Co.,  10  Hiss.  (U. 
S.)  18. 

100.  StiiMiliition  that  Hhippcr  no 
ceptM  t'lir  UN  Niifllfieiit.— A  carrier  is  not 
protected  againt  liability  for  loss  of  goods 
resulting  from  defects  in  a  car,  the  exist- 
ence of  which  affords  evidence  of  negli- 
gence, by  a  stipulation  in  the  bill  of  lading, 
accepted  by  the  shipper,  to  the  effect  that  he 
had  examined  the  car  for  himself,  had 
found  it  in  good  order,  and  had  accepted 
it  as  "  suitable  and  sufficient "  for  the  pur- 
pose of  his  shipment.  Louisville  &*  N.  R. 
Co.  V.  Vies,  91  Tenn.  177,  18  S.  W.  Rep. 
266. 

101.  IVaiviiis:  iicreMHity  of  notice 
of  arrivul  to  <*oiiNig:iiee.— Carriers  are 
not  by  law  required  to  give  notice  to  the 
consignee  of  the  arrival  of  goods ;  but, 
even  if  they  should  be  so  required,  a  pro- 
vision in  a  bill  of  lading  providing  that 
goods  should  be  removed  the  same  day  of 
their  arrival,  or  stored  at  owner's  risk,  would 
be  a  waiver  of  the  duty  to  give  notice. 
Gashweiler  v.  Wabash,  St.  L.  Sf  P.  R.  Co., 
25  Am.  &*  Eng.  R.  Cas.  403,  83  Mo.  112,  53 
Am.  Rep.  558.— Quoting  Rankin  v.  Pacific 
R.  Co.,  55  Mo.  168  ;  Buckley  v.  Great  West- 
ern R.Co.,  18  Mich.  131  ;  Huston  v.  Peters, 
I  Met.  (Ky.)  561. 

102.  ExceptihK  loNM  or  dnmage  on 
water— "PerllH  of  (lie  nca."* —Where 
goods  will  be  carried  both  by  land  and 
water,  a  provision  in  a  through  bill  of  la- 
ding, exempting  the  railroad  company 
from  liability  for  damages  "  by  fire  or  col- 
lision on  the  rivers  and  sea,  or  for  loss  or 
damage  by  storm  or  accident  on  water," 
limits  the  vailroad  carrier's  exemption  only 
to  loss  or  damage  on  the  water,  and  not  to 
any  loss  occurring  on  their  own  roads  or  in 
their  stations.  Little  Rock,  M.  R.  6-  T.  R. 
Co.  V.  Taldot,  18  Am.  &*  Eng.  R.  Cas.  598, 
39  Arl:    523. 

Under  a  bill  of  lading  excepting  loss  by 
"  unavoidable  dangers  of  the  river  naviga- 
tion," a  loss  by  collision  occurring  without 
default  of  the  vessel  containing  the  goods  is 
within  the  exception,  notwithstanding  that 
the  collision  was  caused  by  the  negligence 
of  the  persons  operating  the  other  boat. 
Hayes  V.  Kennedy,  2  Pittsb.  {Pa.)  262. 

Where  a  railroad  company  received  freight 

*  "  Perils  of  the  sea,"  meaning  of,  generally, 
see  note,  41  Am.  Dec.  38 i. 


643 


BILLS   OF   LADING,  103,  104. 


u  > 


to  be  transported  partly  by  rail  and  partly 
by  water,  and  it  was  stipulated  in  the  bill  of 
lading  that  "  it  is  especially  agreed  and 
understood  that  the  company  is  not  resiton- 
sible  for  loss  or  damage  on  the  lakes  or 
rivers,  unless  it  can  be  shown  that  such 
damage  or  loss  occurred  through  the  negli- 
gence or  default  of  the  agents  of  the  com- 
pany;" and  the  freight,  after  being  carried 
by  the  defendant,  was  placed  upon  a  wharf- 
boat,  awaiting  the  arrival  of  a  packet, 
wherein  to  ship  it,  and  the  wliarf-boat  sank 
without  the  fault  of  the  railroad  qpmpuny, 
and  the  freight  was  lost — AM,  that  the 
loss  was  not  one  occurring  on  the  lakes  and 
rivers  within  the  meaning  of  the  bill  of  lad- 
ing, and  that  the  bill  of  lading  should  be 
construed  to  mean  that,  in  the  absence  of 
negligence,  the  carrier  was  not  to  be  re- 
ponsible  for  loss  or  damage  occurring  in 
the  navigation  of  the  lakes  or  rivers.  .SV. 
Lout's  6r*  S.  £.  R.  Co,  v.  StnucJt,  49  /«</.  302, 
8  Am.  Hy.  Rep,  209. 

Where  a  bill  of  lading,  issued  by  a  steam- 
ship company,  contains  a  provision  exempt- 
ing it  fom  injury  resulting  from  "  blowing 
of  bilge-water  upon  the  goods,  and  from 
the  perils  of  the  sea,"  a  verdict  in  favor  of 
the  owner  of  the  goods  for  an  injury  caused 
thereby,  in  the  absence  of  evidence  of  neg- 
ligence, is  error.  East  Tenn,,  V.  &*  G.  R,  Co, 
v.  Wright,  76  Ga.  532. 

103.  Kft'ect  of  clause  "  nt  conipaiiy's 
convenience."— The  clause  in  a  bill  of 
lading,  that  the  goods  will  be  shipped  "  at 
the  convenience  of  the  company,"  will  not 
protect  the  company  from  liability  for  un- 
reasonable delay.  Branch  v.  IViimington 
&*  PV.  R.  Co,,  iSAm.  &*  Ettg.  R.  Cas,  621. 
88  A^  Car.  573. 

Ordinarily,  a  stipulation  to  ship  "at  com- 
pany's convenience  "  in  too  indefinite,  and 
therefore  unreasonable ;  but  under  the  cir- 
cumstances in  this  case,  the  defendant  is 
entitled  to  set  up  the  agreement  as  a  de- 
fense to  the  action  for  the  penalty.  White- 
head V.  Wilmington  &*  W,  R,  Co,,  9  Am.  &> 
Eng,  R.  Cas,  168,  87  N.  Car.  255. 

A  railroad  company  accustomed  to  trans- 
port cotton  owned  120  flat  cars  which  were 
usually  ample  to  carry  on  all  its  business  in 
that  line.  In  the  autumn  of  1881  the  cot- 
ton crop  was  very  heavy,  and  there  were 
many  delays  in  consequence.  At  the  same 
time  a  connecting  line,  over  which  much  of 
the  cotton  was  forwarded,  gave  notice  that 
it  would  thereafter  transport  cotton  only  in 


box-cars  and  not  in  flat  cars.  The  company 
first  above-named  had  nut  siillicient  box- 
cars to  carry  on  its  business  and  was  wholly 
unable  at  once  to  obtain  more.  At  this 
juncture,  A.  &  Co.  delivered  certain  cotton 
to  the  railroad  for  transportation,  receiving 
a  through  bill  of  lading  over  the  connecting 
line,  which  bill  contained  a  clause  providing 
that  tiie  cotton  was  received  for  transporta- 
tion "at  the  company's  convenience."  A.  A 
Co.,  although  well  able  to  read,  did  not  no- 
tice said  clause  until  after  the  bringing  of 
the  suit  hereinafter  mentioned.  The  cot- 
ton waa  not  shipped  for  more  than  five 
days,  owing  to  the  circumstances  above 
mentioned.  In  a  suit  by  A.  A  Co.  against 
the  railroad  company  to  recover  the  statu- 
tory penalty — he/ti,  that  under  the  circum- 
stances of  the  case  the  clause  above  cited 
in  the  bill  of  lading  was  a  valid  one,  and 
might  be  taken  advantage  of  by  the  com- 
pany, and  that  therefore  plaintilTs  could  not 
recover.  Whitehead  v.  Wilmington  &*  W. 
R.  Co..  9  Am.  6-  Eng,  R.  Cas!  168,  87  A^. 
Car.  255. 

104.  EflTect  of  the  clauHO  "nt 
owner'M  tIhU."— The  term  "  at  the  owner's 
risk  "  in  bills  of  lading  which  are  declared 
to  be  special  contracts,  taken  in  connection 
with  the  other  stipulations  therein,  is  held 
to  limit  the  carrier  to  such  loss  and  damage 
only  as  might  result  frr)m  ordin  ^ry  neglect ; 
which  is  defined  to  mean  that  want  of  care 
and  diligence  which  prudent  men  usually 
bestow  on  their  own  coniereis.  /ialtimort 
6-  O,  R.  Co.  V.  Rathbone,  1   //'.  \'a.  87. 

Where  by  the  bill  of  lading  the  goods 
are  received  "at  owners'  risk  of  loss  or 
damage,"  any  damage  to  the  goods  must  be 
proved  to  have  been  caused  by  the  fault  of 
the  carrier  before  he  can  be  held  liable. 
Mississippi  Valley  Transp.  Co.  v.  Fostick, 
Mann.  (La.)  3. 

Even  if  verbal  evidence  was  admissible  to 
prove  a  contract  to  carry  oil  in  covered 
cars,  defendants  were  not  liable  thereon,  as 
the  agent  had  no  authority  to  make  such  a 
contract ;  but,  held,  that  they  were  not  guilty 
of  negligence,  liability  for  which,  the  condi- 
tion that  "oil  will  unuer  no  circumstances 
be  carried  save  at  the  risk  of  the  owners  " 
did  not  exempt  them.  Fitzgerald  v.  Grand 
Trunk  R.  Co.,  4  Ont.  App.  601 ;  affirming  28 
U.  C,  C,  P.  586.— Rkviewing  Peck  v. 
North  Staflfordsbire  R.  Co.,  10  H.  L.  473; 
Shaw  V.  York  &  N.  M.  R.  Co.,  13  Q  B.  347 : 
Carr  %>.  Lancashire  &  Y.  R.  Co.,  7  Kx.  707; 


I'   > 


All 


BILLS  OF   LADING,  lUS-llO. 


(>43 


'at 


Allday  v.  Great  Western  R.  Co.,  s  B.  A  S. 
903.  DisTrN(iUisMiN(i  D'Arc  v.  London  & 
N.VV.  U.  Co..  L.  R.  «;C.  P.  325. 

In  a  bill  of  lading  given  by  a  railroad 
com|)uny,  an  exception  or  stipulation  in  the 
Words  "taken  at  owner's  risk"  does  not 
change  the  churactrr  of  the  employment, 
but  only  exempts  the  company  from  its  lia- 
bility as  insurer,  and  the  company  when 
sued  for  a  failure  to  deliver  the  goods  is 
not  relieved  from  the  onus  of  making  at 
least  a  prima-fttih'  showing  that  the  loss 
was  not  caused  by  its  neglect ;  and  the 
showing  that  the  transaction  occurred  dur- 
ing the  war,  and  that  the  railroad  was  fre- 
quently used  by  the  military  authorities, 
and  there  was  a  great  want  of  safety  and 
certainty  in  the  trans|K)rtation  of  freight, 
docs  not  make  out  such  priiiia-fixcie  case. 
Mobile  &*  O.  R.  Co.  v.  Jarboe,  41  Ala.  644.— 
Rkviewki)  in  Mobile  &  O.  R.  Co.  v. 
Thomas,  42  Ala.  672. 

lUff.  KflTevt  orfliuiMc  "  privilege  of 
rcMliippliig.**— The  words  "  privilege  of 
reshipping"  in  a  bill  of  lading  are  intended 
for  thR  benefit  of  the  carrier,  but  do  not  limit 
his  responsibility,  lie  is  bound  for  the  safe 
delivery  of  the  property  precisely  as  if  such 
words  were  not  in  the  bill  of  lading.  liroait- 
■ii'ell  v.  liutltr,  6  Ate  Lean  ((/.  H.)  296. 

100.  lOft'vvt  of  ciniiNo  "  iiiiiivolduble 
iM'cid«'iitM,"  etc. — An  except  ion  contained 
in  a  bill  of  lading  of  a  common  carrier  by 
land  "of  unavoidable  dangers  and  accidents 
of  the  road,"  is  not  a  restriction  of  his  gen- 
eral liability.  Waipole  v.  liruiges,  5  lilackf. 
(Ind.)  222. 

The  use  of  the  words  "  unavoidable  acci- 
dents" in  a  bill  of  lading,  instead  of  the 
usual  ones,  "  inevitable  accidents,"  does  not 
vary  the  meaning  of  the  instrument  or 
change  the  liability  of  the  carriers.  Fowler 
V.  Davenport,  2 1  Tex.  626.  See  also  f/ar- 
mony  v.  Bingham,  1  Duer  (N.  K)  209. 

107.  Meaning  of  the  tcrniH  "  break- 
ing" and  "chafing."— In  respect  to 
every  injury  except  those  specially  ex- 
cepted the  defendant  was  subject  to  all 
the  responsibilities  of  a  common  carrier. 
Among  the  exceptions  were  "breaking" 
and  "chafing."  Held  not  to  have  been  in- 
tended to  apply  to  live  stock,  and  that  the 
breaking  of  the  leg  of  a  mare  was  not 
covered  by  them.  Coupiand  v.  Housatonic 
R.  Co.,f>\  Conn.  531.  23  ////.  Kep.  870.  — Dis- 
TINCUlSHlNi;  Camp  v.  Hartford  &  N.  Y. 
Steamboat  Co.,  43  Conn.  333. 


III.  mSOOTIABILITT  AVD  THANiriB.* 

I.  Negotiability  and  Mode  of  iramfer, 

lUH.  Negotiability  of  the  bill,  gen- 

erally.f  — iiills  of  lading  arc  not  negotiable 
in  the  same  sense  in  which  billsof  exchange 
or  promissory  notes  are.  Italtitnore  »&«•  O, 
R,  Co.  v.  Wilkens,  44  Md.  11.  Doiiglas  v. 
People's  Rank,  86  A>.  176.  5  .S".  W.  K,p.  420, 
Ratavia  Rank  v.  A'<w  York,  /,.  /:".  <5-  ll\  R. 
Co.,  32  Am.  &*  ling.  R.  Cas.  497,  106  A'.  V, 
195.8  A',  v.  S.  R.  200,7  Cent.  ^'>P-  822,  ii 
A'.  E.  Rep.  433;  affirming  33  Hun  589. 
Missouri  Pac.  R.  Co.  v.  Heidenheimer,  8a 
Tex.  195.  17  >'.  \y.  R'P.  6o«,  Stone  v.  Wa- 
bash,  St.  I..  &*  P.  R.  Co.,  9  ///.  App.  48. 
Na.ional  Rank  v.  Atlanta  &*  C.  .1.  I..  R, 
Co.,  2$  So.  Car.  216.  .Shaw  v.  Merchants' 
Nat.  Rank,  101  U.  S.  557.  Lehman  v. 
Central  R.  &*  R.  Co.,  4  Woods  (U.  S.)  560, 
1 2  Fed.  Rep.  595. 

A  bill  of  lading  is  to  be  regarded  as  a 
^//<i.v/ -  negotiable  instrument.  Missouri 
Pac.  R.  Co.  V.  Heidcnheimer,%i  Tex.  195,  17 
.S.  \V.  Rep.  608. 

When  it  is  said  that  a  bill  of  lading  is  ne- 
gotiable, it  is  only  meant  th.it  its  true  owner 
may  transfer  it  by  indorsement  or  assign- 
ment, so  as  to  vest  the  legal  title  in  the  as- 
signee. Douglas  V.  People's  Rank,  86  Ky. 
176,  5  S.li'.  Rep.  420. 

100.  Negotiability  under  Htatiitory 
provlsionM-t— Minnesota  Gen.  St.  1878.  ch. 
124,  §  17,  does  not  put  bills  of  lading  on  the 
same  footing  as  billsof  exchange.  National 
Rank  v.  Chicago,  R.  &*  N.  R.  Co.,  44  Minn. 
224,  46  A'.  VV.  Rep.  342.  560. 

A  statute  making  bills  of  lading  nego- 
tiable by  indorsement  and  delivery,  without 
defining  the  effect  of  the  transfer,  must  not 
be  construed  as  making  such  instruments 
negotiable  in  the  full  sense  of  bills  of  ex- 
change  and  promissory  notes.  Shaw  v.  Mer- 
chants' Nat.  Rank,  101  ^'.  .V.  557. 

110.  Duration  of  negotiability  of 
bill.^— In  shipping  goods  from  Chicago  to 
Boston  the  usual  course  of  triidc  is  to  for- 
ward the  goods  by  vessel  on  the  Great  Lakes 
as  far  as  Buffalo,  and  thence  by  rail  to 

•See  <!»/<•,  2»,  50-»1. 

f  Negotiation  of  "duplicate"  hill  of  lading, 
see  note,  21  Am  &  Enc;.  R.  Cas.  78. 

%  Statutory  provisions  respecting  negotiability 
of  bills  of  lading  and  rights  of  action,  see  note, 
38  Am.  Dec.  423. 

$$  See  unit,  A2. 

Duration  of  negotiability  of  bill  of  lading,  see 
note,  38  Am.  Dec.  422. 


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BILLS   OF   LADING,  111-113. 


ft.    M 


IC 


T^O'^is   were,  how- 

■'•2  by  the  rail- 

:.  ndiiif;  the  bill 


Boston.  A  bill  of  lading  is  given  to  the 
consignor  at  Chicago  by  the  owners  of  the 
vessel,  drawn  to  the  consignor's  order  at 
Buflalo.  At  Buflfalo,  when  the  goods  are 
put  in  tlie  cars,  the  railroad  company  gives 
a  memorandum  receipt  reciting  that  the 
vessel's  bill  of  lading  is  still  outstanding, 
that  it  is  to  be  regarded  as  transferring 
the  property,  and  is  alone  to  be  used  in 
procuring  the  goods  from  the  railway  com- 
pany. Goods  being  'orwarded  in  accord- 
ance with  the  abov?-iiientioned  course  of 
trade,  the  vessel's  !  cf  lading  w;is  trans- 
ferred by  the  consignee,  to  whom  it  had 
been  indorsed  prior  to  the  arrival  of  tlie 
goods  in  Boston.  Tlie 
ever,  deli'.ered  to  the  :< 
way  company  without  ^ 
of  lading.  In  an  action  by  t,:e  transferee  of 
the  bill  against  the  company  for  the  nrisde- 
livery — /te/ii,  that  said  bill  was  not  functus 
officio  at  Buffalo,  but  '/as  effectual  t^  trans- 
fer the  property  in  the  goods  to  plaintiff, 
and  that  therefore  he  was  entitled  to  re- 
cover. Forbes  v.  Boston  &*  L.  R.  Co.,  9  Atn. 
&>  Eng.  R.  Cas.  76,  80,  133  Mass.  154. — 
Compare  also  Clementson  v.  Grand  Trunk 
R.  Co.,  42  U.  C.  Q.  B.  263. 

111.  Transfer  of  the  bill,  generally. 
—Though  a  bill  of  lading  is  not  negotiable  in 
the  ordinary  sense  of  the  term,  it  is  assign- 
able to  the  same  extent  as  the  property  that 
it  represents,  and  the  rights  of  innocent 
holders  should  be  protected  the  same  as  if 
they  were  in  possession  of  the  property  it- 
self. S/one  V.  IVadas/i,  St.  L.  Sf  P.  R.  Co., 
9  ///.  App.  48. 

The  right  of  property  in  goods  may  be 
transferred  by  delivery  or  indorsement  of 
the  bill  of  lading.  Baltimore  6^  O.  R.  Co.  v. 
Wilkens,  44  Md.  1 1. 

Gen.  St.  Minnesota  1878,  ch.  124,  §  17, 
merely  makes  a  transfer  and  delivery  of  bills 
of  lading  symbols  of  property,  in  the  mode 
therein  prescribed,  equivalent,  for  certain 
purposes,  to  a  transfer  and  delivery  of  the 
property  itself.  National  Bank  v.  Chicago, 
B.&'N.  R.  Co.,  44  Minn.  224,  46  N.  IV.  Rep. 
342,  560. 

It  is  not  absolutely  necessary  that  a  bill  of 
lading  should  be  actually  indorsed  or  even 
delivered  to  the  buyer  to  mai<e  him  the  as- 
signee thereof.  Other  circumstances  may 
be  shown  equally  sufficient  to  show  the  real 
relationship  of  a  party  to  the  cargo.  Phila- 
delphia &*  R.  R.  Co.  V.  Barnard,  3  Ben.  {I/. 

s.)  39. 


112.  Transfer  by  indorsement  and 
delivery.*— By  indorsement  of  a  bill  of 
lading  or  its  delivery  without  indorsement, 
the  property  in  the  goods  may  be  transferred 
where  such  is  the  intent  with  which  the  in- 
dorsement or  delivery  is  made.  Dodge  v. 
Meyer,  61  Cal.  405. 

Section  744  of  the  Missouri  Rev.  St.  pre- 
scribes that  the  manner  of  negotiation  of 
bills  of  lading  shall  be  by  indorsement  and 
delivery  in  the  same  manner  as  bills  of  ex- 
change and  promissory  notes.  Dymock  v. 
Missouri,  K.  &>  T.  R.  Co.,  54  Mo.  App. 
400. 

A  bill  of  lading,  though  not  negotiable  in 
the  full  sense  of  that  term,  is  negotiable  so 
far  that  by  indorsement  the  right  to  the  pos- 
session of  the  goods  mentioned  in  it  passes. 
National  Bank  v.  Atlanta  6-  C.  A.  L.  R.  Co., 
25  So.  Car.  216. 

A  bill  of  lading  may  be  transferred  by  iii 
dorsement  and  transfer,  and  passes  a  good 
title  to  the  assignee  in  the  goods  represented 
by  the  bill.    Missouri  Pac.  R,  Co.  v.  Heiden- 
heimer,  82  Tex.  195,  17  5.  W.  Rep.  608. 

1 13.  Transfer  by  delivery  \t'ithont 
indorsement.! — A  formal  assignment  of 
a  bill  of  lading  is  not  essential  to  transfer 
title  to  the  goods  therein  mentioned.  Jef- 
fersonville,  M.  &*  I.  R.  Co.  v.  Ir'i'in,  46  Ind. 

180. 

The  transfer  of  a  bill  of  lading  by  the  ship- 
per, on  a  sale  or  pledge  of  the  property 
shipped,  is  a  symbolical  delivery  of  the  prop- 
erty, without  any  indorsement  on  the  bill. 
Michigan  C.  R.  Co.  v.  Phillips,  60  ///.  190. 

In  such  a  case  the  same  rule  applies  to  the 
shipper  who  is  not  the  owner,  but  has  been 
put  in  possession  of  the  property  under 
such  circumstances  as  to  sell  and  pass  the 
title  to  an  innocent  purchaser.  Such  a 
pledge  and  transfer  of  the  bill  of  lading 
transfers  a  legal  and  not  a  mere  equitable 
title  in  the  pledge.  Michigan  C.  R.  Co.  v. 
Phillips,  60  ///.  190.— Reviewed  in  Illinois 
C  R.  Co  V.  Southern  Bank,  41  111.  App. 
287. 

Goods  shipped  under  bill  of  lading  drawn 


*Seert»/^  00. 

f  See  ante,  57,  58. 

Transfer  of  bill  of  lading  without  indorse- 
ment, see  note,  30  Am.  &  Eng.  R.  Cas.  105. 

Delivery  of  unindorsed  bill  of  lading,  see  note, 
18  Am.  &  Eng.  R.  Cas.  651. 

Delivery  of  goods  by  carrier  on  unindorsrd 
bill  of  lading,  fictitious  name-,  see  45  Am.  & 
Eng.  R.  Cas.  384,  abstr. 


BILLS   OF    LADING,  114-110. 


OVi 


to  order  of  the  shipper  may  be  transferred 
by  delivery  of  the  bill  of  lading  witliout  in- 
dorsement. Merchants  Bank  v.  Union  R. 
i3«»  7'.  Co.,  69  N.  V.  373 ;  affirming  8  Hun 
249.  —  Following  Bank  of  F'^chester  v. 
[ones,  4  N.  Y.  497 ;  City  Bank  v.  Rome,  W. 
\0.  R.  Co..  44N.  Y.  136. 

Tiie  mere  delivery  of  a  bill  of  lading  trans- 
fers the  title  to  tlie  property.  Jeffersonviile, 
M.  &^  I.  Ji.  Co.  V.  Irvin,  46  Ind.  180. 

Where  a  bill  of  lading  requires  freight  to 
be  delivered  to  the  order  of  the  consignor, 
tlie  deposit  in  the  post  of  the  bill  of  lading, 
unindorsed,  attached  to  a  draft  drawn  upon 
a  third  person  for  the  purchase-price  of  the 
freight,  and  directed  to  such  third  person, 
does  not  necessarily  raise  a  conclusive  pre- 
sumption that  such  third  person  was  there- 
l)y  vested  with  the  title  to  the  freight ;  but 
it  may  be  shown  that  it  was  vendor's  inten- 
tion to  retain  the  title  in  himself  until  after 
tlie  acceptance  or  payment  of  the  draft. 
Alabama  G.  S.  R.  Co.  v.  Mi.  Vernon  Co.,  35 
Am.  &•  En^.  R.  Cas.  657,  84  A/a.  173,  4  So. 

Kfp.  356. 

114.  Effect  of  words  "nou-nego- 
tinble  "  written  in  the  bill.— At  com- 
mon law  a  carrier  can  limit  its  liability,  and 
the  statute  relating  to  bills  of  lading  is 
in  derogation  of  the  common  law,  and  the 
object  of  the  statute  in  requiring  the  inser- 
tion of  the  words  "  not  negotiable  "  in  bills 
of  lading  was  not  to  affect  any  transfer  of 
the  title  with  notice  that  the  shipper's  ven- 
dor had  not  been  paid  the  purchase-price, 
etc.,  but  to  notify  the  shipper  himself  that 
the  bill  of  lading  was  not  subject  to  the 
operation  of  the  statute.  Dymock  v.  Mis- 
souri, K.  &>  T.  R.  Co.,  54  Mo.  App. 
400. 

Bills  of  lading  are  not  negotiable  in  the 
fullest  sense  of  the  term,  but  they  are  trans- 
ferable, and  carry  with  them  the  ownership, 
either  general  or  special,  of  the  property 
described ;  and  unless  the  carrier  has  limited 
its  liability  by  stamping  them  as  "not  ne- 
gotiable," it  is  bound  to  know  that  their 
office  and  effect  is  not  limited  to  the  person 
to  whom  they  are  first  issued,  and  to  deliver 
the  property  only  on  production  of  the  bills. 
Bank  of  Butavia  v.  Ne%v  York,  L.  E.  Si^  W. 
R.  Co.,  32  Am.  &•  Eng.  R.  Cas.  497,  106 
N.  V.  195.  8  N.  v.  S.  R.  209,  7  Cent.  Rep. 
822,  12  A^.  E.  Rep.  433;  affirming  ^^  Nun 
589.  Compare  also  Colgate  v.  Pennsylvania 
Co.,  102  .V.  Y.  120,  I  A^.  Y.  S.  R.  166,  6  A^.  E. 
Rep.  114;  affirming  31  Nun  297. 


2.  Rig /its  0/  Transferee, 

115.  Generally.*— A  hill  of  lading  is 
not  such  a  negotiable  instrument  as  to  give 
to  the  assignee  any  other  or  greater  rights 
than  the  assignor  had.  Naas  v.  A'ansas  City, 
Ft.  S.  <&*  G.  R.  Co.,  35  Am.  &•  Eng.  R.  Cas. 
572,  81  Ga.  792,  7  S.  E.  Rep.  629. 

A  delivery  by  the  consignor  to  the  con- 
signee of  a  bill  of  lading  vests  title  in 
the  goods  therein  mentioned  so  far  as  the 
consignor  had  title  thereto.  Ela  v.  Amer- 
ican Merc/iants'  U.  Exp.  Co.,  29  Wis.  611. 

The  transfer  of  a  bill  of  lading,  for  value, 
by  indorsement  and  delivery,  passes  to  the 
transferee  whatever  title  the  transferrer  had 
to  the  property  at  the  time.  Hc/d,  accord- 
ingly, that  such  transferee's  title  is  superior 
to  the  lien  claim  of  a  person,  to  whom  the 
carrier  delivered  the  property,  for  charges 
against  the  transferrer  on  prior  consign- 
ments. Dickson  V.  Merc/iants'  E/evator  Co. , 
44  Mo.  App.  498. 

The  holder  of  a  railway  receipt  or  bill  of 
lading  can  acquire  no  greater  rights  under 
it  than  were  possessed  by  the  original  con- 
signee. Hunt  V.  Mississippi  C.  R.  Co.,  29 
La.  Ann.  446. 

The  transfer  of  a  bill  of  lading  operates 
only  as  a  transfer  of  whatever  title  the  trans- 
ferrer has  at  the  time  to  the  goods  covered 
by  it.  And  if  a  shipper  takes  a  bill  of  lading 
to  himself  as  consignee,  and  the  carrier  de- 
livers the  goods  to  another  with  the  consent 
of  the  shipper,  but  without  surrender  of  the 
bill  of  lading,  a  subsequent  consignee  of  the 
bill  of  lading,  though  acquiring  it  without 
notice  and  for  value,  has  no  recourse  against 
the  carrier.  Alabama  Nat.  Bank  v.  Mobi/e 
6-  O.  R.  Co.,  42  Mo.  App.  284. 

116.  Rig:lits  of  bona-flde  holders, 
geuerally.f — Where  one  of  two  innocent 
parties  must  suffer  from  wrongful  or  tor- 
tious acts  of  a  third  party  the  law  casts  the 
b  :den  or  loss  upon  him  by  whose  act,omis- 
".on,  or  negligence  such  third  party  was  en- 
abled to  commit  the  wrong  which  occasioned 
the  loss.  So  //fW,  where  a  carrier  negligently 
issued  two  original  bills  of  lading  for  the 
same  goods.     IVic/iita  Sav.  Bank  v.  Atc/ti- 


*  Indorsement  and  transfer  of  bill  of  lading, 
title  of  holder,  see  note,  38  Am.  Dec  419. 

t  See  ante,  15,  16. 

Indorsee  for  value,  when  without  notice,  of  a 
bill  of  lading,  not  bound  by  terms  of  extrinsic 
collateral  agreements,  see  note,  23  Am.  &  Eng. 
R.  Cas.  701. 


aw 


BILLS   OF   LADING,  117-121. 


!•  ' 


<>-- 


ii' 

1 

1 

I 

i 

.It 

son,  T.  &^  S.  F.  R.  Co.,  20  Art//.  519,  20  Aw. 
Ay.  Kep.  299. 

The  purchaser  of  a  bill  of  lading  who  has 
reason  to  believe  that  his  vendor  was  not 
the  owner  thereof,  or  that  it  was  held  to 
secure  an  outstanding  draft,  is  not  a  bona- 
fide  purchaser,  nor  is  he  entitled  to  hold  the 
merchandise  covered  by  the  bill  against  its 
true  owner  Shaiu  v.  Merchants'  Nat.  Bank, 
loi  U.  S.  557. 

One  who  clothes  another  with  evidence 
of  ownership  of  a  bill  of  lading,  thereby  put- 
ting it  in  his  power  to  deal  with  it  as  his  own, 
is  estopped  from  asserting  his  real  title  as 
against  a  purchaser  having  no  knowledge  of 
such  title ;  and  this,  too.  though  such  bii  oc 
merely  assignable.  Dymock  v.  Missouri,  A . 
6-  T.  R.  Co.,  54  Mo.  A  pp.  400. 

117.  Who  is  a  boiia-fitle  holder,  a 
question  of  fact.— In  a  suit  by  assignees 
of  a  bill  of  lading  against  a  railroad  for  a 
non-delivery  of  the  goods,  the  question 
whether  plaintifTs  are  assignees  for  value  is 
one  of  fact,  and  cannot  be  determined  on 
demurrer.  Royal  Canadian  Bank  v.  Grand 
Trunk  R.  Co.,  23  U.  C.  C.  P.  225.— DrSTiN- 
GUiSHED  IN  Oliver  v.  Great  Western  R. 
Co.,  28  U.  C.  C.  P.  143. 

118.  Bight  of  indorsee  or  trans- 
feree to  sue  in  his  own  name.— A  stat- 
ute making  bills  of  lading  negotiable  by  in- 
dorsement and  delivery,  without  attempting 
to  define  the  effect  of  the  transfer,  is  to  be 
understood  as  merely  giving  the  indorsee 
the  right  to  sue  in  his  own  name.  Shaw  v. 
Merchants'  Nat.  Bank,  loi  U.  S.  557. 

Bills  of  lading  stand  in  the  place  of  the 
goods  they  represent,  and  delivery  or  in- 
dorsement of  them  transfers  the  right  of 
property  in  the  goods,  but  not  in  the  con- 
tract itself,  so  as  to  enable  the  indorsee  to 
maintain  at  common  law  an  action  on  it  in 
his  own  name.  Baltimore  &•  O.  R.  Co.  v. 
Wilkens,  44  Md.  1 1. 

The  assignee  of  a  bill  of  lading  cannot  sue 
thereon  in  his  own  name,  but  must  sue  in 
the  name  of  the  assignor,  for  his  use,  as 
such  an  instrument  is  a  chose  in  action  and 
is  not  negotiable.  Kn^ht  v.  St.  Louis,  I.  M. 
&*  S.  R.   C(?.,  141  ///.  1 10;  affirming  40  ///. 

App.  471.  30  N-  £■  R(p'  543- 

Under  the  Code  the  transferee  of  a  bill  of 
lading  may  bring  an  action  thereon  in  his 
own  name  against  the  carrier.  Merchants' 
Bank  v.  Union  R.  &*  T.  Co.,  69  A'.  Y.  373 ; 
affirming  8  Hun  249. 

119.  Right  to  maintain  action  of 


trover. — A  claim  for  the  conversion  of 
goods  is  assignable,  and  the  transfer  of  a 
bill  of  lading  will  pass  to  the  transferee  a 
claim  of  the  transferrer  for  the  conversion 
of  the  goods  represented  by  such  bill.  Dick- 
son V.  Merchants'  Elevator  Co.,  44  Mo.  App. 
498. 

The  remedy  of  the  transferee  of  a  bill  of 
lading,  where  the  carrier  has  delivered  the 
property  without  a  production  of  the  hill, 
as  required  by  statute,  is  not  confined  to  an 
action  for  damages  as  given  by  the  N.  Y. 
act  of  1866,  ch.  440,  §  3,  but  he  may  main- 
tain an  action  for  the  conversion  of  the 
property,  even  though  the  delivery  was  hy 
mistake,  without  evil  intent.  Colgate  v. 
Pennsylvania  Co.,  102  A^.  Y.  120,6  A^  E. 
Rep.  114. 

A  railroad  company  transporting  grain 
deposited  the  same,  in  accordance  with  the 
custom  of  trade,  in  a  grain  elevator  at  the 
point  of  destination,  where  it  was  nii-red 
with  other  grain  of  like  quality.  Subse- 
quently, on  demand,  it  delivered  to  the  con- 
signee of  such  grain  an  equal  quantity  to 
that  transported,  but  without  demanding 
the  bill  of  lading,  which  was  drawn  to  the 
consignee's  order.  An  indorsee  of  said  bill 
prior  to  the  arrival  of  the  grain  brought 
trover  against  the  railway  company  for  a 
misdelivery.  Held,  that  the  plaintiff  was 
entitled  to  recover.  Forbes  v.  Boston  &•  L. 
R.  Co.,  gAm.  &-  Eng.  R.  Cas.,  76,  80,  133 
Mass.  154. 

120.  Transferee  of  lost  or  stolen 
bill.i' — The  holder  of  a  lost  or  stolen  bill  of 
lading  is  not  protected  by  the  rule  that  a 
bona-fide  purchaser  of  a  lost  or  stolen  bill  or 
note,  indorsed  in  blank  or  payable  to  bearer, 
is  not  bound  to  look  beyond  the  instrument. 
The  bill  of  lading  is  not  negotiable  in  the 
sense  of  bills  and  notes,  and  the  rule  does 
not  apply.  Shaw  v.  Merchants'  Nat.  Bank, 
loi  U.  S.  557. 

121.  Transferee  of  bill  issued 
when  no  gooils  were  actually  re- 
ceived.!— The  carrier  is  liable  to  a  t)ona- 
fide  holder  or  innocent  purchaser  or  indorsee 
of  a  bill  of  lading,  even  though  the  whole 
amount  or  no  part  of  the  goods  mentioned 
in  the  bill  was  ever  received  by  the  carrier. 
Wichita  Sav.  Bank  v.  Atchison,  T.  <S«  A'.  /•'. 
R.  Co.,  20  Kan.  519,  20  Am.  Ry.  Rep.  299. 

*  Indorsement  of  lost  or  stolen  bill  of  lading, 
or  bill  of  lading  fraudulently  issued,  see  note,  38 
Am.  Dec.  422. 

t  See  ante,  14-16. 


BILLS   OF   LADING,   122-124. 


647 


Tsion  of 
ifer  of  a 
isferce  a 
nversion 
II.  Dick- 
lo.  App. 


Sioux  City  iT-  /'.  A'.  Co.  v.  First  Nat.  Bank, 
I  Am.  &*  Eiig.  R.  Cas.  278,  10  Neb.  556,  7  N. 
W.  Rep.  311.  Armour  v.  Michigan  C.  R.  Co., 
65  A^.  K.  1 1 1,  22  Am.  Rep.  603 ;  reversing  3/. 
&*  S.  563.  Brooke  v.  New  York,  L.  E.  <S-  W. 
R.  Co.,  21  Am.  Sf  Eng.  R.  Cas.  64,  108  Pa. 
St.  529,  I  Atl.  Rep.  206.  To  the  contrary,  see 
National  Bank  v.  Chicago,  B.  &•  N.  R.  Co., 
44  Minn.  224. 46  A^.  W.  Rep.  560.  Williams 
V.  IVilmington  &*  W.  R.  Co.,  93  A^.  Car.  42, 
53  Am.  Rep.  450. 

122.  Effect  of  transfer  to  divest 
vendor  of  his  lieu. — The  indorsement 
and  delivery  of  a  bill  of  lading  transfer  the 
property  from  the  vendor  to  the  vendee,  are 
a  complete  legal  delivery  of  the  goods,  and 
divest  the  vendor's  lien.  Missouri  Pac.  R. 
Co.  V.  McLiney,  32  Mo.  App.  166. 

123.  Effect  of  transfer  to  defeat 
seller's  ri{;lit  of  stoppage  in  transi- 
tu.*— If  a  bill  of  lading  be  obtained  with- 
out the  authority  of  tlie  owner  and  vendor 
of  the  goods,  or  by  fraud,  it  will  not  author- 
ize a  transfer  so  as  to  defeat  the  title  of  the 
original  owner  o--  affect  his  right  to  stop  the 
goods  in  transit.  Evansville  &^  T.  H.  R.  Co. 
V.  Erwin,  9  Am.  &*  Eng.  R.  Cas.  252,  84  Ind. 
457. — Quoting  Saltus  v.  Everett,  20  Wend. 
(N.  Y.)  267 ;  Barnard  v.  Campbell,  55  N.  Y. 
456. 

A  bona  fide  holder  of  a  bill  of  lading  as 
collateral  security  has  a  title  to  the  goods 
which  is  paramount  to  the  unpaid  vendor's 
right  of  stoppage  in  transitu,  but  such  right 
of  stoppage  is  not  cut  off  where  the  bill  of 
lading  is  taken  as  collateral  for  c  r  in  pay- 
ment of  an  antecedent  debt.  Dymock  v. 
Missouri,  K.  &*  T.  R.  Co.,  54  Mo.  App.  400. 

The  assignment  of  a  bill  of  hiding  indorsed 
thereon,  accompanied  by  delivery  of  the  in- 
strument, passes  to  the  assignee  title  to 
goods  actually  in  transit  as  completely  as 
though  they  had  passed  through  the  buyer's 
hands,  so  as  to  defeat  the  seller's  right  to 
stoppage  in  transitu.  Missouri  Pac.  R.  Co. 
V.  Hetdenheimer,  82  Tex.  195,  17  S.  W.  Rep. 
608. 

The  transfer  of  a  bill  of  lading  by  way  of 
pledge,  mortgage,  or  as  collateral  security 
for  a  loan  does  not  absolutely  defeat  the 
right  of  stoppage  in  transitu,  but  the  seller 
cannot  exert  that  right  until  he  has  dis- 
charged the  debt  secured  by  the  transfer. 


*  When  indorsement  of  bill  of  lading  defeats 
right  of  stoppage  in  transitu,  see  note.  38  Am. 
Dec.  422;  note  to  23  Am.  &  Eng.  R.  Cas.  703. 


Missouri  Pac.  R.  Co.  v.  Heidenheimer,  82 
Te.v.  195.  17  S.  IV.  Rep.  608. 

A  lot  of  merchandise  was  bought,  one- 
half  on  a  credit  of  sixty  days,  and  the  rail- 
way company,  upon  receiving  the  goods, 
executed  two  bills  of  lading,  one  marked 
"original"  and  the  other  "  duplicate,"  the 
former  of  wliich  was  retained  by  the  seller 
and  the  other  sent  to  the  purchaser.  The 
duplicate  bill  was  indorsed  by  the  purchaser 
as  collateral  for  a  loan,  and  some  two  days 
afterward  the  sellers,  learning  that  the  pur- 
chasers were  in  financial  trouble,  stopped 
the  goods  while  in  transit,  whereupon  the 
party  making  the  loan  to  the  purchasers 
brought  suit  against  the  carrier  to  recover 
the  goods,  /ield,  that  the  bills  of  lading 
were  each  of  equal  legal  effect,  and  that  the 
indorsement  of  the  duplicate  to  the  plaintiff, 
in  a  bona-fide  transaction,  passed  title  to  the 
property  and  cut  off  the  right  of  stoppage 
in  transitu.  Missouri  Pac.  R.  Co.  v.  Heiden- 
heimer, 82  Tex.  195,  175.  W.  Rep.  608. 

3.  Trans/     as  Collateral  Security. 

124.  Genev.  ly.— Bills  of  ladingare  not 
only  intended  as  an  insurance  to  the  shipper, 
but  as  a  representation  to  the  "  banker  or 
private  person  "  with  whom  the  statute  deals 
that  they  may  act  on  the  faith  of  it  and  ad- 
vance their  money.  By  Patterson,  A.J.; 
contra.  Burton,  A.J.  Erbv.  Great  Western 
R.  Co.,  3  Ont.  App.  446 ;  affirming  42  U.  C.  Q. 
B.  90.— Quoting  Baltimore  &  O.  R.  Co.  v. 
Wilkens,  44  Md.  11,  22  Am.  Rep.  26. 

The  assignment  of  a  bill  of  lading  as  col- 
lateral security  conveys  title  to  the  cargo. 
Tilden  v.  Minor  ex  rel.,  45  Ft.  196. 

A  bill  of  lading  transferred  as  security  for 
advances  is  a  pledge  for  the  goods  them- 
selves, unless  circumstances  indicative  of  a 
different  intention  appear ;  and  the  pledgee 
holds  the  legal  title  to  the  goods  and 
entitled  to  all  the  rights  and  remedies  of 
a  purchaser  for  value.  Dymock  v.  Missouri, 
K.  &*  T.  R.  Co.,  54  Mo.  App.  400. 

Where  there  is  a  valid  agreement  to  ship 
property  to  persons  to  secure  a  debt  con- 
tracted upon  the  faith  that  such  shipment 
would  be  made,  and  the  bill  of  lading 
evidences  the  fact  that  the  property  was 
delivered  to  the  carrier  in  consummation  of 
that  agreement,  and  the  bill  of  lading  unin- 
dorsed is  delivered  to  the  consignees  while 
the  property  is  in  transit,  it  is  a  sufficient 
delivery  of  the  goods  to  constitute  a  pledge, 
and  persons  afterward  making  advances  on 


i 


■jij 


G4S 


BILLS   OF    LADLNG,   125. 


I'.. 

i 


I 


such  goods  will  acquire  no  greater  right  than 
the  consignees,  though  the  goods  at  the 
time  be  in  the  hands  of  warehousemen  who 
have  no  knowledge  of  the  pledge.  Camp- 
bell V.  A/ford,  57  Tex.  159.— Reviewing 
Petitt  V.  National  Bank,  4  Bush  (Ky.)  334; 
Whitney  v.  Tibbitts,  17  Wis.  370;  First  Nat. 
Bank  v.  Kelly,  57  N.  Y.  35. 

A  firm  was  engaged  in  mercantile  business 
at  one  station  on  a  railroad,  and  in  the  mil- 
ling business  at  another.  A  member  of  tiie 
firm  was  the  railroad  agent  at  the  point 
where  the  mill  was  situated,  but  the  business 
was  practically  jonducted  from  tiie  other 
station.  For  a  considerable  length  of  time 
the  shipping  of  the  firm  between  the  two 
points  was  carried  on,  as  to  issuing  and  de- 
livering of  bills  of  lading,  with  considerable 
irregularity,  which  was  known  to  the  rail- 
road company.  After  goods  had  been  de- 
livered to  the  consignees,  as  represented  by 
certain  bills  of  lading,  the  latter  were  trans- 
ferred by  the  firm  as  collateral  to  innocent 
holders.  Held,  that  as  the  railroad  company 
had  knowledge  of  the  manner  of  conducting 
the  business,  it  was  liable  to  the  holders  of 
such  bills.  Walters  v.  Western  6^  A.  R. 
Co.,  56  Fed.  Rep.  369.  — Distinguishing 
Friedlander  v.  Texas  &  P.  R.  Co.,  130  U.  S. 
416,  9  Sup.  Ct.  Rep.  570. 

125.  Rights  of  one  who  has  made 
advances,  generally. — (i)  Statement  of 
the  rule.— A  person  who  makes  advances  on 
bills  of  lading  is  as  clearly  bound  by  the 
terms  of  the  bills  as  the  purchaser  of  a  bill 
of  exchange  is  by  the  language  of  the  draft 
he  buys.  Bishop  v.  Empire  Transp.  Co.,  48 
Hffw.Pr.  (N.  V.)  119. 

Bills  of  lading  are  constantly  used  by 
shippers  toobtain  advances  upon  their  ship- 
ments, and  it  is  to  be  expected  by  the  carrier 
that  such  use  will  be  made  of  them,  and  that 
advances  will  be  made  upon  the  faith  of  the 
property  described  in  them  and  in  the  pos- 
session of  the  carrier,  and  upon  the  faith 
that  such  property  will  be  delivered  to  the 
holder  o*  the  bills  of  lading.  Those  trust- 
ing in  them  and  relying  upon  their  truth 
do  only  what  the  carrier  had  every  reason 
to  expect  will  be  done.  Tibbits  v.  Rock 
Island  <S-  P.  R.  Co.,  49  ///.  App.  567. 

(2)  Its  scope  and  extent.  —  Where  the 
purchaser  of  goods  who  has  not  paid  for 
them  becomes  insolvent  after  they  are 
shipped  and  before  he  receives  the  goods, 
one  who  takes  from  him  an  assignment  of 
the   bill  of    lading,  and  advances  money 


on  the  goods  in  good  faith,  without  any 
knowledge  of  the  insolvency,  is  entitled  to 
recover  the  goods  from  the  carrier  as 
against  the  seller,  who  has  notified  the  car- 
rier of  his  intention  to  claim  the  goods  under 
his  right  of  stoppage  /;/  transitu.  Ne^vhall 
V.  Central  Pac.  R.  Co.,  51  Cal.  345, 

Where  the  vendor  of  butter  delivered  it  at 
a  railway  station,  and  authorized  the  agent 
to  issue  a  bill  of  lading  to  the  vendee,  under 
a  verbal  agreement  with  the  vendee  and  the 
agent  that  it  should  not  be  shipped  until 
the  balance  of  the  purchase-price  was  paid, 
and  the  vendee  pledged  the  bill  of  lading  to 
a  third  party,  who  advanced  him  the  value 
of  the  butter,  without  any  notice  of  the 
verbal  agreement — /'  hi,  that  while  the 
verbal  agreement  m  have  been  sufficient 
as  between  the  vendor  and  vendee,  yet  it 
was  not  of  the  slightest  avail  as  to  the  third 
party  ;  and  that  by  consenting  to  the  delivery 
of  the  bill  of  lading  the  vendor  had  enabled 
the  vendee  to  transfer  a  good  title  to  any  per- 
son dealing  with  him,  without  notice  of  the 
conditions  annexed  to  the  delivery.  West- 
ern Union  R.  Co.  v.  Wagner,  65  ///.  197. 

An  agreement  between  the  owner  of  goods 
and  the  consignee,  by  whicii  the  latter  has 
made  advancements  thereon,  and  has  agreed 
to  make  further  advancements  upon  receipt 
of  a  bill  of  lading,  gives  him  a  good  title  to 
the  property  to  secure  both  advances,  as 
against  another  wiio  receives  a  second  bill 
of  lading,  with  notice  of  the  first.  Stevens 
V.  Boston  &-  W.  R.  Corp.,  8  Gray  (Mass.)  262. 
Where  a  railway  company  sends  to  a  con- 
signee duplicate  advice  notes,  and  acts  in 
such  a  manner  as  to  lead  a  person  making 
advances  on  such  advice  notes  to  believe 
that  there  were  two  consignments  instead  of 
one,  it  is  estopped  from  afterwards  alleging 
that  there  was  but  one  consignment,  and  is 
liable  for  the  amount  of  one  of  the  advances. 
Coventry  v.  Great  Eastern  R.  Co.,  11  Q.  B. 
D.  776.  52  L.  J.  Q.  B.  D.  694,  49  L.  T.  641. 

(3)  Its  limits  and  exceptions. — A  railroad 
corporation  will  not  be  held  liable  for  the 
value  of  property  erroneously  receipted  for 
in  a  bill  of  lading  by  one  of  its  station 
agents,  but  never  received  by  the  company, 
unless  the  claimant  (being  factor  and  con- 
signee) shows  that  he  has  made  a  specific 
advance  or  loan  on  the  security  of  the 
goods  upon  the  faith  of  the  receipt.  Hunt 
v.  Mississippi  C.  R.  Co.,  29  La.  Ann.  446. 

A  railroad  company  which  delivers  to  the 
indorsee  of  certain  bills  of  lading  issued  by 


fm  -, 


BILLS   OK    LADING,  i2«,  127. 


G4J) 


lOut  any 
titled  to 
rrier  as 
the  car- 
ds under 
Neivhall 


it  the  grain  which  they  represent,  is  not 
liable  for  the  value  of  the  grain  to  a  bank 
which  had  taken  the  bills  of  lading  as 
security  for  a  loan  to  the  indorsee,  but  had 
permitted  him  to  obtain  possession  of  them, 
of  whereby  he  secured  the  grain.  Douglas 
V.  People's  Bank,  32  Am.  &•  Etig.  K.  Cas.  5 10, 
86  Ky.  176,  5  S.  IV.  Rep.  420.— Quoting 
Newson  v.  Thornton,  6  East  41 ;  Hatfield 
V.  Phillips,  9  M.  &  W.  648;  Meyerstein  v. 
Barber,  L.  R.  2  C.  P.  38. 

126.  Rit^lits  of  one  advancing 
money  on  a  bill  wrongfully  or  irreg- 
ularly issued.* —  While  it  may  be  that 
property  in  the  adverse  possession  of  an- 
other is  not  transferable  so  as  to  pass  the 
title,  yet  where  a  railroad  company  gives  a 
bill  of  lading  reciting  that  the  property  is 
then  lying  in  a  depot  at  a  certain  place,  and 
agrees  to  forward  the  same  to  the  consignee, 
and  others  advance  money  on  the  faith  of 
such  bill  of  lading,  which  is  assigned  by  the 
shipper,  the  railro". '.  company  will  be  es- 
topped, as  against  s  ich  persons,  from  show- 
ing that  at  the  time  of  giving  such  bill  of 
lading  and  its  indorsement  the  goods  were 
in  the  adverse  possession  of  another  person, 
so  as  to  defeat  an  action  brought  by  the  con- 
signee so  advancing  money  on  the  bill  of 
lading.  St.  Loins  &*  I.  M.  R.  Co.  v.  Lamed, 
6  Am.  &*  Ertg.  R.  Cas.  436,  103  ///.  293.— 
Not  followed  in  National  Bank  v.  Chi- 
cago, B.  &  N.  R.  Co.,  44  Minn.  224. 

A  railroad  company  is  not  liable  for  ad- 
vances made  by  a  commission  merchant 
upon  the  faith  of  a  bill  of  lading  fraudu- 
lently signed  by  one  of  its  station  agents, 
the  goods  therein  specified  never  having 
been  shipped  or  received  at  the  depot  for 
transportation.  Baltimore  cS^  O.  R.  Co.  v. 
Wilkens,  44  Md.  11.  —  Distinguishing 
Tome  V.  Parkersburg  Branch  R.  Co.,  39  Md. 
36. — Distinguished  in  Western  M-'.  R.Co. 
V.  Franklin  Bank,  60  Md.  36. 

A  consignor  of  goods  took  a  bill  of  lading 
from  one  whom  he  believed  to  be  the  master 
of  a  vesssel  and  who  seemed  to  be  acting  as 
such,  but  who  in  fact  was  not  such  master, 
and  had  no  authority  to  sign  a  bill  of  lad- 
ing. The  consignor  indorsed  the  bill  of  lad- 
ing and  forwarded  it  to  the  consignee,  and 
procured  an  insurance  of  the  goods  payable 
to  the  consignee,  who  had  made  advances 
on  the  goods.    Held,  sufficient  to  support  a 

*  Sec  ante,  15,  10,  121. 
Fraudulent  bill  of  lading,  see  note,  21  Am.  & 
Eno.  R.  Cas.  68. 


finding  of  a  delivery  to  the  consignee. 
Prince  v.  Boston  &^  L.  R.  Corp.,  loi  Mass. 
542. 

W.,  being  the  generarl  owner  of  a  quan- 
tity of  wheat  subject  to  a  lien  in  favor  of 
the  M.  &  T.  Bank,  and  having  the  custody 
thereof  (it  being  stored  in  his  name),  con- 
tracted verbally  to  sell  the  same  to  N.,  to  be 
paid  for  on  delivery.  He  gave  to  N,  an 
order  on  the  warehouseman  to  deliver  the 
wheat  to  defendant,  a  common  carrier,  sub- 
ject to  order.  Defendant  thereupon,  and 
without  any  evidence  of  any  right  or  title 
of  N.  to  the  wheat,  gave  to  N.  a  bill  of 
lading  stating  that  the  wheat  was  shipped 
by  N.  to  New  York  subject  to  plaintiff's 
order.  On  the  faith  of  this  bill  of  lading 
N.  obtained  from  plaintiff  an  advance  upon 
the  wheat.  Defendant  obtained  the  wheat 
on  the  order  and  transported  it  to  New  York, 
where  it  was  sold  by  plaintiff  to  reimburse 
the  advance.  The  M.  &  T.  Bank  brought 
action  against  plaintiff  for  a  conversion  of 
the  wheat  and  obtained  a  verdict,  which 
plaintiff  paid  before  entry  of  judgment 
thereon.  Held,  that  plaintiff  was  entitled 
to  recover  of  defendant  the  damage  sus- 
tained by  its  wrongful  or  negligent  act  in 
issuing  the  bill  of  lading  in  the  name  of  N. 
Farmers'  &•  M.  Bank  v.  Erie  R.  Co.,  72  N. 
V.  188. — Applied  in  Robinson  v.  Memphis 
&  C.  R.  Co.,  9  Fed.  Rtp.  129. 

127.  Bights  of  one  who  has  pur- 
chased attached  drafts.— A  bank  cash- 
ing a  draft  with  a  bill  of  lading  attached 
acquires  title  to  the  property  represented 
by  the  bill  of  lading ;  and  this  is  so  even 
where  the  bill  of  lading  is  fraudulently  used. 
Illinois  C.  R.  Co.  v.  Southern  Bank,  41  ///. 
App.  287.— Reviewing  Michigan  C.  R.Co, 
V.  Phillips,  60  III.  190. 

The  indorsee  of  a  bill  of  lading  who  has 
purchased  the  draft  accompanied  by  such 
bill  of  lading  has  a  special  property  in  the 
goods,  and  has  the  bill  of  lading  and  the 
shipment  it  represents  for  his  security. 
Dodge  V.  Meyer,  61  Cal.  405. 

A  person  purchasing  a  draft  drawn  by  the 
shipper  of  the  goods,  with  a  bill  of  lading 
accompanying  it,  has  a  special  property  in 
the  goods  covered  by  the  bill  of  lading ; 
usually  in  the  case  of  a  time-draft  this  spe- 
cial property  vests  in  t'le  purchaser  of  the 
draft  as  security  for  Its  acceptance.  It  may 
be,  if  so  agreed  by  the  shipper  and  the  pur- 
chaser of  the  draft,  that  the  purchaser  will 
have  a  right  to  retain  the  bill  of  lading  and 


■%\ 


i 

I 


si 


650 


BILLS  OF   LADING,  .128 BILLS   OF   PARTICULARS,  1. 


thus  retain  his  special  property  in  the  goods 
shipped,  not  only  for  the  acceptance  but  for 
t'e  payment  of  the  draft.  Dodge  v.  Meyer, 
6 1  Cal.  405. 

The  bona-fide  holder  of  a  draft  sent  with 
a  bill  of  lading  attached  has  a  lien  on  the 
goods  against  which  the  draft  is  drawn  in 
the  hands  of  the  consignee,  and  he  may  re- 
cover the  proceeds  of  the  sale  of  the  goods 
though  the  consignee  be  the  creditor  of  the 
consignor.     Lee  v.  Bowen,  5   Biss.    (U.  S.) 

•54. 

128.  Bights  of  one  who  has  dis- 
counted attached  dratts. — A  carrier  is 
responsible  to  one  who  holds  a  bill  of  lading 
as  collateral  security  for  advances  made  on 
the  strength  of  the  recitals  therein,  or  to  one 
who  has  in  good  faith  discounted  drafts 
attached  to  the  bill,  notwithstanding  the 
fact  that  the  goods  purporting  to  be  repre- 
sented by  the  bill  were  never  received  by 
the  carrier.  Wic/iiia  Sav.  Bank  v.  Atchison, 
T.  <S-  S.  F.  R.  Co.,  20  Kan.  519,  20  Am.  Ry, 
Rep.  299.  Sioux  City  <S-  P.  R.  Co.  v.  First 
Nat.  Bank,  i  Am.  &•  Eng.  R.  Cas.  278,  10 
Ned.  556,  7  A'.  IV.  Rep.  311.  Armour  v. 
Michigan  C.  R.  Co.,6lN.  Y.  in,  22  Am. 
Rep.  603 ;  reversing  3  y.  &*  S.  563. 

A  firm  of  grain  dealers  agreed  to  sell  two 
carloads  of  wheat ;  it  being  a  custom  of  the 
trade  that  such  sales  were  cash,  with  the 
right  to  the  purchaser  to  reject  on  inspec- 
tion. The  dealers  ordered  the  elevator 
company  to  deliver  the  grain  on  cars,  and  it 
was  accepted  by  the  purchaser  and  shipped 
by  him  to  a  third  party.  The  purchaser  took 
the  bills  of  lading,  showing  that  he  had 
shipped  the  grain,  with  drafts  attached,  and 
had  them  discounted  in  the  bank.  The 
consignee  accepted  the  drafts  but  did  not 
pay  them,  by  reason  of  the  grain  being 
replevied  in  the  hands  of  the  railroad  by  the 
sellers.  Held,  that  the  contract  between  the 
sellers  and  the  purchaser  was  an  executory 
contract  which  became  conditional  upon  de- 
livery of  possession,  but  that  ownership  was 
still  retained  by  the  sellers ;  but  that,  the 
contract  not  being  recorded  as  required  by 
the  statute  of  the  state  (Minnesota)  where 
the  transaction  occurred,  and  the  bank's 
transaction  being  bona-fide  and  without 
notice,  the  title  to  the  grain  passed  to  it, 
subject  to  redemption.  Morse  v.  Chicago, 
R.  I.  &•  P.  R.  Co.,  73  /owa  226,  34  N  W. 
Rep.  825. 

A  merchant  shipped  goods  to  a  foreign 
correspondent  by  a  common  carrier,  taking 


a  bill  of  lading,  making  the  goods  delivera- 
ble at  their  destination  to  the  shipper  or  his 
order.  He  then  drew  bills  of  exchange  for 
the  price  of  the  goods  on  the  person  order- 
ing them,  payable  to  his  own  order  30  days 
after  sight.  Attaching  the  bills  of  lading 
indorsed  in  blank  to  the  drafts,  and  indors- 
ing the  latter  in  blank,  he  had  the  drafts 
discounted  at  the  bank,  it  being  then  agreed 
in  parol  with  the  bank  that  the  bills  of 
lading  should  not  be  delivered  to  the  drawee 
until  the  draft  should  be  paid.  Held  that, 
independent  of  the  parol  agreement,  and 
as  a  matter  of  merely  legal  interpretation, 
the  transaction  did  not  import  a  sale  of 
the  goods  upon  credit,  or  determine  that 
the  drawee  was  entitled  to  the  bills  of  lad- 
ing upon  his  acceptance  of  the  draft  and 
without  payment.  Security  Bank  v.  Lutt- 
gen,  29  Minn.  363,  13  A'^,  W.  Rep.  151. 

Goods  were  shipped  by  the  owner,  de- 
liverable upon  his  own  order,  as  expressed 
in  the  bill  of  lading.  He  drew  on  the  con- 
signee, and,  with  the  bill  of  lading  attached, 
had  the  draft  discounted  at  the  bank.  The 
bill  of  lading  was  indorsed,  "  Deliver  to  the 
consignee  on  payment  of  the  accompanying 
draft,"  but  the  consignee  refused  to  accept, 
and  the  draft  was  protested.  Held,  that 
the  bank  thereby  acquired  title  to  the 
goods,  and  could  maintain  replevin  there- 
for. City  Bank  v.  Rome,  W.  &•  O.  R.  Co., 
44  N.  V.  136. — Applied  in  Furman  v. 
Union  Pac.  R.  Co.,  106  N.  Y.  579.  Fol- 
lowed IN  Merchants'  Bank  v.  Union  R.  & 
T.  Co.,  69  N.  Y.  373. 


BILLS  OF  PARTICULAES. 

In  stock-killing  cases,  see  Animals,  Injuries 
TO,  626,  627. 

1.  When  a  bill  of  particulars  may 
be  required. — A  complaint  in  an  action 
against  a  railroad  company,  which  charges 
that  the  company  failed  to  furnish  plaintiff, 
a  shipper,  with  "  a  due  and  reasonable  guota 
of  cars,"  is  too  indefinite;  but  the  com- 
pany's remedy  is  by  asking  for  a  bill  of  par- 
ticulars. Langdon  v.  New  York,  L.  E.  &* 
W.  R.  Co.,  39  N.  V.  S.  A\  471,  60  Hun  584, 
15  A^.  y.  Supp.  255,  27  Abb.  N.  Cas.  166. 

The  driver  of  a  horse  and  carriage  sued  to 
recover  damages  alleged  to  have  been 
caused  by  blowing  off  steam  from  a  loco- 
motive engine   and  sounding  the  whistle, 


1. 


BILLS   OF    FARTICULARS,  '2-4. 


651 


whereby  his  horse  was  friglitencd  and  over- 
turned the  vehicle  and  injured  tiie  driver. 
HeM,  that  the  company  was  entitled  to  a 
bill  of  particulars  showing  the  day,  hour, 
and  place  of  the  accident,  and  the  direction 
in  which  plaintiff  was  driving,  hut  not  a  bill 
showing  the  names  of  his  witnesses.  Kerch 
V.  Rome,  IV.  &-  O.  R.  Co.,  14  A^.  Y.  S.  R. 
446,  14  Civ.  Pro.  167. 

Under  New  York  Code  Civ.  Proc, 
§  531,  providing  that  "  the  court  may  in  any 
case  direct  a  bill  of  particulars  of  the  claim 
of  either  party,  to  be  delivered  to  the  ad- 
verse party,"  it  is  proper,  where  a  contractor 
sues  a  railroad  company  to  recover  for  work 
done,  and  the  company  sets  up  that  it  was 
done  in  a  careless  and  unworkmanlike 
manner,  to  require  it  to  file  a  bill  of  par- 
ticulars classifying  the  work  and  showing 
its  location.  Cunningham  v.  Massena 
Springs  &"  Ft.  C.  R.  Co.,  20  N.  Y.  S.  R.  698, 
50  Hun  605,  3  A^.  Y.  Supp.  98. 

Where  the  complaint  in  an  action  against 
a  railroad  company  for  the  negligent  killing 
of  plaintiff's  intestate,  a  brakeman,  alleges  in 
general  terms  that  defendant  carelessly  and 
negligently  managed  the  train  on  which  the 
deceased  was  employed  and  other  trains 
and  locomotives  through  incompetent  and 
careless  servants  and  under  insufficient 
rules,  with  defective  appliances  and  over-de- 
fective and  unsafe  tracks  and  roadbed,  and 
that  deceased  was  killed  by  a  locomotive  so 
carelessly  and  negligently  managed,  without 
specifying  the  place,  time,  character,  or 
identity  of  the  trains  and  locomotives,  the 
nature  of  the  alleged  negligent  acts,  or  what 
rules  and  regulations  were  insufficient,  or 
what  appliances,  rolling  stock,  and  equip- 
ment were  unsafe,  the  defendant  is  entitled 
to  a  bill  of  particulars  in  respect  to  these 
matters,  to  enable  it  to  prepare  for  trial. 
McCarthy  v.  Lehigh  Valley  R.  Co.,  6  Misc. 
(N.  Y.)  422,  27  N.  Y.  Supp.  295. 

Plaintiflf  sued  for  personal  injuries  as 
driver  of  a  street -car,  and  charged  negli- 
gence in  being  tiirown  from  the  car,  which 
"  was  out  of  repair  and  in  an  unsafe  condi- 
tion ;  "  and  in  another  averment,  stated  on 
information  and  belief,  charged  certain  par- 
ticulars in  which  it  was  out  of  repair  and 
unsafe,  /feld,  that  it  was  proper  to  grant 
an  order  requiring  him  to  file  a  bill  of  par- 
ticulars setting  out  wherein  the  car  was  de- 
fective. Kearns  v.  Coney  Island  &*  B.  R. 
Co.,  17  N.  Y.  S.  R.  692,  49  Hun  608,  i  A^.  Y. 
Supp.  906. 


2.  When  a  bill  of  imrtioiilnrs  mny 
not  be  required.— A  motion  for  a  bill  of 
particulars  is  properly  denied  in  an  action 
where  plaintiff  sues  to  recover  for  personal 
injuries  caused  "  by  being  precipitated  be- 
neath the  wheels  of  defendant's  car,  by 
reason  of  the  carelessness  and  recklessness 
of  the  persons  in  cliarge  thereof."  Rich- 
mond V.  Second  Ave.  R.  Co. ,  47  N.  Y.  S.  R. 
306,  19  A'.  Y.  Supp.  597. 

The  practice  of  requiring  the  plaintiff,  in 
action-,  for  damages  resulting  from  negli- 
gence, to  file  a  bill  of  particulars  showing 
when  and  by  what  means  the  damages  ac- 
crued, has  never  been  adopted  in  Illinois. 
Chicago  &^  A.  R.  Co.  v.  Smith,  10  ///.  App. 

359- 

3.  Interpretation.— Kansas  Gen.  St. 

P-  791.  §  72.  provides  that  "  a  bill  of  particu- 
lars must  state  in  a  plain  and  direct  manner 
the  facts  constituting  the  cause  of  action  ; " 
yet  no  technical  precision  is  demanded  in 
pleadings  in  actions  before  justices  of  the 
peace.  The  most  liberal  intendment  will 
be  given  to  them,  and  if  every  fact  essential 
to  the  cause  of  action  can  be  found  in  one 
of  them,  stated  in  the  most  general  way  or 
in  the  loosest  or  most  indefinite  manner, 
and  no  objection  is  raised  at  the  trial,  it  will 
be  held  sufficient  to  sustain  the  judgment. 
Kansas  Pac.  R.  Co.  v.  Taylor,  17  Kan.  566. — 
Followed  in  St.  Louis  &  S.  F.  R.  Co.  v. 
Ellis,  2$  Kan.  108. 

When  the  bill  of  particulars  states  that  a 
demand  was  made  upon  the  agent  of  a  rail- 
road company  by  the  owner  to  pay  for  in- 
juries to  his  cow,  run  into  by  the  locomo- 
tive and  cars  of  said  company,  it  will  be 
construed  to  mean,  when  first  attacked  after 
judgment,  that  such  agent  was  one  upon 
whom  such  demand  could  be  made,  under 
article  2,  c.  84,  Kansas  Comp.  Laws  1879. 
Missouri  Pac.  R.  Co.  v.  Morro^u,  31  Am.  &• 
Eng.  R.  Cas.  520, 36  Kan.  495, 1 3  Pac. Rep.  789. 

4.  SuflBciency— Certainty.— The  office 
of  a  bill  of  particulars  is  to  give  the  defend- 
ant specific  information  of  the  cause  of 
action,  and  *  cannot,  therefore,  be  less 
specific  than  the  declaration,  nor  include 
any  items  not  embraced  in  the  declaration. 
So  where  a  plaintiff  sued  a  railroad  com- 
pany for  failing  to  ship  cotton  in  Novembei. 
1879,  and  March,  1 881,  it  is  error  to  allow  iiim 
to  file  a  bill  of  particulars  which  would  in- 
clude cotton  lost  during  the  cotton  season 
of  1879  and  1880.  Chicago,  St.  L.  &*  N.  O. 
R.  Co.  V.  Provine,  61  Miss.  288. 


:1 


■| 


m 


653 


BILLS    OF   PARTICULARS,  r».— BLASTING,   1,2. 


B!.\ 


5 

■  ■     ..-  i 

vi 

mi 

\.M 

Wk- 

A  bill  of  particulars  in  a  justice's  court 
which  alleges  that  a  railroad  curporat  ion  dug 
up  and  carried  away  clay  from  the  land  of 
plaintift  is  good,  without  alleging  that  the 
corporation  had  not  first  proceeded  to  have 
the  land  condemned.  Atc/iisoii,  T.  6-  S.  F, 
A'.  Co.  V.  IVeaver,  to  A'an.  344. — DlsiiN- 
(JUisHiNG  Cleveland  &  P.  R.  Co.  v.  Stack- 
house,  10  Ohio  St.  567. 

Plaintiffs'  bill  of  particulars  in  a  justice's 
court  alleged  in  detail  that  tlie  defendant 
company  failed  and  refused  to  construct 
cattle-guards  on  its  line  of  railroad  where 
the  same  entered  and  left  the  plaintiff's 
fenced  pasture-land,  and  tliat  the  plaintiffs 
were  compelled  to  herd  their  cattle  to  pre- 
vent tiieni  from  straying  from  such  pasture- 
land.  HeM,  sufficient  to  withstand  an 
objection  to  the  introduction  of  any  evi- 
dence under  it,  for  the  reason  that  it  did  not 
state  facts  sufficient  to  constitute  a  cause  of 
action.  Chicago.  K.  &^  N.  K.  Co.  v.  Behiiey, 
48  Kan.  47,  28  Par.  Rep.  980.— FOLLOWED 
IN  Nelson  v.  St.  Louis  &  S.  F.  R.  Co.,  49 
Kan.  165. 

In  a  suit  for  work  and  labor,  iin  exception 
that  the  petition  does  not  state  the  time 
and  place  of  its  performance  and  the  person 
by  whose  direction  it  was  performed  is 
not  well  taken,  where  a  bill  of  particulars 
attached  to  the  petition  and  made  a  part 
thereof  supplies  by  its  entries  the  defect. 
Texas  &^  St.  L.  R.  Co.  v.  Ross,  62  Tex.  447. 

6.  Aineiulnient.— Plaintiff  commenced 
an  action  before  a  justice,  and  his  bill  of 
particulars  stated  a  good  cause  of  action  at 
common  law,  and  also  under  the  statute, 
except  that  it  did  not  state  that  the  com- 
pany's track  was  not  fenced,  as  required  by 
statute.  Held,  that  it  was  proper  on  appeal 
to  the  district  court  to  allow  an  amendment 
stating  a  good  cause  of  action  under  the 
statute.  Kansas  City,  Ft.  S.  &*  G.  R.  Co.  v. 
Hays,  13  Am.  &*  Eng.  R.  Cas.  597,  29  Kan. 
•93. 


BLASTING. 

1.    Precautions    to    be    used.— It 

seems  that,  had  it  been  practicable  in  a 
business  sense  for  the  defendant  company 
to  remove  rock  without  blasting,  although 
at  a  somewhat  increased  cost,  defendant, 
at  least  after  iiaving  been  informed  of 
the  injury,  would  have  been  bound  to 
resort  to  some  other  method.  And  if 
less  powerful  blasts  might  have  used,  which 


would  not  have  occasioned  or  would 
have  lessened  the  injury,  the  omission  to 
use  them  was  negligence.     Booth  v.  Rome, 

IV.  <S-  O.  T.  R.  Co.,S7  Am.  6-  Eng.  R.  Cas. 
442,  140  iV.  Y.  267.  55  A'.  V.  S.  A'.  656,  35  A'. 
E.  Rep.  592 ;  reversing  63  Hun  624,  44  A'. 

V.  S.  R.  9,  17  .V.   )'.  Supp.  336. 

The  degree  of  care  requisite  to  constitute 
due  care  in  blasting  by  a  railroad  company 
must  be  commensurate  with  the  danger, 
the  blasting  must  be  conducted  with  the 
most  cautious  regard  for  the  neighbors' 
rights.  Booth  v.  Rome,  W.  &*  O.  T.  R.  Co.,  57 
Am.  &>  Eng.  R.  Cas.  442,  140  A'.  V.  267,  55 
A^.  V.  S.  R.  656,  35  A^.  E.  Rep.  592 ;  re- 
versing  63  Hun  624, 44  A'^  Y.  S.  ^.  9,  17  A'. 
Y.  Supp.  336. 

The  acquisition  by  a  railroad  corporation 
of  the  right  of  way  does  not  carry  with  it 
the  privilege  of  throwing  stones  or  other 
material,  by  blasting,  to  a  distance  of  two 
hundred  yards  or  more  onto  the  lands  of  an 
adjacent  proprietor,  whereby  the  family  of 
the  latter  are  exposed  to  danger  while  en- 
gaged in  their  domestic  duties.  Blackivell 
V.  Lynchburg  &•  D.  R.  Co.,  i\\  N.  Car.  151, 
16  5.  E.  Rep.  12. 

Where  those  engaged  in  the  construction 
of  a  railway  employ  a  powerful  explosive  in 
blasting  —  of  the  effects  of  which  they 
will  be  presumed  to  have  knowledge— it  is 
their  duty  to  cover  the  blast,  or  otherwise 
restrict  the  effect  of  the  explosion,  so  as  to 
prevent  danger  to  others  ;  and  if  this  be  im- 
practicable, they  should  give  timely  warning 
of  the  explosion  to  all  persons  who  may  be 
in  danger  from  it.  Blackwell  v.  Lynchburg 
<S-  D.  R.  Co.,  i\i  N.  Car.  151,  16  5.  £".  Rep. 
12. 

The  question  of  negligence  in  blasting 
with  large  quantities  of  dynamite  near  a 
railroad  is  one  of  fact  for  the  jury.  Tissue 
V.  Baltimore  &^  O.  R.  Co.,  112  /»«.  5/.  91,  3 
Atl  Rep.  667. 

2.  Injuries  to  persons.*— The  com- 
pany is  negligent  in  blasting  with  dynamite 
near  a  railroad,  thereby  exposing  its  em- 
ployes engaged  in  operating  the  road  to 
danger.  Tissue  v.  Baltimore  &»  O.  R.  Co., 
U2  Pa  St.  91,  3  Atl.  Rep.  667. 

A  railroad  corporation  made  a  contract 
with  certain  persons  that  the  latter  should 
build  a  certain  portion  of  the  railroad. 
While  the  contractors  were  at  work  upon 

*  Action  for  death  caused  by  blasting  in  pro- 
cess of  construction,  see  52  Am.  &  Eng.  R.  Cas. 
29,  aistr. 


BLASTING,  3,4. 


653 


constitute 

company 

danger, 

with  the 

leighbors' 
Ji.  Co.,  57 

y-  267.  SS 

592 ;  re- 

9.  17  A'. 


the  road,  in  pursuance  of  the  contract,  some 
rocks  were  blasted  and  a  stone  was  thrown 
upon  the  plaintiff,  causing  him  serious  in- 
juries. Held,  that  the  plaintiff  might  main- 
tain an  action  against  the  corporation  to 
recover  damages  for  the  injury  he  had  sus- 
tained. Stone  V.  Cheshire  R.  Co.,  19  N.H. 
427.  — Reviewing  Lowell  v.  Boston  &  L.  R. 
Co.,  23  Pick.  (Mass.)  24.— Disapproved  in 
Carter  v,  Berlin  Mills  Co.,  58  N.  H.  52. 

No  degree  of  care  will  excuse  a  person 
from  responsibility  for  death  caused  by  ex- 
ploding a  blast  in  a  thickly-settled  portion 
of  a  city.  Munro  v.  Pacific  Coast  D.  Sf  R. 
Co.,  84  Cal.  515,  24  Pac.  Rep.  303. 

Where  plaintiff  was  injured  by  a  blast, 
though  the  usual  and  proper  warning  was 
given,  to  which  plaintiff  paid  no  attention, 
it  is  error  to  instruct  that,  unless  plaintiff 
heard  the  warning,  defendant  is  liable. 
Hamilton  v.  Iron  Mountain  Co.,  4  Mo.  App. 

564. 
3.  Injuries  to  property,  generally.* 

—Legal  possession  by  a  company  of  a  right 
of  way  and  authority  to  construct  a  railroad 
thereon  do  not  relieve  it  from  liability 
for  damages  to  adjoining  lands  caused  by 
blasting  and  throwing  dirt  and  rocks 
thereon.  Georgetown,  B.  &*  L.  R.  Co.  v. 
Eagles,  30  Am.  &*  Eng.  R.  Cas.  228,  9  Colo. 
544,  1 3  Pac.  Rep.  696. 

While  excavating  by  blasting  is  a  legiti- 
mate means  of  construction  of  railways, 
and  its  prudent  use  is  deemed  to  have  been 
in  contemplation  in  the  assessment  of  dam- 
ages for  right  of  way,  nevertheless,  where 
damage  results  therefrom  to  the  lands  of  an 
owner  adjacent  to  those  condemned,  be- 
cause of  the  unskilful  or  careless  method 
of  employing  it,  or  because  the  material 
adopted  as  an  explosive  is  unnecessarily 
powerful,  the  corporation  or  person  so  em- 
ploying such  agency  will  be  liable  for  any 
damages  produced  thereby.  Blackwell  v. 
Lynchburg  Sr-  D.  R.  Co.,  \\\  N.  Car.  151, 
id  S.E.  Rep.  12. 

While  a  company  has  a  right  to  blast  iit  a 
proper  manner,  and  to  throw  stones  onto 
adjoining  lands  while  constructing  its  road, 
yet  they  must  be  removed  in  a  reasonable 

*  Liability  of  company  for  injuries  done  by 
contractors  in  blasting,  see  note,  14  L.  R.  A.  830. 

Liability  of  company  for  damage  to  adjoin- 
ing property  by  blasting,  see  note,  17  L.  R. 
A.  321. 

Injury  caused  by  negligent  blasting.  Recov- 
ery of  damages.  See  note,  30  Am,  &  Eng.  R. 
Cas.  333. 


time;  and  upon  a  failure  to  do  so  it  will  be 
liable  to  the  landowner  for  such  failure. 
Sabin  v.  Vermont  C.  R.  Co.,  25  Vt.  363. — 
DiSTlNGUlSHEU  IN  Eaton  v.  Boston,  C.  & 
M.  R.  Co.,  51  N.  H.  504.  Revieweu  in 
Stodghill  V.  Chicago,  B.  &  Q.  R.  Co.,  43 
Iowa  26. 

4.  Injuries  to  builcliiig:s.— After  a 
railroad  was  built,  plaintiff  constructed 
buildings  near  the  track,  anil  afterward  the 
road  company,  desiring  to  widen  its  road- 
bed, while  l)lasting  to  make  excavations  for 
that  purpose,  shook  the  earth  .so  that  the 
foundations  of  the  bnildin^s  gave  way, 
//(•/(/,  tiiat  the  right  of  plaintiff  to  recover, 
both  for  the  injury  to  tiic  soil  and  for  the 
damages  to  his  buildings,  depended  upon 
whether  the  company  exercised  ordinary 
prudence  or  not  in  doing  tlic  blasting. 
Louisville  &•  N.  R.  Co.  v.  Bonhayo,  {Ky.) 
21  .S'.  IV.  Rep.  526. 

A  railroad  company  is  not  liable  to  ad- 
joining owners  for  injury  caused  by  blasting 
by  subcontractors,  thougli  the  company  re- 
served a  certain  part  of  the  cost  of  the 
work  to  cover  damages.  Tibbetts  v.  Knox 
&'L.R.  Co. ,62  ;l/^. 437.-  Following  Eaton 
V.  European  &  N.  A.  R.  Co.,  59  Me.  520. 

Where  a  railroad  company  has  been 
granted  the  right  to  construct  a  railroad, 
and  the  necessary  excavations  along  the 
right  of  way  can  only  be  made  by  blasting, 
and  it  is  conceded  that  the  work  has  been 
conducted  witii  the  most  cautious  regard 
for  the  rights  of  abutting  owners,  and  the 
excavation  was  necessary  to  enable  the  com- 
pany to  conform  its  roadbed  to  the  estab- 
lished grade,  no  recovery  can  be  had  for 
unavoidable  injury  to  a  neighboring  house 
occasioned  by  the  act  of  blasting.  Booth  v. 
Rome,  IV.  &'  0.  T.  R.  Co.,  57  Am.  &•  Eng.  R. 
Cas.  442,  140  N.  V.  267.  55  JV.  V.  S.  R.  656, 
35  JV.  E.  Rep.  592  ;  reversing  63  Hun  624,  44 
N.  V.  S.  R.9,17  N.   V.  Supp.  336. 

In  making  a  lawful  excavation  on  its 
lands  in  order  to  remove  rock,  defendant 
resorted  to  blasting  with  gunpowder. 
Plaintiff's  house  on  adjoining  land  was 
seriously  injured  by  the  blasting,  presuma- 
bly by  the  jarring  of  the  ground  or  concus- 
sion of  the  atmosphere  caused  by  the  ex- 
plosion. The  persons  engaged  in  the  work 
were,  during  its  progress,  informed  of  the 
injury  that  was  being  done.  In  an  action 
to  recover  damages  for  the  injury  it  was 
conceded  that  defendant  exercised  due  care, 
and  that  the  blasting  was  necessary  in  order 


\'m 


I 


■■ 


654 


BLASTING,  5.— HON  US. 


il: 


to  remove  the  rock.  The  court  charged  the 
jury  In  substance  that  defendant  in  ushifj 
powerful  explosives  in  blasting  did  so  at  its 
peril,  and  was  liable  if  plaintifl's  house  was 
injured  thereby  ;  that  "  it  made  no  diflcrencc 
whether  the  work  was  done  carefully  or  neg- 
ligently." Held,  error ;  that  the  use  of  explo- 
sives in  blasting  did  not,  under  the  circum- 
stances, constitute  a  private  nuisance.  Booth 
V.  Rome,  W,  6-  O.  T.  N.  Co.,  57  Am.  &•  Eng, 
R.  Cas.  442,  140  N.  V,  267.  55  A'.  V.  S.  R. 
656,  35  A'.  E.  Rep.  £92  I  reversing  63  Hun 
624.  44  N.  Y.  S.  R.<j,i7  N.  v.  Supp.  336. 

Where  a  railroad  corporation,  in  making 
an  excavation  upon  its  land  for  la:wful  pur- 
poses, is  obliged  to  resort  to  blasting,  the 
fact  that  the  blasting  caused  injury  to  a 
building  on  adjoining  land  does  not  alone 
render  it  liable;  it  must  also  appear  that  it 
failed  to  exercise  due  care.  Booth  v.  Rome, 
W,  6-  O.  T.  R.  Co.,  57  Am.  <&-  Eng.  R.  Qts. 
442.  140  N.  V.  267.  55  N.  y.  S.  R.  656, 35  A^. 
£.  Rep.  592 ;  reversittg  63  h  'tn  624,  44  A'.  Y. 
S.  R.  9,\7N.  Y.  Supp.  336. 

Where  the  walls  of  a  house  are  so  weak- 
ened by  repeated  blasting  by  a  railroad 
company  as  to  cause  it  to  fall,  the  blasting 
will  be  deemed  the  proximate  cause  of  the 
injury,  and  the  company  will  be  held  liable, 
though  there  be  no  proof  of  direct  negli- 
gence. Booth  v.  Rome,  W.  &*  O,  T.  R.  Co., 
57  Am.  (S-  Eng.  R.  Cas.  442,  140  A'^,  Y,  267, 
55  A^.  Y.  S.  R.  656,  35  A^.  E.  Rep.  592  ;  revers- 
ing 63  Hun  624,  44  N.  Y.  S.  R.9,17  N.  Y. 
Supp  336. 

Injury  to  a  dwelling-house  upon  the 
residue  of  a  tract  of  land,  part  of  which 
was  granted  to  the  railroad  company,  caused 
from  the  careful  blasting  of  rock  in  con- 
struction, is  not  the  subject  of  an  action ; 
but  rock  deposited  on  such  land  must  be 
removed  within  a  reasonable  time,  else  it 
will  form  the  basis  of  an  action.  Watts  v. 
Norfolk  &•  W.  R.  Co.,{W.Va.)  57  Am.  &- 
Eng.  R.  Cas.  694,  19  S.  E.  Rep.  520. 

5.  Guests  leaving  hotel  through 
tear. — A  hotel-keeper  is  entitled  to  dam- 
ages resulting  from  guests  leaving  his  hotel 
through  fear  of  injury  from  blasting  by  a 
railroad  company.  Georgetown,  B.  &*  L.  R. 
Co.  V.  Doyle,  9  Colo.  549,  30  Am.  &*  Eng.  R. 
Cas.  231,  13  Pac.  Rep.  699. 

Where  a  hotel-keeper  sues  a  railroad  for 
damages  caused  by  guests  leaving  his  hotel 
through  fear  of  personal  injury  from  blast- 
ing, evidence  of  injury  to  other  buildings 
near  by  is  admissible  as  tending  to  show 


whether  the  fear  was  well  founded  or  not. 
Georgetown,  B.  &•  L.  R.  Co.  v.  Doyle,  30  Aw, 
&^Eng.  R.  Cas.  231,  9  Colo.  549,  i^/'ac.  Rep, 
699. 


B0ABD8. 
Of  directors,  see  Directors. 


BOATR. 

Use  of  canaU  by,  sec  Can. its,  2. 

BONA-FIDE  FUBCHA8EB8. 

Generally,  sec  Guakanty,  lO;  Sale.s,  I. 
Of  billaand  notes,  rights  of,  sec  Bii.i.s,  Notks, 

AND  ClIKCKS,    15-17. 

—  corporate  bonds,  see  Bonus,  4ff-A0. 

—  debentures,    rights   of,   see    Dkhentures, 

7-0. 

—  land,  see  Vendor  and  Purchasek,  II. 

—  railroads,  see  Sale  of  Railroads,  II. 

—  itock,  rights  of,  see  Stock,  V,  8. 


BONDED  WAREHOUSES. 

See  also  Warehousemen,  12. 


BONDHOLDERS. 

Rights  of,  as  such,  see  Bonds,  31-44. 

on  reorganization,  see  Reorganization, 

7-9. 


BONDS. 

Assigrnability  of,  see  Assignment,  5. 
Deposit  of,  on  reorganization,  sec  Reorgan- 
ization, 7. 
Description  of,  in  mortgage,  see  Mortgages, 

IV,  5. 
Guaranty   of    payment   of,    sec   Guaranty, 

7-13. 
In  aid  of  railroads,  sr.:  Municipal  and  Local 

Aid,  XII. 
Of    agents,    liability   to    principal    on,    see 

Agency,  30. 

—  carriers  of  the  mails,  sec   Carriage  of 

Mails,  6. 

—  "conductors,  see  Conductor,  7. 

—  county  treasurers,  see  Counties,  O. 

—  land    grant    railroads,   see    Land    Grant 

Railroads,   12. 

—  receivers,  see  Receivers,  IV,  4. 

—  station  agents,  see  Station  Agents,  11. 
On  application  for  injunction,  see  Injunction, 

V. 

Provisions  in  deed  of  trust  as  to  bonds  se- 
cured thereby,  see  Deeds  of  Trust,  9> 

Subropation  of  sureties,  see  Subrogation, 
1-3. 


;•  J 


BONDS,  1,2. 


6BA 


:d  or  nol. 
(t\  30  Am, 
Pac.  Rtp, 


Taxation  of  interest  due  on.  rcc  Rp.vkn'f.,  n. 
To  itecure  compensation  for  land  condemned, 

»ee  Eminkni'  Domain,  XI,  i  (c). 
When  subject  to  attachment,  see  Attach- 

MBNT,  ETC.,   22. 

execution,  sec  Exkcution,  11. 

Sec  also  Inukmnhy  Hcjnds. 

I.  FOWEB  TO  nSUB 655 

1.  In  General. 655 

2.  Formalities     Attending    the 

Issue  of  Bonds 658 

II.  HEOOTIABILITT 659 

III.  VALIDITY 661 

IT.  BIGHTS     or    PUBCHA8EB8     AND 

HOLDBBB 663 

1.  Rights    of    Bondholders,    as 

Such 663 

2.  Bona-Frde  Purchasers 672 

y.  ACTIONS  ON  BONDS 6;6 

I.  FOWEB  TO  ISSUE. 

I.  In  General. 

1.  Power  to  isHiic,  generally. ♦—A 

corporation,  lilce  a  natural  person,  has  tlie 
right  to  carry  on  its  legitimate  business  by 
all  legal  and  necessary  means  not  prohib- 
ited by  law  or  by  its  charter;  and  it  may 
issue  its  bonds  for  the  purpose  of  carrying 
out  the  object  of  its  creation,  and  it  will  be 
bound  thereby.  Philadelphia  6-  5.  R.  Co. 
V.  Lewis,  33  Pa.  St.  33. 

A  railroad  company  has  the  power,  with- 
out any  specific  authority  being  conferred 
by  the  charter,  to  accept  a  rerpetual  loan 
and  to  issue  irredeemable  bonus  to  the  lend- 
ers. Philadelphia  Or-  R.  R.  Co.'s  Appeal,  4 
Am,  &*  Eng.  R.  Cas.  ii«,  11   W.  N,  C,  {Pa,) 

325- 

The  power  to  borrovr  money  and  to  give 
the  ordinary  evidences  of  loans  in  the  form 
of  bonds  or  other  obligations  to  the  same 
effect  is  a  necessary  incident  to  the  power  of 
the  corporation  to  mortgage  its  property, 
and  need  not  be  expressly  granted ;  more- 
over, it  is  a  necessary  incident  of  the  power 
to  build  a  railroad.  Gloninger  s.  Pittsburgh 
&*  C,  R.  Co.,  46  Am.  &•  Eng.  R.  Cas  276,  139 
Pa.  St.  13,  21  Atl.  Rep.  211. 

Where  a  railroad  company  is  authorized 
to  issue  its  own  bonds,  it  may  receive  bonds 
of  another  corporation  in  payment  of  debts, 
and  may  guarantee  their  payment  in  selling 
ihem  again.  Rogers  L.  &•  M.  Works  v. 
Southern  R.  Assoc,  34  Fed.  Rep,  278. 

*  Issue  of  bonds  by  railroad  companies,  see 
noie,  7  Am.  &  Eng.  R.  Cas.  117. 


Where  a  railroad  company  proceeds  under 
How.  Mich.  St.  ?  3352,  authorizing  an  issu- 
ing of  bonds  by  resolution  for  the  purpose 
of  borrowing  money,  it  may  lawfully  pledge 
such  bonds  to  secure  borrowed  money. 
Farmers'  L.  6-  T.  Co.  v  Toledo  6-  .S".  //.  R. 
Co.,  54  Fid.  Rep.  759,  4  C.  C.  A.  561.— Fol- 
lowing Piatt  V.  Union  Par.  R.Co.,  99  U.  S. 
48;  htov.  Union  Pac.  P..  Co.,  17  Fed.  Rep. 
275. 

The  flirt  will  not  interfere  to  regulate 
the  charaiier  of  payments  or  the  instru- 
ment to  be  issued  therefor  by  a  corpo- 
ration authorized  to  issue  bonds  under  a 
va'  '  contract,  unlers  iiicy  are  expressly  for- 
bidden or  unaut'u  rized.  WiUoughbyv.  Chi- 
cago, f.  R.  C  U.  S,  Co.,  50  N.f.  Eq.  656,  25 
Atl.  R-j>.  27/. 

A  creditor  of  a  corporation  having  only  a 
claim  for  unliquidated  damages  cannot  en- 
join the  corporation  from  issuing  bonds  se- 
cured by  a  mortgage  ui  from  selling  per- 
sonal property.  Erie  R.  Co.  v.  Wilkesbarre 
C.  <S-  /.  Co..  9  Phila.  {Pa.)  261. 

Under  an  authority  to  borrow  money  a 
railroad  company  has  no  right  to  raise 
money  by  the  issue  of  irredeemable  bonds 
entitling  the  holder  merely  to  a  share  of  the 
earnings  after  the  payment  of  a  certain  divi- 
dend to  the  stockholders.  Taylor  v.  Phila- 
delphia &' R.  R.  Co.,  7  Fed.  Rep.  386. 

Nor  has  it  the  right  to  issue  interest-bear- 
ing bonds,  secured  by  mortgage,  if  a  portion 
of  such  bonds  are  perpetual.  Taylor  v. 
Philadelphia  &^  R.  R.  Co.,  7  Fed.  Rep.  386. 

2.  Constitutional  restrictions.  — 
Under  Ala.  Const,  art.  14,  §  6,  providing 
"  that  no  corporation  shall  issue  stock  ex- 
cept for  money,  labor  done,  or  money  or 
property  actually  received,"  a  contract  with 
a  construction  company  foi  the  buflding  of 
a  portion  of  a  railroad,  one-half  of  the  con- 
tract price  being  payable  in  bonds  and  the 
other  half  in  the  stock  of  the  company,  is 
valid  where  the  contract  is  fairly  entered 
into  and  there  is  no  over-valuation  of  the 
work ;  and  such  bonds  are  valid.  Coe  v. 
East  &-  W.  R.  Co.,  52  Fed.  Rep.  531. 

Bonds  issued  by  a  reorganized  company, 
after  the  foreclosure  sale  of  a  railroad,  in  pay- 
ment of  the  property  and  rights  bought  at 
the  sale,  are  not  in  violation  of  the  provi- 
sion of  the  Arkansas  constitution  forbid- 
ding the  issuing  of  stock  or  bonds  except 
for  money  actually  received  or  labor  done. 
Memphis  &*  L.  R.  R.  Co.  v.  Dow,  120  U.  S. 
287,  7  Sup.  Ct.  Rep.  482  ;  affirming  19  Fed. 


m 


i: 


■!ii' 


656 


BONDS,  3,4. 


Rep.  388. — FoLLOV/ED  IN  Mackintosh  v. 
Flint  &  P.  M.  R.  Co.,  36  Am.  &  Eng.  R. 
Cas.  340,  34  Fed.  Rep.  582.  Quoted  in 
Brown  v.  Duluth,  M.  &  N.  R.  Co.,  54  Am.  & 
Eng.  R.  Cas.  219,  53  Fed.  Rep.  889. 

The  object  of  111.  Const,  art.  11,  §  13,  pro- 
viding that  "  no  railroad  corporation  shall 
issue  any  stock  or  bonds  except  for  money, 
labor,  or  property  actually  received  and  ap- 
plied to  the  purpose  for  which  such  corpo- 
ration was  created,'  and  that  "  all  stocks, 
dividends,  and  other  fictitious  increase  of 
the  capital  slock  or  indebtedness  of  such 
corporation  shall  be  void,"  is  only  to  pre- 
vent reckless  and  unscrupulous  speculation, 
and  is  not  intended  to  interfere  with  the 
usual  and  customary  methods  of  raising 
njoiiey  by  the  issuing  of  stocks  or  bonds  for 
the  purpose  of  the  corporation.  Peoria  G^ 
S.  R.  Co.  V.  Thovipson,  7  Am.  &>  Enr.  R, 
Cas.  loi,  103  ///.  >87.— Distinguishing 
Oldsv.  Cuminings,  31  111.  188.  Overrul- 
ing IN  PART  Chicago,  D.  &  V.  R.  Co.  v. 
Lowenthal,  93  111.  433. 

Under  the  above  provision  of  the  consti- 
tution, railroad  companies  have  no  right  to 
rent,  give  away,  or  sell  on  credit  their  bonds 
or  stock,  nor  have  they  a  right  to  dispose  of 
them  except  for  a  present  consideration  and 
for  corporate  purposes.  But  if,  upon  a  sale 
of  its  stocks  or  bonds  for  present  considera- 
tion, the  company  should  subsequently  ui- 
vert  the  proceeds  to  other  than  corporate 
purposes,  a  dona-fide  purchaser  of  the  stock 
or  bonds,  or  his  assignee,  cannot  be  affected 
by  the  subsequent  misappropriation  by  the 
company.  Peoria  &•  S.  R.  Co.  v.  Thompson, 
7  Am.  <S-  Eng.  R.  Cas.  101,  103  ///.  187. 

3.  Power  to  issue  iiiidcr  charter 
provisions.*  —  The  exercise  of  powers 
which  are  not  conferred  upon  a  corporation 
by  express  provision  or  cle^r  implication 
must  be  taken  as  denied  to  it.  So  a  railroad 
company  cannot  issuedeferred  income-bonds 
where  there  is  no  provision  in  its  charter 
authorizing  them.  McCalmont  v.  Philadel- 
phia &*  R.  R.  Co.,  14  Phila.  (Pa.)  479-— 
Quoting  Thomas  v.  West  Jersey  R.  Co.,  loi 
U.  S.  82. 

Where  a  railway  company's  act  empowers 
it  to  borrow  money  after  the  whole  capital 
has  been  subscribed  for  and  one-half  paid 
up,  bonds  issued  while  only  part  of  the 
capital  is  subscribed  for  are  illegal.     Cham- 

*  Right  of  corporation  under  its  charter  to 
issue  bonds,  see  note,  4  Am.  &  Eng.  R.  Cas. 
187. 


bers  v,  Manchester  &*  M.  R.Co.,  5  j5.  &*  S, 
588,  33  L.J.  Q.B.  2(58.  ioy«r.  A'.  S.  700. 

A  provision  in  the  charter  of  a  street  rail- 
way autliorizing  the  directors  to  raise  money 
for  the  purposes  of  the  company,  "by  the 
issue  of  bonds  or  debentures,  *  *  *  on  such 
terms  and  credit  as  they  may  think  proper," 
clearly  authorizes  an  issue  of  bonds,  with 
annual  interest-coupons  attached,  payable  at 
a  bank  named ;  but  in  a  suit  on  such  coupons 
such  question  can  only  be  raised  by  spe- 
cial plea.  Geddi's  v.  Toronto  St.  R.  Co.,  14 
U.  C.  C.  P.  513. — Approving  Chambers  v. 
Manchester  &  M.  R.  Co.,  10  L.  T.  715. 

Bonds  or  debentures,  or  interest-coupons 
thereon,  is  ued  by  a  street-car  company, 
imder  authority  of  its  charter,  cannot  be 
treated  as  promissory  notes,  which  the 
company  has  not  power  to  issue.  Geddes 
V.  Toronto  St.  R.  Co.,  14  U.  C.  C.  P.  513. 

The  charter  of  a  railroad  company  author- 
ized it  to  issue  bonds  which  should  consi- 
tute  a  first  lien  upon  its  property,  including 
its  government  land  grant  to  be  earned,  but 
afterward  its  charter  was  amended,  omitting 
therefrom  the  provision  relating  to  the  lien 
on  the  government  land  grant.  Subse- 
quently bonds  were  issued  attempting  to 
charge  the  land  grant.  Held,  that  the 
bonds  were  not  void  as  to  the  rest  of  its 
property,  assuming  that  the  land  grant  was 
not  bound  thereby.  IVinnepeg  &*  H.  B.  R. 
Co.  V.  Mann,  7  Man.  Si. 

4.  Power  to  issue  under  statutes. 
— Under  Mass.  act  of  1854,  ch.  286,  provid- 
ing how  corporations  may  contract  debts 
and  issue  bonds  therefor,  a  railway  corpora- 
tion has  no  power  to  issue  bonds  except  in 
the  manner  provided  by  the  statute,  or  to 
make  a  mortgage  to  secure  such  bonds. 
East  Boston  Freight  R.  Co.  v.  Hubbard,  10 
Allen  {Mass.)  459,  note. — Reviewed  in  Ad- 
ams V.  Boston,  H.  &  E.  R.  Co.,  i  Holmes 
(U.  S.)  30. 

The  power  given  by  N.  Y.  act  of  1848,  § 
17,  to  railroad  companies  to  borrow  money 
to  be  applied  to  the  construction  of  their 
railroads  and  fixtures,  includes  the  power  to 
issue  their  bonds  in  payment  thereof,  and 
this  power  is  not  to  be  deemed  as  withheld 
because  it  is  expressly  given  by  the  later  act 
of  1850,  p.  225,  §  10.  Miller  v.  Ne^v  York 
&-  E.  R.  Co.,  18  How.  Pr.  (A^.  K.)  374,  8 
Abb.Pr.  431. 

When  a  corporation  hypothecates  its 
bonds  as  security  for  a  loan,  it  issues  them, 
within   the  meaning   of  Wis.   Rev.   St.  § 


BONDS,  6,  O. 


657 


1753 ;  and  if  it  is  not  stipulated  that  they 
shall  be  accounted  for  at  not  less  than  sev- 
enty-five per  cent  of  their  par  viilue,  the 
bonds  so  issued  are  void.  PJister  v.  Mil- 
waukee Elect.  R.  Co.,  83  Wis.  86,  53  N.  IV. 
Rep.  27. 

A  company  authorized  by  statute  to  issue 
irredeemable  bonds,  as  it  might  see  fit,  but 
without  further  express  power  to  borrow 
money,  proposed  to  raise  a  fund  by  issuing 
$50  irredeemable  bonds,  at  the  rate  of  $15 
each,  to  bear  interest  at  the  rate  of  six  per 
cent  on  their  face  value,  payable  out  of  the 
earnings  after  defraying  current  expenses 
and  distributing  a  dividend  on  the  stock, 
said  bonds  to  be  entitled  to  share  pari  passu 
with  the  common  stock  in  any  surplus  rev- 
enues of  the  company.  A.  B.  contracted 
with  the  company  to  purchase  such  bonds. 
Subsequently,  upon  A.  B.  tendering  the 
purchase-money,  the  company  refused  to 
issue  to  him  the  bonds  for  which  he  had 
subscribed,  on  the  ground  that  their  issue 
was  beyond  the  chartered  powers  of  the 
corporation.  A  bill  being  filed  by  A.  B. 
against  the  company  for  specific  perform- 
ance of  the  contract— A^A/,  tiiat  the  com- 
pany could  validly  issue  such  bonds,  that 
they  were  not  usurious  in  their  nature,  and 
that  therefore  complainant  was  entitled  to 
the  relief  prayed  for.  Philadelphia  &*  R. 
R.  Co.'s  Appeal,  4  Am.  <S>»  Eng.  R.  Cas.  118, 
II   IV.  N.  C.  {Pa.)  325. 

5.  Power  to  issue  under  agree- 
ment for  reorganization. — The  stock- 
holders, bondholders,  and  creditors  of  a 
mortgaged  railroad  entered  into  an  agree- 
ment with  the  mortgage  trustees,  pending 
foreclosure  proceedings,  to  the  effect  that 
the  latter  would  take  up  the  outstanding 
bonds  of  the  company  and  issue  their  own 
certificates  in  lieu  thereof,  and  that  the 
property  should  be  conveyed  to  a  new  cor- 
poration to  be  organized,  which  would  issue 
two  series  of  bonds  secured  by  mortgages, 
the  second  series  to  be  issued  in  redeeming 
the  certificates  issued  by  the  trustees.  The 
agreement  contained  a  condition  that  the 
"certificate  holders  might  at  •'ny  time,  by 
the  vote  or  assent  of  a  majoriiy'n  par  value 
of  their  number,  modify  or  change  this 
agreement,  or  any  provision  thereof,  or  the 
plan  herein  set  forth  in  any  manner  they 
may  deem  best  for  the  interest  of  all  con- 
cerned." Held,  that  the  power  of  amend- 
ment or  alteration  was  limited  to  the 
creation  of  the  new  company  and  the  con- 
I  D.  R.  D.— 42. 


veyance  of  the  property  to  it  by  the  trus- 
tees, as  provided  for  by  the  agreement ;  and 
tliat  a  pretended  modification  authorizing 
the  issue  of  one  series  of  bonds  to  be  secured 
by  one  mortgage,  to  be  used,  so  far  as 
necessary,  in  redeeming  the  trustees' certifi- 
cates, was  not  authorized,  and  therefore  not 
binding  on  interested  parties  not  assenting 
thereto.  Dutenhofer  v.  Adirondacks  R.  Co., 
38  N.  V.  S.  R.  710,  60  Hun  578,  14  A^.  V. 
Supp.  558. 

O.  Issuing  bonds  in  payment  of 
debts  of  company.— The  power  of  a  rail- 
road corporation  to  contract  debts  includes 
the  power  to  issue  its  bonds  as  an  acknowl- 
edgment of  such  a  debt.  Commissioners 
of  Craven  v.  Atlantic  &*  N.  C.  R.  Co.,  yy  N. 
Car.  289. 

Certain  directors  and  stockholders  made 
advances  to  their  corporation  to  pay  for  re- 
pairs and  improvements,  and  failed  to  col- 
lect interest  on  mortgage  bonds  held  by 
them.  A  subsequent  meeting  of  stock- 
holders authorized  an  issue  of  second  mort- 
gage bonds  in  a  sum  larger  than  the  claim 
held  by  such  creditors,  which  were  required 
to  be  sold  at  not  less  than  65  per  cent  of 
their  par  Value.  Held,  that  a  purchase  by 
such  creditors,  holdir<T  the  entire  floating 
debt  of  the  company,  A  the  whole  of  sucli 
bonds,  to  be  paid  for  by  a  cancellation  of 
their  debts,  and  the  balance  in  cash,  was 
valid.  Coe  v.  East  6-  W.  R.  Co.,  52  Fed. 
Rep.  531. 

By  the  Md.  Act  of  1841,  ch.  168,  the 
Annajjolis  and  E.  R.  Co.  was  authorized  to 
issue  bonds  to  an  amount  not  exceeding, 
etc.,  in  the  names  of  the  creditors  of  that 
company  as  payees.  A  special  fund  was 
designated  in  the  act  for  the  payment  of 
interest,  the  principal  being  irredeemable 
for  thirty  years.  Another  section  of  the 
act  referred  the  claims  of  P.  to  the  arbitra- 
ment of  L.,  and  provided  that  any  amount 
found  due  to  him  should  be  paid  in  like 
manner  as  the  claims  of  other  creditors, 
"and  not  otherwise."  Held,  that  the  cred- 
itors for  whom  provision  was  made,  as  afore- 
said, were  to  be  creditors  of  the  company 
at  that  time;  and  that  the  fund  thereby 
created  was  for  the  payment  of  those  claims 
and  none  others,  all  the  then  creditors  hav- 
ing an  interest  in  it,  of  which  they  could 
not  be  deprived  by  the  directors  of  the  com- 
pany without  their  consent.  McCullougk 
V.  Annapolis  Gr^E-R.  R.  Co.,  4  Gill  {Md.)  58. 

To  entitle   P.  or  his  assignee  to  an  in- 


I 


658 


BONDS,  7-12. 


u  f 


il'.l 


t 


terest  in  this  fund  he  or  his  assignee  must 
submit  his  claim  to  the  award  of  L.,  wliich 
would  be  conclusive.  The  proof  of  such 
submission  is  upon  him,  and  the  directors 
of  the  comp'any  could  not  authorize  their 
president  to  issue  a  bond  to  an  assignee  of 
P.,  payable  out  of  the  fund  created  by  that 
act,  unless  P.'s  claim  had  been  first  ascer- 
tained by  L.  McCullough  v.  Annapolis  &> 
E.R.  R.  Co.,  4  Gill  (Md.)  58. 

Where  the  legislature,  by  a  subsequent 
act  (1843,  ch.  188),  submitted  the  claim  of 
P.  to  other  arbitrators,  to  proceed  de  novo, 
disregarding  the  act  of  1841,  and  directed 
the  company  to  issue  the  bonds  mentioned 
in  the  first  act  to  such  additional  amount 
as  would  be  sufficient  to  pay  the  second 
award,  it  was  further  AeM,  that  ^he  credit- 
ors of  the  company,  or  such  of  them  as  had 
agreed  to  the  law  of  i84i,and  their  claims, 
ascertained  by  the  company,  had  an  interest 
in  the  fund,  and  that  without  their  consent 
no  part  nf  It  could  be  applied  to  the  pay- 
ment of  any  debt  for  which  the  act  of  1841 
did  not  provide.  McCullough  v.  Annapolis 
fi-  E.  R.  R.  Co.,  4  Gill  (Md.)  58. 

7.  Issuing  bonds  for  lease  of 
another  road. — A  contract  entered  into 
by  certain  stockl'.olders  and  directors  of  a 
railroad  company  for  the  lease  of  a  railroad 
owned  by  an  iron  company,  in  which  the 
same  parties  were  directors  and  stock- 
holders, the  railroad  company  to  pay  there- 
for in  its  bonds,  which  lease  is  ratified  by 
the  unanimous  vote  of  the  stockholders  of 
the  railroad  company,  is  not  void,  but  at 
most  only  voidable ;  and  where  the  contract 
for  the  lease  was  fairly  entered  into,  bonds 
issued  in  carrying  it  out  will  be  held  valid. 
Coe  v.East  &>  W.  R.  Co.,  52  Fed.  Rep.  531.— 
Applying  Elyton  Land  Co.  v.  Birmingham, 
W.  &  E.  Co.,  92  Ala.  407,  9  So.  Rep.  129. 
Following  Van  Cott  v.  Van  Brunt,  82 
N.  Y.  535 ;  Barr  v.  New  York.  L.  E.  &  W. 
R.  Co.,  125  N.  Y.  263,  26  N.  E.  Rep.  145, 

8.  Issuing  bonds  convertible  into 
stock.* — Where  the  directors  of  a  railroad 
company  have  borrowed  money  to  complete 
the  road  or  to  operate  it,  they  have  the 
right  to  issue  bonds  therefor,  convertible 
into  stock,  though  the  whole  amount  of 
stock  may  exceed  that  fixed  by  charter; 
and  it  follows  that  they  have  a  right  to  issue 
stock  in  exchange  for  such  bonds.  Belmont 
V.  Erie  R.  Co.,  52  Bard.  {JV.  K)  637 

•See/w/,  40. 


But  if  it  sufficiently  appear  that  such  issue 
of  bonds  is  about  to  be  made  for  the  pur> 
pose  of  fraudulently  increasing  the  capital 
stock  of  the  company,  and  not  for  the  pay- 
ment of  money  so  borrowed,  an  injunction 
will  be  awarded  to  restrain  the  issuing  of 
such  bonds;  and  an  injunction  may  be 
awarded  to  restrain  the  conversion  of  such 
bonds  into  stock  against  persons  holding 
them  who  had  notice  that  they  did  not  rep- 
resent a  bona-fide  indebtedness.  Belmont  v. 
Erie  R.  Co.,  52  Barb.  (N.  V.)  637. 

0.  Bight  of  foreign  corporation  to 
issue.— The  law  of  Ohio,  authorizing  rail- 
road companies  to  sell  their  own  bonds  and 
notes  at  such  prices  as  they  may  deem  ex- 
pedient, is  extended  by  comity  to  the  com- 
panies of  other  states  authorized  to  transact 
business  in  Ohio.  Junction  R.  Co.  v.  Ash- 
land  Bank,  12  Wall.  (U.  5.)  226. 

10.  Ratification  of  irregular  issue. 
— A  corporation  having  power  to  issue  its 
bonds  to  another  corporation,  for  the  pur- 
pose of  enabling  it  to  exchange  them  for 
bonds  of  the  state,  may  ratify  and  affirm,  by 
subsequent  action  of  its  stockholders,  a 
previous  irregular  issue  and  exchange  of  its 
bonds,  made  by  officers  or  stockholders  of 
the  company.  State  v.  Florida  C.  R.  Co.,  15 
F/a.  690. 

Where  the  president  of  a  railroad  com- 
pany is  authorized  by  the  directors  to  exe- 
cute a  mortgage  on  the  road  to  secure 
bonds,  and  exceeds  his  power  by  inserting 
a  provision  that  the  principal  sum  shall  be- 
come due,  at  the  option  of  the  holder,  upon 
default  of  payment  of  semi-annual  interest, 
it  is  competent  for  the  directors  to  subse- 
quently ratify  the  bonds  as  issued ;  but  in 
this  case  there  was  not  sufficient  evidence  of 
such  ratification,  /esup  v.  City  Bank,  14 
JVis.  331. 

2.  Formalities  Attending  the  Issue  of  Bonds. 

11.  Xecesslty  of  formal    issue.— 

Bonds  executed  by  a  railroad  company  and 
in  the  hands  of  its  agents  to  be  negotiated 
for  its  use  are  not  property  as  described  by 
the  New  York  Code,  and  cannot  be  seized 
on  attachment,  execution,  or  other  process 
against  the  corporation.  Cunningham  v. 
Pennsylvania,  S.  &*  N.  E.  R.  Co.,  11  N.  Y. 
S.  R.  663.  Silkies  V.  Richardson,  23  Hun  {N. 
y.)  559- 

12.  Responsibility  of  signers.— A 
bond  in  these  terms,  "We,  J.  B.,  T.  H.  (and 
nineteen  others),  stockholders  in  the  D.  & 


BONDS,  13-16. 


6fi9 


t  such  issue 
or  the  pur- 
the  capital 
)r  the  pay- 
injunction 
:  issuing  of 
)n  may  be 
3n  of  such 
ns  holding 
lid  not  rep- 
Belmont  v. 

7. 
•ration  to 

>rizing  rail- 
I  bonds  and 
y  deem  ex- 
;o  the  com- 
to  transact 
Co.  V.  Ash- 

liar  issue. 

to  issue  its 
vc  the  pur- 
e  them  for 
d  affirm,  by 
:holders,  a 
lange  of  its 
(holders  of 
7.  R.  Co.,  15 

Iroad  com- 
ors  to  exe- 
to  secure 
>y  inserting 
m  shall  be- 
older,  upon 
aal  interest, 
s  to  subse- 
led ;  but  in 
evidence  of 
y  Bank,  14 


u  of  Bonds. 

1    issue.— 

mpany  and 
negotiated 
escribed  by 
>t  be  seized 
;her  process 
ningham  v. 
ff.,  II  A^.  Y. 
23  Hun  (N. 

Ipners.— A 

,  T.  H.  (and 
in  the  D.  & 


A.  R.  R..  send  greeting:  Whereas  the  D.  & 
A.  R.  R.  Co.  borrowed  of  J.  B.  (and  two 
others)  thirty-five  thousand  dollars;  and 
whereas  we,  whose  names  are  hereunto  sub- 
scribed and  seals  affixed,  have  agreed  with 
the  said  J.  B.  and  others  that  in  case  the 
corporate  property  should  fail  to  pay  said 
thirty-five  thousand  dollars  and  interest,  so 
that  a  loss  or  deficiency  should  happen,  that 
in  that  event  each  of  us  and  each  of  them, 
the  said  J.  B.  and  others,  shall  sustain  an 
equal  portion  of  said  loss,"  expresses  on  its 
face  that  each  should  become  responsible 
when  and  as  he  signed  it,  and  excludes  parol 
proof  that  none  was  to  be  responsible  until 
all  the  stockholders  had  signed  it.  B/ack 
V.  Shreve,  i^  N,  J.  Eq.  455. 

13.  Tlie  accompanying  security- 
Mortgage  or  deed  of  trust. — The  bonds 
issued  by  the  Brunswick  &  F.  R.  Co.  under 
its  charter,  as  amended  by  Ga.  act  of  1838, 
without  the  execution  of  any  mortgage  to 
secure  them,  do  not  ipso  facto  become  a 
lien  upon  the  property  of  the  corporation  so 
as  to  be  superior  or  even  equal  in  dignity  to 
other  bonds  issued  by  the  company  and 
secured  by  deed  of  trust.  Brunswick  &*  A. 
R.  Co.  V.  Hughes,  52  Ga.  557,  7  Ani.Ry.  Rep. 

137. 

A  railroad  having  a  claim  for  an  unpaid 
subscription  to  its  stock  has  the  power  to 
sell  it  or  to  make  a  contract  to  dispose  of  it 
for  the  purposes  of  the  road,  as  much  as  to 
assign  a  promissory  note.  But  the  power 
to  sell  such  securities  does  not  include  the 
power  to  mortgage  them.  So  the  act  of  the 
legislature  of  Wisconsin,  in  relation  to  the  ex- 
ecution of  mortgages  by  railroad  companies, 
does  not  authorize  such  companies  in  that 
state  to  mortgage  their  stock  subsciiptions 
as  security  for  the  payment  of  their  bonds. 
Morris  v.  Cheney,  51  ///.  451. 

14.  Guaranty  by  directors.*— The 
fact  that  the  directors  of  a  railroad  company 
guarantee  the  company's  bonds  in  their  in- 
dividual capacity  does  not  change  what 
would  otherwise  be  a  sale  of  the  bonds  into 
a  loan  ;  but  the  fact  of  the  personal  guaran- 
tee is  a  circumstance  to  be  looked  to  in  de- 
termining whether  the  transaction  was  a  sale 
or  a  loan.  If  a  sale,  the  guarantee  passes 
as  an  incident,  and  is,  in  equity,  assignable 
to  subsequent  purchasers  of  the  bonds. 
Bank  of  Ashland  \.  fanes,  16  Ohio  St.  145. 

•  Guaranty  of  '.i.^nds  of  another  company  ; 
validity  of,  see  note,  26  Am.  &  Eno.  R.Cas.  105. 


15.  Saie  or  exchange  of  bondi. — 

Where  railroad  bonds  are  subscribed  (or,  to 
be  paid  for  upon  call,  the  buyer  may  tender 
the  price  at  any  time  without  waiting  for 
calls,  and  may  demand  the  bonds.  IVatjen 
V.  Green,  46  A»t.  &^  Eng.  R.  Cas.  343,  48 
N.f.  Eq.  322,  21  Atl.  Rep.  1028. 

An  act  which  authorizes  the  directors  of 
a  company  to  sell  or  negotiate  bonds  issued 
by  said  company,  at  such  rates  as  they  may 
think  proper,  and  which  provides  that  the 
bonds  so  sold  shall  be  as  valid  in  every 
respect  as  if  sold  at  their  par  value,  applies 
both  to  the  bonds  and  to  the  security  given 
for  their  payment;  and,  therefore,  the  sale 
of  the  bonds  at  a  discount  does  not  render 
invalid  a  mortgage  given  to  secure  them. 
Coe  V.  Columbus,  P.  Sf  I.  R.  Co.,  10  Ohio  St. 
372.— Reviewed  in  State  ex  rel.v.  Goshen 
Tp.,  14  Ohio  St.  569. 

A  company  with  authority  to  issue  bonds 
and  sell  them  at  such  rates  as  the  directors 
may  think  proper  may  exchange  them  for 
iron  rails.  Coe  v.  Columbus,  P.  6s^  I.  R.  Co., 
10  Ohio  St.  372. 

A  corporation  created  by  state  law  and 
authorized  to  issue  bonds  and  '1  them 
to  raise  funds  may  sell  them  either  in  the 
state  or  out,  and  if  sold  out  of  the  state, 
where  a  lower  rate  of  interest  exists,  the 
transaction  will  not  be  regarded  as  a  loan. 
Bank  of  Ashland  y.  fones,  16  Ohio  St.  145. 

II.  NEGOTIABILITT. 

16.  In  generai."* — Railroad  bonds  pay- 
able to  a  person  named,  or  order,  at  a  place 
named,  are  negotiable  instruments,  and  the 
title  thereto  passes  by  delivery  without  in- 
dorsement- by  the  payee ;  and  this  is  so 
whether  they  are  under  sale  or  not.  Cok- 
necticut  Mtit.  L.  Ins.  Co.  v.  Cleveland,  C  &* 
C.  R.  Co.,  26  HoTV.  Pr.  (N.  Y.)  225,  41  Barb. 
^•,  affirming  11  How.  Pr.  180.— APPLYING 
Zabriskie  v.  Cleveland,  C.  &  C.  R.  Co.,  23 
How.  (U.  S.)  400. 

Where  a  railroad  corporation  issues  its 
bonds  payable  to  bearer,  their  negotiability 
is  not  affected  by  a  provision  therein  that 
they  may  "  be  registered  and  made  payable 
by  transfer  only  on  the  books  of  the  com- 
pany." Savannah  &*  M.  R.  Co.  v.  Lancaster, 
62  Ala.  555. 

A  mere  general  recital  in  a  bond  issued 
by  a  railway   company,   negotiable   on    its 

•  Railroad  bonds  are  negotiable,  see  note,  14 
Am.  &  Eng.  R.  C.\s.  565. 


660 


BONDS,  17  liO. 


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face,  that  such  bond  belongs  to  a  series  of 
bonds  secured  by  a  trust  deed  of  the  prop- 
erty of  the  company,  whose  absolute  obli- 
gation it  purports  to  be,  is  not  sufficient  to 
destroy  its  negotiability,  or  to  put  the  dona- 
fide  holder  upon  inquiry  as  to  the  existence 
of  conditions  in  the  deed  qualifying  the 
terms  of  the  bond,  or  affecting  his  right  to 
maintain  a  suit  at  law  thereon,  upon  default 
in  the  payment  thereof  when  due.  Guil- 
ford V.  Minneapolis,  S.  St.  M.  &*  A.  R.  Co., 
SI  Atn.  &*  Eng.  R.  Cas.  98,  48  Minn.  560,  51 
N.  W.  Rep.6efi. — Distinguishing  Manning 
V.  Norfolk  S.  R.  Co.,  29  Fed.  Rep.  838; 
CaylusT/.  New  York,  K.  &  S.  R.  Co.,  10  Hun 
(N.  Y.)  295. 

Although,  as  a  general  rule,  bonds  issued 
by  a  corporation  for  the  purpose  of  procur- 
ing loans,  and  made  payable  to  bearer,  are 
negotiable,  when  such  instruments  contain 
special  stipulations,  and  their  payment  is 
subject  to  contingencies  not  within  the  con- 
trol of  the  holder^,  they  are  deprived  there 
by  of  the  character  of  negotiable  instru- 
ments, and  are  subject,  in  the  liands  of  a 
transferee,  to  any  defense  existing  thereto 
that  would  be  available  if  they  were  still 
held  by  the  original  payee.  McClelland  v. 
Norfolk  S.  R.  Co.,  no  N.  V.  469,  iS  N.  £. 
Rep.  237,  18  JV.  y.  S  R.  344,  I  L.  R.  A.  299, 
6  Am.  St.  Rep.  y)7;  38  Alb.  L.J.  410;  revers- 
ing 3  N.  V.  S.  R.  250. 

To  be  negotiable  such  an  instrument  must 
provide  for  the  unconditional  payment  to  a 
person  or  order,  or  bearer,  of  a  certain  sum 
of  money,  at  a  time  capable  of  exact  ascer- 
tainment. McClelland  V.  Norfolk  S.  R.  Co., 
no  N.  Y.  469,  18  N.  E.  Rep.  237,  18  N.  Y. 
S.  R.  344,  I  L.  R.  A.  299,  6  Am.  St.  Rep.  397, 
38  Alb.  L  J.  410;  reversing  3  N.  Y.  S.  R. 
250. 

17.  Coupon  bonds.*— Coupon  bonds 
issued  by  a  corporation  and  drawn  payable 
to  bearer  are  negotiable  instruments.  Lang- 
ston  V.  South  Carolina  R.  Co    2  So.  Car.  248. 

Where  bonds  and  cou[)ons  payable  in  an- 
other state  are  so  framed  as  to  be  "egoti- 
able  by  the  general  law-merchant,  the)'  will, 
in  the  absence  of  evidence  to  the  contrary, 
be  presumed  to  be  negotiable  by  the  law  of 
such  other  state.  Tyrell  v.  Cairo  &*  St.  L. 
R.  Co.,  7  Mo.  App.  294. 

18.  municipal  aid  bonds. t— A  bond 

*  Coupon  bonds,  character  and  negotiability 
of,  g-;nerally,  see  note,  64  Am.  Dec  428. 
See  also  title  Coupons. 
t  See  also  Municipal  and  Local  Aid,  XII. 


issued  in  part  payment  of  a  municipal  sub- 
scription to  railroad  stock,  payable  at_  a 
bank  in  New  York  City  at  a  certain  time, 
and  providing  that  it  shall  be  a  lien  on  the 
stock  of  the  railroad  company  issued  to  the 
city,  and  that  it  may  be  exchanged  for  a 
part  of  said  stock  at  any  time  before  a 
cash  dividend  is  declared,  with  coupons  at- 
tached for  the  annual  interest  accruing,  is 
governed  by  the  law  of  New  York,  and,  as 
such,  is  governed  by  the  law-merchant,  and 
is  negotiable.    Aurora  v.  West,  22  Ind.  88. 

19.  Liability  ul'  company  indorsin^jr 
void  bonds.— A  railroad  company  sold 
on  the  market  bonds  of  a  state  which  were 
indorsed  by  the  company.  The  latter  certi- 
fied that  the  state  held  its  first-mortgage 
bonds  for  an  equal  amount.  It  was  after- 
ward decided  that  the  bonds  of  the  state 
were  unconstitutional,  and  that  therefore  it 
was  not  bound.  Held,  that  the  railroad  was 
bound  by  its  certificate  and  indorsement, 
the  case  coming  within  the  rule  that  an  in- 
dorser  of  commercial  paper  is  a  guarantor 
of  its  genuineness.  Florida  C.  R.  Co.  v. 
Schutte,  3  Am.  &*  Eng.  R.  Cas.  i,  103  {/.  S. 
118.— Followed  in  Tompkins  v.  Little 
Rock  &  Ft.  S.  R.  Co.,  21  Fed.  Rep.  370,120 
U.  S.  160,  7  Sup.  Ct.  Rep.  469,  5  McCrary 
(U.  S.)  597,  i8  Fed.  Rep.  344  Refkrred 
TO  IN  Smith  V.  Florida  C.  &  W.  R.  Co.,  43 
Fed.  Rep.  731. 

Under  these  circumstances  the  company 
is  estopped,  as  to  its  own  liability  as  in- 
dorser,  from  denying  the  validity  of  the 
bonds.  Florida  C.  R.  Co.  v.  Schutte,  3  Am. 
&•  Eng.  R.  Cas.  i,  103  U.  S.  118. 

20.  Transfer  by  delivery.— Railroad 
bonds  issued  payable  to  the  holder  are 
negotiable  instruments,  and  the  title  thereto 
passes  by  delivery.  Carpenter  v.  Rommel,  $ 
Phila.{Pa.)  34. — DISTINGUISHING  Diamond 
V.  Lawrence  County,  37  Pa.  St.  353.  FOL- 
LOWING Carr  v.  Le  Fevre,  27  Pa.  St.  413: 
Bullock  v.  Wilcox,  7  Watts  (Pa.)  328.  Over- 
ruling McCullough  v.  Houston,  i  Dall. 
(U.  S.)  441.  Quoting  Delafield  v.  Illinois, 
2  Hill  (N.  Y.)  159. 

Railroad  bonds  payable  to  a  person  named, 
or  his  assigns,  are  negotiable  commercial 
paper,  and  the  title  thereto  passes  by  de- 
livery by  an  assignment  in  blank,  and  their 
transfer  cuts  off  prior  equities  existing  be- 
tween the  company  and  the  ori<iinal  payee. 
lirainerd  v.  New  York  <S^  H.  R.  Co.,  2$  N. 
Y.  496  ;  affirming  10  lios'iV.  332. — EXPLAIN- 
iNc  Bank  of  Rome  v.   Rome,  19  N.  Y.  20; 


BONDS,  21-24. 


661 


White  V.  Vermont  &  M.  R.  Co.,  21  How. 
(U.S.)  575;  Diamond  7/.  Lawrence  County, 
37  Pa.  St.  353.  Following  Illinois  v. 
Delafield,  8  Paige  (N.  Y.)  527,  2  Hill  159. 

Bonds  of  railroad  companies  and  other 
corporations,  payable  to  A.  or  his  assigns, 
and  assigned  by  A.  in  blank,  are  transfer- 
able by  delivery ;  and  a  purchaser  of  such  a 
bond,  suing  the  obligors  thereon,  need  not, 
in  the  first  instance,  give  evidence  to  con- 
nect his  purchase  with  the  payee's  blank 
assignment.  Brainerd  v.  New  York  &*  H. 
R.  Co.,  10  Bosw.  {N.  Y.)  332.— Reviewing 
White  V.  Vermont  &  M.  R.  Co.,  21  How. 
(U.  S.)  575 ;  Mechanics'  Bank  v.  New  York 
&  N.  H.  R.  Co.,  4  Duer  (N.  Y.)  480. 

Thus,  where  the  plaintiiT  in  such  action 
produced  the  bond  with  an  assignment  in 
blank  indorsed  thereon,  and  proved  that 
she  purchased  it  in  the  market  some  time 
after  the  date  of  such  assignment,  and 
had  owned  it  ever  since — held,  that  in  the 
absence  of  any  evidence  to  the  contrary 
she  was  to  be  presumed  to  be  the  rightful 
owner,  and  might  recover  without  any  proof 
connecting  the  purchase  with  the  assign- 
ment by  the  payee.  Brainerd  v.  New  York 
&*  H.  R.  Co.,\o  Bosw.  (N.  Y.)  332. 

21.  Days  of  grace.  —  Prior  to  the 
Mass.  act  of  1824,  ch.  137,  negotiable  prom- 
issory notes  were  not  entitled  to  grace, 
unless  expressly  made  payable  with  grace ; 
but  by  such  act  days  of  grace  were  allowed 
"  on  all  bills  of  exchange  payable  at  sight, 
or  at  a  future  day  certain  within  this  state, 
and  on  all  promissory  notes,  orders,  and 
drafts  payable  at  a  future  day  certain  within 
this  state,  in  which  there  is  not  an  express 
stipulation  to  the  contrary."  By  the  act  of 
T852,  ch.  76,  "bonds  or  other  obligations 
under  seal  for  the  payment  of  money  issued 
by  a  corporation  payable  to  bearer,  or  to 
some  person  designated,  or  bearer,  are  made 
negotiable  in  the  same  manner  as  promis- 
sory notes  are  negotiable ; "  but  railroad 
bonds  are  not  negotiable  notes  within  the 
meaning  of  this  statute,  and  are  therefore 
not  entitled  to  days  of  grace.  Chaffee  v. 
Middlesex  R.  Co.,  146  Mass.  324,  6  N.  Eng. 
Rep.  59,  i6  N.  E.  Rep.  34. 

m.  VALIDITT. 

22.  In  general.  —  Obligations  which 
circulate  as  money  are  payable  on  derand. 
Therefore  railroad  bonds  payable  ten  years 
after  date  are  not  within  the  provisions  of  a 


siutute  restraining  unauthorized  banking. 
Hubbard  v.  New  York  &•  H.  R.  Co. ,  36  Barb. 
(:V.  Y.)  286,  14  Abb.  Pr.  275. 

The  bonds  of  a  railroad  are  not  rendered 
void  in  consequence  of  being  secured  by  a 
mortgage  which  the  company  may  have 
had  no  authority  to  execute.  Philadelphia 
iS-  S.  R.  Co.  V.  Lewis,  33  Pa.  St.  33. 

23.  Consideration.  —  The  Pennsyl- 
vania act  of  April  8,  1861,  entitled  "  An  act 
concerning  the  sale  of  railroads,  canals, 
turnpikes,  bridges,  and  plank  roads,"  does 
not  authorize  corporations  organized  there- 
under to  issue  bonds  otherwise  than  for  a 
new,  adequate,  valuable  consideration,  in- 
creasing the  available  funds  of  the  corpora- 
tion. Kemblev.  Wilmington  <S«'  N.R.  Co.,  13 
Phila.  {Pa.)  469. 

Bonds  given  for  the  payment  of  the  pur- 
chase-price of  the  road  are  supported  by 
sufficient  consideration,  and  the  fact  that  the 
property  was  conveyed  to  a  corporation  of 
which  the  purchasers  were  members  does 
not  destroy  or  defeat  that  consideration  so 
as  to  render  the  bonds  invalid.  Holland  v. 
Lee,  40  Am.  &>  Eng.  R.  Cas.  379,  71  Md.  338, 
\^Atl.  Rep.  661. 

24.  Interest  and  Usury.  — Railroad 
bonds  are  not  void  by  a  provision  therein  to 
pay  an  illegal  rate  of  interest,  but  are  only 
void  as  to  the  excess  in  the  rate  of  interest. 
Philadelphia  &*  S.  R.  Co.  v.  Lewis,  33  Pa. 

Si-  33- 

The  Arkansas  act  of  January  22, 1855,  §  7, 
limiting  the  rate  of  interest  to  seven  percent 
on  corporation  bonds  issued  for  an  increase 
of  stock  or  for  borrowed  money,  does  not 
apply  to  bonds  issued  in  payment  of  railroad 
Pi.^perty  bought  at  a  foreclosure  sale. 
Memphis  (S-  L.  R.  R.  Co.  v.  Dow,  120  (/.  S. 
287.  7  Sup.  Ct.  Rep.  482. 

Bonds  of  a  railroad  company  are  not 
void  because,  under  authority  to  issue  them 
at  "a  rate  of  interest  not  exceeding  eight 
per  cert  per  annum,  and  having  not  more 
than  thirty  years  to  run,"  the  company  issued 
bonds  with  interest  payable  semi-annually 
and  contracted  that,  in  default  of  the  reason- 
ably prompt  payment  of  the  interest  as  it 
should  accrue,  the  principal  sum  might  be 
treated  as  due  and  payable,  as  an  amend- 
ment to  the  charter  was  accepted  by 
the  company  by  issuing  and  selling  the 
boiids  and  executing  the  mortgage  to  secure 
their  payment  as  authorized  by  the  amend- 
ment. Newport  &^  C.  Bridge  Co.  v.  Douglass, 
12  Bush  (Ay.)  673,  18  Am.  Rj:  Rep.  221. 


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BONDS,  25-28. 


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25.  Illegality.— A  board  of  county  com- 
missioners, without  being  authorized  by  law, 
issued  to  a  company  orders  on  the  couDty 
treasury  for  the  purpose  of  aiding  in  build- 
ing its  road,  and  for  the  orders  received  in- 
come bonds  of  the  compauy.  The  orders 
were  not  applied  to  the  purpose  for  which 
they  were  issued  ;  but  before  they  were  paid, 
the  commissioners  took  the  personal  bond 
of  the  directors,  conditioned  that,  whereas 
the  orders  had  been  issued  to  enable  the 
company  to  complete  its  road,  and  they  had 
been  otherwise  used,  without  so  doing,  the 
bond  should  be  void  !f  the  road  was  finished 
in  a  specified  time,  and  then  paid  tiie  orders 
as  they  afterward  became  due.  //M,  that 
the  orders,  having  been  issued  without  au- 
thority, and  in  violation  of  the  constitution 
and  laws  of  the  state,  were  illegal  and  void ; 
that  the  bond  of  the  directors  to  the  com- 
missioners, having  been  taken  in  further- 
ance of  an  illegal  purpose,  was  taken  in  vio- 
lation of  the  public  policy  of  the  state,  and 
was  therefore  void;  and  that,  though  the  con- 
dition of  the  bond  might  be  broken,  no  re- 
covery could  be  had  thereon,  for  either  the 
penal  sum  named  therein  or  the  amount 
paid  on  the  illegal  orders.  Delaware  County 
Cota'rs  V.  Andrews,  i8  Ohio  St.  49. 

26.  Invalidity  cured  by  statute.— 
An  act  was  passed  by  the  legislature  of 
Quebec  (37  Vic.  ch.  23)  limiting  the  issue  of 
bonds  by  the  L.  &  K.  Ry.  to  ^^300,000; 
;£  1 00,000  to  be  issued  at  once,  ;£  100,000 
when  forty-five  miles  of  the  road  had  been 
completed  and  in  running  order,  as  certified 
by  the  government  inspecting  engineer,  and 
the  remaining  ;^ioo,ooo  as  soon  as  thirty  ad 
ditional  miles  should  have  been  completed 
In  1875,  by  the  act  39  Vic.  ch.  57,  the  leg 
islature  modified  the  condition  to  be  ful 
filled  before  the  third  issue  could  be  made, 
the  preamble  of  which  act  declared  that 
"  Whereas  it  appears  that,  a  total  length  of 
forty-five  miles  of  the  company's  Jine  having 
been  completed,  the  first  and  second  issue 
each  of  / 100,000  of  the  company's  deben- 
tures have  been  made."  Held,  that  the 
effect  of  this  act  was  to  make  the  bonds 
therein  mentioned  valid  and  binding  on  the 
company  although  the  conditions  precedent 
specified  in  37  Vic.  ch.  23  might  not  have 
been  fulfilled  when  they  were  issued,  and 
although  it  was  in  fact  shown  that  only 
forty-three  and  one-half  miles  of  the  road 
had  been  completed  when  the  second  issue  of 
£r  00,000  was  made.    Quebec  v.  Quebec  C.  R. 


Co.,  10  Can,  Sup.  Ct.  563.— Quoting  In  re 
Bagnalstown  &  W.  R.  Co.,  L.  R.  4  Ir.  Eq. 
526 ;  In  re  Cork  &  Y.  R.  Co.,  21  L.  T.  738. 

27.  Incomplete   bondH,  generally. 

— A  railroad  company  issued  its  bonds, 
which  were  incomplete  by  reason  of  not 
having  the  certificate  of  a  certain  trust  com- 
pany thereon,  and  not  having  the  seal  of  the 
railroad  company;  in  this  condition  tiiey 
were  stolen,  and  the  certificate  and  seal  forged 
thereto,  and  they  subsequently  passed  into 
the  hands  of  the  plaintiffs,  who  were  bona- 
fide  purchasers  for  value.  Held,  that  the 
company  was  not  bound  thereby.  Maas  v. 
Missouri.  K.  (S-  T.  R.  Co.,  1 1  Hun  i^N,  Y.)  8. 

28.  filling  blanks.  —  A  railroad 

company  issued  its  bonds  payable  in  blank, 
and  delivered  them  to  a  citizen  of  the  state. 
After  several  transfers,  they  cami  into  the 
hands  of  plaintitT,  a  citizen  of  anc  .ner  state. 
Held,  that  he  had  a  ri<>ht  to  fill  the  blank  by 
inserting  his  own  name  as  payee,  and  to  sue 
thereon  in  the  United  States  circuit  court 
on  account  of  diverse  citizenship.  White  v. 
Vermont  6-  M.  R.  Co.,  21  How.  {U.  S.)  575. 
Explained  in  Brainerd  v.  New  York  &  H. 
R.  Co.,  25  N.  Y.  496.  Quoted  in  Beaver 
County  V.  Armstrong,  44  Pa.  St.  63.  Re- 
viewed IN  Brainerd  v.  New  York  &  H.  R. 
Co.,  10  Bosw.  (N.  Y.)  332. 

A  railroad  company  issued  bonds  in  all 
respects  complete  and  perfect  instruments, 
except  that  they  were  issued  with  the  name 
of  the  payee  blank.  Subsequently  they  were 
ratified  and  confirmed  by  an  act  of  the  leg- 
islature. Held,  that  a  holder  of  such  bonds 
might  sue  thereon  in  his  own  naii7e.  '  '  .- 
pin  v.  Vermont  &-  M.  R.  Co.,  8  Gra^         .  i,v 

57S- 

A    railroad    company    issued,  honds 
knowledging  "the   receipt  of  $ioc<.>        ..i 

,    and    in    consideration 

thereof  the  railroad  company  promise  and 

agree  to  pay or  assigns 

the  sum  of  $1000."  A  complaint  in  an 
action  thereon  averred  that  "  the  corpora- 
tion received  the  money  from  some  person 
unknown  to  the  plaintiff  and  delivered  the 
bond  to  such  person  for  the  purpose  and 
with  the  intent  that  the  same  should  be  as- 
signable and  transferable  by  delivery  from 
hand  to  hand  without  other  writing;  that 
before  its  maturity  it  came  lawfully  into  the 
possession  of  the  plaintiff  for  value,  and 
that  he  is  the  owner  and  holder."  Held, 
that  the  complaint  was  good  on  demurrer, 
as  it  was  lawful  for  any  holder  to  fill  his 


BONDS,  30-31. 


668 


name  in  the  blank  as  payee.  Hubbard  v. 
New  York  «S-  H.  R.  Co.,  36  Barb.  {N.  Y.) 
286,  14  Abb.  Pr.  275, 

Railroad  bonds  were  issued  for  a  certain 
amount  sterling,  if  payable  in  London,  or 
for  a  certain  number  of  dollars,  if  payable  at 
certain  designated  cities  in  the  United 
States,  with  coupons  for  interest  to  corre- 
spond. They  recited  that  the  president  of 
the  company  was  authorized  by  indorsement 
to  fix  the  place  of  payment ;  but  the  presi- 
dent indorsed  them,  "  I  hereby  agree  that 
the    within    bond     and     interest-coupons 

thereto  attached  shall  be  payable  in 

"  Held:  (i)  that  the  bonds  were  not  ne- 
gotiable, not  being  made  payable  at  a  place 
certain;  (2)  that  the  bonds  having  been 
stolen  and  come  into  the  hands  of  an  inno- 
cent purchaser  for  value,  such  purchaser  had 
no  authority  to  fill  the  blank  so  as  to  desig- 
nate a  place  of  payment,  but  would  hold  the 
bonds  subject  to  the  defects  in  title  caused 
by  the  manner  in  which  they  had  been  put 
in  circulation.  Jackson  v.  Vtcksburg,  S.  &* 
T.  R.  Co.,  2  Woods  {U.S.)\\\. 

Bonds  of  a  railroad  corporation,  which 
were  conditioned  for  the  payment  of  either 
of  two  specified  kinds  anfl  amounts  of  na- 
tional currency,  to  be  determined  by  the 
place  to  be  fixed  for  their  payment ;  which 
contained  a  clause  authorizing  the  president 
of  the  corporation  to  fix  by  his  indorsement 
such  place  of  payment ;  and  which  had  been 
indorsed  in  blank  by  the  president,  were 
stolen  while  still  in  the  possession  of  the 
corporation — held,  that  a  bona-fide  holder 
was  not  authorized  to  fill  the  blank,  and  that 
he  acquired  and  could  convey  no  title  to 
the  bonds.  Ledwich  v.  McKim,  53  N.  Y. 
307  ;  affirming  i  J.  &*  S.  304. 

29.  Altered  bonds.— Where  negoti- 
able bonds  which  form  part  of  a  large  issue 
by  a  railroad  company  are  stolen,  and  the 
numbers  altered,  and  they  are  purchased  in 
good  faith  before  maturity  and  for  value,  the 
original  owner  cannot  recover  while  the 
bonds  are  outstanding  in  the  hands  of  the 
purchaser.  Wylie  v.  Missouri  Pac.  R.  Co., 
43  Am.  &*  Eng.  R.  Cas.  431,  41  Fed.  Rep. 
623. 

The  numbers  of  bonds  which  form  part  of 
a  large  issue  by  a  railroad  company,  in 
which  the  numbers  only  serve  the  collateral 
purpose  of  protection  and  convenience,  and 
do  not  directly  or  indirectly  enter  into  the 
tenor  of  the  contract,  are  not  material ;  and 
where  negotiable  bonds  are  stolen  and  the 


numbers  are  altered,  and  the  bonds  are 
afterward  sold  to  a  bona-fide  purchaser  for 
value,  such  alteration  does  not  affect  the 
validity  in  the  hands  of  the  purchaser. 
Wylie  V.  Missouri  Pac.  R.  Co.,  43  Am.  &» 
Eng.  R.  Cas.  431,  41  Fed.  Rep.  623. 

30.  Over-issue.  —  Where  a  railroad 
company  had  contracted  that  it  would  not 
issue  its  first-mortgage  bonds  in  excess  of 
(io,ooo  per  mile  of  completed  road,  but, 
subsequent  to  the  sale  of  its  first-mortgage 
bonds  to  that  extent,  it  did  issue  its  bonds  in 
excess  of  such  an  amount— Aeld,  that  such 
over-issue  was  void  as  against  the  holders 
of  the  bonds  regularly  issued  to  the  extent 
limited,  none  of  the  holders  of  such  over- 
issue being  innocent  purchasers  for  value. 
Union  Trust  Co.  v.  Nevada  &»  O.  R.  Co.,  17 
Am.  &*  Eng.  R.  Cas.  207,  20  Fed.  Rep.  80, 
10  Sawy.  {U.  S.)  122. 

A  railroad  company  executed  a  mortgage 
to  secure  a  certain  number  of  bonds,  each 
bond  of  the  series  to  be  numbered.  Several 
bonds  were  issued  above  the  number  desig- 
nated, but  all  were  indorsed  and  certified 
alike.  Held,  that  the  numbering  of  the 
bonds  was  only  a  matter  of  convenience 
and  did  not  affect  their  validity ;  that  those 
above  the  designated  number,  in  the  hands 
of  bona-fide  holders  for  value,  were  of  equal 
validity  with  the  others;  and  that  upon  a 
foreclosure,  if  the  railroad  property  did  not 
sell  for  enough  to  pay  all,  the  whole  issue 
should  be  paid  pro  rata.  Stanton  v.  Ala- 
bama &•  C.  R.  Co.,  2  Woods  {U.  S.)  523.— 
Applied  in  McLane  v.  Placerville  &  S.  V. 
R.  Co.,  26  Am.  &  Eng.  R,  Cas.  404,  66  Cal. 
606. 

IV.   BI0HT8  OF  PURCHASEB8  ADD  E0IDEE8. 

I.  Rights  of  Bondholders  as  Such. 

31.  In  general.*— Each  bondholder  is 
brought  into  contract  relations  with  his  co- 
bondholders,  and  his  absolute  rights  in  re- 
spect to  the  procedure  for  the  collection  of 
the  principal  or  interest  are  limited  by  the 
provisions  of  tne  trust  deed  and  the  pecu- 
liar nature  of  the  security.  Guilford  v. 
Minneapolis,  S.  St.  M.  &*  A.  R.  Co.,  ^i 
Am.  &*  Eng.  R.  Cas.  98,  48  Minn.  560,  51 
N  W.  Rep.  658. 

Where  a  railroad  company  issues  bonds 
under  an  act  giving  the  holder  the  right  to 

*  Rights  of  bondholders  purchasing  bonds  un- 
der fraudulent  prospectus,  see  33  Am.  &  Eng. 
R.  Cas.  32,  adstr. 


w 


m 
■  ii  ■ 


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Ii 


1.V6 


664 


BONDS,  ;ia. 


ili:l 


vote  for  directors,  but  containing  nothing  tu 
prohibit  a  consolidation  with  another  road, 
the  holder  of  such  bonds  will  be  deemed  to 
have  taken  them  subject  to  the  contin- 
gency of  such  consolidation,  and  cannot 
complain  if  it  occurs.  (Herrick,  J.,  dis- 
sents), //ari  V.  Ogdensburg  &*  L,  C,  R.  Co., 
52  A';  Y.  S.  R.  799. 

Notwithstanding  7  &  8  Vic.  ch.  85,  §  19, 
which  imposes  penalties  on  a  company  for 
giving  loan  notes  or  securities,  the  holders 
of  instruments  under  the  seal  of  a  railway 
company,  given  with  the  knowledge  of  the 
shareholders,  and  acknowledging  money  to 
be  due  from  the  company  (called  Lloyd's 
bonds),  have  a  valid  claim  against  the  assets 
of  the  company  so  far  as  it  has  had  the 
benefit  of  the  money.  Cork  &*  Y.  R.  Co.  in 
re  Overend,  Gurnet  Sr*  Co.  ex  parte,  L.  R.  4 
Ch.  748.  39  L.J,  Ch.  277,  21  L.  T.  735.— 
Criticised  in  In  re  National  P.  B.  B.  Soc. 
e.x  parte  Williamson,  L.  R.  5  Ch.  309,  22  L. 
T.  284,  18  W.  R.  388. 

So  long  as  a  company  is  a  going  concern 
debenture-holders  are  not  entitled  to  inter- 
fere with  the  directors  in  dealing  with  the 
assets  in  the  ordinary  course  of  business. 
If  there  is  a  default  in  payment  of  principal 
or  interest  the  remedy  is  by  appointment  of 
a  receiver.  Phelps  v.  St.  Catharines  &^  N. 
C.  R.  Co.,  46  A/n.  &*  Etig.  R.  Cas.  336,  19 
Ont.  501.— Quoting  Gardner  v.  London,  C. 
&  D.  R.  Co.,  L.  R.  2  Ch.  217;  In  re  Panama, 
N.  Z.  &  A.  R.  Mail  Co.,  L.  R.  5  Ch.  318. 
Reviewing  Simpson  v.  Ottawa  &  P.  R.Co., 
I  Clian.  Cham.  126;  Peto  v,  Welland  R.  Co., 
9  Grant  Ch.  455. 

A  mortgage  bondholder  of  a  railroad 
company  entered  into  an  agreement  to  ex- 
change his  bonds  for  lands  that  the  com- 
pany had  acquired  by  a  grant  from  the 
government,  the  company  covenanting  to 
warrant  and  defend  the  title  ;  subsequently 
another  company  succeeded  to  the  rights  in 
the  property  of  the  former,  becoming  lia- 
ble for  all  of  its  debts.  Held,  that  such 
bondholder  could  maintain  an  action  on 
the  covenant  against  the  succeeding  rail- 
road company  for  being  evicted  from  the 
lands.  Wood  v.  Dubuque  &•  S.  C.  R.  Co.,  28 
Fed.  Rep.  910. 

A  railroad  company  issued  its  bonds  to 
run  for  a  term  of  thirty  years,  and  after- 
ward made  an  arrangement  with  another 
company  for  the  operation  of  the  road,  by 
which  it  was  to  retain  a  certain  share  of  its 
net  earnings  as  a  fund  for  the  payment  of 


such  bond.s,  the  contract  to  run  for  thirty 
years,  or  for  a  time  sufficient  to  accumulate 
a  fund  to  pay  of!  tlie  whole  of  the  bunds, 
and  such  agreement  was  indorsed  un  the 
bonds.  Held,  that  the  company  had  not 
the  riglit  to  call  in  the  bonds  in  a  shorter 
time  than  thirty  years,  and  pay  them  off, 
upon  having  the  money  to  do  so.  Chicago 
&*  I.  R.  Co.  V.  Pvne,  30  Fed.  Rep.  86. 

The  first-  and  second-mortgage  bond- 
holders of  the  Vermont  &  Canada  R.  Co., 
having  elected  to  avail  themselves  uf  an 
authority  given  for  their  benefit,  and  at 
public  meetings  chosen  a  committee  to  rep- 
resent them  in  matters  appertaining  to  the 
management  of  the  property,  are  all  bound 
by  the  acts  of  said  committee  within  the 
scope  of  its  authority.  The  issuing  of  loans 
by  the  receivers  and  managers,  as  such,  for 
the  benefit  and  conservation  of  the  prop- 
erty, was  a  matter  within  the  scope  of  its 
authority  to  advise  with  the  receivers  and 
managers  about,  and  assent  to.  Langdon  v. 
Vermont  &*  C.  R.  Co.,  4  Am.  &•  Eng.  R.  Cas. 
33,  53  Vt.  228. 

A  Spanish  railway  company  issued  bonds 
charged  on  their  railway.  Owing  to  delay 
in  realizing  the  bonds  it  became  impossible 
to  carry  out  the  undertaking.  At  the  suit 
of  a  minority  of  bondholders  the  court  ad- 
ministered the  unspent  part  of  the  proceeds 
of  such  bonds  in  the  hands  of  English 
trustees,  on  the  footing  that  such  funds 
ought  to  be  applied,  in  the  first  place,  in 
saving  and  realizing  the  property  charged, 
and  then  be  distributed  firo  rata  among  the 
bondholders,  and  that  interest  on  and  am- 
ortization of  the  bonds  should  cease  from 
the  date  of  the  judgment.  Collingham  v. 
Sloper,  SAAm.  <S-  Eng.  R.  Cas.  623.  [1893] 
2  Ch.  96. 

32.  The  bondholder's  lien.— Holders 
of  railway  bonds,  issued  under  an  act  pro- 
viding that  the  bonds  were  "  to  be  taken 
and  considered  to  be  the  first  and  preferen- 
tial claims  and  charges  upon  the  under- 
taking," have  a  lien  on  the  funds  of  the 
company  in  bank,  as  against  execution  cred- 
itors. Phelps  V.  St.  Catharines  &'  N.  C,  R. 
Co.,  1 8  Ont.  581. 

A  statute  providing  that  bonds  of  a 
railway  shall  be  a  first  lien  on  "the 
undertaking "  means  a  first  lien  on  the 
complete  works  of  the  company  from 
which  money  may  be  earned,  including  the 
money  itself.  Phelps  v.  St.  Catharines  &» 
N.  C.  R.  Co.,  18  Ont.  581. 


lii;  I  n 


BONDS,  U3-30. 


666 


The  holders  of  railway  bonds,  issued 
under  a  statute  dcchiririK  that  they  shall  be 
"  considered  the  first  and  preferential  claims 
and  charges  upon  tlie  undertaking,  and  the 
real  property  of  the  company,  including  its 
rolling-stock  and  equipments,"  has  not  a 
prior  lien  on  the  earnin^'S  of  the  company 
in  bank,  as  against  an  attaching  judgment 
creditor.  Phelps  v.  St.  Catharines  5-  A'^,  C. 
R.  Co.,  46  Am.  &-  Eng.  R.  Cas.  336,  19  Ont. 
501. — Reviewing  Swiney  v.  Enniskillen, 
etc.,  R.  Co.,  2  Ir.  R.  (C.  L.)  338. 

Where  the  lien  of  railroad  bondholders  is 
created  by  statute,  though  a  resulting  equity 
would  have  arisen  without  the  aid  of  the 
statute,  still  the  statute  takes  the  place  of 
this  and  regulates  the  rights  of  the  bond- 
holders; and  the  question  is  not  so  much 
what  the  bondholders  ought  to  have  as  what 
the  statute  gives  them.  North  Carolina  R. 
Co.  V.  Drew,  3  Woods  {U.  S.)  691. 

A  railroad  company  funded  its  overdue 
bonds  by  issuing  registered  certificates  at  a 
higher  rate  of  interest  and  extending  the 
time  of  payment.  Held,  in  the  absence  of 
anything  to  the  contrary,  that  the  accept- 
ance of  such  certificates  was  a  waiver  of 
the  lien  of  the  bonds.  Skiddy  v.  Atlantic, 
M.  Sf  0.  R.  Co.,  3  Hughes  {[/.  5.)  320. 

33.  The  majority  rule— The  plaintiff 
town  held  about  one-twentieth  of  the 
bonded  debt  of  a  railroad  and  a  much  less 
proportion  of  its  stock.  The  defendant 
towns  iield  the  balance  and  voted  to  sell  the 
road.  The  plaintiff  declined.  Held,  that 
it  was  the  right  of  the  majority  to  control, 
such  action  of  the  majority  not  being  fraud- 
ulent, collusive,  or  oppressive.  Waldobor- 
ough  V.  Knox  (S»  L.  R.  Co.,  84  Me.  469,  24 
Atl.  Rep.  942. 

34.  Position  of  bondholder  as  re- 
gards creditors.  —  The  agreement  of 
holders  of  mortgage  bonds  of  a  railroad 
company  to  lend  the  company  certain 
amounts  of  money,  and  to  take  in  payment 
therefor  interest-bearing  debenture  bonds 
of  the  company,  does  not  amount  to  an  un- 
paid subscription  to  the  capital  stock  of  the 
company,  but  is,  in  effect,  an  agreement  to 
make  a  loan  to  the  company  upon  the 
bonds  as  security.  Pettibone  v.  Toledo,  C. 
&>  St.  L.  R.  Co.,  36  Am.  (S-  Eng.  R.  Cas.  227, 
148  Mass.  411,  19  A^,  £.  Rep.  337,  i  L.  R.  A. 
7^7. 

A  bill  will  not  lie  in  favor  of  the  creditors 
of  such  company  to  compel  the  subscrip- 
tions to  the  bonds  to  be  applied  on  their 


claims;  and  the  fact  that  such  debenture 
bonds  were  issued  to  enable  the  company 
to  complete  its  road  creates  no  trust  in 
favor  of  creditors  for  supplies  furnished  in 
its  ccmstructlon.  Pei  'Hon  v.  Toledo,  C.  S^ 
Si.  L.  R.  Co.,  36  Am.  is  Eng.  R.  Cas.  227, 
148  Mass.  411,  ig  JV.  E.  Rep.  337,  i  L,  R.  A. 
787. 

Massachusetts  Pub.  St.  ch.  151,  §  2,  cl.  11, 
giving  a  remedy  in  equity  ♦o  creditors,  to 
reach  "any  property,  right,  title, or  interest, 
legal  or  equitable,"  of  a  debtor,  does  not 
apply  to  such  contracts  between  the  sub- 
scribers to  the  bonds  and  the  corporation, 
since  the  contract  is  executory  on  both 
sides  and  is  not  assignable  by  cither  party. 
Pettibone  v.  Toledo,  C.  &•  St.  L.  R.  Co.,  36 
Am.  &*  Eng.  R.  Cas.  227,  148  Mass.  411,  19 
N.  E.  Rep.  337,  I  L.  R.  A.  787. 

35.  Bondholder's  right  t^  sue, 
generally."*  —  The  owner  of  corporate 
bonds  who  has  a  lien  upon  the  lands  of  the 
corporation  to  secure  payment  of  such 
bonds  has  as  much  interest  in  the  subject- 
matter  as  a  stockholder,  and  may  maintain 
a  suit  to  prevent  another  corporation  from 
obtaining  the  same  land  by  the  wrongful 
use  of  the  name  of  the  corporation  whose 
bonds  he  holds.  Newby  v.  Oregon  C.  R. 
Co.,  I  Sawy.  {U.  S.)  63. 

30.  Bight  to  sue  for  an  account- 
ing.— When  money  applicable  to  the  pay- 
ment of  mortgage  bonds  of  a  railroad  com- 
pany has  come  to  the  hands  of  the  trustees 
for  the  bondholders,  each  holder  at  that 
time  becomes  immediately  entitled  to  the 
share  of  the  money  applicable  to  his  bond, 
and  can  immediately  recover  the  same. 
Dwight  V.  Smith,  13  Fed.  Rep.  50. 

The  question  whether  bondholders  who 
acquired  their  bonds  after  money  applicable 
to  the  bonds  accrued  in  the  hands  of  the 
trustees  are  entitled  to  share  in  that  money, 
depends  upon  the  nature  of  the  right  and  of 
the  transaction  by  which  they  acquired  the 
bonds.    Dwight  v.  Smith,  13  Fed.  Rep.  50. 

Where  a  railroad  company  issues  its 
bonds  for  a  corporate  debt,  and  mortgages 
its  property  to  trustees,  money  coming  to 
the  hands  of  the  trustees  is  security  for  that 
debt,  and  when  the  debt  passes,  the  security 
passes  also,  without  reference  to  when  hold- 
ers acquire  their  bonds ;  and  when  the  trus- 
tees have  funds  in  their  hands,  after  satisfy- 
ing prior  liens,  the  bondholders  are  entitled 

*  See  post,  51-64. 


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HONDS,  37. 


to  have  it  npplieci  to  the  discliarj^c  of  their 
bonds  and  intcest.  D^vighl  v.  Smit/t,  13 
Fed.  Rep.  50. 

A  railroad  corporation,  defendant,  issued 
certain  income  bonds  secured  by  mortgage 
on  its  road.  Each  of  said  bonds  contained 
a  covenant  for  the  payment  of  interest 
semiannually  out  of  the  earnings  of  the 
road,  followed  by  a  proviso  to  the  eflfect 
that  no  more  interest  should  be  paid  than 
should  be  certified  by  defendant's  "  board  of 
directors,  for  the  time  being,  to  have  been 
by  said  corporation  earned  over  and  above 
all  expenses,  including  necessary  repairs, 
during  six  months  ending  one  month  before 
such  time  fixed  for  such  half-yearly  pay- 
ments, and  theretofore  to  have  accumulated 
during  the  current  year;  and  in  default  of 
said  certificates  no  interest  shall  be  paya- 
ble." In  an  action  by  holders  of  a  portion 
of  said  bonds  for  an  accounting,  etc. — held, 
that  no  trust-relation  between  the  bond- 
holders and  the  company  authorizing  an 
accounting  was  created  by  the  contract; 
that  the  designation  of  a  fund  out  of  which 
the  interest  was  to  be  paid  did  not  operate 
as  an  equitable  assignment  of  the  fund  for 
the  benefit  of  the  bondholders,  or  create  an 
equitable  lien  thereon  in  their  favor,  so  as 
to  constitute  the  surplus  earnings  a  trust 
fund ;  that  until  there  was  a  surplus  beyond 
what  was  required  for  expenses  and  neces- 
sary repairs,  ascertained  as  provided  in  the 
contract,  the  company  remained  the  abso- 
lute owner  of  the  fund, and  the  bondholders 
acquired  no  title,  legal  or  equitable,  thereto ; 
and  that,  so  long  as  the  company  remained 
solvent,  while  a  breach  of  the  contract  ren- 
dered it  liable  to  the  bondholders,  the  only 
remedies  left  open  to  them  were  such  as  the 
law  affords  for  a  breach  of  contract  in  other 
cases.  Thomas  v.  New  York  <S-  G.  L.  R.  Co., 
i-tj^N.  V.  163,  54  A^.  V.  S.  R.  498  ;  affirming 
47  N.  Y.  S.  R.  250,  19  A'.  Y.  Supp.  766,  22 
Civ.  Pro.  326.— Approving  Day  v.  Ogdens- 
burg  &  L.  C.  R.  Co.,  107  N.  Y.  129.  Distin- 
guishing Boardman  v.  Lake  Shore  &  M.  S. 
R.  Co.,  84  N.  Y.  157;  Uhlman  v.  New  York 
Life  Ins.  Co.,  109  N.  Y.  421. 

37.  Enjoiniiigr  misapplication  of 
funds."' — A  bondholder  in  >  corporation 
cannot  obtain  an  injunction  to  restrain  the 
directors  thereof  from  sacrificing  its  inter- 
ests   to    another    corporation,   where    the 

*  Injunction  by  income  bondholders  to  re- 
strain a  misapplication  of  funds,  see  36  4u.  & 
Eng.  R.  Cas.  339,  abstr. 


company  is  solvent  and  abundantly  capable 
of  responding  in  damages  to  the  complain- 
ant. Matthews  v.  Murchison,  9  Am.  &*  Eng, 
R.  Cas.  693,  15  Fed.  Rep.  691. 

Where  a  suit  is  brought  at  the  instance  of 
income-mortgage  bondholders,  alleging  that 
the  board  of  directors  of  the  corporation 
have  fraudulently  failed  to  set  apart  the  net 
earnings  of  the  road  for  the  payment  of  in- 
terest, no  relief  can  be  had  in  such  action  if 
the  complainant  fails  to  show  fraud  on  the 
part  of  the  directors,  even  though  it  appears 
that  the  directors  had  erroneously  diverted 
the  income  to  other  purposes.  Spies  v. 
Chicago  &*  E.  I.  R.  Co.,  40  Am.  &*  Eng.  R. 
Cas.  401,  40  Fed.  Rep.  34. 

A  railway  income  mortgage  provided 
that  the  board  of  directors  should  deduct 
from  the  gross  income  the  necessary  oper- 
ating expenses  and  betterments  required 
to  maintain  the  road  in  first-class  condi- 
tion, and  declared  that,  if  the  board  of 
directors  should  adjudge  that  nonet  income 
had  been  realized  during  the  year  applicable 
to  the  payment  of  interest  on  the  mortgage 
bonds,  they  should  thereupon  enter  a  resolu- 
tion to  that  eflfect  on  the  journal  of  their  pro- 
ceedings, and  that  the  adjudication  should  be 
final  and  conclusive  as  an  award,  and  should 
operate  as  a  bar  against  any  demand  by  any 
bondholder  for  interest  for  that  year,  ffe/d, 
that  the  bondholders  were  entitled  to  have 
an  honest  eflfort  on  the  part  of  the  directors 
to  ascertain  the  net  earnings  of  the  railroad, 
and  that  the  mere  passing  of  a  resolution 
that  no  income  has  been  earned,  without  an 
attempt  to  ascertain  the  fact,  was  not  a  com- 
pliance with  the  terms  of  the  contract. 
spies  V.  Chicago  &•  E.  I.  R.  Co.,  40  Am.  &* 
Eng.  R.  Cas.  401,  40  Fed.  Rep.  34. 

Where  the  owner  of  railroad  bonds  sues 
in  his  own  behalf  and  that  of  other  bond- 
holders to  restrain  a  judgment-creditor  from 
levying  on  the  property  of  the  company 
until  overdue  interest  is  paid  on  the  bonds, 
it  is  no  objection  to  a  continuance  of  the 
injunction  that  some  of  the  bonds  had  been 
pledged  by  him  to  other  persons  as  col- 
lateral security.  Butler  v.  Rahm,  46  Md. 
541,  18  Am.  Ry.  Rep.  86. 

Bondholders  of  a  corporation  of  the  same 
class  cannot  take  advantage  of  the  fact 
that  directors  have  issued  a  large  number  of 
shares  to  themselves  at  a  discount,  where 
the  transaction  is  not  ultra  vires,  and  the 
corporation  itself  does  not  complain.  If  the 
directors  abuse  their  power  complaint  must 


' 


if  I  hi 


H 


BONDS,  JJM,  JJJ). 


(JOT 


be  made  by  the  corporation  or  its  torpora- 
tors.  Bank  of  Toronto  v.  Cobourg,  P.  &*  M. 
R.  Co.,  \oOnt.  376. 

38.  ICiKhtH  of  holder  who  is  a 
pledgee. — A  pledgee  of  certain  bonds 
claimed  that  the  pledge  had  been  forec'osed 
by  sale  at  auction,  and  that  through  su  h 
sale  he  became  the  owner  ;  the  terms  of  th'. 
sale,  or  whether  before  sale  there  had  beer  a 
demand  of  payment  or  notice  to  redeeti,  did 
not  appear.  Held,  that,  as  no  right  to  sell 
was  shown,  the  holder  of  the  bonds  must 
still  be  treated  as  pledgee.  Duncomb  v. 
New  York,  H.  &*  N.  K.  Co.,  4  Am.  &^  Eng. 
R.  Cus.  293,  84  yV.  V.  190  ;  reversing  liHun 
291. 

D.  &  B.  contracted  with  the  M.  &  K.  R., 
one  of  the  defendants,  to  construct  its  rail- 
road for,  among  other  things,  $40,000  cash, 
to  be  paid  in  monthly  instalments  by  the 
N.  &  L.  R.,  another  defendant,  who  had 
promised  to  loan  that  sum  to  the  M.  &  K. 
R.  on  its  notes  and  securities  agreed  upon 
and  delivered.  The  N.  &  L.  R.  exacted  from 
D.  &  B.,  as  a  condition  of  payingthe  money, 
double  the  amount  of  bonds  in  the  M.  &  K. 
R.,  which  D.  &  B.  deposited  with  the  N.  A: 
L.  R.,  and  subsequently  assigned  to  the 
plaintiffs  as  security  for  money  advanced  by 
them  to  D.  &  B.  to  aid  in  the  construction 
of  the  railroad.  After  the  insolvency  of  D. 
&B.,and  without  the  knowledge  or  con- 
sent of  B.  or  of  the  plaintiffs,  D.  assigned 
the  bonds  to  the  N.  &.  L.  R.  In  a  suit  for 
the  recovery  of  the  bonds — held,  that  the  N. 
&  L.  R.  had  no  title  to  them  against  the 
claim  of  the  plaintiffs,  to  whom  they  should 
be  delivered.  Hale  v.  Nash  ua  &•  L.  R,  Co., 
60  N.  H.  333. 

39.  Surrender  of  bouds  and  accept- 
ance of  new  bonds.— In  an  accounting 
under  a  railroad  mortgage,  in  which  pro- 
vision is  made  for  retiring  a  series  of  second- 
income  bonds  and  issuing,  in  exchange,  new 
boads  which  are  to  be  held  by  a  trust  com- 
pany until  all  the  second-income  bonds 
are  retired,  a  bondholder  declining  to  sur- 
render his  bonds  is  not  entitle  I  to  claim  as 
interest  more  of  the  income  than  his  share 
would  have  been  had  there  been  no  sur- 
render of  the  bonds.  Barry  v.  Missouri,  K. 
5-  T.  R.  Co.,  36  Am.  5-  Eng.  R.  Cas.  332,  34 
Fed.  Rep.  829. 

In  ascertaining  income  applicable  to  the 
payment  of  interest,  an  allowance  made  by 
the  n  -^rtgagor  company  to  a  connecting 
road  for  a  division  of  earnings  was  under 


ilic  peculiar  facts  and  circumstances  of  the 
c.ise  rejected.  Barry  v.  Missouri,  K.  <S-  T, 
R,  Co.,  36  Am.  <S-  Eng.  R.  Cas,  332,  34  Fed. 
Rep.  829. 

A  railroad  contracted  to  exchange  its  new 
bonds  for  old  ones,  upon  the  surrender  of  all 
of  the  old  ones.  Held,  tliat  it  was  not 
bound  to  negotiate  with  individual  bond- 
holders, but  only  to  deliver  new  bonds  upon 
a  surrender  of  all  the  old  ones.  Union  I'ac. 
R.  Co.  V.  Stiivart,  95  U.  S.  279. 

A  railroad  company  issued  bonds  with  a 
provision  in  the  mortgage  ccuring  them, 
that  the  holders  might  exchange  them  for 
bonds  of  another  series  at  any  time  after 
execution  and  delivery.  Held,  that  the 
privilege  of  exchange  was  Jiniited  as  to 
time,  and  that  a  court  of  equity  would  not 
decree  a  specif'c  performance  by  compelling 
the  exchange  after  a  lapse  of  thirteen  years, 
when  the  bonds  were  selling  at  a  discount, 
and  more  than  five  years  after  the  company 
had  ceased  to  make  such  exchanges.  De 
Witt  V.  Chicago,  B.  6-  Q.  R.  Co.,  41  Fed. 
Rep.  484. 

A  railroad  company  executed  a  second 
mortgage  to  secure  the  indebtedness  of  the 
first  and  also  an  additional  indebtedness,  re- 
citing that  the  holders  of  bonds  secured  by 
the  first  mortgage  had  agreed  to  surrender 
the  same  and  accept  new  ones  to  constitute 
a  first  lien  ;  but  some  of  the  bondholders  re- 
fused to  surrender  them.  Held,  that  those 
thus  refusing  were  not  entitled  to  priority 
over  other  first-mortgage  holders  who  did 
exchange,  but  that  they  could  not  be  preju- 
diced by  the  additional  debt  secured  by  the 
second  mortgage.  Ames  v.  New  Orleans,  M. 
(S-  T.  R.  Co.,  2  Woods  {U.  S.)  206.— DISTIN- 
GUISHED IN  Barry  v.  Missouri,  K.  &  T.  R. 
Co.,  36  Am.  &  Eng.  R.  Cas.  332,  34  Fed. 
Rep.  829. 

Complainant  filed  a  bill  alleging  that  he 
was  the  holder  of  railroad  bonds;  that 
under  a  plan  of  reorganization  of  the  com- 
pany he  had  surrendered  them,  new  ones  to 
be  issued  in  their  stead ;  and  that  the  com- 
pany refused  to  issue  the  new  bonds,  claim- 
ing that  a  third  party  was  entitled  to  them. 
Complainant  prayed  that  the  company  be 
required  to  deliver  the  new  bonds,  that  it 
be  restrained  from  delivering  them  to  the 
third  party,  and  that  a  certificate  held  by 
such  third  party  be  cancelled.  Held,  that 
the  complaint  stated  but  one  cause  of  ac- 
tion, namely,  the  delivery  of  the  bonds  to 
plaintiff,  the  prayer  for  cancellation  of  the 


(illK 


UONDS,  40. 


I.f      i! 


certificate  being  but  auxiliary  relief.     Tut- 
mr  V.  Comuit,  i8  Abb.  A'.  Las.  (.V.  )'.)  160. 

The  C.  I.  Co.  held  first-mortgage  bonds 
under  a  murtgagc,  dated  in  1872,  given  by 
the  S.  V,  R.  Co,,  and  the  two  companies 
made  an  executory  agreement  providing 
that  the  bonds  held  by  the  C,  I.  Co.  should 
be  cancelled,  and  that  in  place  of  them  the 
S.  V.  K.  Co,  should  issue  and  deliver  to  the 
C.  I.  Co,  secoiid-mortgaye  bonds,  which  were 
to  be  subject  to  certain  first  mortgage  bonds, 
specified  in  the  agreement,  to  be  issued  by 
the  S.  V.  R.  Co.  to  other  persons,  to 
complete  the  railroad  of  the  S.  V.  R,  Co. 
Under  the  agreement  the  bonds  under  the 
mortgage  of  1872  were  cancelled,  and  a  re- 
lease (if  that  jnortgage  was  made  by  the 
trustee  therein.  Then  the  S.  V.  R.  Co.  exe- 
cuted three  mort};ages  on  its  property,  the 
trustee  therein  having  notice  of  the  right  of 
the  C.  I,  Co.  under  said  agreement.  It 
never  delivered  to  the  C.  I.  Co.  the  second- 
mortgage  bonds  called  for  by  said  agree- 
ment. Held,  that  under  such  an  agreement 
the  C.  I.  Co.  was  entitled  to  equitable  com- 
pensation for  the  failure  of  the  S.  V.  R.  Co. 
to  deliver  such  second -mortgage  bonds,  and 
that,  notwithstanding  the  failure  to  deliver 
such  second-mortgage  bonds,  the  equitable 
compensation  for  such  failure  decreed  to  the 
C.  I.  Co.  must  be  subject  to  the  first-mort- 
gage bonds  to  which  such  agreement  made 
the  second-mortgage  bonds  subject,  and 
could  not  be  accorded  priority  over  such 
bonds  by  reason  of  the  mortgage  of  1872. 
Fidelity  /.,  T.  &*  S.  D.  Co.  v.  Shenandoah 
Valley  R.  Co.,  43  Am.  6-  Eng.  A'.  Cas.  356, 
33  IV.  Va.  761,  II  S.  E.  Rep.  58. 

The  C.  I.  Co.  repudiated  such  agreement, 
claimed  as  for  the  said  cancelled  bonds, 
did  not  demand  such  second-mortgage 
bonds,  and  never  claimed  any  compensation 
under  said  agreement  for  failure  to  deliver 
the  second-mortgage  bonds  until  after  a  de- 
cree holding  it  bound  by  said  agreement. 
Had  such  bonds  been  delivered  according 
to  the  agreement,  however,  they  could  have 
been  sold  by  the  C.  I.  Co.  at  par,  and  that 
company  is  thus  damaged  by  such  failure  to 
deliver  the  bonds;  yet  these  facts  will  not 
f;ive  it  preference,  for  the  compensation 
decreed  to  it,  over  the  first-mortgage  bonds, 
to  which  the  agreement  makes  such  second- 
mortgage  bonds  subject,  notwithstanding 
that  such  position  of  subordination  may 
entail  great  loss  to  the  C.  I.  Co.,  as  com- 
pared with  what  it  would  have  realized  by 


the  sale  of  the  second- iiiorlguge  bonds  had 
they  been  delivered.  Fidelity  /.,  J'.  &>  S. 
J).  Co.  V.  Shenandoah  Valley  R.  Co.,  43  Aw. 
Sr*  Eng.  R.  Cas.  356,  33  IV.  Va.  761,  11  S. 
E.  Rep.  58. 

40.CuiiverMluiiofbuiidHiiitoNtu('k.* 
— Where  railroad  bonds  are  issued  with  a 
privilege  to  holders  to  have  them  exchanged 
for  stock  at  any  time  on  or  before  their  ma- 
turity, a  holder  forfeits  his  right  to  ex- 
change them  for  stock  by  a  failure  to  pre- 
sent them  on  or  before  maturity.  Chaffet 
V.  Middlesex  R.  Co.,  146  Mass.  224,  6  A'. 
Eng.  Rep.  59,  16  A'.  E.  Rep.  34. 

Where  railroad  bonds  were  payable  in 
money  or  convertible  into  stock  "at  matur- 
ity," at  the  option  of  the  holder,  and  they 
matured  on  Sunday,  a  presentation  for  the 
purpose  of  a  conversion  on  the  preceding 
Saturday  at  3.10  o'clock  r.M.  is  seasonable, 
though  the  business  hours  of  the  company's 
office  closed  at  3  o'clock.  Chaffee  v.  Mid- 
dlesex R.  Co.,  146  Mass.  224,  6  A'.  Eng,  Rep. 
59,  16  A'.  E.  Rep.  34. 

The  holder  of  a  railroad  bond,  convertible 
into  stock,  at  his  option,  at  maturity,  cannot 
assign  the  right  of  action  for  a  breach  of  the 
stipulation  for  conversion  while  he  retains 
the  bond ;  and  a  petition  which  fails  to  state 
that  plainiitf  is  the  holder  of  the  bond  for 
the  non-conversion  of  which  he  sues  is 
fatally  defective.  Denney  v.  Cleveland  &>  P. 
R.  Co.,  28  Ohio  St.  108,  14  Am.  Ry.  Rep.  73. 

Where,  by  the  terms  of  a  railroad  bond,  a 
period  was  fixed  within  which  it  might  be 
converted  into  stock  at  the  option  of  the 
holder — held,  that  an  agreement  for  the  ex- 
tension of  time  of  payment  before  maturity 
of  the  bond  did  not  extend  the  right  of  con- 
version after  the  time  limited.  Muhlenberg 
V.  Philadelphia  6-  R.  R.  Co.,  47  Pa.  St.  16. 

A  decree  in  a  railroad  foreclosure  suit 
provided  that  where  bondholders  became 
purchasers  of  the  property  they  might  ex- 
change their  bonds  for  stock  if  they  chose 
to  do  so.  //eld,  that  the  choice  of  making 
the  exchange  must  be  exercised  before  the 
property  is  conveyed  to  those  who  have  de- 
cided to  become  purchasers  and  make  the 
exchange,  and  that  this  is  so  though  a  bond- 
holder was  not  aware  of  the  legal  proceed- 
ings, and  had  overlooked  the  fact  of  his 
owning  bonds  until  after  the  conveyance, 
Landis  v.  Western  Pa.  R.  Co.,  133  Pa.  St. 
579,  26  IV.  N.  C.  64,  19  All.  Rep.  556. 

*  See  ante,  8. 


BONUS,  41,42. 


6G0 


l)unds  had 

.  r.  Sf  S. 

:o.,  43  Am. 

761,  II  S. 

iicd  with  n 
cxchan;;cd 
L-  their  ina- 
jilt  to  ex- 
ile to  prc- 
Chaffe* 
124.  6  A'. 

payable  in 

'at  matur- 
r,  and  tlicy 
ion  for  tlie 

preceding 
seasonable, 

company's 
'V<?  V.  Alid- 

Kng.  Kep. 

converiible 
rity,  cannot 
each  of  the 
he  retains 
lils  to  state 
le  bond  for 
he  sues  is 
eland  &*  P. 
\y.  Kep.  73. 
[)ad  bond,  a 
it  might  be 
tion  of  the 
for  the  ex- 
re  maturity 
i^ht  of  con- 
Muhlenberg 
"a.  St.  16. 
losure  suit 
:rs  became 
might  ex- 
they  chose 
of  making 
before  the 
10  have  de- 
1  make  the 
igh  a  bond- 
al  proceed- 
fact  of  his 
onveyance, 
i33/'«.  St. 
556. 


A  statute  gave  the  bondholders  of  a  rail- 
way company  an  optiou  to  convert  their 
bonds  into  stock,  and  enacted  that  this 
"  converted  bonded  stock,"  and  any  new  sub- 
scribed stock  should  be  preferential  to  the 
ordinary  stock  and  be  entitled  to  dividends 
of  8  per  cent  per  annum  in  priority  to  any 
dividend  to  the  ordinary  shareholders.  By 
a  subsequent  act  the  company  was  author- 
ized to  unite  with  another  company,  and  it 
was  declared  that  the  two  companies  and 
those  who  should  become  shareholders  in 
the  new  company  under  the  acts  relating  to 
the  first-mentioned  company  and  under  the 
deed  of  union  should  constitute  the  new 
company.  Held,  that  the  union  did  not  ex- 
tinguish the  right  of  the  bondholders  to 
elect  as  to  converting  their  bonds  into  stock. 
Cay  ley  v.  Cobourg.  l\  &*  M.  R.Sf  M.  do.,  14 
Grant  Ch.  {U.  C.)  571. 

41.  Uiiflits  of  boiulholderH  an  re- 
((ardH  IiitercHt.* — Wliere  railroad  bonds 
contain  the  provi^iion  that,  if  the  net  earnings 
of  the  road  are  not  sufficient  to  pay  the 
interest  annually  on  the  bonds,  then  the 
company  may.  at  its  option,  issue  scrip  for 
the  interest,  the  option  thus  reserved  to  the 
company  must  he  exercised  at  the  time  the 
interest  falls  due,  and  the  scrip  must  bear  in- 
terest. Texas  6-  P.  R.  Co.  v.  Marlor,  123 
U.  S.  687,  8  Sup.  Ct.  Kep.  311. 

In  such  case  no  demand  by  a  bondholder 
is  necessary  to  enable  him  to  recover  inter- 
est in  money,  the  company  having  failed  to 
issue  scrip  the  day  the  interest  fell  due. 
Texas  &*  P.  R.  Co.  v.  Marlor,  123  U.  S.  687, 
8  Sup.  Ct.  Rep.  311. 

The  election  of  the  bondholders  to  treat 
the  default  in  payment  of  interest  as  a  for- 
feiture of  the  contracts  so  far  as  they  pre- 
scribed the  length  of  time  for  which  the 
bonds  were  to  run,  operated  prima  facie  to 
cancel  all  coupons  representing  instalments 
of  interest  not  then  due,  and  the  principal 
sums,  if  treated  as  due  in  the  judgment  for 
the  sale  of  the  road,  will  bear  interest  at  the 
agreed  rate  from  the  date  of  the  election. 
Newport  6-  C.  Bridge  Co.  v.  Douglass,  12 
Bush  (A>.)  673,  18  Am.  Ky.  Rep.  221. 

A  railroad  company  issued  its  bonds, 
providing  for  a  sinking  fund  for  their 
redemption,  with  a  right  to  redeem  a  cer- 
tain number  each  year,  to  be  determined  on 

•  Provision  in  bonds  that  railway  shall  have 
option  to  pay  Interest  in  scrip.  When  option 
must  be  exercised.  Demand  by  t)onaholders, 
see  33  Am.  &  F.ng.  R.  Cas.  55  abstr. 


a  date  fixed  by  drawings  by  lot,  and  that  in 
a  ceiiain  time  after  such  drawing  the  prin- 
cipal of  the  bonds  so  drawn  should  be 
payable,  at  the  option  of  ilie  holders,  with 
any  interes-t  unpaid,  and  that  thereafter  the 
interest  thereon  sliould  cease.  Held,  that 
where  bonds  were  so  drawn  and  not  sur- 
rendered foi  payment  the  interest  thereon 
ceased;  that  the  provision  that  the  bonds 
when  so  drawn  should  be  payable  "at  the 
option  of  the  holders "  only  meant  that 
btmdholders  had  a  right  toietain  possession 
of  the  bonds,  but  that  if  tiicy  did  so  they 
could  draw  no  interest.  Henry  v.  Syracuse, 
G.  Sr*  C.  R.  Co.,  24  .V.  V.  S.  R.  21,  25  /.  6- 
S.  69,  5  A^.   }'.  Supp.  437. 

A  contract,  by  designating  a  fund  out  of 
which  interest  is  to  be  paid,  does  not  ope-  ._ 
as  an  equitable  assignment  of  the  fund  to 
the  bond  creditors  or  create  an  equitable 
lien  thereon  in  their  favor,  so  that  when  any 
sum  has  been  earned  applicable  to  the  pay- 
ment of  interest  it  should  be  constituted  a 
trust  fund  in  the  hands  of  the  company  for 
the  benefit  of  the  bondholders;  but  they 
acquire  no  title,  legal  or  equitable,  to  the 
fund  itself.  Thomas  v.  New  Vorf:  &»  G.  L. 
R.  Co.,  54  N.  Y.  S,  R.  498 ;  affirming  47  A'. 
V.  S.  R.  250. 

A  board  of  directors  are  bound  to  act 
in  good  faith,  but  any  expenditures  incurred 
which,  by  fair  construction,  come  within  the 
permitted  charges  are  conclusive  upon  the 
bondholders.  It  is  for  the  board  to  de- 
termine, in  the  first  instance,  what  repairs 
are  necessary  ;  and  a  mistake  in  judgment 
as  to  the  necessity  or  extent  of  repairs 
directed  will  afford  no  ground  of  complaint 
by  the  bondholders.  Thomas  v.  Ne^v  York 
6-  G.  L.  R.  Co.,  54  N.  Y.  S.  R.  498 ;  affirming 
47  a;  Y.  S.  R.  250. 

When  interest-coupons  of  mortgage  bonds 
have  been  presented  and  paid  at  the  place 
of  payment  with  money  furnished  by  a  third 
party,  a  private  arrangement  between  such 
third  party  and  the  mortgagor  that  the 
transaction  shall  be  treated  as  a  purchase 
of  the  coupons  by  the  former  is  not  en- 
forceable against  the  bondholders.  Fidelity 
I.,  T.&^  S.  D.  Co.  V.  Western  Pa.  &-  S.  C.  R. 
Co.,  138  Pa.  St.  494,  21  All.  Rep.  21. 

42.  Funding:  coupons.— Certain  rail- 
road bonds  were  issued  under  a  statute 
declaring  them  a  first  lien  on  the  company's 
property,  and  subsequently  a  statute  was 
passed  postponing  the  lien  and  providing 
for   funding   past-due   coupons   for  bonds. 


.'.'■ii.' 


lip  I 


670 


BONDS,  43. 


..!    i 


IK 


mi 


Pi' 

'r  i; 


i 


Held,  that  persons  funding  under  the 
second  act  were  estopped  from  claiming  a 
first  lien  under  the  original  act.  Hand  v. 
Savannah  &*  C.  Ji.  Co.,  17  So.  Car.  219. 

After  railroad  bonds  had  been  issued  and 
guaranteed  by  the  state  under  a  statute  de- 
claring them  a  first  lien,  a  further  law  was 
passed  postponing  the  lien  and  providing 
for  a  surrender  of  past-due  coupons  and 
accepting  bonds  in  lieu  thereof  under  the 
second  act.  Held,  that  the  question  whether 
a  holder  of  such  coupons  who  had  exchanged 
them  for  bonds  was  estopped  from  claiming 
a  prior  lien  under  the  original  act  was  one 
of  fact  for  the  jury,  with  the  burden  of  proof 
on  the  one  asserting  the  estoppel.  Hand  v. 
Savannah  &*  C.  R.  Co.,  17  So.  Car.  219. 

A  statute  provided  that  holders  of  parx- 
due  coupons  from  railroad  bonds  might 
exchange  them  for  bonds  of  the  company. 
Held,  that  entries  in  the  handwriting  of  a 
treasurer  of  the  company,  made  eleven 
years  before  in  the  regular  books  of  the 
company,  were  competent  evidence  to  show 
who  had  funded  coupons.  Hand  v.  Savan- 
nah &>  C.  Ji.  Co.,  17  .S'^.  Car.  219. 

Where  a  statute  provides  for  funding 
past-due  coupons  by  exchanging  tiiem  for 
bonds  of  the  company,  the  mere  fact  that 
coupons  were  funded  is  not  sufficient  to 
show  that  the  persons  who  did  the  funding 
are  the  same  parties  who,  years  afterward, 
owned  bonds,  with  such  certainty  as  to 
estop  the  parties.  Hand  v.  Savannah  &•  C. 
R.  Co.,  17  So.  Car.  219. 

The  present  owners  of  bonds  may  have 
acquired  them  prior  to  1869  without  the 
coupons,  but  f  afterward,  the  act  of  that 
year  did  not  charge  them  with  notice  that 
the  coupons  cut  off  had  been  funded  by 
perbuns  then  owning  the  bonds  from  which 
they  had  been  cut.  Hand  v.  Savannah  &* 
C.R.  Co.,  17  So.  Car.  219. 

43.  Registration  of  bonds  as 
sbares  to  enable  bolder  to  vote.— 
A  statute  provided  that,  in  the  event  of 
interest  on  railway  bonds  being  due  and 
unpaid,  the  holders  of  the  bonds  "  at  the 
next  general  meeting  of  the  company " 
should  have  the  right  to  vote  as  share- 
holders, upon  having  the  bonds  and  any 
transfers  thereof  registered  as  shares. 
Held,  that  the  words  "  next  general  meet- 
ing "  only  fixed  the  earliest  time  at  which 
bondholders  might  vote;  that  no  new  regis- 
tration was  necessary  to  entitle  a  bond- 
liolder  to  vote  at  any  subsequent  meeting; 


and  that  the  right  to  vote  extended  to  all 
matters  that  might  come  before  an  annual 
meeting  upon  which  shareholders  might 
vote.  Hendrie  v.  Grand  Trunk  R.  Co.,  13 
Am.  &*  Eftg.  R.  Cas.  62,  2  Onl.  441. 

And  where  by  amendment  to  the  above 
statute  the  right  of  such  bondholders  is  ex- 
tended to  "  special  meetings,"  the  right  to 
vote  extends  to  all  subjects  properly  com- 
ing before  such  meetings.  Hendrie  v. 
Grand  Trunk  R.  Co.,  13  Am.  &»  Eng.  R. 
Cas.  62,  2  Onl.  441. 

A  statute  provided  that  a  railway  com- 
pany might  enter  into  an  agreement  with 
any  otlier  company  for  the  leasing  or  work- 
ing of  its  road  upon  the  consent  of  two- 
thirds  of  its  shareholders.  Held,  that  the 
term  "  shareholders  "  must  be  understood 
to  include  not  only  shareholders  proper, 
but  also  bondholders  who  had  registered, 
under  the  statute,  for  the  purpose  of  voting 
the  same  as  shareholders,  on  account,  of 
interest  on  the  bonds  being  due  and  un- 
paid, including  the  right  to  vote  at  a  special 
meeting  called  to  obtain  the  consent  of  the 
shareholders  to  such  lease  or  working  agree- 
ment. Hendrie  v.  Grand  Trunk  R.  Co.,  13 
Am.  &*  Eng.  R.  Cas.  62,  2  Ont.  441. 

A  mandamus  will  issue  to  compel  a  regis- 
tration of  railway  bonds,  under  38  Vic.  ch. 
56,  O.,  in  the  name  of  a  transferee,  without 
the  production  or  registration  of  the  inter- 
mediate transfers.  In  re  Osier  v.  Toronto, 
G.  <S-  B.  R.  Co.,  8  Prac.  (Ont.)  506. 

Bankers  in  London  forwarded  certain 
r^.ilway  bonds,  representing  them  as  belong- 
ing to  certain  designated  persons,  and  re- 
quested that  they  be  registered  for  the  pur- 
pose of  voting  thereon  at  a  meeting  of  the 
corporation ;  but  the  secretary  of  the  com- 
pany refused  to  register  such  as  had  been 
transferred  unless  written  transfers  were 
produced.  Held,  that  a  mandamus  would 
issue  to  compel  a  registration ;  that  the 
representation  of  the  bank  that  the  bonds 
belonged  to  certain  persons  was  sufficient 
proof  of  ownership;  and  that  the  issuing  of 
scrip  in  London  to  represent  the  bonds 
would  not  invalidate  the  right  of  the  actual 
holders  of  the  bonds  to  vote  on  them.  In 
re  Johnson,  8  Prac.  (Ont.)  535. 

A  demand  on  the  acting  secretary  of  a 
railway  company  for  a  registration  of  bonds 
is  a  sufficient  compliance  with  34  Vic.  ch. 
43.  §  33.  though  the  statute  only  provides 
for  a  registration  "  by  the  secretary."  AV 
Thomson,  9  Prac.  (Ont.)  119. 


I!T1 


BONDS,  44. 


671 


Under  34  Vic.  ch.  43,  §  33,  enacting  that, 
in  the  event  of  interest  on  railway  bonds 
being  due  and  unpaid,  the  holders  may 
have  them  registered  as  shares,  and  vote 
thereon,  it  is  necessary,  in  order  to  acquire 
such  right,  that  the  transfers  be  evidenced 
in  the  same  manner  as  is  required  of  shares ; 
but  no  provision  by  a  by-law  is  necessary. 
Jie  Thomson,  9  Prac.  (Out.)  1 19. 

The  holders  of  railway  bonds  on  which 
interest  is  due  and  unpaid  are  only  required 
to  make  out  a  prima-facie  title  thereto,  to 
enable  them  to  have  them  registered  and  to 
vote  as  shareholders,  under  the  statute ;  and 
the  mere  fact  that  such  holders  are  directors 
will  not  deprive  them  of  the  right,  where 
the:  e  is  no  denial  of  compliance  with  37  Vic. 
ch.  63,  §  25,  to  entitle  them  to  become 
holders.  Re  Thomson,  9  Prac.  (On/.) 
119. 

44.  Relative  rights  of  several  sets 
of  bondtiolders. — Where  a  railroad  issued 
bonds  and  gave  a  third  mortgage  to  secure 
them,  and  both  were  expressly  made  subject 
to  the  lien  of  the  second  mortgage,  all  pur- 
chasers of  the  third-mortgage  bonds  are 
charged  with  knowledge  of  the  lien  of  the 
second  mortgage.  Branson  v.  La  Crosse  &• 
M.  R.  Co.,  2  Wall.  (U.  S.)  283.- Followed 
ir  Mineral  Point  v.  Lee,  18  Law  Ed.  (U.  S.) 
456. 

The  Cent.  Ohio  R.  R.  Co.  issued  certain 
"  incoii-.'^  bonds."  wherein  it  was  recited  that, 
"  for  the  punctual  payment  of  the  interest 
and  principal  of  said  obligations,  in  prefer- 
ence to  the  payment  of  dividends  on  the  capi- 
tal stock  of  said  company,  the  income  arising 
from  li.e  road  and  its  appurtenances  is  spe- 
cifically pledged;"  and  afterwards  executed 
a  mortgage  upon  the  whole  of  its  line,  in 
trust,  to  secure  the  payment  of  other  bonds, 
issued  and  to  be  issued,  with  interest,  to 
the  amount  of  $950,000.  A  bill  was  filed 
by  certain  of  the  holders  of  said  "  income 
bonds,"  praying  an  injunction  to  restrain 
the  sale  of  said  "  mortgage  bonds,"  and 
claiming  a  priority  over,  and  an  equitable 
lien  upon,  said  " mortgage  bonds"  in  the 
hands  of  their  holders.  There  was  no 
competent  and  admissible  evidence  tending 
to  show  that  any  of  the  complainants  were 
induced  to  purchase  the  "  income  bonds  " 
under  any  other  representations  than  those 
on  the  face  of  said  bonds,  or  that  the  R.  R. 
Co.  had  authorized  any  one  to  make  such 
representations.  Held,  that  fraud  against 
the  "  income  bondholders "  is   not   to   be 


imputed  to  the  railroad  in  consequence  of 
the  issuing  of  said  "  mortgage  bonds ; "  that 
under  the  said  bill,  answers,  and  evidence 
the  injunction  should  not  have  been  made 
perpetual  in  the  court  below  ;  and  that  the 
terms  of  the  "  income  bonds  "  are  specific, 
and  the  holders  of  said  bonds  must  be  con- 
fined to  the  preference  thereby  given.  Gar- 
rett V.  May,  19  Md.  177. 

A  railroad  company  executed  a  first  mort- 
gage to  secure  an  issue  of  bonds  at  the  rate 
of  $15,000  per  mile  of  the  completed  road. 
By  the  mortgage  power  was  reserved  to 
issue  a  like  amount  per  mile  for  every  mile 
of  road  thereafter  to  be  completed.  Subse- 
quently a  general  mortgage  was  executed  to 
secure  bonds  amounting  to  $25,000  per  mile 
of  the  road.  In  the  latter  mortgage  it  was 
provided  that  bonds  might  still  be  issued 
under  the  first  mortgage,  but  that  they 
should  be  retained  by  the  trustee  under  the 
general  mortgage  to  secure  bondholders 
thereunder.  The  general  mortgage  was 
executed  for  the  purpose  of  retiring  the 
bonds  secured  by  the  first  mortgage,  if  pos- 
sible. After  the  execution  of  the  general 
mortgage  first-mortgage  bonds  to  the  amount 
of  $1,560,000  were  executed  and  deposited 
with  the  trustee  under  the  general  mort- 
gage. This  amount  represented  $1 5,000  per 
mile  of  an  extension  of  the  road.  A  pro- 
spectus was  issued  under  which  the  general- 
mortgage  bonds  were  sold,  and  in  which  it 
was  represented  that  the  first-mortgage 
bonds  would  be  deposited  for  the  purpose 
of  securing  bondholders  under  the  general 
mortgage.  Held,  that,  in  a  question  with 
the  bondholders  under  the  first  mortgage, 
the  bondholders  in  the  general  mortgage 
were  entitled  to  the  benefit  of  the  issue  of 
the  first-mortgage  bonds  for  $1,560,000,  and 
that  such  issue  was  authorized  and  valid. 
Atwood  V.  Shenandoah  Valley  R.  Co.,  38  Am. 
Sf  Eng.  R.  Cas.,  534,  85  Va.  966, 9  5.  E.  Rep. 
748. 

A  limitation  contained  in  a  general  mort- 
gage restricting  the  issue  of  bonds  there- 
under to  $25,000  per  mile  is  made  for  the 
benefit  of  bondholders  under  such  general 
mortgage,  and  may  be  waived  by  them,  and 
the  bondholders  under  a  prior  mortgage 
cannot,  in  an  action  of  foreclosure,  attack 
the  validity  of  the  issue  of  the  bonds  under 
the  general  mortgage  on  the  ground  that 
they  were  in  excess  of  the  prescribed  limit. 
Atwood  V.  Shenandoah  V.  R.  Co. ,  38  Am.  Sf 
Eng.  R.  Cas.  534,  85  Va.  966,  9  S.  E.  Rip. 


III 


I 


Rln 


i^ 


I, 


672 


BONDS,  45,  46. 


■;. 


• 

w 

It 

i' 

.if    . 
\r^'    i  ■ 

1  ■-  ■  i  ^ 

^^^( 

i^  '  ■ 

HI 

II- f 

1' 
I4i 

ui  . 

748.— Quoting  Duncomb  v.  New  York,  H. 
&  N.  R.  Co.,  84  N.  Y.  190. 

As  to  the  relative  rights  of  holders  of 
railroad  bonds  secured  by  a  first,  second, 
and  third  mortgage,  respectively,  in  relation 
to  an  exchange  of  their  bonds  for  new  bonds 
secured  by  a  new  mortgage,  see  Ex  parte 
White,  2  So.  Car.  469. 

2.   Bona-Ftde  Purchasers. 

45.  Who  are  deemed  to  be  boiia- 
flde  purchasers.'*' — One  who  purchases 
railroad  bonds  in  open  market,  supposing 
them  to  be  valid,  and  having  no  notice  to 
the  contrary,  will  be  deemed  a  bona-fide 
holder.  Galveston,  H.  Sf  H.  R.  Co.  v.  Cow- 
drey,  i\  Wall.  (6/5.)4S9- 

Holders  of  negotiable  railroad  bonds  se- 
cured by  a  mortgage  and  pledged  as  collateral 
to  secure  debts  due  from  the  company  issu- 
ing the  bonds,  are  bona-fide  holders  and  are 
entitled  to  enforce  payment  of  the  bonds  by 
the  appointment  of  a  receiver,  and  a  fore- 
closure, as  long  as  the  debts  for  which  they 
were  hypothecated  are  unsatisfied.  Allen  v. 
Dallas &*  W.  R.  Co.,  3  Woods  (U.  S.)  316. 

A  creditor  who,  in  consideration  of  the 
transfer  of  negotiable  bonds  to  him,  extends 
time  for  the  payment  of  a  debt,  becomes  a 
purchaser  for  value ;  and  the  circumstance 
that  the  bonds  were  taken  for  a  pre-existing 
debt  does  not  deprive  him  of  the  rights  of 
a  purchaser  for  value  before  maturity,  with- 
out notice  of  the  equities  between  the 
original  parties  to  the  bonds.  Tyrell  v. 
Cairo  *•  St.  L.  R.  Co.,  7  Mo.  App.  294. 

Every  transfer  of  railroad  coupon  bonds 
for  value  and  without  notice  gives  the  trans- 
feree a  good  title  to  them  as  against  the 
former  holder,  and  the  transferee  is  pre- 
sumed to  be  a  bona-fide  holder  for  value. 
Gibson  V.  Lenhart,  loi  Pa.  St.  522. 

A  person  contemplating  a  purchase  of 
railway  bonds  applied  to  its  vice-president, 
secretary,  and  attorney  for  information  as  to 
their  validity,  and  was  informed  that  the 
bonds  were  regularly  issued  and  sold,  and 
were  valid.  The  purchase  was  made  from 
the  president  and  one  of  the  directors,  and 
the  company's  books  showed  that  the  bonds 
were  to  be  sold  for  a  specified  sum  and  that 
the  director's  name  appeared  as  the  pur- 
chaser, and  that  he  was  credited  as  having 
paid  the  amount  at  which  the  bonds  were 

*  Bona-fidt  holders  of  municipal  aid  bonds, 
see  note,  30  Am.  &  Eng.  R.  Cas.  367. 


to  be  sold.  Held,  that  the  buyer  was  an  in- 
nocent purchaser,  and  that  the  company  was 
estopped  from  denying  the  validity  of  the 
bonds  as  against  him.  Union  L.  &-  T.  Co. 
V.  Southern  Cal.M.  R.  G;.,  51  Fed.  Rep.  840. 
40.  Who  are  not  boua-fide  pur- 
chasers.— A  person  buying  overdue  bonds 
at  40  cents  on  the  dollar  from  the  vice- 
president  of  the  company  issuing  them,  after 
the  mortgaged  property  has  passed  into  the 
hands  of  a  receiver  in  a  suit  to  foreclose, 
is  not  a  bona-fide  holder,  especially  where 
inquiry  would  have  shown  that  the  vice- 
president  was  not  authorized  to  sell  the 
bonds.  American  L.  &•  T.  Co,  v.  St.  Louis 
&*  C.  R.  Co.,  42  Fed.  Rep.  819. 

One  member  of  a  firm  cannot  be  said  to 
be  an  innocent  holder  of  railroad  bonds 
which  have  been  declared  fraudulent  where 
the  bonds  were  delivered  to  his  firm  in  pay- 
ment of  work  claimed  to  have  been  done 
for  the  company,  and  where  another  mem- 
ber of  the  firm  was  an  active  participant  in 
the  fraud  which  was  held  to  render  the 
bonds  invalid.  Smith  v.  Florida  C.  &»  W. 
R.  Co.,  43  Fed.  Rep.  731.— QUOTING  Trask 
V.  Jacksonville,  P.  &  M.  R.  Co.,  124  U.  S. 
515,  8  Sup.  Ct.  Rep.  574.  Referring  to 
Florida  C.  R.  Co.  v.  Schutte,  103  U.  S.  127. 

A  party  receiving  from  the  president  of  a 
railroad  a  bond  given  to  the  company,  with 
an  assignment  in  blank  upon  it,  by  such 
president,  which  purports  to  have  been  made 
by  him  as  president  by  order  of  the  board  of 
directors,  as  collateral  security  for  an  ante- 
cedent debt  due  by  such  president  individu- 
ally, is  not  such  a  bona-fide  holder  for  value, 
without  notice,  that  he  can  hold  the  bond 
against  the  company.  Garrard  v.  Pittsburgh 
&>  C  R.  Co.,  29  Pa.  St.  1 54. 

A  railroad  company  executed  a  mortgage 
to  secure  its  bonds  upon  "  all  its  property, 
real  and  personal,  and  all  rights  and  inter- 
ests therein  now  owned  and  hereafter  to  be 
acquired."  A  foreclosure  decree  conveying 
the  property  to  complainant  mentioned  the 
real,  personal,  and  mixed  property  of  the 
company,  and  "  any  and  all  other  property, 
real,  personal,  or  mixed,  belonging  to  the 
corporation."  Complainant  claimed  to  be 
the  owner  of  certain  municipal  aid  bonds  is- 
sued to  the  company  and  held  by  it  under 
the  mortgage  and  foreclosure.  The  condi- 
tions upon  which  the  bonds  were  issued 
were  not  complied  with  by  the  railroad  com- 
pany, and  the  municipality  resisted  payment. 
Held,  that  complainant  was  not  a  bona-fide 


BONDS,  47. 


673 


holder  of  the  bonds  and  could  not  sue  and 
recover  thereon.  Foote  v.  Mt.  Pleasant,  i 
McCrary{U.  5.)  loi. 

By  statute,  the  charter  of  a  railway  com- 
pany was  extended  to  enable  it  to  complete 
its  road ;  and  it  was  authorized  to  issue  its 
bonds,  registered  or  coupon,  for  $1,200,000, 
and  sell  them  at  less  than  par,  and  secure 
them  by  mortgage  or  deed  of  trust  upon  all 
the  property  and  franchises  of  the  company. 
By  the  same  act  it  was  provided  that,  un- 
less the  road  should  be  completed  to  a 
certain  point  by  a  certain  day,  the  company 
should  forfeit  to  the  state  their  corporate 
[ranchises  and  rights,  together  with  their 
road-track  and  roadbed,  and  all  works  and 
materials  thereon,  or  other  property;  the 
state  to  hold  the  same  as  trustee  for  certain 
parties  named.  The  company  accepted  the 
charter,  issued  $480,000  of  bonds,  and  exe- 
cuted a  deed  of  trust  upon  its  property  and 
franchises  to  secure  them.  The  company 
failed  to  complete  the  road  to  the  point 
fixed  by  the  time  prescribed,  or,  as  it  would 
seem,  to  expend  any  money  in  its  construc- 
tion ;  and  the  state  proceeded  to  declare 
the  charter  forfeited,  and  to  take  possession 
of  the  road  and  the  other  property  and 
franchises  of  the  company,  and  to  turn  it 
all  over  to  the  cestuis  que  trustent,  who  or- 
ganized another  company.  Persons,  one  of 
whom  was  the  president  of  the  road,  and  all 
of  whom  were  the  principals  in  the  road 
when  the  act  was  passed,  or  were  connected 
with  them,  claimed  that  they  were  the 
holders  of  $323,500  of  the  bonds  issued,  and 
filed  their  bill  to  enforce  the  deed  of  trust. 
Held:  (i)  that  under  the  provisions  of  the 
forfeiture  of  the  charter  the  state  took  the 
property  and  franchises  of  the  company  free 
from  the  trust ;  (2)  that  upon  the  failure  of 
the  company  to  complete  the  road  to  the 
point  fixed  by  the  day  prescribed,  the  for- 
feiture became  absolute  and  complete;  and 
that,  the  state  having  entered  and  elected 
to  hold  under  the  forfeiture,  no  inquisif'on, 
or  judicial  proceedings,  or  inquest,  or  find- 
ing of  any  kind  was  required  to  consummate 
the  forfeiture;  (3)  that,  from  the  relations 
of  these  plaintiffs  to  the  company  and  to  each 
other,  they  must  be  held  to  have  had  notice 
of  the  terms  of  the  act  which  authorized  the 
execution  of  the  deed  of  trust  under  which 
they  claim ;  (4)  that,  as  no  money  had  been 
expended  on  the  road,  or,  as  they  claimed, 
paid  for  interest,  the  strong  presumption 
was  that  the  company  received  no  money 
1  D.  R    D.— 43. 


for  the  bonds;  and  (5)  that  the  plaintiffs 
were  not,  therefore,  innocent  purchasers  for 
value  and  holders  of  the  bonds  without 
notice  of  the  provisions  of  the  act.  Silliman 
V.  Fredericksburg,  O.  6t*  C.  R.  Co.,  27  Gratl. 
(Va.)  119,  17  Am.  Ry.  Rep.  157. 

47.  The  protection  accorded  them.* 
— A  citizen  of  the  United  States  purchasing 
the  bonds  of  a  railroad  organized  under 
a  foreign  government  takes  them  sub- 
ject to  the  policy  of  that  government,  and 
is  bound  by  its  statutes.  This  is  the  case 
though  the  bonds  are  payable  in  the  United 
States,  and  though  their  payment  could  be 
enforced  by  tiie  courts  of  this  country. 
Canada  S.  R.  Co.  v.  Gebhard,  14  Am.  &* 
Eng.  R.  Cas.  581,  109  U.  S.  527,  3  Sup.  Ct. 
Rep.  363.  —  Quoted  in  St.  Albans  v. 
National  Car  Co.,  57  Vt.  68. 

A  bona-fide  purchaser  for  value,  without 
notice,  of  railroad  bonds  payable  to  bearer, 
which  had  been  stolen,  has  a  good  title  as 
against  the  former  owner.  Carpenter  v. 
Rommel,  5  Phila.  {Pa.)  34. 

Where  railroad  bonds,  with  coupon  at- 
tached, which  were  transferable  by  delivery, 
are  stolen,  a  subsequent  bona-fide  purchaser 
before  they  are  due,  paying  market  value 
therefor,  will  have  a  good  title  as  to  the 
bonds  and  all  interest  coupons  which  are 
not  due,  but  not  as  to  those  which  are  past- 
due.  Gilbough  v.  Norfolk  &•  P.  R.  Co.,  I 
Hughes  {U.  S.)  410. 

Coupon  bonds  of  a  railroad  company  pay- 
able to  bearer  pass  by  delivery ;  and  a  bona- 
fide  purchaser  of  them  before  maturity  takes 
them  freed  from  any  equities  that  may  have 
been  set  up  against  the  original  holders  of 
them.  The  burden  of  proof  is  on  him  who 
assails  the  bona  fides  of  such  purchase. 
Kneeland  v.  Lawrence,  46  Am.  &•  Eng.  R. 
Cas.  319,  140  U.  S.  209,  II  Sup.  Ct.  Rep. 
786.  Ftnneganv.  Lee,  18  How.  Pr.  {N.  K.) 
186. 

Bona-fide  holders  of  railroad  bonds,  exe- 
cuted in  due  form  and  by  the  proper 
officers,  cannot  be  prejudiced  by  the  fact 
that  the  mortgage  given  to  secure  the  same 
was  executed  out  of  the  state,  or  by  virtue 
of  a  resolution  of  its  directors,  at  a  meeting 
held  out  of  the  state.  The  company  and 
its  privies  are  bound  thereby.  Galveston,  H. 
&*  H.  R.  Co.  V.  Cowdrey,  11  Wall.  {U.  S.) 
459- 

*  Bona-fide  purchasers  of  negotiable  bonds 
before  maturity  acquire  title,  see  note,  46  Am. 
&  Eng.  >?.  Cas.  322. 


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BONDS,  48. 


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The  purchaser  of  negotiable  railroad  bonds 
before  maturity,  without  notice,  is  not  bound 
by  a  judgment  against  his  vendor  declaring 
the  bonds  void.  Enfield  v.  Jordan,  1 19  U. 
S.  680,  7  Sup.  a.  Rep.  358. 

The  purchasers  of  bonds  sold  to  satisfy 
debts  for  which  they  were  held  as  collateral 
are  vested  with  title  as  owners  of  such 
bonds.  Newport  &*  C.  Bridge  Co.  v.  Doug- 
lass, 12  Bush  {Ky.)  673,  liAm.  By.  Rep.  221. 

As  against  a  bona-fide  holder  of  bonds 
issued  by  a  railroad  corporation,  it  may  not 
be  shown  that  restrictions  imposed  by  its 
charter  on  its  power  to  issue  bonds  were 
violated,  as  such  corporations,  in  general, 
have  power  to  issue  bonds.  Ellsworth  v. 
St.  Louis,  A.  &>  T.  H.  R.  Co.,  98  N.  K  553 ; 
affirming  33  Hun  7. — Following  Woods  v. 
Lawrence  County,  i  Black  (U.  S.)  386; 
Mercer  County  v.  Hackett,  i  Wall.  (U.  S.) 

83. 

Where  railroad  bonds  are  issued  with  a 
covenant  in  the  mortgage  securing  them 
that  they  are  to  be  sold  and  the  proceeds 
applied  to  improving  the  road,  but  they  are 
sold  under  a  different  agreement  and  the 
proceeds  applied  to  other  purposes,  neither 
the  purchasers  nor  those  holding  under 
tliem  without  actual  knowledge  of  the 
covenant  can  enforce  specific  performance 
of  its  provisions,  and  this  is  so  even  where 
the  mortgage  contains  a  provision  that  it 
shall  be  for  the  benefit  of  all  persons  who 
become  holders  or  owners  of  the  bonds. 
Belden  v.  Burke,  20  N.  V.  Supp.  320. 

It  is  no  defense  to  an  action  on  the  bonds 
of  a  railroad  company  that  the  defendant's 
books  do  not  show  that  any  value  had  been 
received  for  them,  and  that  the  bonds  had 
been  delivered  to  the  president,  who  had 
made  no  return  of  the  proceeds.  The 
bonds  being  in  form  to  pass  by  delivery,  a 
bona-fide  purchaser  had  nothing  to  do  with 
the  application  of  the  money  paid  for  them. 
Philadelphia  <S-  5.  R.  Co.  v.  Lewis,  33  Pa. 
St.  33- 

Persons  holding  bonds  of  a  railroad  com- 
pany inserted  an  advertisement  in  a  news- 
paper offering  them  for  sale,  and  adding 
that  "the  road  is  in  successful  operation 
and  earning  net  more  than  the  interest  on 
all  its  bonds."  Held,  that  this  provision  in 
the  notice  could  not  be  taken  to  infer  ex- 
ceptionally larger  earnings  at  the  exact  date 
of  the  advertisement,  or  at  the  time  it  might 
appear  in  the  newspaper,  but  inferred  that 
the  road  was  then  on  a  paying  foundation  ; 


that  it  was  regularly  and  habitually  earning 
more  than  the  interest  on  all  its  bonds. 
Blake  V.   Watson,  45  Conn.  323. 

A  company  entered  into  a  contract  for 
finishing  its  road  in  a  specified  time,  and 
in  accordance  with  its  terms  delivered  its 
coupon  bonds  from  time  to  time  to  the  con- 
tractor as  the  road  progressed ;  the  road 
was  finished,  but  not  within  the  time  speci- 
fied— held,  that,  against  holders  of  the  bonds 
who  had  received  them  bona  fide  from  the 
contractor,  the  company  was  estopped  from 
setting  up  a  claim  for  damages  for  the  delay 
in  finishing.  McElrath  v.  Pittsburgh  <S<«  S. 
R.  Co.,  55  Pa.  St.  189. 

48.  What  will  put  a  purchaser 
upon  inquiry.  —  As  the  usual  duties  of 
trustees  in  railroad  mortgages  are  to  act 
for  the  bondholders  in  enforcing  payment, 
and  to  bring  suit  against  the  corporation  if 
the  bonds,  with  interest,  are  not  paid  at 
maturity,  the  fact  that  a  trustee  places  the 
bonds  on  the  market  and  sells  them  for  a 
very  small  part  of  their  face  value  is  suffi- 
cient to  put  a  purchaser  upon  inquiry  as  to 
the  regularity  of  the  issuance  and  sale  of  the 
bonds.  Rig^s  v.  Pennsylvania  &*  N.  E.  R. 
Co.,  16  Fed.  Rep.  804. 

The  fact  that  interest  coupons  are  past 
due  and  unpaid  at  tlie  time  bonds  are  sold 
does  not  affect  the  bona  fides  of  a  holder 
of  the  bonds  who  purchased  them  in  good 
faith  for  their  market  value.  McLane  v. 
Placerville  &*  S.  V.  R.  Co.,  26  Am.  &*  Eng. 
R.  Cas.  404,  66  Cal.  606,  6  Pac.  Rep.  748. 

Where  a  series  of  railway  mortgage  bonds 
secured  by  a  trust  deed  covering  the  road, 
property,  and  franchises  of  a  railway  com- 
pany is  issued,  and  reference  is  made  to 
such  trust  deed  on  the  face  of  the  bonds, 
holders  of  such  bonds  and  the  coupons  at- 
tached to  the  same  are  put  upon  inquiry  by 
the  recital  in  the  bonds,  and  charged  with 
notice  of  the  terms  of  such  trust  deed,  and 
are  bound  by  the  conditions  therein.  Guil- 
ford v.  Minneapolis,  S.  St.  M.  &*  A.  R.  Co., 
51  Am.  fix  Eng.  R.  Cas.  98,  48  Minn.  560,  51 
N.  IV.  Rep.  658. 

But  if  the  bonds  and  mortgage  which  put 
the  purchaser  upon  inquiry  lull  and  satisfy 
inquiry,  he  is  not  required  to  make  further 
inquiry.  Stanton  v.  Alabama  fr»  C.  R,  Co., 
2  Woods  (U.  S.)  523. 

While  a  statute  is  in  force  authorizing  the 
company  issuing  railway  bonds  to  consoli- 
date with  another  company,  a  purchaser  of 
the  bonds  must  be  deemed  as  having  con- 


f«, 


BONDS,  49. 


676 


ly  earning 
its  bonds. 

ntract  for 

time,  and 

ivered  its 

o  the  con- 

the  road 

ime  speci- 

the  bonds 

i  from  the 

pped  from 

r  the  delay 

trgh  <S-  5. 

irchaser 

duties  of 
ire  to  act 

payment, 
^oration  if 
>t  paid  at 
places  the 
them  for  a 
le  is  sufii- 
juiry  as  to 
sale  of  the 
-  N.  E.  R. 

s  are  past 
ds  are  sold 
r  a  holder 
m  in  good 
McLane  v. 
n.  &*  Eng, 
ep.  748. 
rage  bonds 

the  road, 
Iway  com* 

made  to 
:he  bonds, 
Dupons  at- 
inquiry  by 
irged  with 
deed,  and 
;in.  Guil- 
A.  R.  Co., 
nn.  560,  51 

which  put 

ind  satisfy 

Ice  further 

C.  R.  Co., 

trizing  the 
o  consoli- 
rchaser  of 
iving  con- 


templated at  the  time  of  the  purchase  a 
probable  consolidation.  Tysen  v.  Wabash 
R.  Co.,  13  Am.  <S*  Eng.  R.  Cas.  134,  11  Biss. 
{(/.  S.)  510,  15  Fed.  Rep.  763. 

A  railroad  company  prepared  bonds,  each 
for  a  stated  amount,  to  be  made  payable 
in  London,  New  York,  or  New  Orleans, 
as  the  president  of  the  company  by  his 
indorsement  might  fix.  Blanks  were  left 
for  such  indorsement,  which  were  never 
filled.  The  bonds  were  seized  by  soldiers 
during  the  war  and  ^jold  for  a  small  con- 
sideration. Held,  that,  no  place  of  payment 
being  fixed,  the  bonds  were  not  negotiable, 
and  that  a  purchaser  was  put  upon  notice, 
and  did  not  sustain  the  position  of  a  bona-fide 
holder.    Parsons  v.  Jackiun,  99  U.  S.  434. 

A  railroad  company  issued  bonds  with 
coupons  attached,  payable  to  certain  per- 
sons named  or  bearer  at  the  office  of  the 
company  in  a  certain  city,  with  interest  pay- 
able semi-annually,  with  a  further  provision 
that  the  company  should  make  "  scrip  pre- 
ferred stock  "  attached  to  the  bonds  full-paid 
stock  at  any  time  within  ten  days  after  any 
dividend  should  have  been  declared  and  be- 
come payable  in  such  preferred  stock,  upon 
surrender  in  the  city  of  New  York  of  the 
bonds  and  unmatured  interest-warrants.  To 
each  of  the  bonds  there  was  originally  at- 
tached, by  a  pin,  the  certificate  of  scrip  pre- 
ferred stock  thus  referred  to,  which  stated 
that  the  complainant  was  entitled  to  ten 
shares  of  the  capital  stock  of  the  company 
designated  as  " scrip  -referred  stock; "  and 
that  upon  the  surrenaer  of  the  certificate 
and  the  accompanying  bond  and  all  un- 
matured coupons  thereon,  as  provided  in  the 
agreement,  he  should  be  entitled  to  receive 
ten  shares  of  full-paid  preferred  stock.  Three 
of  these  bonds  with  certificates  attached 
were  stolen  from  the  plaintiff,  and  were 
taken  by  the  defendants  as  collateral  secur- 
ity for  notes  discounted  by  them,  without 
actual  notice  of  any  defect  in  the  title  of  the 
holder;  but  the  certificates  were,  at  the 
time,  detached  from  the  bonds.  Held:  (i)that 
the  bonds  were  negotiable  instruments,  not- 
withstanding the  agreement  respecting  the 
scrip  preferred  stock  contained  in  them,  that 
agreement  being  independent  of  the  pecun- 
iary obligation  of  the  company ;  (2)  that 
the  absence  of  the  certificates  originally  at- 
tached to  the  bonds  when  the  latter  were 
taken  by  the  defendants  was  not  of  itself  a 
circumstance  sufficient  to  put  the  defendants 
upoii  inquiry  as  to  the  title  of  the  holder. 


Hotchkiss  V.  National  Banks,  2 1  Wall.  ( U.  S.) 
354 ;  affirming  10  Blatchf.  384. 

40.  Notice  of  infirmities  or  de- 
fenses.— Where  a  railroad  company  con- 
tracts with  the  purchaser  of  part  of  its  issue 
of  mortgage  bonds  that  the  issue  shall  be 
restricted  to  a  certain  sum  for  each  mile  of 
completed  road,  a  person  who  thereafter 
receives  bonds  exceeding  the  contract  limit, 
and,who  has  notice  of  the  restriction,  cannot 
be  deemed  a  bonafide  holder  for  value  en- 
titled to  a  first  lien  under  the  mortgage  for 
the  bonds  so  issued  to  them.  But  not  so  of 
persons  who  took  them  without  notice. 
McMurray  v.  Moran,  43  Am.  &*  Eng.  R. 
Cas.  442,  134  i/.  S.  150,  10  Sup.  Ct.  Rep.  427. 

Notice  of  the  restriction  in  the  contract 
cannot  be  imputed  from  the  fact  that  the 
contract  has  been  put  upon  record,  when  by 
law  such  instruments  are  not  required  to  be 
recorded,  and  it  is  not  provided  that  regis- 
tration shall  be  notice  to  all  the  world  of  the 
contents  of  the  instrument  recorded.  Mc- 
Murray v.  Moran,  43  Am.  &•  Eng.  R.  Cas, 
442,  134  U.  S.  150,  10  Sup.  Ct.  Rep.  427. 

The  possession  of  a  negotiable  bond  is 
strong  prima-facie  evidence  of  just  title, 
and,  in  ordinary  cases,  throws  upon  the 
party  questioning  it  the  burden  to  show  that 
it  is  not  bona-fide,  and  that  the  holder  had 
notice  of  some  vice  or  defect  which  vitiates 
his  title.  Western  Division  N.  C.  R.  Co.  v. 
Drew,  3  Woods  ( U.  S.)  691. 

Notice  of  defenses  to  railroad  bonds,  given 
to  one  of  the  trustees  in  the  deed  of  trust 
given  to  secure  them,  is  not  such  notice  to 
the  bondholders  as  will  destroy  a  bona-fide 
holding  of  the  bonds  under  the  deed  of 
trust.  Johnson  County  Com'rs  v.  Thayer,  94 
6/.  5.  631. 

There  must  be  circumstances  showing 
that  the  purchaser  of  railroad  bonds  knew 
that  there  was  a  corrupt  or  fraudulent  mo- 
tive on  the  part  of  the  vendor  or  person 
transferring  the  bonds,  in  order  to  make 
him  a  holder  in  bad  faith.  The  mere  fact 
that  a  merchant  received  railroad  bonds 
from  its  treasurer  in  payment  of  goods  will 
not  prevent  him  from  claiming  to  be  a  bona- 
fide  holder,  where  the  goods  are  of  such  a 
character  as  to  be  valuable  to  the  company 
in  the  construction  or  operation  of  its  road. 
Kennicott  v.  Supervisors  Wayne  County,  6 
Biss.  (U.S.)  138. 

Where  railway  bonds  are  delivered  to  a 
contractor  under  an  agreement  by  him  to 
build  so  many  miles  of  road,  a  purchaser 


;i 


-i  r: 


11 


m 


I 


676 


liONDS,  60-52. 


?■'  I 


■'.  I. 


rfi 


from  him  may  recover  their  full  value  from 
the  company,  though  such  pur'^haser  has 
knowledge  that  the  contractor  had  built 
only  a  portion  of  the  road  which  he  was  to 
build.  Mercantile  Trust  Co.  v.  Zanesfville, 
Mt.  V.  &•  M.  Ji.  Co.,  52  Fed.  Rep.  342. 

A  railroad  was  sold  to  another  company 
without  legal  authority,  and  the  purchasing 
company  issued  bonds,  securing  them  by  a 
mortgage  on  the  road  purchased  as  well  as 
on  its  other  property.  Held,  that  the  pur- 
chasers of  such  bonds  were  charged  with 
notice  of  the  lack  of  authority  of  the  selling 
company  to  dispose  of  its  road,  and  that 
where  the  conveyance  is  set  aside  the  mort- 
gage itself  may  be  declared  cancelled  as 
being  a  cloud  upon  the  title.  Mayor,  etc., 
of  Knoxville  v.  Knoxville  &•  O.  R.  Co.,  22 
Fed.  Rep.  758.— QUOTED  IN  Venner  v.  At- 
chison, T.&  S.  F.  R.  Co.,  28  Fed.  Rep.  581. 

50.  Taking  subject  to  equities.— 
— Where  railroad  bonds,  with  other  prop- 
erty, are  assigned  after  an  execution  has 
been  levied  on  them,  the  assignee  will  take 
the  bonds  subject  to  the  execution.  Hether- 
ington  V.  Hayden,  11  Iowa  335. 

V.  ACTIONS  ON  BONDS. 

51.  Jurisdiction.— Certain  bondhold- 
ers, whose  bonds  with  others  were  secured 
by  a  common  mortgage  given  by  a  corpora- 
tion, filed  a  bill  to  recover  certain  moneys 
alleged  to  be  due  on  a  contract  made  by  the 
city  of  Memphis  with  the  mortgagor,  which 
contract  was  assigned  in  the  mortgage  as 
part  of  the  security  for  the  bonds.  Held, 
that,  as  the  demand  against  the  city  was 
cognizable  at  law  in  the  name  of  the  mort- 
gagor, and  as  no  special  circumstances  were 
shown  for  a  resort  to  equity,  the  bill  should 

jC  dismissed.    Ne^v  York,  G.  &•  I.  Co.  v. 

'•:/his  Water   Co.,  107(7.  S.  205.— Dis- 

'•':    ..'.'ISHED  IN  Rutten  v.  Union  Pac.  R. 

'.f> .   >  2  Am.  &  Eng.  R.  Cas.  374,  17  Fed. 

-         o. 

a  The  right  to  sue  generally.*- 
Where  a  railroad  company  issues  negotiable 
bonds  payable  to  bearer,  and  they  are  in- 
dorsed or  guaranteed  by  another  company 
before  the  bonds  are  put  in  circulation,  no 
disability  of  the  bearer  to  sue  the  assignee 
arises  under  the  judiciary  act  of  September 
24,  1789,  §  II.  Codman  v.  Vermont  «S-  C.  R. 
Co.,  17  Blatchf.  (U.  S.)  i. 
It  is  immaterial  whether  a  railroad  mort- 

*See  «»«//■,  36-37. 


gage  secures  interest  on  its  bonds  by  a  lien 
upon  the  lands  of  the  conipiiny  or  by  a  lien 
upon  its  earnings,  or  by  a  lien  upon  both,  or 
whether  it  is  not  secured  at  all  by  the  com- 
pany. If  there  is  an  agreement  to  pay  in- 
terest and  it  is  not  paid,  there  is  a  breach 
of  the  bond  for  which  the  holder  can  main- 
tain an  action.  Marlor  v.  Texas  &-  /'.  A'. 
Co.,  17  Am.&'Eng.R.  Cas.  215,  19  Fed.  Rep. 
867. 

Where  a  railroad  company  issues  bonds 
with  a  provision  in  the  mortgage  securing 
them,  that  if  the  net  earnings  of  the  road 
are  not  sufficient  to  pay  interest  on  the 
bonds  the  company  may  in  its  option  issue 
scrip  in  lieu  thereof,  the  bondholder's 
right  of  action  is  prima  facie  perfect  upon 
proof  of  nonpayment  of  the  interest  on 
the  presentment  of  his  bond  at  the  place 
where  the  interest  is  made  payable.  It 
then  devolves  upon  the  company  to  show 
the  existence  of  the  f?ct  whicli  authorized 
it  to  issue  the  scrip,  and  then  the  exercise 
of  the  option.  Marlor  v.  Texas  &•  P.  R. 
Co.,  17  Am.  &*  Eng.  R.  Cas.  215,  19  Fed. 
Rep.  867. 

Where  the  bondholders  of  a  railroad 
hold  stock  of  the  company  as  collateral 
security  for  the  payment  of  the  bonds,  and 
the  road  is  afterward  leased,  such  bondhold- 
ers cannot  maintain  a  bill  in  equity  against 
the  lessors  to  charge  them  with  the  earnings 
of  the  road,  where  there  is  no  charge  that 
the  lease  is  v(;id  or  voidable  as  between  the 
lessor  and  lessee.  Gibson  v.  Richmond  &• 
D.  R.  Co.,  37  Fed.  Rep.  743,  2  L.  R.  A.  467. 

Where  a  railway  company  issues  its  bonds 
payable  to  bearer,  with  interest-coupons  at- 
tached, and  secures  them  by  a  mortgage  or 
deed  of  trust,  making  them  a  first  lien  on 
the  road,  a  holder  may  enforce  his  own  lien 
for  bonds  or  coupons  held  by  him  or  on  be- 
half of  persvons  to  whom  he  has  transferred 
coupons.  Wright  v.  Ohio  &*  M.  R.  Co.,  i 
Disney  {Ohio)  465. 

The  holder  of  railway  bonds  which  con- 
stitute a  privileged  claim  on  the  movable 
property  of  the  company  may,  for  the  pro- 
tection of  his  rights,  proceed  against  such 
property  by  an  attachment  in  revendication 
in  the  nature  of  a  saisie  conservatoire.  Wyatt 
V.  Senecal,  4  Queb.  L.  R.  76. 

A  railroad  company  issued  its  bonds  pa)  - 
able  to  bearer,  with  semi-annual  interest- 
coupons,  secured  by  a  mortgage  upon  the 
income  from  the  operation  of  its  road  and 
from  the  sale  of  its  lands,  and  subsequently 


liil 


BONDS,  53-50. 


GT7 


the  road  was  consolidated  with  another. 
Held,  that  holders  of  the  bonds  had  a  spe- 
cific lien  upon  the  property,  and  might  file 
a  bill  against  the  consolidated  company  to 
enforce  payment.  Rutten  v.  Union  Pac.  R. 
Co.,  12  Am.  &^  Eng.  R.  Cas.  374,  17  Fed. 
Rep.  480.— Di'TiNGUisHiNG  Walscr  z*.  Selig- 
man,  13  Fed.  Rep.  415;  Jones  v.  Green,  i 
Wall.  (,U.  S.)  330;  Wliipple  z/.  Union  Pac. 
R.  Co.,  28  Kan.  474;  Hayward  v.  Andrews, 

106  U.  S.  672,  I  Sup.  Ct.  Rep.  544;  New 
York  G.  &  1.  Co.  v.  Memphis  Water  Co., 

107  U.  S.  205,  2  Sup.  Ct.  Rep.  279. 

A  railroad  company  issued  its  bonds  pay- 
able in  blank  and  secured  them  by  a  mort- 
gage. Subsequently  the  legislature  passed 
a  law  ratifying  and  confirming  the  bonds. 
Ne/d,  that  any  holder  might  sue  thereon  in 
his  own  name.  Chapin  v.  Vermont  &*  M. 
R.  Co.,  8  Gray  (Mass.)  575. 

The  defendant  company  gave  a  bond,  to 
the  plaintiff,  reciting  that  the  'atter  had 
agreed  to  lend  it  ;^2 5,000,  to  assist  in  con- 
structing its  railway,  and  conditioned  that 
the  company  should  not  expend  the  loan  or 
begin  to  construct  its  road  until  the  whole 
sum  necessary  to  complete  it  from  Wood- 
stock to  Port  Dover  should  be  obtained. 
/Md,  that  there  was  nothing  in  the  19  Vic. 
ch.  74  to  relieve  defendant  from  liability  for 
a  previous  breach  of  this  condition.  Town 
Council  of  Woodstock  v.  Woodstock  6f  L.E, 
R.  Co.,  \6  U.C.  Q.  B.  146. 

53.  Right  of  one  holder  to  sue  for 
benefit  of  all. — One  holder  of  part  of  the 
bonds  of  a  railroad  company  may  file  a  bill 
in  his  own  name,  but  for  the  use  and  benefit 
of  himself  and  all  other  bondholders,  to 
compel  payment  of  the  bonds.     Mason  v. 

York  <S-  C.  R.  Co.,  52  Me.  82. 

One  of  several  joint  owners  of  railway 
bonds  cannot  maintain  a  bill  in  his  own 
name,  without  making  the  other  joint  own- 
ers parties,  for  the  purpose  of  having  the 
bonds  declared  a  lien  upon  the  company's 
property.  Messchaert  v.  Kennedy,  4  Mc- 
Crary  {U.  S.)  133. 

54.  Completing  the  right  of  action 
—Demand,  etc. — Failure  to  present  a  ma- 
tured bond  for  payment  excuses  the  maker 
from  payment  of  any  interest  thereon  after 
date  of  maturity.  McDonald  v.  Great  West- 
ern R.  Co.,  21  U.  C.  Q.  B.  223. 

The  maker  of  negotiable  paper,  such  as 
the  coupon-bonds  of  a  railroad,  is  liable 
without  presentment  at  the  place  designated 
for  payment,  but  if  the  maker  was  at  the 


place,  and  ready  there  to  pay,  the  fact  may 
be  pleaded,  and  goes  to  reduction  of  dam- 
ages. Baltzer  v.  Kansas  Pac.  R.  Co.,  3  Mo. 
App.  574. 

Although  bonds  of  a  corporation  are  ex- 
pressed to  be  payable  at  their  office,  in  a 
particular  way,  yci  if  at  the  maturity  of  the 
bonds  there  is  no  office  of  the  company  at 
the  placL,  a  demand  for  payment  elsewhere 
is  sufficient.  Alexander  v.  Atlantic,  T.  &^ 
O.  R.  Co.,  67  N.  Car.  198,  2  Am  Ry.  Rep. 
181. 

55.  Parties.— Where  the  holder  of  rail- 
way bonds  secured  by  a  mortgage  or  trust 
deed  sues  to  compel  the  company  to  comply 
with  its  agreement  as  to  the  mortgage,  the 
mortgage-trustee  is  not  a  necessary  party. 
Spies  V.  Chicago &■•  E.  I.  R.  Co.,  10  Fed.  Rep. 
397.— Distinguishing  Morgan  v.  Kansas 
Pac.  R.  Co..  21  Blatchf.  (U.  S.)  134,  15  Fed. 
Rep.  55  ;  Barry  v.  Missouri,  K.  &  T.  R.  Co., 
22  Fed.  Rep.  631. 

56.  Declaration  or  complaint. — A 
railway  bond  payable  to  bearer  is  properly  de- 
scribed in  an  action  of  assumpsit  thereon  as 
'*a  bond;"  and  it  will  be  deemed  a  note  or 
bill  the  same  as  bills  of  exchange  or  promis- 
sory notes,  as  an  instrument  importing  a 
consideration,  and  therefore  it  is  not  neces- 
sary to  aver  a  consideration.  Ide  v.  Passump- 
sic  &•  C.  R.  R.  Co.,  32  Vt.  297. 

Where  railway  bonds  are  issued  contain- 
ing a  provision  that  no  more  interest  shall 
be  payable  than  shall  be  earned  by  the  road 
above  cost  of  expenses  and  repairs,  as  shall 
be  certified  by  the  board  of  directors,  and 
that  no  interest  shall  be  payable  in  default 
of  such  certificate,  a  complaint  in  an  action 
to  recover  such  interest  is  fatally  defective 
which  does  not  show  that  there  is  money  in 
the  hands  of  the  company  above  expenses 
and  repairs,  which  is  applicable  to  the  pay- 
ment of  interest,  and  which  has  been  re- 
tained by  the  company.  Thomas  v.  New 
York  &•  G.  L.  R.  Co.,  54  N.  Y.  S.  R.  498  ; 
affirming  47  N.  Y.  S.  R.  250. 

Railroad  bonds  were  issued  containing  a 
provision  that  no  interest  should  be  paid 
on  them  until  the  directors  had  certified 
earnings  of  the  company  above  cost  of  ex- 
penses and  repairs.  A  complaint  in  an 
action  to  recover  such  interest  charged  that 
the  board  of  directors  had  wrongfully  neg- 
lected and  refused  to  certify  that  such  in- 
terest or  any  interest  whatever  had  at  any 
time  been  earned.  Held,  that  the  allegation 
was  sufficient   on    demurrer.      Thomas  v. 


If 


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1      !• 


vf; 


Hi. 


III 


I;: 


CT8 


BONDS,  57. 


» 


m-: 


York  (S-  G.  L.  R.  Co.,  54  N.   Y.  S.  R.  498 ; 
affirmin);  47  A'.  Y.  S.  R.  250. 

A  railroad  mortgage  provided  that  no 
more  interest  should  be  payable  on  bonds 
secured  by  the  mortgage  than  should  be 
certified  by  a  vote  o(  the  board  of  directors 
as  having  been  earned  by  the  company,  and 
that  no  interest  should  be  payable  in  de- 
fault of  such  certificate.  A  holder  of  such 
bonds  brought  an  action  to  compel  the  com- 
pany to  account  for  its  net  income,  and  to 
have  any  surplus  applied  to  tlie  payment  of 
the  bonds.  Held,  that  the  complaint  must 
charge  that  the  certificate  of  the  directors 
was  either  given,  or  unreasonably  refused 
after  being  requested.  Thomas  v.  New  York 
&*  G.  L.  R.  Co.,  47  A'.  Y.  S.  R.  250,  22  Civ. 
Pro.  326,  19  A^.  Y.  Supp.  766. 

Allegations  in  such  case  to  the  effect  that 
the  company  did  various  things  "  wrong- 
fully "  regarding  the  expenditures  of  its 
earnings,  are  mere  allegations  of  conclu- 
sions of  law,  and  are  not  sufficient  in  the 
absence  of  any  charge  of  bad  faith.  Facts 
should  be  stated  from  which  the  court  may 
determine  whether  the  expenditures  were 
wrongful  or  unnecessary,  and  therefore  pre- 
vented a  surplus  which  should  have  been 
applied  to  the  payment  of  the  bonds. 
Thomas  v.  New  York  &•  G.  L.  R.  Co.,  47 
N.  Y.  S.  R.  250,  22  Ctv.  Pro.  326,  19  A^.  Y. 
Supp.  766. 

A  coupon  attached  to  a  railway  bond  was 
as  follows:  "Interest-warrant  for  $30,  being 
half-yearly  interest  on  bond  No.  50  of  N.  L. 
W.  &  P.  Railway  Company,  payable  on 
February  i,  1856.  J.  D  ,  treasurer."  Held, 
that  such  warrant  was  but  a  mere  acknowl- 
edgment of  indebtedness  for  interest 
which  should  fall  due  under  promise  to  pay 
as  contained  in  the  bond,  and  therefore 
could  not  be  the  basis  of  an  action;  that  the 
promise  to  pay,  being  contained  in  the  bond, 
should  have  been  specially  declared  upon  ; 
and  that  a  failure  to  do  so  constituted  a  fatal 
variance.  Crosby  v.  New  London,  IV.  &*  P. 
R.  Co.,  26  Conn.  121. 

57.  Matters  of  defense.— The  de- 
fense of  ultra  vires  will  not  avail  against 
bona-fide  holders  for  value  of  negotiable 
bonds  issued  by  the  directors  of  a  corpora- 
tion, where  the  stockholders  allowed  the 
bonds  to  be  sold  and  availed  themselves  of 
the  benefits  therefrom.  Tyrell  v.  Cairo  &* 
St.  L.  R.  Co.,  7  Mo.  App.  294. 

The  managers  of  a  railroad  issued  nego- 
tiable bonds  which  were  guaranteed  by  an- 


other co';ipany.  Held,  in  a  suit  against  the 
guarantors  to  recover  on  interest-coupon><, 
that  the  right  to  recover  was  not  affected 
by  the  fact  that  the  notary  protesting  the 
bonds  did  not  have  them  to  present  when 
the  interest  coupons  were  presented  and 
payment  demanded.  Codman  v.  Vermont 
&*  C.  R.  Co.,  17  Blatchf.  {U.ii.)i. 

In  an  action  by  the  holder  of  certain 
bonds  issued  by  a  railroad  company  against 
the  trustee  named  in  a  mortgage  of  the 
road  and  franchises  securing  the  bonds,  and 
against  another  company  holding  title  to 
the  mortgaged  properly,  among  otiier 
things,  to  have  the  property  charged  with 
the  lien  of  the  mortgage,  and  to  recover 
the  amount  of  the  bonds;  which  action  was 
based  upon  allegations  of  breach  of  trust 
on  the  part  of  the  trustee  in  transferring 
title  to  the  mortgaged  property,  which  he 
had  acquired  by  purchase  under  a  fore- 
closure sale,  it  appeared  that  plaintiff  had 
acquiesced  in  and  ratified  the  acts  of  the 
trustee  complained  of — held,  that  plaintiff 
was  not  entitled  to  have  judgment  for  a 
proportionate  share  of  the  money  received 
by  the  trustee  upon  such  transfer;  and  that, 
having  failed  to  sustain  the  cause  of  action 
stated  in  the  complaint,  it  was  properly  dis- 
missed. Butter  field  v.  Cowing,  112  N.  Y. 
486.  20  A^.  E.  Rep.  369.  21  A^.  Y.  S.  R.  500. 

Plaintiff  sued  to  recover  the  amount  of 
railway  bonds,  and  the  company  asked 
judgment  that  plaintiff  be  required  to  exe- 
cute a  satisfaction  or  release  of  the  mort- 
gage given  to  secure  the  bonds.  Held,  that, 
in  order  to  entitle  the  company  to  such  sat 
isfaction  piece,  it  should  pay  or  tender  the 
amount  due  on  the  bonds.  Roosevelt  v.  New 
York  6-  H.  R.  Co.,  30  How.  Pr.  (N.  Y.) 
226,  45  Barb.  554. 

A  corporation  issued  bonds  with  interest- 
coupons  payable  semi-annually,  and  agreed 
that  upon  three  successive  defaults  in  pay- 
ment of  interest  the  principal  should  be- 
come due.  The  bonds  were  secured  by  a 
mortgage  in  which  it  was  provided  that  the 
trustees  in  it  should  sell  the  mortgaged 
property  at  the  request  of  the  holders  of 
bonds  of  the  value  of  $100,000.  Held,  that 
this  provision  in  the  mortgage  was  no  de- 
fense to  a  suit  on  the  bonds  after  a  breach  of 
their  condition.  Philadelphia  &>  B.  C.  R. 
Co.  V.  /ohnson^  54  Pa.  St.  127.— DISTIN- 
GUISHING Ashhurst  v.  Montour  Iron  Co., 
35  Pa.  St.  30 ;  Bradley  v,  Chester  Valley  R. 
Co..  36  Pa.  St.  154. 


•^T"™i«i'  >> 


nONDS,  58-01. 


079 


•i 
1 


58.  Replication.— A  plea  of  tender  is 
an  admission  of  liie  justice  of  plaintiiT's 
claim  to  the  extent  of  the  sum  tendered,  but 
to  render  it  valid  the  money  should  be 
brought  into  court ;  but  where  plaintiff  sued 
on  railway  bonds  and  the  company  set  up 
a  tender,  a  replication  thereto  tendering  an 
issue  is  a  waiver  of  the  irregularity  in  not 
bringing  the  money  into  court,  and  the 
court  will  order  payment  of  the  amount 
tendered.  Roosevelt  v.  New  York  &*  H.  R. 
Co.,  30  How  Pr.  {N.  Y.)  226, 45  Barb.  554. 

In  an  action  on  a  Lloyd's  bond  issued  by 
a  railway  company,  it  pleaded  an  agreement 
with  the  plaintiff  that  he  should  pay  the 
bond  at  maturity  and  indemnify  the  com- 
pany therefrom  and  from  all  losses  and  dam- 
ages which  it  might  become  liable  to  or  be 
called  upon  or  compelled  to  pay  on  account 
of  the  nonpayment  on  such  bond.  The 
plaintiff  replied  that  he  assigned  the  bond 
for  value  to  third  parties  without  notice,  and 
that  he  was  suing  as  trustee  on  their  behalf. 
Held,  that  the  replication  was  a  good  an- 
swer to  the  equitable  plea.  Dickson  v. 
Swansea  Vale  &•  N.  &•  B.J.  R.  Co.,  17IV.R. 
51,  19  L.  T.  346,  L.  R.  4  Q.  B.  44,  38  L.  /. 
Q.  B.  17. 

69.  Amount  of  recovery— Scaling 
laws. — Holders  of  bonds  issued  during  the 
war  of  the  rebellion,  and  sold  for  Confed- 
erate currency,  are  only  entitled  to  recover 
thereon,  as  against  subsequent  purchasers 
of  the  road,  the  value  of  the  currency  at  the 
time  of  the  purchase  with  interest  thereon. 
Spence  v.  Mobile  &*  M.  R.  Co. ,  79  Ala.  576. 

In  1862  a  North  Carolina  railroad  issued 
bonds,  falling  due  at  different  times  from 
1869  to  1875.  In  1865  the  state  adopted  an 
ordinance  relating  to  contracts  during  the 
civil  war,  and  in  1866  a  law  was  passed,  as 
required  by  the  ordinance,  fixing  the  value 
of  Confederate  currency  in  gold  on  the  first 
day  of  each  month  from  November,  i86i,to 
April,  1865.  Under  the  law  a  contract  pay- 
able in  "  dollars  "  was  presumed  to  be  pay- 
able in  Confederate  currency,  but  this  pre- 
sumption might  be  rebutted.  If  found 
payable  in  currency  the  amount  was  to  be 
"  scaled  "  to  the  gold  value  at  the  time  made. 
Held,  that  the  circumstances  attending  the 
execution  of  the  railroad  bonds  especially 
the  long  time  they  were  to  run,  overcame 
the  presumption  that  they  were  payable  in 
Confederate  currency,  and  that  the  company 
therefore  was  not  entitled  to  the  benefit  of  the 
scaling  act,  as  to  the  principal  and  interest. 


though  it  was  payable  semi-annually.  At- 
lantic, T.  &*  O.  R.  Co.  V.  Carolina  i\'at.  Bank, 
19  Wall.  (i/.  S.)  548. 

00.  Action  for  ret^isal  to  complete 
purchase. — A  party  agreed  to  take  five 
bonds  of  a  railroad  company  of  $1000  each, 
for  which  he  was  to  pay  $650  for  each  bond 
on  demand  of  the  secretary,  he  also  to  re- 
ceive five  shares  of  stock  for  each  bond  so 
taken,  which  bonds  were  secured  by  a  first 
mortgage  bearing  seven  per  cent  interest, 
payable  semi-annually,  which  mortgage  pro- 
vided that  if  any  of  the  interest  was  not 
paid  within  ninety  days  after  due,  the  entire 
principal  and  interest  should  become  due. 
He  received  and  paid  for  two  of  the  bonds, 
upon  which  the  company  made  default  in 
the  payment  of  interest  for  more  than  ninety 
days  before  it  brought  suit  to  recover  dam- 
ages of  him  for  refusing  to  receive  and  pay 
for  the  other  three  bonds.  Held,  that  the 
payment  of  interest  on  the  bonds  was  a  part 
of  the  consideration,  and  that  the  failure  to 
pay  the  interest  for  ninety  days  made  the 
bonds  become  due  and  payable,  and  that  the 
party,  when  sued  for  not  completing  his 
contract,  might  recoup  the  amount  due  on 
his  two  bonds  against  the  damages  growing 
out  of  his  refusal  to  accept  and  pay  for  the 
other  three  bonds.  Galena  &^  S.  W.  R. 
Co.  V.  Barrett,  2  Am.  &»  Eng.  R.  Cas.  520, 
95  ///.  467. — Following  Christy  w.  Ogle,  33 
III.  295;  Streeterz/.  Stroeter,  43  111.  155. 

61.  Action  for  rescission  on 
ground  of  lYaud.— To  entitle  a  party 
to  rescind  a  contract  because  he  was  induced 
to  enter  into  it  by  means  of  false  and  fraud- 
ulent representations,  he  must  first  return, 
so  far  as  he  may  not  be  prevented  from 
doing  so  by  the  act  of  the  defendant,  what- 
ever he  has  received  through  the  perform- 
ance of  the  contract.  So,  where  the  pur- 
chaser of  railroad  bonds  exchanged  them 
for  bonds  in  a  reorganized  company,  he  was 
held  not  entitled  to  a  rescission  for  fraudu- 
lent representations  inducing  the  purchase 
of  the  original  bonds.  Cohen  v.  Ellis,  52 
Hun  {N.  Y.)  133,  5  N.  Y.  Supp.  133. 

After  a  railroad  mortgage  securing  bonds 
had  been  foreclosed,  a  holder  of  bonds  was 
induced  to  exchange  them  for  bonds  issued 
by  a  reorganized  company,  at  the  rate  of 
fifty  cents  on  the  dollar  of  the  bonds  ex- 
changed. At  the  time  suit  was  brought  the 
new  bonds  had  a  greater  market  value  than 
the  old  ones  would  have  had  if  they  had 
been  retained.    Held,  that  the  holder  was 


i 

i 

ill 


G80 


HONDS,  «iJ,«;i.— BOYCOTTING,  1. 


If 


i 


!H 


not  in  a  position  t<>  insist  upon  n  rescission 
of  the  contract  by  whicii  he  purchased  tiie 
original  bonds;  and  that  he  could  not  re- 
cover the  purchase-money  paid  therefor 
upon  tendering  back  the  new  bonds,  though 
there  was  such  fraud  in  the  representations 
of  the  seller  inducing  the  purchase  as  would 
have  entitled  him  to  a  rescission  if  he  had 
retained  the  original  bonds.  Co/mu  v.  £//ts, 
52  Nun  (iV.  V.)  133,  5  N.  v.  Supp.  133. 

62.  Suit  to  enforce  surrender 'or 
cancellation. — Where  bonds  of  a  corpo- 
ration, pledged  as  security  for  its  debt,  were 
void  under  §  1753,  Rev.  St.,  because  issued 
without  its  receiving  seventy-live  per  cent 
of  their  par  value,  no  action  for  the  surren- 
der or  cancellation  thereof  could  be  main- 
— tained  by  the  corporation,  or  by  a  stock- 
holder in  its  right,  without  a  tender  of  the 
ahiount  due  to  the  pledgee.  The  plaintiffs 
in  this  case  the  corporation  and  a  stock- 
holder who,  as  president,  had  participated  in 
the  unlawful  issue  of  the  bonds— were  in 
equal  wrong  with  the  party  to  whom  they 
were  issued,  and  were  not  entitled  to  relief. 
Hinckley  v.  Pfister,  83  Wis.  64,  53  A^.  W. 
Rep.  21. 

63.  Suits  on  lost  bonds.— The  owner 
of  registered  railroad  bonds  was  lost  on 
board  of  a  vessel,  and  the  bonds  were  lost 
at  the  same  time,  and  his  administrator  sued 
the  company  to  compel  it  to  issue  dupli- 
cate bonds  and  to  recover  past-due  interest. 
Held,  that  the  company  would  be  required 
to  do  both  upon  receiving  an  indemnity 
bond.  Rogers  v.  Chicago  S*  N.  W,  R.  Co., 
6  Abb.  N.  Cas.  {N.  Y.)  253. 

Certain  persons  holding  ten  first-mort- 
gage bonds  and  thirty-seven  non-mortgage 
bonds  of  a  railroad  corporation,  all  of 
which  were  alleged  to  have  been  destroyed, 
although  there  was  difficulty  in  establishing 
the  loss,  made,  through  their  attorney,  with 
the  corporation,  an  agreement  by  which,  in 
settlement  of  their  claims,  they  received 
interest-fund  bonds  to  the  amount  of  |86oo 
for  their  first-mortgage  bonds,  and  state- 
guaranteed  bonds  to  the  amount  of  $16,000 
and  interest-fund  bonds  for  I6725  for  their 
non-mortgage  bonds ;  and  upon  such  bonds 
they  collected  interest  for  four  years.  The 
corporation  afterward  became  insolvent,  and 
upon  sale  realized  enough  to  pay  its  first- 
mo:  tgage  and  state-guaranteed  bonds  in 
full,  but  the  non-mortgage  and  interest-fund 
bonds  proved  to  be  worthless.  The  bond- 
holders,  retaining    their    state-guaranteed 


bonds,  offered  to  return  their  interest-fund 
bonds  of  $8600  and  to  establish  their  ten 
lost  first-mortgiige  bonds,  claiming  the  lien 
of  the  first  mortgage,  and  that  the  substi- 
tuted bonds  were  u/lra  vires.  Held,  that 
the  intention  of  the  settlement  was  payment 
and  not  substitution ;  and  that,  for  that 
reason,  and  because  it  was  a  compromise  of 
a  doubtful  right,  made  with  full  knowledge 
of  the  facts,  and  an  arrangement  which  was 
a  unity,  the  petitioners  could  not  be  allowed 
to  establish  the  ten  lost  bonds,  or  to  claim 
for  the  substituted  bonds  the  lien  of  the  first 
mortgage.  Gibbes  v.  Greenville  S^  C.  R. 
Co.,  12  Am.  <J*  £ng,  R.  Cas.  360,  15  So.  Car. 
224. 


BONUSES. 
To  raiiroadt,  see  Municipal  and  Local  Aid, 
XI. 


BOOKS. 

Inspection  of,  see  Discovkrv,  3. 
Production  of,  see  Discovery,  7. 
Right  of  stockholders  to  inspect,  see  Stock- 
holders, I,  2. 
Stock-books  or  ledgers,  see  Stock,  V,  9. 


BOYCOTTING. 

Injunction  to  restrain,  see  Strikes,  6. 

1.    Sufficiency  of  complaint.*— The 

keeper  of  a  hotel  and  saloon  filed  a  com- 
plaint alleging  that  the  defendant  railroad 
company  had  instituted  a  boycott  against 
his  business  and  used  all  its  power  and 
influence  to  drive  away  custom ;  that  one 
of  its  officers,  who  employed  more  than 
1000  men,  who  often  visited  the  city  where 
complainant's  business  was  situate,  had 
publicly  declared  that  he  would  discharge 
the  men  if  they  patronized  complainant, 
had  actually  discharged  a  number  for  doing 
so,  and  had  refused  employment  to  others 
for  the  same  reason  ;  and  that  the  company, 
with  full  knowledge  of  the  facts,  ratified 
and  approved  them,  to  the  great  damage 
of  complainant  in  the  sum  of  a  specified 
number  of  dollars  per  month  for  a  given 
time.  Held,  that  the  complaint  stated  a 
good  cause  of  action  on  general  demurrer. 
International  &»  G.  N.  R.  Co.  v.  Greenwood, 

*  Criminal  and  civil  liability  for  conspiracies 
known  as  "  boycotts,"  see  note,  59  Am.  Rep. 
720. 


BRANCH  AND  LATERAL  ROADS,  1-JI. 


68t 


J    Tcx.Civ.App.  76.  21    S.  W.Rep.  559.— 
Reviewing  Ldz  v,  Norman,  80  Tex.  403. 


BBAXEMEN. 

Authority  to  employ,  see  Conductor,  4. 
When  deemed   fellow-Bervanta  with   other 
employes,  see  Fellow-servants,  VI,  3. 


BRAKES. 

Duty  of  company  as  to,  with  respect  to  ani- 
mals on  a  near  track,  see  Animals,  Injur- 
ies to,  3}>. 

—  to  employes   as  to  safety   of,    see   Em- 

PLovfis,  Injuries  to,  I,  6. 


BRANCH  AND  LATERAL  ROADS. 

1.  What   1h  a   "branch    road."— 

Under  a  charter  authorizing  a  railroad  com- 
pany "to  extend  branches  into  and  through 
any  counties  that  the  directors  may  deem 
advisable,  a  road  constructed  from  the 
junction  of  the  main  line  of  one  road  with 
another,  but  extending  in  a  different  direc- 
tion, is  a  branch  road  within  the  meaning 
of  a  provision  of  the  charter  authorizing 
counties  to  subscribe  to  the  stock  of  branch 
roads.  Howard  County  v.  Central  Nat. 
Bank,  108  U.  S.  314.  2  Sup.  Ct.  Rep.  689. 

A  short  elevated  track  running  from  the 
terminus  of  a  railroad  along  a  public  land- 
ing is  a  branch  road  within  the  meaning  of 
Fa.  act  of  April  i,  1868.  giving  tiie  company 
the  right  to  construct  branch  railroads. 
Mc.^boy's  Appeal,  loj  Pa.  St.  548.— Quoted 
IN  Volmer  v.  Schuylkill  River  E.  S.  R.  Co.,  18 
Phila.  (Pa.)  248 ;  Philadelphia  z/.  Philadel- 
phia &  R.  R.  Co.,  19  Phila.  (Pa.)  507. 

2.  Validity  of  statutes.— The  Pa.  act 
of  May  5,  1832,  authorizing  the  construction 
of  lateral  railroads  to  connect  private 
property  with  public  improvements,  is  con- 
stitutional. Harvey  v.  Thomas,  10  Watts 
(Pa.)  63.  Harvey  v.  Lloyd,  3  Pa.  St.  331. — 
Followed  in  Shoenberger  v.  Mulhollan,  8 
Pa.  St.  1^4.— Hays  v.  Rtsher,  32  Pa.  St.  169. 

The  general  railroad  act  of  April  4, 
1868,  P.  L.  62,  in  so  far  as  it  confers  powe^ 
on  a  railroad  company  to  construct  branches 
from  its  main  line,  is  not  repealed.  The 
act  of  May  21, 188 1,  P.  L.  27,  has  no  appli- 
cation to  the  power  to  construct  branches 
conferred  by  the  former  act.  Volmer' s  Ap- 
peal, lis  Pa.  •S''-  '66,  8  Atl.  Rep.  223. 


3.  I*owvr  to  <-oii.striict,  generally.* 

— It  is  unlawful  to  build  any  branch  roads 
which  have  not  first  been  found  by  a  judge 
of  the  superior  court,  upon  application  and 
public  notice,  to  be  of  public  convenience 
and  necessity.  Shepaug  Voting  Trust 
Cases,  60  Conn.  553,  24  Atl.  Rep.  32. 

The  mere  fact  that  the  building  of  lateral 
branch  roads  may  add  to  the  earnings  of  the 
main  line  of  a  railroad  company,  or  increase 
its  business,  will  not  authorize  such  corpora- 
tion to  build  the  same  where  its  charter 
fails  to  so  provide.  Chicago  «^  /;'.  /.  R.  Co. 
V.  IViltse, 24  .Im.  &^  Eng.  R.  Cas.  261, 116///. 
449,  6  A'.  E.  Rep.  49.— Followed  in  Illi- 
nois C.  R.Co.  V.  Chicago,  138  III.  453. 

The  right  of  the  Elizabetlitown  &  P.  R.  Co. 
to  build  branch  roads  is  as  full  and  complete 
as  the  right  to  construct  the  main  road 
itself,  and  a  second  subscription  of  stock  in 
said  company  by  the  city  of  Louisville,  for 
the  purpose  of  building  a  branch  road,  is 
valid ;  nor  does  the  express  grant  to  the 
company  of  the  right  to  extend  its  main 
road  to  the  city  of  Louisville  preclude  it 
from  connecting  with  that  city  by  a  branch 
road.  Tyler  v.  Elisabcthtown  &*  P.  R,  Co., 
i)  Bush  {ky.)  510. 

Under  a  provision  in  a  railway  charter 
authorizing  the  company  "  to  construct 
branch  roads  from  the  main  line  to  other 
points  or  places  in  the  several  counties 
through  which  said  road  may  pass,"  the 
right  to  construct  branches  is  limited  to 
such  as  begin  and  end  in  the  same  county. 
Works  V.  Junction  R.  Co.,  5  McLean  {U.  S.) 
425. 

Where  a  railroad  company  is  chartered 
to  build  a  road  between  designated  points, 
with  authority  to  vary  the  route  and  change 
the  location  of  its  road,  for  certain  causes 
named,  it  is  authorized  not  to  disregard  the 
termini  named,  but  only  to  vary  or  change 
its  route  at  intermediate  points  for  the 
causes  named.  Works  v.  Junction  R.  Co.,  5 
McLean  {U.  S.)  425. 

The  right  to  construct  a  lateral  railroad 
to  a  navigable  river  is  not  affected  by  the 
fact  that  it  would  cross  an  ordinary  railroad, 
as  to  the  portion  lying  between  the  railroad 
and  the  river;  nor  does  the  existence  of 
such  ordinary  railroad  prevent  the  lateral 
railroad  from  appropriating  land  for  a  wharf 

*  Rii;ht  of  company  to  contract  for  construc- 
tion of  branches,  see  52  Am.  &  Eno  R.  Cas.  6, 
abstr.  See  also  note,  20  Am.  &  Eni;.  R.  Cas. 
319. 


w 


;lii:' 


689 


UKANCII    AND   LATERAL    ROADS,  4. 


m 


i;    i 

f  !     > 


i '  ' 


fit-! 


or  landing  on  the  river;  nciiiicr  docs  the 
fact  of  crossing  an  onJiiiary  riiilroad  destroy 
the  continuity  of  the  latural  railroad. 
//ayj  V.  Brigi^'s,  3  Piltsb.  (Pa.)  504. 

The  N.  P.  K.Co.  not  being  authorized  by 
its  charter  utider  act  of  congress  to  con- 
struct a  brancii  line  between  Tacoma  and 
Gray's  Harbor,  tlie  Tacoma,  O.  &  G.  H.  R., 
although  constructed  and  operated  by  the 
N.  P.  R.  Co.,  is  net  entitled  to  the  benefit 
of  reservations  of  rights  of  way  in  convey- 
ances made  by  the  latter  company.  £t7es  v. 
Tacoma,  O.  &^  G,H.  R.  Co.,  5  Wash.  509, 
32  Pac.  Rep.  211. 

A  grantee  of  the  N.  P.  R.  Co.  is  not 
estopped  by  the  recitals  in  the  deed  from 
denying  the  right  of  his  grantor  to  build  a 
branch  road,  when  such  branch  road  is  one 
that  the  grantor  is  not  legally  authorized  to 
construct.  Biles  v.  Tacoma,  0.  &*  G.  H.  R. 
Co.,  5  IVasA.  509,  32  Pac.  Rep,  211. 

Permissive  words  in  an  act  of  parliament 
authorizing  a  railway  company  to  construct 
a  branch  line  are  not  obligatory.  Edin- 
burgh, P.  &»  D.  R.  Co.  V.  Philip,  2  Macg. 
H.  L.  Cas.  514,  zjur.  N.  S.  249. 

A  new  line  made  by  the  defendant  com- 
pany to  form  a  connection  between  two 
branch  lines  on  opposite  sides  of  the  main 
line  was  a  railway  or  a  portion  of  a  railway 
which  under  5  &  6  Vic.  c.  55,  §  4,  could 
not  be  opened  without  previous  notice  to 
the  board  of  trade.  Attorney-General  v. 
Great  Western  R.  Co.,  L.  R.  7  Ch.  767. 

4.  Power  to  construct  under  stat- 
utes of  Penusylvauia.— The  power  given 
to  a  company  to  build  a  main  line  involves 
the  right  to  build  branches  and  sidings  to 
carry  out  the  purposes  of  the  company's 
charter.  Schofield  v.  Pennsylvania  S.  V.  R. 
Co. ,  2  Pa.  Dist.  57. 

If  the  power  of  constructing  branch  rail- 
roads is  not  conferred  upon  the  company 
in  plain  words  or  by  necessary  implication 
it  is  deemed  to  be  withheld.  Philadelphia, 
W.  <^  B.  R.  Co.  V.  Philadelphia  S^  R.  R. 
Co.,  I  Pa.  Dist.  73. 

Pa.  act.  of  March  29,  1 840  (Lateral  Rail- 
roads) is  a  supplement  to  the  act  of  May  5, 
1832,  is  in  pari  materia  with  it,  and  should 
be  so  construed.  Neither  act  authorizes  the 
connection  of  a  lateral  road,  except  with 
a  public  improvement,  railroad,  or  highway, 
as  enumerated  in  those  acts.  Keeling  v. 
Griffin,  56  Pa.  St.  305. 

The  Pa.  act  of  April  4,  1868,  and  the  sup- 
plement thereto  of  April  28,  1871,  relating 


to  the  formation  of  railroad  companies, 
vest  in  voluntary  associations  the  powers 
which  had  previously  been  giyen  by  special 
charters,  and  applied  to  railroad  companies 
in  the  sense  in  which  the  term  is  usually 
used,  but  do  not  authorize  the  construction 
of  lateral  railroads.  Edgewood  R.  Co.'s  Ap- 
pial,  79  Pa.  St.  257. 

The  Pa.  act  of  March  17,  1869,  §  1,  pro- 
viding that  it  should  be  lawful  for  any  rail- 
road, canal,  or  slack-water  navigation  com- 
pany "  to  make  new  feeders,"  refers  only  to 
canal  companies,  and  does  not  confer  upon 
railroad  companies  the  power  to  construct 
brancli  roads.  Philadelphia,  W.  6-  B.  R. 
Co.  V.  Philadelphia  <S-  R.  R.  Co.,  I  Pa, 
Dist.  73. 

Under  the  Pa.  act  of  1871,  providing  for 
lateral  railroads  and  landings,  such  a  lateral 
road  may  cross  an  intervening  railroad. 
Hays  V.  Br/ggs,  74  Pa.  St.  373. 

Under  the  Pa.  act  of  June  19,  1871,  a  court 
of  equity  has  jurisdiction  to  inquire  whether 
a  railroad  chartered  under  the  act  of  1868 
possesses  the  franchises  it  claims ;  and,  if 
not,  injunction  is  the  appropriate  remedy 
for  the  wrong,  Edgewood  R.  Co.'s  Appeal, 
79  Pa.  St.  257. 

The  power  of  the  Pennsylvania  Railroad 
Company  to  make  branch  or  lateral  rail- 
roads, by  the  terms  of  their  charter,  is  as 
large  as  the  powers  granted  for  the  con- 
struction of  the  main  line  of  their  railroad, 
and  authorizes  the  construction  of  a  branch 
connecting  their  road  with  the  Pittsburgh 
and  Steubenville  Railror  „  in  South  Pitts- 
burgh, by  a  route  best  suited  to  promote 
the  convenience  of  the  inhabitants  of  the 
city  and  the  interest  of  the  company.  Mayor 
of  Pittsburgh  v.  Pennsylvania  R.  Co.,  48  Pa. 
•S"'-  355.— Applied  in  Philadelphia  v.  Phila- 
delphia and  R.  R.  Co.,  19  Phila.  (Pa.)  507. 
Distinguished  in  Pennsylvania  R.  Co.'s 
Appeal,  115  Pa.  St.  st4.  Reviewed  in 
State  ex  rel.  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
3  Mo.  App.  180;  Volmerz/.  Schuylkill  River 
E.  S.  R.  Co.,  18  Phila.  (Pa.)  248. 

The  act  of  1846,  §  17,  incorporating  the 
Pennsylvania  Railroad  Company,  provides 
that  it  shall  be  lawful  for  the  company  "  to 
piake  such  lateral  railroads  or  branches 
*  ♦  ♦  as  the  president  and  directors  may 
deem  advantageous  and  suited  to  promote 
the  convenience  of  the  inhabitants  thereof 
(along  the  line)  and  the  interests  of  said 
company."  By  the  act  of  May  16, 1857,  the 
main  line  of  a  state  railroad  was  directed  to 


BRANCH    AND    F.ATl'KAI.    ROADS,  5, «. 


«88 


m 


Appeal, 


be  sold,  with  a  provisicn  tliui  "any  com- 
pany already  incorporated  \>y  this  common- 
wealth that  might  become  a  purchaser 
should  possess,  hold,  and  use  the  same 
under  the  provisions  of  their  act  of  incorpo- 
ration ; "  and  the  Pennsylvania  company  be- 
came the  purchaser.  Held,  that  by  virtue  of 
these  two  acts  the  company  had  the  same 
power  to  construct  lateral  railroads  or 
brandies  on  the  line  purchased  from  the 
state  that  it  had  on  its  original  line.  Dun- 
can V.  Pennsylvania  R,  Co.,  13  Phila.  (Pa.) 
68. 

The  act  of  April  10,  1867,  P.  L.  993,  does 
not  extend  the  branching  powers  of  the 
Pennsylvania  Railroad  Company  to  tiie 
lines  it  holds  by  lease.  In  view  of  the 
previous  legislation  relative  to  railroad 
companies  the  words  "  lands,  tenements, 
and  property  "  are  not  used  in  a  new  sense 
which  includes  established  roads.  Pennsyl- 
vania R.  Co.'s  Appeal,  IIS  Pa.  St.  514,  5 
All.  Rep.  872.— Distinguishing  Getz's  Ap- 
peal, loW.  N.  C.  453. 

The  charter  of  defendant  railroad  com- 
pany authorized  it  to  build  a  railroad  be- 
tween designated  points  in  a  city,  and  a 
complaint  was  filed  charging  that  it  was 
about  to  commence  the  construction  of  a 
railroad  about  midway  between  the  desig- 
nated points  and  build  to  a  navigable  river, 
without  complying  with  the  act  of  1881  pro- 
viding that  any  company  chartered  under 
the  act  of  1868,  upon  deciding  to  construct 
a  railroad  not  exceeding  fifteen  miles  in 
length,  should  obtain  supplementary  articles 
of  incorporation  accepting  the  provisions  of 
article  16  of  the  constitution  of  the  state. 
The  company  answered  that  it  was  con- 
structing, not  an  extension,  but  a  branch 
under  the  act  of  1868,  §  9.  Held,  that  the 
company  had  a  right  to  construct  a  branch 
without  com  plying  with  the  statute,  and  that 
an  injunction  to  restrain  it  from  doing  so 
should  be  refused.  Voliner  v.  Schuylkill 
River  E.  S.  R.  Co.,  18  Phila.  {Pa)  248.— 
Quoting  McAboy's  Appeal,  107  Pa.  St. 
548.  Reviewing  Mayor  of  Pittsburgh  v. 
Pennsylvania  R.  Co.,  48  Pa.  St.  355 ;  Western 
Pa.  R.  Co.'s  Appeal,  99  Pa.  St.  155. 

A  statute  giving  a  railroad  company 
power  to  build  a  road  "  with  power  to  con- 
struct such  branches  as  the  directors  may 
deem  necessary,  and  to  connect  all  or  either 
of  them  with  any  railroad  or  railroads  now 
constructed,  or  that  may  hereafter  be  con- 
structed," gives  a  continuing  power  to  con- 


struct branch  roads,  and  the  time  limited 
for  the  completion  of  the  railroad  has  no 
relation  to  the  building  of  the  branches. 
Pittsburgh.  V.  &*  C.  R.  Co.  v.  Pittsburgh,  C. 
&'  S.  L.  R.  Co..  (Pa.)  57  /////.  &'  Eng.  R. 
Cas.  46. 

Where  a  railroad  company  was  given  a 
certain  time  to  complete  its  road  "  with  one 
or  more  tracks,  sidings,  depots,  and  appur- 
tenances," the  word  "  appurtenances  "  does 
not  comprehend  branches,  consequently 
branches  cannot  be  constructed  after  the 
expiration  of  the  time  thus  limited.  Pitts- 
burgh. V.  &*  C.  R.  Co.  V.  Pittsburgh.  C.  &-  S. 
L.  R.  Co.,  (Pa.),  57  Am.  &^  Eng.  R.  Cas.  46. 

5.  Coniicctiii((  with  niiotlicr  main 
line.— Where,  by  its  charter,  power  is  given 
a  railroad  company  to  construct  branch 
or  lateral  roads,  such  power  includes  au- 
thority to  construct  a  branch  line  running 
in  the  same  general  direction  as  the  main 
line;  and  the  fact  that  the  new  line  will 
connect  the  main  line  with  another  railroad 
makes  it  none  the  less  a  branch  road. 
Slant  on  v  Richmond,  P\  &*  P.  R.  Co..  43 
Am.  &*  Eng.  R.  Cas.  617,  86  Va.  618,  10 
S.  E.  Rep.  925. 

6.  Witliin  city  limits.— The  construc- 
tion of  a  new  track  further  into  a  city  by 
virtue  of  an  ordinance  of  the  city  council, 
whereby  certain  provisions  were  made  as  to 
its  location  and  grade,  was  fully  authorized 
by  the  act  of  June  9,  1874  (P.  L.  282),  en- 
abling cities  to  contract  with  railroad  com- 
panies for  the  relocating,  changing,  or 
elevating  of  tracks  so  as  to  secure  the  safety 
of  life  or  property  and  promote  the  interests 
of  the  municipality.  Appeal  of  the  Western 
Pa.  R.  Co.,\  Am.  &*  Eng.  R.  Cas.  191,99 
Pa.  St.  155. 

A  provision  in  the  charter  of  the  Louis- 
ville &  Nashville  Railroad  Company  author- 
izing it  to  construct  lateral-  or  side-tracks 
from  its  main  track  to  terminate  on  the 
bank  of  the  Kentucky  river,  in  the  city  of 
Frankfort,  does  not  authorize  the  construc- 
tion of  a  lateral-  or  side-track  which  does 
not  commence  at  the  main  track  or  termi- 
nate at  the  river,  and  the  city  had  no  power 
to  grant  a  right  of  way  across  its  streets 
and  through  an  alley  for  the  construction  of 
such  a  track— no  such  power  being  con- 
ferred by  its  charter.  Commonwealth  v. 
Frankfort,  92  Ky,  149. 

One  Jessup  purchased,  under  a  deed  of 
trust,  the  road  and  franchises  of  the  North 
Missouri    Railroad  Company ;   respondent 


I 


ill 


i;, 

i, 

frt! 


084 


BRANCH  AND  LATERAL  ROADS,  7-10. 


dfi 


iiM 


filed  articles  of  association  and  became  a 
body  corporate,  and  purchased  the  North 
Missouri  Railroad  and  franchises  from 
Jessup.  Among  these  franchises  was  the 
right  to  construct  lateral  or  branch  roads  to 
any  point.  Respondent  acquired  the  right 
from  the  city  of  St.  Louis  to  pass  from  west 
to  east  through  the  city  to  the  Union  depot, 
and  proceeded  to  construct  a  branch  road 
from  Ferguson  station,  on  the  line  of  said 
road,  to  the  Union  depot  in  said  city, 
He/d,  tiiat  it  had  the  right  to  do  tLii,  and 
that  the  policy  of  the  state — that  hI!  rail- 
roads entering  a  city  should  find  a  terminus 
at  one  common  centre — having  been  de- 
clared by  the  act  of  March  i8,  1871,  the 
state  could  nol  object  on  the  ground  that 
respondent  was  usurping  powers  not  granted 
by  the  state.  S/ate  ex  rel.  v.  St.  Louis,  K. 
C.  &'  N.  R.  Co.,  3  Mo.  App.  180.— Distin- 
guishing Works  V.  Junction  R.  Co.,  5  Mc- 
Lean (U.  S.)  425.— Reviewing  Pittsburgh 
V.  Pennsylvania  R.  Co.,  48  Pa.  St.  355. 

7.  Extensions  of  main  line. — 
Where  the  charter  of  a  r.ilroad  company 
authorizes  it  to  build  branches,  it  may  build 
what  is  practirally  an  extension  of  the  main 
line  by  beginning  at  one  terminus  and 
building  in  the  same  general  direction  that 
the  main  line  runs.  Atlantic  <S^  P.  R.  Co. 
V.  St.  Louis,  66  Mo.  228 ;  reversing  3  Mo. 
App.ix^. 

Where  a  railroad  has  the  power,  under 
its  charter,  to  construct  lateral  or  branch 
lines,  and  it  buys  another  road  under  an 
act  of  the  legislature  providing  that  it  shall 
be  b  ''  1  and  used  under  the  provisions  of 
the  ^larter  of  the  purchasing  road,  the 
latter  has  the  right  to  extend  the  purchased 
road.  Duncan  v.  Pennsylvania  R.  Co.,  7 
Am.  &*  Erg.  R.  Cas.  \,  94  Pa.  St.  435. 

Whether  a  company  was  authorized  to 
extend  its  track  further  into  a  city,  under 
its  original  charter,  or  not,  such  extension 
was  fully  authorized  by  the  act  of  April  4, 
1868,  §  9  (P.  L.  62),  enabling  railroads  to 
construct  such  branches  from  their  main 
lines  as  they  may  deem  necessary  to  increase 
their  business  and  accommodate  the  public. 
Appeal  of  the  Western  Pa.  R.  Co.,  4  Am.  &* 
Eng.  R.  Cas.  191,  99  Pa.  St.  155. 

8.  Switches,  sidinir!'*  etc.— A  grant 
of  corporate  power  to  build  and  operate  a 
railroad  between  specified  termini  carries 
witii  it  the  right  to  construct  turn-outs, 
sidings,  switches,  stations,  and  engine- 
houses,    and    all    works   and    appendages 


usual  in  the  convenient  operation  of  a  rail- 
road. Arrington  v.  Savannah  &*  W.  R.  Co., 
95  Ala.  434. 

Owners  or  proprietors  of  lateral  railroads 
must  insert,  or  suffer  others  to  insert,  the 
necessary  switches,  sidings,  and  connec- 
tions to  get  cars  on  and  off  the  main  track, 
and  permit  cars,  whether  laden  or  empty,  to 
pass  up  and  down  the  road,  according  to 
the  reasonable  rules  that  prevail  on  other 
railroads.  Com.  ex  rel.  v.  Corey,  2  Pittsb. 
{Pa.)  444. 

0.  Private  branch  and  lateral  lines. 
— The  power  to  construct  private  branch 
lines  communicating  with  a  railway,  and  for 
that  purpose  to  cross  highways,  is  subject 
to  the  statutory  requirement  that  where 
the  railway  injures  a  road  in  crossing  it,  it 
must  form  a  new  road  in  lieu  thereof.  Rex 
V.  Morris,  1  B.  &*  Ad.  441. 

Where  a  railway  act  permits  adjoining 
landowners  to  construct  railways  across  the 
company's  road  and  to  use  them  "  for  the 
benefit  of  themselves  and  of  all  and  every 
other  person  or  persons  to  whom  they  or 
any  of  them  may  from  time  to  time  give 
leave,  and  in  such  way  and  for  such  pur- 
poses as  they  or  any  of  them  may  require," 
a  neighboring  landowner  may  construct  a 
railway  on  his  own  land  and  carry  it  under 
the  company's  railway,  and  use  it  as  a  pub- 
lic railway  for  general  traffic.  Httghes  v. 
Chester  &•  H.  R.  Co.,  3  De  G.  F.  6-  /.  352, 
8/«r.  N.  S.  2Zi,?.\  L.J.  Ch.  97. 

Where  a  statute  authorizing  landowners 
to  construct  private  branch  lines  to  com- 
municate with  a  railway  provides  that  the 
company  shall  not  be  bound  to  make  an 
opening  for  such  a  line  where  they  have 
already  erected  any  building,  station,  or  yard, 
the  assent  of  the  company  to  an  opening 
being  made  at  a  station  is  not  in  the  nature 
of  a  license,  and  cannot  be  revoked.  Bell  v. 
Midland  R.  Co.,  3  De  G.  &•/.  673. 

A  person  owning  coal  and  land,  and  lo- 
cating a  lateral  road  for  the  purpose  of 
running  his  coal  to  market,  is  entitled  to 
the  right  of  way  as  located,  as  against  a 
stranger  who  subsequently  locates  a  lateral 
road  on  the  same  ground.  Hays  v.  Briggs, 
3  Pittsb.  {Pa.)  504. 

10.  Width  of  the  road.— The  acts  of 
1832  and  of  1865  on  the  subject  of  lateral 
roads  limit  the  width  of  such  roads  to 
twenty  feet.  If  under  the  latter  act  a 
greater  width  is  necessary  for  sidings, 
wharves,  chutes,  etc.,  such  greater  width  may 


BRANCH  AND  LATERAL  ROADS,  11-14. 


685 


>n  of  a  rail- 
"W.H.Co., 

al  railroads 
insert,  the 
>d  connec- 
main  track, 
•r  empty,  to 
cording  to 
lil  on  other 
y,  2  Pittsb. 

iral  lines. 

ate  branch 
vay.and  for 
is  subject 
that  wliere 
ossing  it,  it 
ereof.    Rex 

adjoining 
5  across  the 
m  "  for  the 

and  every 
3ni  they  or 

time  give 
■  such  pur- 
ly  require," 
construct  a 
rry  it  under 
it  as  a  pub- 

Ht4ghes  V. 
•  *-  /•  352. 

landowners 
es  to  com- 
:s  that  the 

0  make  an 
they  have 
on,  or  yard, 
in  opening 

the  nature 
ed.    BeU\. 

nd,  and  lo- 
purpose  of 
entitled  to 

against  a 
:s  a  lateral 

V.  Br^gs, 

rhe  acts  of 
t  of  lateral 

1  roads  to 
tter  act  a 
•r  sfdings, 
width  may 


be  used  for  those  specific  purposes.  In  that 
event  the  special  additional  structures,  to- 
gether with  the  quantity  of  ground  requi- 
site fr>r  the  purpose,  should  be  carefully  de- 
scribed in  the  petition  and  order,  so  that 
they  may  appear  on  the  record.  Pittsburgh 
Nat.  Bank  v.  Shoenberger,  25  Am,  6-  Ettg, 
R.  Ciis.  177,  III  Pa.  St.  95,  2  At/.  Rep.  190. 

As  a  greater  width  than  twenty  feet  is 
expressly  prohibited  by  the  original  act  of 
1 832,  the  width  becomes  a  jurisdictional  fact 
which  may  be  taken  advantage  of  at  any 
stage  of  the  proceeding.  Pittsburgh  Nat. 
Bank  V.  Shoenberger,  25  Am.  &*  Eng.  R.  Cas. 
177,  III  Pa.  St.  95,  2  At/.  Rep.  190. 

11.  Length  of  the  rotul. — A  railroad 
company  organized  under  the  general  law 
may  build  and  construct  lateral  and  branch 
roads  not  exceeding  fifty  miles  in  length, 
and  use  and  operate  any  part  or  portion  of 
their  main  line  and  branch  or  branches, 
when  completed,  the  same  as  though  the 
whole  of  the  proposed  railroad  were  fully 
completed.  (Chapter  54,  §  69,  Code  W.  Va. 
1887.)  Wkee/ing,  B.  &>  T.  R.  Co.  v.  Camden 
Conso/idated  Oi/  Co.,  47  Am.  &"  Eng.  R.  Cas. 
27,  35  W^-  ya.  205,  13  5.  £".  Rep.  369. 

Such  branches  may  have,  in  part,  a  com- 
mon stem  leading  from  the  main  line — that 
is,  there  may  be  a  branch  from  a  branch — 
provided  the  limit  as  to  length  is  not  ex- 
ceeded, IVhee/ing,  B.  (S»  T.  R.  Co.  v.  Cam- 
den Conso/idated  Oi/  Co.,  47  Am.  &•  Eng.  R. 
Cas.  27,  35  IV.  Va.  205,  13  5.  £".  Rep.  369. 

The  construction  of  a  branch  railroad 
nearly  double  the  length  of  the  main  line  is 
not  of  itself  an  abuse  of  the  branching 
powers  conferred  on  railroad  companies  by 
Pa.  act  of  April  4,  1868  (P.  L.  62).  The 
relative  importance  of  the  main  Ime  and 
the  branch  cannot  always  be  measured  by 
their  length  respectively.  Vo/mer's  Appeat, 
lis  P».  St.  «66,  8  At/.  Rep.  233. 

12.  Who  authorized  to  build.— Pa. 
ac*  of  March  28,  1840,  amending  the  act  of 
M..y  5,  1832,  entitled  "An  act  regulating 
lateral  railroads,"  extends  the  right  of  mak- 
ing and  constructing  lateral  railroads  over 
intervening  lands  to  the  owner  or  owners 
of  land,  mills,  quarries,  coal  or  other  mines, 
lime-kilns,  or  other  real  estate,  in  the  vicin- 
ity of  any  railroad,  canal,  or  slack-water 
navigation,  made  or  to  be  made  thereafter, 
by  any  company,  individuals,  or  by  the  state 
of  Pennsylvania,  to  each  and  every  county 
ill  the  state.  Shoenberger  v.  Mu/ho//an,  8 
Pa.  St.  134. 


Pa.  act  of  1832  empowers  "any  owner  or 
owners  "  of  lands  near  public  improvements 
to  construct  lateral  railroads — /le/d,  to  in- 
clude a  case  where  plaintiff  was  in  possess- 
ion of  a  coal  mine  under  an  equitable  title. 
Shoenberger  v.  Mu/lio/lan,  8  Pa.  St.  134. 

A  company  desirous  of  constructing  a 
branch  road  agreed  to  lease  its  land  for  the 
purpose  of  ubtaining  the  means  of  doing  so, 
and  the  branch  was  constructed  under  27 
Vic.  cl).  60,  by  the  lessees  and  the  defend- 
ants as  their  assignees.  The  above  act  sanc- 
tions the  construction  of  tlie  branch  by  au- 
thority of  the  company,  and  confers  on  the 
lessees  the  right  to  use  it  under  the  fran- 
chise of  the  company.  He/d,\.\rAX.  the  lessees 
and  their  assignees  were  not  personally 
liable  for  anything  which  was  done  within 
the  powers  given  to  the  company  under  the 
acts  relating  thereto.  Hami/ton  v.  Covert, 
16  U.C.  C.  P.  205. 

1.3.  Time  within  wliieli  to  build.— 
Where  a  railroad  company  is  authorized  to 
construct  a  main  line  and  lateral  roads,  a 
subsequent  act  extending  the  time  in  which 
it  may  complete  its  road  operates  to  extend 
the  time  also  in  which  to  complete  the 
lateral  roads.  Newha//  v.  Ga/ena  &-  C.  U. 
R.  Co.,  14///.  273. 

14.  Who  may  use  and  operate — 
Mandamus. — Pennsylvania  lateral  rail- 
road act  of  May  5,  1832,  does  not  contem- 
plate that  the  petitioner  for  a  road  to 
public  works  should  own  land  at  the  point 
of  connection  ;  he  may  use  his  road  there 
consistently  with  the  interests  of  the  owners 
of  the  land.  Harvey  v.  Thomas,  10  IVatts 
{Pa.)  63. 

Mandamus  will  lie  in  a  proper  case  to 
compel  the  builder  of  a  lateral  railroad  to 
permit  others  to  use  his  road,  under  the 
provisions  of  the  lateral  railroad  law  of 
May  5,  1832,  §  7,  and  the  pendency  of  pro- 
ceedings for  assessment  of  the  owner's 
damages  through  whose  land  the  road  is 
laid,  is  no  reason  for  excluding  transporters 
from  the  use  of  the  road ;  nor  the  possibility 
that  the  transporter  might  convey  his  ton- 
nage by  some  other  route  ;  nor  the  fact  that 
his  cars  and  wagons  would  be  an  obstruc- 
tion to  the  business  of  the  proprietors  of 
the  road.  Com.  ex  re/,  v.  Corey,  2  Pittsb. 
(Pa.)  444. 

Where  a  railway  company  is  authorized 
to  construct  a  branch  railway  there  is  no 
duty  imposed  upon  it  which  will  be  en- 
forced by  mandamus.      Great  Western   R 


If 


\m 


7:jJK( 


M 


686 


BRANCH   AND   LATERAL   ROADS,  15-18. 


I 


'nt' 


'ri 


Co.   V.   Queen,   i    Et.  &*  Bl.  874,   16  Jur. 

675- 

The  court  will  not  interfere  on  a  com- 
plaint by  the  proprietor  of  a  branch  line, 
that  a  suflicient  number  of  trains  of  the 
main  line  do  not  stop  at  the  junction,  or 
at  convenient  times,  unless  the  public  are  not 
sufficiently  accommodated.  In  re  Caterham 
K.  Co.,  I  C.  B.  N.  S.  410,  26  L.J.  C.  P.  161. 

15.  Takiiij;  lands  for  branch  roads, 
generallj'.*~When  a  conjpany  has  the 
power  to  build  an  additional  lateral  road — 
that  is,  a  lateral  road  whose  construction 
and  maintenance  are  possible  only  upon  an 
independent  right  of  way — the  right  of  way 
statute  does  not  prevent  the  condemnation 
of  land  for  such  additional  road.  Lower  v. 
Chicago,  B.  &*  Q.  A'.  Co.,  10  Am.  &*  Ettg.  R. 
Cas.  17,  59  Iowa  563,  13  A';  IV.  Rep.  718. 

A  private  road  is  a  wagon  or  cart  road, 
and  cannot  be  converted  into  a  lateral  rail- 
road by  putting  a  railroad  track  on  it  when 
opened.  The  restrictions  of  the  lateral  rail- 
road act  upon  the  exercise  of  the  power  of 
taking  private  property  for  public  use  can- 
not be  evaded  by  converting  a  private  road 
into  a  lateral  railroad.  Heeling's  Road,  59 
Pa.  St.  358. 

Under  the  Pa.  act  of  Feb.  17,  1871,  land 
cannot  be  taken  for  a  lateral  railroad 
wharf  or  landing  when  the  owner  bona  fide 
intends  to  use  it  for  the  same  purpose  in 
the  future.    Hays  v.  Briggs,  74  Pa.  St.  373. 

Under  Pa.  act  of  June  9,  1874,  authoriz- 
ing counties,  cities,  and  townships  to  con- 
tract with  railroad  companies  'or  the  relo- 
cation or  elevation  of  their  roads  in  such 
manner  as  the  authorities  may  deem  best 
adapted  to  secure  the  safety  of  life  and 
property,  a  company  has  the  right,  after  ob- 
taining the  consent  of  a  city,  to  appropriate 
longitudinally  any  street  to  the  construction 
of  a  branch  road.  Duncan  v.  Pennsylvania 
R.  Co.,  13  Phila.  (Pa.)  68. 

16. procedure,  appeals,  etc.— 

The  number  of  viewers  in  locating  lateral  rail- 
roads is  regulated  by  the  practice  under  the 
act  of  1849,  and  should  be  seven.  Pittsburgh 
Nat.  Bank  v.  Shoenberger,  25  Am.  &*  Eng. 
R.  Cas.  177,  III  Pa.  St.  95,  2  Atl.  Rep.  190. 

Under  the  Pa.  lateral  railroad  act  of  May 
5,  1832,  an  appeal  does  not  lie  to  the  su- 

*  Exercise  of  the  right  of  eminent  domain  for 
branch  road,  see  note,  36  Am.  &  Eng.  R.  Cas. 

551. 

Right  of  way  for  lateral-  and  spur-tracks,  see 
note,  4  L.  R.  A.  376. 


preme  court  from  a  decree  of  the  common 
pleas  overruling  exceptions  to  a  report  ot 
viewers.    Halts  Appeal,  56  Pa.  St.  238. 

Exceptions  were  filed  to  the  report  of 
viewers  for  a  lateral  railroad  and  an  appeal 
to  the  common  pleas  was  taken.  The  excep- 
tions were  overruled  while  the  appeal  was 
pending ;  there  was  no  final  judgment,  and  a 
certiorari  from  the  supreme  court  was 
premature.    Halls  Appeal,  56  Pa.  St.  238. 

Where  proceedings  under  the  Pennsylva- 
nia lateral  railroad  act  to  obtain  the  location 
of  a  wharf  or  landing  for  a  lateral  railroad 
are  appealed,  it  is  not  necessary  to  put  the 
report  of  the  viewers  marking  off  the  landing 
in  evidence  on  the  trial  on  appeal.  Hays  v. 
Briggs,  3  Pittsb.  {Pa.)  504. 

Where  the  landowner  only  appeals  from 
the  report  of  a  jury  alloting  land  for  a  lat- 
eral railroad  and  a  landing,  it  is  error  on 
appeal  to  increase  the  amount  of  land  al- 
loted.  If  the  petitioner  is  dissatisfied  with 
the  allotment  he  should  file  exceptions. 
Hays  v.  Briggs,  74  Pa.  St.  373. 

17.  subsequent  remedies   of 

landowner. — The  Pa.  lateral  railroad  act 
of  May  5,  1832,  is  not  mtended  to  give  the 
petitioner  more  than  a  privilege  to  open,  con- 
struct, complete,  and  use  a  railway  through 
the  land  of  another.  He  may  use  material 
from  the  right  of  way  to  construct  the  road, 
but  coal  displaced  belongs  to  the  owner  of 
the  fee,  and  he  may  maintain  trover  for  its 
conversion.  Lyon  v.  Gormley,  53  Pa.  St.  261. 

The  owner  of  a  coal  mine  proceeded  by 
petition  under  the  Pa.  act  of  May  5,  1832, 
to  ascertain  the  amount  of  damage  which  a 
landowner  would  sustain  by  reason  of  the 
location  of  a  railroad.  The  matter  was  pro- 
ceeded with  so  that  a  verdict  was  rendered 
for  the  amount  of  damage,  which  amount 
the  petitioner  paid  into  court,  The  pei 
tioner  then  entered  upon  the  land  and  made 
the  road  before  a  judgment  was  entered  on 
th?  verdict.  Held,  that  though  the  pro- 
ceedings under  the  petition  did  not  furnish 
a  justification  of  the  trespass,  yet  they  pro- 
tected him  from  vindictive  damages.  Har- 
vey v.  Thomas,  10  Watts  (Pa.)  63. 

18.  Taxation  of  branch  roads.— 
Branch  railroads  built  under  Mo.  act  of 
March  21,  1868,  are  practically  independent 
lines,and  are  not  exempt  from  taxation  under 
an  exemption  in  the  charter  of  the  main 
line.  Chicago,  B.  &*  K.  C.  R.  Co.  v.  Guf- 
fey,  29  Am.  &*  Eng.  R.  Cas.  200,  120  U.  S. 
569,  7  Sup.  Ct.  Rep.  693.— Approved  in 


BRANCH  AND  LATERAL  ROADS,  10.— BRIDGES— VIADUCTS,  1.  GST 


he  common 

a  report  ot 
S/.  238. 
e  report  of 
1  an  appeal 

The  excep- 
appeal  was 
inent,  and  a 

court  was 
•a.  .*./.  238. 

Pennsyiva- 
the  location 
ral  raihoad 

to  put  the 
the  landing 
il.    //ays  V. 

ppeals  from 
d  for  a  lat- 
is  error  on 
of  land  al- 
tisfied  with 
exceptions. 

nedies  of 

railroad  act 
to  give  the 
3open,con- 
'ay  through 
ise  maieridl 
ct  the  road, 
le  owner  of 
over  for  its 
Pa.  Si.  261. 
oceeded  by 
lay  s,  1832, 
tge  which  a 
isoii  of  the 
er  was  pro- 
is  rendered 
ch  amount 

The  pel 
I  and  niadi. 
entered  on 
h  the  pro- 
not  furnish 
t  they  pro- 
ges.    Mar- 

roads.— 

«fo.  act  of 
dependent 
ation  under 
r  the  main 
^o.  V.  Gu/- 
I,  120  C/.  S. 

'ROVED    IN 


State  ex  rel.  v.  Keokuk  &  W.  R.  Co.,  41 
Am.  &  Eng.  R.  Cas.  694,  99  Mo.  30,  6  L. 
R.  A.  222,  12  S.  W.  Rep.  290. 

19.  Forfeiture  of  franchise.— Rail- 
road companies  are  not  required  to  provide 
trains  for  passengers  or  freight  which  are 
not  wanted  or  which  the  business  of  the 
road  would  utterly  fail  to  support;  and  a 
company  having  other  lines  to  support  does 
not  forfeit  its  charter,  at  the  suit  of  the  com- 
monwealth, by  reason  of  a  failure  to  run  the 
number  of  trains  on  a  branch  road  that  it 
had  formerly  run,  after  the  legislature  has 
cut  down  its  patronage  by  chartering  a  par- 
allel rival  road.  Commonwealth  v.  Fitch' 
burg  R.  Co.,  12  Gray  (Mass.)  180. 


BREACH. 

Of  contracts,  generally,  see  Contracts,  VI. 

,  measure  of  damages  in  actions  for,  see 

Damaoes,  II,  I. 
—  covenant,   what    constitutes,   see   Covb- 

NANTS,  13,  14. 


BREAKWATERS. 
Right  to  erect,  see  Riparian  Rights,  8* 


BRIDOE  BUILDERS. 

When  deemed  fellow-servants  with  other 
employes,  see  Fellow-servants,  VI,  a. 


BRIDOE  COMPANIES. 

See  Bridges,  89-104. 


BRIDGES— VIADUCTS. 

Claims  against  government  for  rebuilding, 
see  Claims  Against  United  States,  11. 

Defects  in,  causing  flooding  of  land,  see 
Flooding  Lands,  I,  a. 

Destroyed  by  military  authority,  liability  for, 
see  War,  7. 

Disobeying  order  of  superintendent  of  draw- 
bridge, see  Criminal  Law,  III. 

Duty  to  employes  as  to  safety  of,  see  Em- 
ployes, Injuries  to,  1,  5. 

Injuries  to  animals  on,  see  Animals,  Injuries 
to,  77. 

Obstructing  navigation,  criminal  prosecution 
for,  see  Criminal  Law,  III. 

Offense  of  burning,  see  Criminal  Law,  III. 

When  deemed  fixtures,  see  Fixtures,  5. 

I.  OOHSTRirCTIOH,    BEFAIBIITa,    AlTD 
BXBDILDIKO 687 

1.  Statutes 687 

2.  Authority  to  Construct 690 


3.  Duty  to  Construct 691 

4.  Sufficiency 693 

5.  Rebuilding 696 

6.  Duty  to  Keep  in  Good  Condi- 

tion and  Repair 697 

7.  Approaches 700 

8.  Viaducts 702 

11.  ACTIONS    FOR    INJVBIE8    AT     OR 

HEAR  BRIDGES 703 

1 .  Injuries  to  Property 703 

2.  Personal  Injuries 705 

m.  BBIDOES    OVEB    NAVIGABLE    WA- 

TEB8 7  09 

I.  In  General 709 

3.  Drawbridges 713 

a.  In  General 713 

b.  Rights,  Duties,  and 

Liabilities  with 
respect  to  Pass- 
ing Vessels 715 

3.  Obstructing  Navigation 716 

XV.  TOLL    BBIDGES;     BBIDGE    COMPA- 
NIES    720 

I.  In  General 720 

3.  Rights,  Duties,  and  Liabili- 
ties of  Bridge  Companies, 
or  Persons  who  Maintain 
Bridges 724 

I.    00H8TBVCTI0N,  BEFAIEIHO,  AND 
REBVILDINO. 

I.  Statutes.* 

1.  Constitutionality.— The  Alabama 
act  of  February  27,  1889,  authorizing  the 
board  of  revenue  of  two  designated  coun- 
ties to  erect  a  bridge  across  the  Alabama 
river  near  the  city  of  Montgomery,  making 
it  a  free  foot  and  wagon  bridge,  or  a  rail- 
road bridge,  or  both  combined,  and  author- 
izing the  issuing  of  county  bonds  to  pay  for 
it  and  to  levy  a  tax  to  pay  interest  on 
the  same,  is,  so  far  as  it  authorizes  the 
counties  to  build  a  bridge  for  railroad  pur- 
poses, or  a  foot  and  wagon  and  railroad 
bridge  combined,  in  violation  of  article  4, 
§  55,  of  the  constitution,  declaring  that  no 
county,  city,  or  municipality  shall  lend  its 
credit  or  grant  public  money  or  anything  of 
value  in  aid  of  or  to  any  individual, associa- 
tion, or  corporation  ;  and  is  also  in  violation 
of  article  9,  §  5,  of  the  constitution,  prohibit- 
ing counties  from  levying  in  any  one  year  a 
tax  greater  tlian  one-half  of  one  per  sent,  ex- 
cept in  cases  of  necessary  bridges.    Garland 

*  See  post,  19.  21,  22,  96,  69-08,  04. 


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BRIDGES— VIADUCTS,  2,3. 


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V.  Montgomery  County  Revenue  Board,  87 
Ala.  223,  6  5tf.  Rep.  402. 

The  act  of  the  Delaware  assembly  of  1837 
(vol.  959),  authorizing  the  railroad  company 
to  erect  a  close  bridge  over  White  Clay 
creek,  is  constitutional,  and  gives  no  riglit 
of  action  to  the  owner  of  a  mill  above, 
though  damage  results  to  him  from  the  loss 
of  navigation  and  obstructing  tlie  flowage 
of  water;  but  such  bridge  must  be  made 
and  kept  up  in  conformity  with  the  law,and 
any  additional  obstruction  is  unauthorized, 
and,  if  attended  with  special  damage,  ac- 
tionable. Bailey  v.  Philailelpkia,  IV.  <S~»  B. 
R.  Co.,  4  //arr.  (Del.)  389. 

Where  a  railroad  company,  having  a  char- 
ter empowering  it  to  construct  a  bridge 
over  a  navigable  river,  has  made  only 
such  obstructions  in  the  stream  as  are 
authorized  by  an  act  of  the  legislature,  a 
statute  providing  a  right  of  action  for  such 
obstructions  in  navigable  streams  is  a  vio- 
lation of  the  company's  charter  and  uncon- 
stitutional, as  being  an  impairment  of  the 
obligation  of  a  contract;  a  statute,  how- 
ever, providing  for  a  sununary  action  by 
way  of  remedy  against  unauthorized  ob- 
structions may  be  constitutional,  even 
though  passed  after  obstructions  were 
made.  Batley  v.  Philadelphia,  IV.  &*  B.  R. 
Co.,  4  Harr.  (Del.)  389.— Reviewed  in 
Philadelphia,  W.  &  B.  R.  Co.  v.  Bowers,  4 
Houst.  (Del.)  506. 

The  Massachusetts  act  of  1872,  ch.  295, 
empowering  a  railroad  company  to  bridge  a 
certain  river  by  a  structure  adapted  to  both 
railroad  use  and  ordinary  travel,  and  pro- 
viding that  the  county  shall  pay  a  certain 
proportion  of  the  cost  thereof,  to  be  deter- 
mined by  commissioners  appointed  for  the 
purpose,  is  constitutional.  Brayton  v.  Fall 
River,  1 24  Mass.  95. 

2.  Interpretation,  srenerally.— The 
congressional  laws  allowing  the  erection  of 
railroad  bridges  across  the  Mississippi  river, 
among  which  is  one  at  Dubuque,  Iowa,  and 
the  act  of  June  15,  1866,  passed  by  congress 
under  its  constitutional  authority  to  regu- 
late commerce  among  the  states,  authorizing 
railroads  "to  connect  with  roads  of  other 
states,  so  as  to  form  continuous  lines  for 
transportation,"  do  not  command  the  things 
therein  contained,  but  ar**  simply  permis- 
sive. Richmond  v.  Dubuque  &*  S.  C.  R.  Co., 
33  fowa  422. 

The  general  railroad  law  of  New  Jersey, 
ol  .April  2,  1873,  provides  for  conferring  the 


franchise  of  bridging  the  Delaware,  so  far 
as  the  authority  of  New  Jersey  can  avail  for 
that  purpose.  Attornry-Ueneral  v.  Delaware 
&^  B.  B.  R.  Co.,  27  N.J.  £"ir.  631. —Quoting 
Rundle  v.  Delaware  &  R.  C.  Co.,  14  How. 
(U.  S.)  80 ;  President  v.  Trenton  City  Bridge 
Co.,  13  N.J.  Eq.  46. 

Section  102  of  the  New  Jersey  general 
railroad  law  (Rev.  p.  929;  Rev.  Sup.  p.  828, 
g  9;  P.  L.  of  1887,  p.  226),  providing  for  the 
construction  of  bridges  over,  under,  and 
across  a  railroad  where  a  highway  crosses 
it,  imposes  a  duty  looking  to  the  reparation 
of  an  injury  lawfully  done,  and  carries  with 
it  no  authority  or  power  save  that  which  is 
incidental  to  its  exercise.  Raritan  Tp.  v. 
Port  Reading  R.  Co. ,  50  Am.  &*  Eng.  R.  Cas. 
169,  49  N.J.  Eq.  II,  23  Atl.  Rep.  127. — Dis- 
approving People  v.  New  York,  N.  H.  &  H. 
R.  Co.,  89  N.  V.  266. 

3.  statutes  providing  for  con- 
struction, widening,  and  repairing. 
— A  statute  requiring  that  a  bridge  con- 
structed thereunder  shall  leave  a  passage- 
way of  one  hundred  and  sixty  feet  clear 
between  the  piers,  must  be  construed  to 
mean  that  the  one  hundred  and  sixty  feet 
is  to  be  measured  directly  across  the  river 
and  not  along  the  bridge,  wiiich  runs  diago- 
nally across  the  stream.  Missouri  River  P. 
Co.  V.  Hannibal  &"  St.  /.  R.  Co.,  i  McCrary 
(U.  S.)  281.  2  Fed.  Rep.  285. 

The  Wilmington  &  W.  R.  Co.  is  not  com- 
pelled by  §  27  of  its  charter  to  construct 
and  keep  in  repair  bridges  rendered  neces- 
sary by  roads  laid  out  after  the  construction 
of  the  railroad  of  the  said  company.  State 
V.  Wilmington  &*  W.  R.  Co.,  74  A'.  Car. 
HI- 

Bat.  N.  Car.  Revisal,  ch.  104,  §  6,  requir- 
ing a  railroad  company  to  keep  up  at  its 
own  expense  all  bridges  on  or  over  county 
or  incorporated  roads  made  necessary  by  the 
establishment  of  its  road,  does  not  apply  to 
railroads  built  before  the  passage  of  the 
act.  State  v.  Wilmington  &•  W.  R.  Co.,  74 
N.  Car.  143. 

A  city  charter  provided  that  the  common 
council  might  order  the  repairing,  widening, 
or  building  of  all  bridges  crossing  railroad 
tracks  within  the  city;  and,  upon  a  failure  of 
any  company  to  obey  the  order  of  council, 
that  it  might  have  the  work  done  and  au- 
thorize its  treasurer  to  collect  the  cost  there- 
of from  the  company,  //eld,  that  the  statute 
only  extended  to  the  repairing,  widening,  or 
building  of  bridges  proper,  and  not  to  em- 


BRIDGES— VIADUCTS,  4-j). 


689 


bankments,  (ills,  and  approaches,  unless 
such  could  be  deemed  part  of  the  bridge  it- 
self, and  that  the  city  could  not  recover  for 
the  cost  of  their  repair.  New  Haven  v.  New 
York  &*  N.  H.  R.  Co.,  39  Conn.  1 28,  4  Am. 
Ry.Rep.  253.— Distinguished  in  Burrittz/. 
New  Haven,  42  Conn.  174;  Hayes  v.  New 
York  C.  &  H.  R.  R.  Co.,  9  Hun  (N.  Y.)  63. 

4. statutes  providing  tor  con- 
struction of  approaches."* — The  Min- 
nesota act  (Special  Laws  1879,  ch.  185)  au- 
thorizing the  Minneapolis  &  St.  L.  R.  Co.  to 
build  branch  lines  and  tracks,  and  requir- 
ing the  city  to  construct  the  approaches 
to  street  bridges  rendered  necessary,  is  not 
to  be  construed  so  as  to  apply  to  the  line  of 
road  already  built  and  existing.  State  v. 
Minneapolis  &•  St.  L.  R.  Co.,  35  Am.  &*  Eng. 
R.  Cas.  250,  39  Minn.  219,  39  N.  IV.  Rep. 

'53- 

5. statutes  providingr  for  pre- 

tientment  and  collection  of  claims.— 

A  statute  authorizing  a  railroad  bridge  en- 
acted that  if  the  bridge  should  "  invade  or 
abridge  any  private  rights  "  the  company 
should  make  compensation,  but  that  pro- 
ceedings for  tlie  recovery  must  be  com- 
menced within  six  nonths.  After  the  six 
months  a  second  statute  was  enacted  which 
extended  the  recoveries  that  might  be  had 
under  the  term  "  private  rights."  Held, 
that  the  recoveries  under  the  second  statute 
were  not  restricted  to  those  who  began  pro- 
ceedings under  the  first  statute  within  the 
six  months.  Reg:  v.  Great  Western  R.  Co., 
14  U.  C.  C.P.a(>2. 

The  royal  assent  to  the  building  of  a  rail- 
road bridge  was  given  on  June  10,  1857,  the 
statute  providing  that  all  persons  "who 
shall  give  notice  to  the  company  within 
three  months  from  the  passing  of  this  act 
of  their  intention  to  make  claim  for  com- 
pensation in  consequence  of  the  erection  of 
such  bridge  shall  be  entitled  to  compensa- 
tion," Notice  was  given  of  a  claim  on 
Sept.  loth  of  the  same  year.  Held,  that  the 
three  months  commenced  to  run  from  the 
day  after  the  passage  of  the  act,  and  that  the 
notice  was  therefore  in  time.  St.  Andrew's 
Church  V.  Great  Western  R.  Co.,  12  U.  C. 
C,  P.  399.  See  also  in  re  New  York  Bridge 
Co.,  67  Barb.  (N.  Y.)  295. 

O. statutes  providing  remedy 

for  violation  of  fVancliise.t— The  rem- 

•  See  post,  30-42. 
tSee/w/,  91,02. 
I  D.  R.  D.— 44 


edy  given  by  a  statute,  providing  that  the 
owner  of  franchise  to  build  a  bridge  and 
collect  tolls  may  sue  and  collect  before  a 
justice  treble  the  amount  of  tolls  of  an  owner 
of  an  unauthorized  bridge  used  in  competi- 
tion with  the  authorized  bridge,  is  merely 
cumulative,  and  does  not  preclude  an  action 
in  equity  for  a  violation  of  the  franchise. 
Thompson  v.  New  York  <S-  H.  R.  Co.,  3 
Sandf.  Ch.  {N.  Y.)  625. 

7. statutes  providing  for  issue 

of  bonds.— The  act  of  congress  of  Feb- 
ruary 24,  1871,  authorizing  the  Union  Pacific 
Railroad  Company  to  Issue  bonds  to  con- 
struct a  bridge  across  the  Missouri  river, 
between  Omalia  and  Council  Bluffs,  did  not 
make  the  bridge  a  separate  undertaking,  so 
as  to  relieve  the  company  from  the  duty  of 
operating  its  road  as  a  continuous  line ; 
neither  did  it  operate  to  change  the  eastern 
terminus  of  the  line.  United  States  v. 
Union  Pac.  R.  Co.,  4  Dill.  {U.  5".)  479, 
Compare  Garland  v.  Montgomery  County 
Revenue  Board,  87  Ala.  223,  6  So.  Rep.  402. 

8.  statutes  relating  to  duties 

of  railroad  commissioners.'*' — Under 
Connecticut  Gen.  St.  §  3480,  giving  the  rail- 
road commissioners  power  to  direct  the 
lowering  of  a  highway  by  a  railroad  com- 
pany at  a  crossing,  so  as  to  carry  the  high- 
way over  or  under  the  railroad  track,  the 
commissioners  gave  notice  requiring  the 
company  to  construct  and  maintain  bridges 
in  obedience  to  their  order,  and  directing  it 
to  place  supports  at  a  street-curb  line  under 
a  bridge  constructed  by  it  over  the  street. 
Held,  that  their  action  was  filed,  and  that 
the  city  could  not  appeal  therefrom.  Water- 
bury's  Appeal,  57  Conn.  84, 17  Atl.  Rep.  355. 
Compare  Works  v.  Junction  R.  Co.,  5  Mc- 
Lean (£/.  5.)  425, 

O.  Interpretation  of  particular 
words  and  clauses. — (t)  Generally. — The 
permission  given  to  a  company  under  the 
Wisconsin  act  of  1872,  ch.  1 19,  §  11,  to  con- 
struct its  road  "  across,  along,  or  upon  any 
streams,  etc.,"  must  be  interpreted  to  au- 
thorize the  company  to  build  bridges  across 
streams,  etc.  Miller  v.  Prairie  du  Chien  &■• 
McG.  R.  Co.,  34  Wis.  533.  See  also  Works 
v.  Junction  R,  Co.,  5  McLean  {U.  S.) 
425. 

A  bridge  forming  part  of  the  line  of  rail- 
way itself  is  an  engineering  work  within  § 
14  of  Railway  Clauses  Act.    Attorney  Gen- 

*  See  post,  66. 


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BRIDGES— VIADUCTS,  10. 


m^u 


era/  v.   Tewkesbury  &*  M.  R.  Co.,  i  De  G. 
J.  &*  S.  423.  32  L.J.  Ch.  482. 

(2)  "  Approach'' — Within  the  meaning  of 
Massachusetts  Pub.  St.  ch.  1 1 2,  §  1 28,  the 
word  "  approach "  will  not  include  that 
portion  of  a  street  lowered  for  the  purpose 
of  permitting  passage  beneath  a  railroad 
bridge.     Whitcher  v.  Somerville,  138  Mass. 

454. 

The  duty  imposed  by  statute  is  that  rail- 
road companies  shall  construct  and  main- 
tain crossings,  lud  sr.  "ethe  ground  on 
each  side  there<^f  ^h  >c  .  Tossings  may 
be  safely  passed  ove  •  , '  r.  :. . ,  made  by  the 
company  before  the  establishmei  t  of  the 
highway  or  other  obstructions  to  travel 
within  the  limits  of  the  rif '  t  of  w  "  '  'it  be- 
yond the  limits  of  a  proper  copstrnction  <  ' 
"  approaches  "  to  the  railroad  crossing's,  are 
not  within  the  terms  of  the  statute,  and 
such  ditches  therefore  need  not  be  bridged. 
0' Fallon  v.  Ohio  6-  M.  R.  Co.,  45  ///.  App. 
572. 

(3)  "  ^ay."— The  word  "  bay,"  as  used  in 
the  act  chartering  the  Hudson  River  R.  Co., 
and  requiring  bays  to  be  bridged  by  draw- 
bridges under  certain  conditions  and  cir- 
cumstances, does  not  include  such  places  as 
at  low  water  are  used  only  by  one  person, 
and  are  covered  with  but  a  few  inches  of 
water.  Getty  v.  Hudson  River  R,  Co.,  21 
Barb.  {N.  K)  617, 

(4)  "Bridge." — A  structure  erected  over 
a  railroad  track  where  it  crosses  a  highway, 
for  the  passage  of  travellers,  is  a  "  bridge  " 
within  the  meaning  of  the  Maine  statutes. 
State  V.  Gorham,  37  Me.  451. 

The  New  York  act  of  1856,  ch.  146,  en- 
titled "  An  act  authorizing  the  construction 
of  a  bridge  across  the  Hudson  river  at  Al- 
bany," construed  to  authorize  a  bridge  for 
the  transportation  of  railroad  trains  and 
also  as  a  common  highway  for  the  accom- 
modation of  the  general  public.  Silliman  v. 
Hudson  River  Bridge  Co.,  4  Blatchf.  {{/.  S.) 

74- 

(5)  "  Profits." — Under  the  act  of  congress 
of  June  30.  1864,  §  122,  providing,  inter  alia, 
that  all  profits  of  a  railroad  company  carried 
to  "  the  account  of  any  fund  or  used  for  con- 
struction shall  be  subject  to  and  pay  a  duty 
of  5  per  centum  on  the  amount  of  such 
profits,"  moneys  used  for  repairing  a  rail- 
road bridge  of  the  same  materials  and 
dimensions  are  not  "  profits  used  for  con- 
struction," within  the  meaning  of  the  stat- 
ute ;  but  the  additional  cost  of  replacing  a 


wooden  bridge  by  a  more  expensive  stone 
bridge  is  within  the  statute.  But  if  the 
cost  of  the  stone  bridge  be  charged  to  the 
company's  expense  account,  and  the  whole 
amount  of  such  account  for  the  year  is  not 
more  than  a  proper  per  centage  of  its  gross 
earnings  to  cover  current  expenses  and  to 
make  necessary  repairs,  the  additional  cost 
of  such  bridge  will  not  be  deemed  within 
the  provision  of  the  statute.  Hartford  &* 
N.  H.  R.  Co.  V.  Grant,  9  Blatchf.  {[/.  S.) 
542. 

(6)  "Public  works." — Under  a  provision 
of  §  20  of  Ohio  St.  May  I,  i852(Curwen'3 
Rev.  St.  Ohio,  §  3317,  6th  ed.),  pro- 
viding that  whenever  the  line  of  any 
railroad  company  shall  cross  any  canal 
or  any  navigable  water,  the  company 
shall  file  with  the  board  of  public 
works,  or  with  the  acting  commissioner 
thereof  having  charge  of  the  public  works 
for  such  crossing  as  proposed,  the  plan  of 
the  bridge  and  other  fixtures  for  crossing, 
the  expression  "  public  works "  does  not 
coniine  the  jurisdiction  of  the  commissioner 
to  such  works  only  as  shall  be  constructed 
over  waters  made  navigable  by  the  state, 
but  extends  to  railway  bridges  over  any 
navigable  waters  of  the  state.  Works  v. 
Junction  R.  Co.,  5  McLean  {U.  S.)  425. 

(7)  "  Streams."— lYi^  New  York  act  of 
1857,  ch.  639,  authorizing  bridges  over 
streams  dividing  towns,  does  not  authorize 
bridges  over  bays,  lakes,  or  other  bodies  of 
water,  nor  does  it  authorize  causeways  and 
bridges  over  marshes  or  such  waters,  they 
not  being  "  streams  "  within  the  meaning  of 
the  statute.   In  re  Irondequoit,  68  N.  Y.  376. 

2.  Authority  to  Construct. 

10.  Generally.'*' — Railroad  companies 
have  lawful  authority  to  build  across 
streams,  but  must  restore  the  stream  to  its 
former  state  or  to  such  state  as  not  un- 
necessarily to  impair  its  usefulness.  Culver 
v.  Chicago,  R.  L  &>  P.  R.  Co.,  38  Mo.  App. 
130. 

The  prohibition  to  a  railroad  corporation 
to  build  a  bridge  over  the  waters  of  Charles 
river  at  Boston,  or  to  place  any  obstruc- 
tion therein,  does  not  apply  to  an  arm 
of  the  river  that  has  been  dammed  off 
so  as  to  form  a  basin  for  the  storage  of 

*  See  post,  45,  59-64,  69. 

No  express  charter  power  required  to  build 
bridges,  see  note,  13  Am.  &  Eng.'  R.  Cas.  172. 


BRIDGES— VIADUCTS,  11-15. 


691 


m 


isive  stone 
3ut  if  the 
ged  to  the 
the  whole 
^ear  is  not 
of  its  gross 
ses  and  to 
tional  cost 
Tied  within 
artford  &* 
i/.  (I/.  S.) 

provision 
2  (Curwen's 
ed.),  pro- 
e  of  any 
any   canal 

company 
of  public 
nmissioner 
iblic  works 
he  plan  of 
tr  crossing, 

does  not 
nmissioner 
onstructed 

the  state, 
5  over  any 

Works  V. 
I.)  425. 
orlc  act  of 
idges  over 
t  authorize 
r  bodies  of 
seways  and 
vaters,  they 
meaning  of 
i  N.  V.  376. 

ct. 

companies 
ild  across 
ream  to  its 
is  not  un- 
ss.  Culver 
\  Mo.  App. 

:orporation 
of  Charles 
ly  obstruc- 
;o  an  arm 
immed  off 
storage  of 


ed  to  build 
Cas.  172. 


water,  but  only  to  the  waters  of  the  river 
below  the  dam  and  open  to  navigation,  and 
was  designed  mainly  tu  protect  navigation. 
Boston  Water  Pmver  Co.  v.  Boston  6-  W.  B. 
Co.,  23  Pt'ci  (Mass.)  360. 

The  Wisconsin  act  of  1873,  ch.  119,  §  11, 
authorizing  a  railroad  company  to  construct 
its  road  "  across,  along,  or  upon  any  stream 
of  water,  watercourse,  or  highway,"  au- 
thorizes it  to  bridge  the  same.  Miller  v. 
Prairie  du  Chien  &*  McG.  B.  Co.,  34  Wis. 

533- 

11.  Permission  of  commissioners. 

— Commissioners  were  appointed  by  the 
commonwealth  to  superintend  the  filling 
and  laying  out  of  what  is  known  as  the 
Back  Bay  in  Boston,  and  arrangement  was 
made  by  which  a  water-power  company  was 
to  fill  and  own  a  certain  part  thereof.  The 
directions  of  the  commissioners  provided 
that  a  street  was  to  be  carried  over  a  rail- 
road by  a  bridge  about  thirty  feet  in  length, 
the  remainder  to  be  filled  up  with  clean 
gravel  and  hard  earth,  but  that  the  "  dis- 
tances and  dimensions  of  the  bridge  may 
be  increased  hereafter,  if  found  *  ♦  *  desir- 
able." Certain  lots  were  sold  to  a  railroad 
company  which  covenanted  to  carry  out 
the  agreement  of  the  water-power  company. 
The  commissioners  voted  to  allow  the  rail- 
road company  to  construct  a  bridge  not  to 
exceed  three  hundred  and  sixty-seven  feet 
long,  whereupon  a  property-owner  on  the 
street  filed  a  bill  for  an  injunction.  Held, 
that  the  power  to  make  the  change  in  the 
bridge  was  reserved  to  the  commissioners, 
and  that  the  bill  could  not  be  maintained. 
Gardner  v.  Boston  Water- Power  Co.,  <)  Allen 
{Mass)  466. 

12.  Under  contract  with  munici- 
pality.—The  city  of  Chester  had  power, 
under  the  special  Pennsylvania  act  of  March 
25,  1873  (P.  L.  376),  to  make  a  valid  contract 
with  the  Philadelphia,  W.  &  B.  R.  Co. 
whereby  the  city  wtuld  grade  off  Pennell 
street  so  as  to  cross  over  a  bridge  at  such 
a  height  as  to  permit  the  easy  operation  of 
the  railroad  under  the  street,  provided  the 
railroad  company  would  construct  a  bridge 
there  of  a  certain  kind  and  character.  Phil- 
adelphia, W.  (S-  B.  B.  Co.'s  Appeal,  121  Pa. 
St.  44,  1 5  All.  Rep.  476. 

13.  Bight  to  purchase  bridge  al- 
ready built. — A  corporation  authorized 
by  law  to  build  a  bridge  at  a  given  point 
may  buy  one  already  built  at  the  same  point 
if  suitable  for  their  purpose.     Thompson  v. 


New  York  &•  H.  B.  Co.,  3  Sandf.  Ch.  (N. 
K)  625. 

A  railroad  company  was  chartered  with 
power  to  build  a  bridge  for  their  railway 
across  a  river.  At  or  near  the  place  where 
it  had  to  cross,  a  private  bridge  had  been 
erected  by  individuals  duly  authorized  by  law 
to  build  a  bridge  for  their  own  private  use, 
which  was  entirely  convenient  and  of  suffi- 
cient strength  for  the  purposes  of  the  rail- 
road ;  and  the  company  purchased  the  bridge 
of  the  owners,  reserving  to  the  latter  the 
use  of  it  as  before.  Held,  that  the  owners 
were  authorized  to  sell  and  the  company  to 
buy  the  bridge.  Thompson  v.  New  York  &* 
H.  B.  Co.,  3  Sandf.  Ch.  {N.  Y.)  625. 

Where  the  consent  of  the  county  authori- 
ties to  the  use  of  the  bridge  had  been  given, 
and  the  condition  on  which  it  was  accorded 
was  accepted  and  acted  on  by  the  company, 
it  became  a  binding  contract  until  the  license 
was  revoked  by  the  only  authority  having 
power  to  revoke  it.  Floyd  County  v.  Bome 
St.  B.  Co.,  77  Ga.  614,  3  S.  E.  Bep.  3. 

The  Georgia  act  of  October  7,  1885,  did 
not  affect  the  right  of  the  railroad  company 
to  the  use  of  the  bridge,  which  had  previ- 
ously accrued.  That  act  was  intended  not 
to  restrict  the  company's  franchise,  but  to 
extend  it  upon  the  conditions  named  therein. 
Floyd  County  v.  Bome  St.  B.  Co.,  77  Ga.  614, 
3  S.  E.  Bep.  3. 

14.  Bight  to  bridge  river  rather 
than  establish  ferry.— A  charter  author- 
izing a  railroad  company  to  cross  a  river  by 
bridge  or  ferry,  "as  may  be  most  conven- 
ient," regards  the  convenience  of  both  the 
navigation  and  the  railroad  interest;  and, 
in  the  absence  of  any  designation  to  the 
contrary,  makes  the  railroad  company  the 
judges  as  to  v.iiich  will  be  the  most  conven- 
ient. That  a  bridge  would  be  less  convenient 
to  navigation  than  a  ferry  does  not  deprive 
the  company  of  the  right  to  build  a  bridge. 
Attorney-General  ex  rel.  v.  New  York  &*  L. 
B.  B.  Co.,  24  N.  J.  Eg.  49.— Following 
Stephens  &  C.  Transp.  Co.  v.  Central  R.  Co., 
34N.J.  L.  281. 

3.  Duty  to  Construct. 

15.  Generally.* — A  company  owes  no 


r 


m 


■(,*' 


*Sttpost,  41,  70. 

Bridges  over  railroads,  obligation  to  construct, 
see  note,  39  Am.  &  Eng.  R.  Cas.  248. 

Duty  of  railroad  companies  to  build  bridfrf 
over  track  and  maintain  farm  >'riissiiigs;  who  has 
a  right  to  locate,  see  26  Am.  &.  Enu.  R.  Cas.  364, 
alisir. 


1 


1^1 


693 


BRIDGES— VIADUCTS,  16,  17. 


1 

1 

f 

i 

1 

; 

1^^^'  ' 

^Dl»|t'.::.||; 

duty  of  building  a  road  or  bridge  on  its 
right  of  way  unless  the  same  is  rendered 
necessary  by  the  construction  of  the  rail- 
road. OAto  &*  M.  R.  Co.  V.  Bridgeport,  43 
///.  App.  89. 

Railroad  companies  are  only  bound  to 
build  and  maintain  such  bridges  and  other 
structures  as  ordinary  and  reasonable  men 
can  foresee  will  be  necessary  to  meet  the 
ordinary  contingencies  aiiH  demands  of  na- 
ture. Peoria  &*  P.  U.  R.  Co.  v.  Bar/on,  38 
///.  App.  469. 

Railroad  companies  are  required  to  keep 
in  proper  repair  public  roads  or  private  ways 
established  by  law  where  they  cross  the  rail- 
road, and  to  build  suitable  bridges  or  make 
proper  excavations  or  embankments;  but 
they  are  not  required  to  build  bridges  for 
crossings  which  are  neither  public  nor  pri- 
vate ways  established  by  law.  Cox  v.  East 
Tenn.,  V.  &*  G.  K.  Co.,  68  Ga.  446. 

16.  Under  contract  with  abutting 
landowner.— A  company  contracted  with 
the  owner  of  land  over  which  its  road 
ran  to  build  a  bridge  over  its  track  at  a 
specified  point  on  said  land  within  twelve 
months  after  the  completion  of  the  road. 
The  road  was  not  completed  for  several  years 
and  the  bridge  was  never  built.  Held,  that 
the  owner  of  the  land  was  not  entitled  to  re- 
cover damages.  St.  Louis,  J.  6-  C.  R.  Co.  v. 
Lurton,  72  III.  ii8. 

In  a  suit  against  a  railroad  company  for  a 
failure  to  build  a  bridge  over  its  road  at  a 
given  point,  in  pursuance  of  a  contract  so  to 
do,  the  measure  of  damages  was  held  to  be, 
not  the  difference  in  the  value  of  property 
to  be  affected  by  the  bridge,  or  the  want  of 
it,  but  the  cost  of  building  such  a  bridge, 
together  with  reasonable  compensation  to 
the  other  party  to  the  contract,  for  his  time 
and  labor  in  procuring  and  managing  its 
construction,  and  perhaps  such  damage  as 
might  be  sustained  during  the  time  required 
to  build  it.  St.  Louis,  J.  &*  C.  R.  Co.  v.  Lur- 
ton, 72  ///.  118. 

A  railway  company  which  obtains  a  con- 
veyance from  a  landowner  for  the  purposes 
of  its  road,  and  binds  itself  thereby  to  erect 
and  maintain  a  bridge  of  certain  width  over 
a  road  leading  to  such  owner's  property,  is 
bound  not  to  depart  from  those  conditions, 
and  another  company  claiming  under  it  is 
equally  bound.  Edinburgh  &*  G.  R.  Co.  v. 
Campbell,  9  Z.  T.  151. 

17.  At    crossings  of  streets  and 


highways.*— Under  the  Maine  Rev.  St„ 
ch.  81,  §  62,  railroad  companies  are  required 
to  erect  necessary  bridges  where  their  tracks 
pass  over  or  under  any  highway.  State  v. 
Gar  ham,  37  Me.  45 1 . 

The  lawful  construction  of  a  railroad  upon 
the  grade  of  a  street  does  not  exempt  it 
from  bridging  when  it  becomes  necessary. 
State  V.  Minneapolis  6-  St.  L.  R.  Co.,  35 
Am.  &•  Eng.  R.  Cas.  250,  39  Minn.  219,  39 
N.  W.Rep.  153. 

Under  New  Hampshire  Gen.  Laws,ch.  161, 
§  3,  a  railroad  company  may  be  required  to 
bridge  a  highway  established  but  not  con- 
structed. Worcester,  N.  A-  R.  R.  Co.  v. 
Nashua,  63  N.  H.  593.  4  Atl.  Rep.  298. 

The  duty  of  a  railroad  company  to  con- 
struct and  keep  in  repair  good  and  sufficient 
bridges  or  passages  where  any  public  road 
shall  cross  the  same  is  continuous.  State 
(_Reed,  pros.)  v.  Camden,  53  N.J.  L.  322,  21 
Atl.  Rep.  565. 

The  duty  of  building  necessary  bridges  at 
highway  crossings  which  was  imposed  upon 
the  Montclair  Railroad  Company  by  its 
charter  devolves  upon  the  new  corporation 
which  purchased  the  property  and  franchises 
of  the  old  corporation  at  the  foreclosure 
sale  and  reorganized  under  the  New  Jersey 
Railroad  and  Canal  Act,  §  56.  New  York  &> 
G.  L.  R.  Co.  V.  State,  32  Am.  6-  Eftg.  R.  Qts. 
186,  50  N.  J.  L.  303,  II  Cent.  Rep.  555,  13 
Atl  Rep.  I. 

Under  the  New  York  general  railroad 
act  of  1850  it  is  the  duty  of  railroad  com- 
panies in  constructing  tracks  across  high- 
ways to  restore  them  to  their  former  state, 
or  to  such  state  as  not  to  unreasonably  im- 
pair their  usefulness ;  and  where  a  bridge 
over  a  railroad  track  becomes  necessary,  the 
company  is  bound  to  construct  it  and  keep 
it  in  repair  as  long  as  the  highway  exists,  or 
as  long  as  the  company  continues  to  exer- 
cise and  enjoy  its  franchise.  People  ex  rel. 
V.  Troy  cS-  B.  R.  Co.,  37  Haw.  Pr.  {N.  V.) 
427. 

The  North  Carolina  R.  Co.  is  not  re- 
quired, under  its  charter,  to  construct  cross- 
ings and  bridges  over  its  track  except 
where  the  same  is  crossed  by  public  roads 
which  are  kept  in  repair  at  the  public  ex- 
pense by  overseers  and  laborers  duly  ap- 

*  Authority  to  impose  on  raili-.  '^^  the  duty  to 
make  bridges  and  crossings  over  new  streets  and 
highways,  see  note,  32  Am.  Eng.  R.  Cas.  276. 


BRIDGES— VIADUCTS,  l»-ao. 


(!93 


i 


pointed  to  work  them.  Coon  v.  North  Caro- 
lina R.  Co.,  65  A^.  Car.  507. 

A  road  company  incorporated  under  the 
general  acts  was  *held  entitled  to  maintain 
an  action  against  the  Hamilton  &  Toronto 
Railway  company  for  neglecting  to  make, 
within  a  reasonable  time,  a  proper  bridge 
over  their  railway  where  it  crossed  the  plain- 
tiiT's  road.  Streetsville  Plank  Road  Co.  v. 
Hamilton  &*  T.  R.  Co.,  13  [/.  C.  Q.  B.  600.— 
Following  Rose  v.  Miles,  4  M.  &  S.  loi. — 
— Distinguished  in  Hamilton  &  B.  Road 
Co.  V.  Great  Western  R.  Co.,  17  U.  C.  Q.  B. 
567. 

18.  Where  several  railroads  cross  a 
street.— Each  of  several  railroad  companies 
crossing  streets  nearly  at  the  same  place 
may  properly  be  required  to  construct  the 
parts  of  the  bridges  above  its  own  system  of 
tracks,  and  the  necessary  approaches,  with- 
out other  apportionment  between  them  of 
the  cost  of  the  entire  bridge  structure  and 
approaches.  State  v.  Minneapolis  &*  St.  L, 
R.  Co.,  35  Am.  &>  Eng.  R.  Cas.  250,  39  Minn. 
219,  39  M  W.  Rep.  153. 

10.  Mandamus  to  enforce  sta1n|tory 
duty. — Where  a  railway  company  refuses  to 
construct  a  bridge  over  a  river,  so  as  to 
leave  the  same  width  of  water-way  and  a 
clear  height  of  five  feet  above  the  level  of 
the  river,  an  adjoining  landowner  is  en- 
titled to  a  mandamus  to  compel  it  to 
comply  with  the  statute,  although  by  such 
statute  he  is  given  power  to  apply  to  a 
justice  for  an  order  enabling  him  to  make 
the  bridge  at  the  expense  of  the  company. 
Reg.  V.  Norwich  &*  B.  R.  Co. ,  4  Railw.  Cas. 
112,  iD.&'L.  385,  15  L.J.  Q.  B.  24. 

Upon  the  trial  of  mandamus  proceedings 
against  two  railroad  companies  to  compel 
the  restoration  of  highways  crossed  by  their 
tracks,  evidence  was  admissible  in  the  pro- 
ceeding against  the  one  company  as  to  the 
extent  of  the  use  of  the  street-crossing  by 
the  other  company,  showing  the  necessity 
for  a  bridge  at  the  place  in  question.  StAte 
V.  Minneapolis  &>  St.  L.  R.  Co.,  35  Am.  &* 
Eng.  R.  Cas.  250,  39  Minn.  219,  39  N.  IV. 
Rep.  153- 

The  fact  that  it  is  necessary  that  the  St. 
Paul,  M.  &  M.  R.  Co.  shall  also  bridge  its 
tracks  is  not  a  fatal  objection  to  a  man- 
damus proceeding  against  the  Minneapolis 
&  St.  L.  R.  Co.,  where  the  former  com- 
pany has  been  in  fact  required  to  construct 
the  bridges  over  its  tracks.  State  v.  Minne- 
apolis &»  St.  L.  R.  Co.,  35  Am.  6-  Eng.  R.  Cas. 


250,  39  Minn.  219,  39  N.  Jl'.  Rep.  153.— 
Following  State  v.  St.  Paul,  M.  &  M.  R. 
Co.,  3S  Minn.  131,  38  Minn.  246. 

4.  Sufficiency.* 

20.  Generally.  — Railroad  bridges  over 
which  trains  are  to  pass  should  be  con- 
structed of  the  best  and  most  durable  ma- 
terials that  will  insure  the  greatest  safety  to 
the  travelling  public.  Toledo,  P.  &*  W^.  R. 
Co.  V.  Conroy,  68  ///.  560.— Quoted  in 
Wilson  V.  Denver,  S.  P.  &  P.  K.  Co.,  15 
Am.  &  Eng.  R.  Cas.  192,  7  Colo.  101. 

In  building  a  bridge  at  the  crossing  ot  its 
track  over  a  public  street  a  railroad  company 
is  bound  to  construct  it  of  such  material  and 
in  such  manner  as  to  make  and  keep  it  safe 
for  public  travel.  Caldwell  v.  Vicksburg,  S. 
&»  P.  R.  Co.,  39  Am.  <&-  Eng.  R.  Cas.  245, 41 
La.  Ann.  624,  6  So.  Rep.  217. 

In  constructing  and  maintaining  its 
bridges  a  railway  company  is  bound  to  take 
into  account  the  fact  that  accidents  may 
occur  in  the  operation  of  its  road,  and  to 
construct  its  bridges  with  reference  thereto; 
and  it  is  held  to  a  very  high  degree  of  care 
in  that  respect.  Pershing  v.  Chicago,  B.  &* 
Q.  R.  Co.,  34  Am.  &-  Eng.  R.  Cas.  405,  71 
Iowa  561,  32  N.  IV.  Rep.  488. 

The  degree  of  care  required  of  a  railroad 
company  in  constructing  a  bridge  across  a 
watercourse  is  such  as  to  bring  to  bear  such 
engineering  skill  as  is  ordinarily  applied  to 
works  of  that  kind,  in  view  of  the  size  and 
habits  of  the  stream,  the  character  of  its 
channel,  and  the  declivity  of  the  circum- 
jacent terr  tory  forming  the  watershed. 
Ohio  &>  M.  R.  Co.  V.  Thillman,  143  ///.  127, 
32  A';  E.  Rep.  529. 

If  the  proprietors  of  a  bridge  allow  a  rail- 
road company  to  lay  tracks  over  it  and  to 
operate  trains  thereon,  they  must  provide 
necessary  guards  against  injuries  liable  to 
occur  through  the  increased  danger.  Peo- 
ria Bridge  Assoc,  v.  Loomis,  20  ///.  235. — 
Quoted  in  Chicago  &  R.  I.  R.  Co.  v.  Mc- 
Kean,  40  111.  218. 

A  bridge  having  been  built  by  a  com- 
pany under  the  authority  of  the  general 
railroad  law,  the  township  had  power  to 
erect  any  superstructure  on  it  to  render  it 
safe,  and  collect  the  cost  from  the  company. 
Newlin  Tp.  v.  Davis,  77  Pa.  St.  317. 

The  statutes  of  Connecticut  (Rev.  St. 
323,  324,  §§  28,  30)  do  not  require  the  rail- 

*See/w/,  40,  71. 


:!;:■ 
^k^'' 


694 


BKIlJ(iKS— VIAUUCTS,  21-23. 


road  company  to  maintain  tlic  liighway  un- 
der the  bridge  so  as  to  prevent  the  bridge 
from  interfering  with  public  travel.  Gray 
V.  Danbury,  29  Am.  <S-»  Eng.  R.  Cas.  486,  54 
Conn,  574,  10  All.  Rep.  198. 

A  railroad  company  cannot  be  required  to 
remove  a  bridge  which  is  without  fault  in  its 
plan  or  defect  in  its  structure,  while  in  good 
repair  and  safe  for  the  passage  of  trains, 
simply  because  some  engineer  pronounces  it 
not  as  good  or  convenient  as  some  other 
kind,  lllick  v.  blint  &*  P.  M.  R.  Co.,  67 
Mick.  632,  1 2  Wesf.  Rep.  443,  35  N.  W.  Rep. 
708.— Quoted  in  Ragon  v.  Toledo,  A.  A. 
&  N.  M.  R.  Co.,  97  Mich.  265. 

21.  Must  obey  statutory  require- 
nieuts.'*' — A  bridge  built  under  the  author- 
ity of  a  statute  must  conform  to  the  require- 
ments of  the  law.    Bailey  v.  Philadelphia, 
W.  &•  B.  R.  Co.,  4  Harr.  {Del.)  389. 

Where  a  drawbridge  is  built  across  a 
river,  under  authority  of  a  statute  providing 
that  the  passageway  for  vessels  between 
piers  of  the  bridge  shall  be  one  hundred  and 
sixty  feet  wide  in  the  clear,  the  distance  be- 
tween piers  is  to  be  determined  by  measur- 
ing directly  across  the]  stream,  and  not  by 
measuring  along  the  bridge  where  it  runs 
diagonally  across  the  stream.  Missouri 
River  Packet  Co.  v.  Hannibal  <S-  St.  J.  R. 
Co.,  I  McCrary  (i/.  S.)  281,  2  Fed.  Rep.  285. 

A  railway  company  in  constructing  bridges 
to  carry  its  line  across  a  turnpike  is  bound 
to  make  the  arches  conform  to  the  descrip- 
tion in  the  plans  deposited  with  the  clerk 
of  the  peace,  and  is  not  at  liberty  to  build 
bridges  having  shorter  spans.  Attorney- 
General  V.  Tewkesbury  &*  M.  R.  Co.,  i  De  G. 
/.  &*  S.  423,  32  L.J.  Ch.  482. 

22.  Must  restore  the  stream  and 
prevent  overtlow.+ —  Where  a  railroad 
company  is  authorized  to  bridge  a  stream 
on  condition  that  it  restore  the  same  to  its 
former  state,  or  so  as  to  not  impair  its  use- 
fulness, a  bridge  so  constructed  as  to  impair 
the  usefulness  of  the  stream  is  as  much  a 
nuisance  as  if  no  legislative  authority  had 
been  given.  Healy  w./oliet  &*  C.  R.  Co.,  2 
III.  App.  435.— Quoting  Morgan  v.  King, 
35  N.  Y.  454 :  Culver  v.  Chicago,  R.  I.  &  P. 
R.  Co.,  38  Mo.  App.  130. 

In  the  construction  of  bridges  and  trestles 
crossing  natural  streams,  and  the  approaches 
thereto,  railroad  companies  must  so  con- 

•  See  post,  68. 
f  Stc  post,  48. 


struct  them  that  they  will  not  obstruct  the 
natural  flow  of  watc.  St.  Louis,  A.  &*  T.  II. 
R.  Co.  V.  IVinkelmann,  47  ///.  App.  276. 

Thougli  a  railroad  company  has  under  its 
charter  the  right  to  bridge  a  stream,  it  must 
do  so  in  proper,  skilful  manner,  leaving 
ample  way  for  the  passage  of  the  water,  so 
as  to  save  riparian  owners  from  overflow ; 
and  if  it  fail  so  to  construct  its  bridge,  and 
by  reason  of  its  bridge  structure  narrowing 
the  natural  channel,  backwater  is  cau.sed, 
overflowing  the  premises  of  a  riparian  owner 
and  causing  him  damage,  the  company  is 
liable.  Taylor  v.  Baltimore  &•  O.  R.  Co.,  39 
Am.  &*  Eng.  R.  Cas.  259,  33  W.  Va.  39,  10 
5.  E.  Rep.  29.— Quoting  March  v.  Ports- 
mouth &  C.  R.  Co.,  19  N.  H.  372.  Review- 
ing Lawrence  v.  Great  Northern  R.  Co.,  16 
Q.  B.  643. 

The  Omaha  &  R.  V.  R.  Co.  constructed  a 
railway  bridge  across  the  Platte  river,  the 
piers  being  twenty  feet  apart  from  center  to 
center.  An  ice  gorge  having  formed  above 
the  bridge,  by  which  the  water  of  the  river 
was  thrown  out  of  the  channel,  whereby  the 
property  of  B  was  injured  and  destroyed — 
held,  that  there  being  sufficient  evidence 
tending  to  prove  that  the  openings  between 
the  piers  were  not  sufiicit:nt  to  permit  the 
free  passage  of  such  quantities  of  ice  and 
water  as  might  reasonably  be  expected  to 
occur  occasionally,  a  verdict  in  favor  of  B 
for  $6,000  damages  would  not  be  set  aside. 
Omaha  &*  R.  V.  R.  Co.  v.  Brown,  20  Am.  &* 
Eng.  R.  Cas.  286,  16  JVeb.  161,  20  N.  IV.  Rep. 

202. 

23.  Floods  and  freshets.— (i)  IVhat 
floods  must  be  provided  for. — A  railway  com- 
pany in  carrying  their  road  across  a  water- 
course or  channel  are  bound  to  provide  for 
even  those  extraordinary  floods  which,  by 
the  exercise  of  the  highest  circumspection, 
may  be  anticipated.  Kansas  Pac.  R.  Co.  v. 
Miller,  2  Colo.  442,  20  Am.  Ry.  Rep.  245. 

Where  the  company  located  a  bridge  over 
a  channel  then  containing  no  water,  and 
wherein  no  flow  of  water  was  known  to  have 
occurred — held,  that  due  diligence  required 
an  inquiry  and  examination  as  to  its  char- 
acter and  the  declivity  of  the  circumjacent 
country,  to  ascertain  the  quantity  of  water 
likely  to  flow  there  in  the  future;  that  if  in- 
dications existed  in  the  vicinity  of  former 
floods,  e.g.,  driftwood  and  the  like  in  the 
branches  of  bushes,  or  water-marks  upon 
the  trunks  of  trees,  it  was  gross  negligence 
to  construct  the  bridge,  with  its  approach  of 


BRIDCiliS-VIAUUCTS,  24,  25. 


005 


istrucl  the 
^.S^  T.H. 
p.  276, 
s  under  its 
am,  it  must 
er,  leaving 
e  water,  s(j 
overflow ; 
>ridge,  and 
narrowing 
is  caused, 
rian  owner 
ompany  is 
A'.  Co.,  39 
l^a.  39.  10 
V.  Ports- 
Revikw- 
R.  Co.,  16 

istructed  a 
river,  the 
n  center  to 
Tied  above 
if  the  river 
hereby  the 
estroyed — 
;  evidence 
js  between 
permit  the 
of  ice  and 
xpected  to 
favor  of  B 
!  set  aside. 
20  Am.  S- 
!V.  W.  Rep. 

-(I)  What 
Iway  com- 
5s  a  water- 
irovide  for 
which,  by 
nspection, 
.  R.  Co.  V, 
ep.  245, 
riflge  over 
rater,  and 
'n  to  hiive 
2  required 
>  its  char- 
:umjacent 
'  of  water 
that  if  in- 
of  former 
ke  in  the 
rks  upon 
egligence 
>proach  oi 


light  and  unsubstantial  soil,  reaching  into  the 
water-way.  Kansas  Pac.  R.  Co.  v.  Miller,  2 
Colo.  442,  20  Am.  Ry.  Rep.  24$. 

A  railway  company  is  liable  for  damage 
done  to  property  by  the  carrying  away  of  its 
bridge  by  a  flood  of  extraordinary  and  un- 
usual violence,  if  the  bridge  was  carried  away 
because  of  its  negligent  and  unskilful  con- 
struction ;  but  if  it  was  constructed  in  such 
manner,  and  was  in  such  condition  of  repair, 
as  to  allow  the  water  of  an  ordinary  flood 
to  be  carried  off  and  to  resist  the  force  of  the 
.same,  and  was  carried  away  solely  by  reason 
of  the  unusual  height  and  destructiveness  of 
the  flood,  the  company  is  not  liable.  Pied- 
mont &*  C.  R.  Co.  V.  McKenzie,  52  Am.  &* 
Enfr.  R.  Cas.  667,  75  Md.  458,  24  Atl.  Rep. 

"57. 

Railway  companies  should  construct  their 
bridges  and  trestles  so  as  to  be  secure  and 
sufficient  against  usual  and  ordinary  floods 
in  that  particular  section  of  country;  and 
even  a  defective  condition  of  their  bridges 
caused  by  a  sudden  and  extraordinary  freshet 
will  not  be  excused,  if  there  be  time,  in  the 
exercise  of  reasonable  care  and  attention,  to 
discover  the  defect.  Whether  there  was 
such  time  or  not  is  a  question  of  fact  for,the 
jury.  Knahtla  v.  Oregon,  S.  L.  &*  U.  N.  R. 
Co.,  21  Oreff.  136,  27  Pac.  Rep.  91. 

The  company  is  bound  to  exercise  ordi- 
nary care,  which  is  such  care  as  is  usually 
exercised  under  like  circumstances  by  men 
of  ordinary  prudence  in  their  own  affairs. 
It  is  its  duty  to  guard  against  such  floods 
or  freshets  as  men  of  ordinary  prudence 
can  foresee,  but  not  against  such  extra- 
ordinary floods  and  accidental  casualties  as 
cannot  reasonably  be  anticipated.  Ohio  <5» 
M.  R.  Co.  v.  Thillman,  143  ///.  127,  32  N. 
E.  Rep.  529.— Quoting  Illinois  C.  R.  Co.  v. 
Bethel,  11  111.  App.  17. 

(2)  What  floods  need  not  be  provided  for. 
—  In  the  location  and  construction  of 
bridges  and  trestles  a  railroad  company  is 
required  to  bring  to  the  work  the  engineer- 
ing skill  and  knowledge  generally  known 
and  applied  in  business,  having  regard  to 
the  size  and  nature  of  the  stream,  the  char- 
acter and  features  of  the  adjacent  country 
which  constitutes  its  watershed,  the  relative 
position  and  formation  of  the  abutting  land, 
its  liability  to  overflows,  and  their  probable 
extent  and  effect;  but  it  is  not  bound  to 
provide  against  unusual  or  extraordinary 
floods  such  as  have  never  been  known  to 
occur  before,  and  which  could  not  reason- 


ably have  been  anticipated  by  competent 
and  skilful  engineers.  Columbus  &*  W.  R. 
Co.  v.  Bridges,  38  Am.  &*  Eng.  R.  Cas.  136, 
86  Ala.  448,  5  So.  Rep.  864.  Peoria  <S-  P.  U. 
R.  Co.  V.  Barton,  38  ///.  App.  469.  Piedmont 
Sf  C.  R.  Co.  V.  McKenzie,  52  Am,  6-  Eng.  R. 
Cas.  dfij,  75  Md.  458,  24  Atl.  Rep.  157. 
Knathla  v.  Oregon  S.  L.  <S-  U.  N.  R.  Co..  zi 
Or  eg.  136,  27  Pac.  Rep.  91.  Ohio  6-  M.  R. 
Co.  V.  Thillman,  143  ///.  127,  32  N,  E.  Rep. 
529. 

Failure  to  provide,  in  building  a  bridge, 
against  a  flood  which  could  not  have  been 
foreseen,  or  with  the  greatest  caution  or 
prudence  reasonably  anticipated,  and  which 
was  greater  and  more  destructive  than  had 
ever  before  happened  within  the  memory  of 
the  inhabitants,  imposes  no  liability.  Co- 
lumbus &*  W.  R.  Co.  V.  Bridges,  38  Am.  &* 
Eng.  R.  Cas.  136,  86  Ala.  448,  5  So.  Rep.  864. 
— guoTiNG  Pittsburgh,  Ft.  W.  &  C.  R.  Co. 
V.  Gilleland,  56  Pa.  St.  445. 

24.  Width  of  bridgre.  — A  railroad 
company  is  not  responsible  for  damages 
resulting  from  the  construction  of  a  bridge 
narrower  than  the  road  at  a  crossing  which 
is  neither  a  public  nor  a  private  way  estab- 
lished by  law.  Cox  v.  East  Tenn.,  V.  &*  G. 
R.  Co.,  68  Ga.  446. 

In  an  action  for  damages  for  injuries 
caused  by  plaintiff's  team  falling  off  a  bridge 
constructed  by  a  railroad  company,  it  is 
proper,  when  asked  to  charge  that  there  is 
no  law  which  requires  a  railroad  to  build  a 
bridge  of  any  particular  width,  to  reply  that 
"  it  must  be  a  safe  structure."  Rembert  v. 
South  Carolina  R.  Co.,  39  Am.  &*  Eng.  R. 
Cas.  252,  31  So.  Car.  309,  9  S.  E.  Rep.  968. 

The  construction  by  a  railroad  corpora- 
tion, whose  road  crosses  a  highway  below 
grade,  of  a  bridge  of  less  width  than  the 
highway,  is  not  per  se  a  nuisance.  People  v. 
New  York,  N.  H.  &-  H.  R.  Co.,  10  Am.  6f 
Eng.  R.  Cas.  230,  89  N.  V.  266. 

25.  Coverefl  and  overhead  bridges.* 
— A  covered  bridge  along  the  line  should  be 
built  of  such  height  that  brakemen,  who  are 
required  to  go  on  top  of  freight  cars  while 
going  over  the  bridge,  may  pass  through 
under  the  roof  without  danger  to  their 
personal  safety.  Chicago  &*  A.  R.  Co.  v. 
Johnson,  116  ///.  206,  4  N.  E.  Rep.  381.— 
Followed  and  quoted  in  Cleveland,  C, 
C.  &  St.  L.  R.  Co.  V.  Walter,  45  111.  App. 
642.    Reviewed  in  St.  Louis,  Ft.  S.  &  W. 

*  See  post,  103. 


!   ! 


i 


liilli 


HKIDdlS-VIAUUCTS,  ti«t^  28. 


I 


Mii 

M 


R.  Co.  7.  Irwin,  j7  Kan,  701,  16  I'ac.  F<t'p. 
146.— an>f/ami,  C,  C.  &*  St.  L.  A'.  Co.  v.  IVa/- 
ttr,  147  ///.  60,  3  A',  E.  Rep,  529.  -FOLLOW- 
ING Chicago  &  A.  R.  Co.  v.  Johnson,  116 
III.  206. 

A  railroad  company  cannot,  under  any 
circumstances,  construct  a  bridge  over  its 
tracli  so  low  that  brakemcn  on  top  of  the 
train  in  discharge  of  their  duties  cannot 
avoid  danger  by  bending  or  stooping. 
Louisville  &*  N.  A'.  Co.  v.  //«//.  39  Aw.  &> 
Eng.  R.  Cas.  298,  87  Ala.  708,  4  L.  R.  A.  710, 
6  So,  Rep.  277. 

When  in  crossing  a  highway  it  becomes 
necessary  for  a  railroad  company  to  con- 
struct a  bridge  across  its  truck,  it  is  its  duty, 
if  reasonably  practicable,  to  place  the  stnu  l- 
ure  at  such  an  elevation  that  trains  can 
pass  under  it  without  injury  to  persons  em- 
ployed upon  them.  But  if  the  conforma- 
tion of  the  ground  is  such  as  to  render  the 
elevation  impossible,  or  as  to  cause  incon- 
venience to  the  public  in  the  use  of  the 
bridge,  or  greatly  increase  the  expense  to 
the  railroad  company,  the  bridge  may  be  so 
constructed  as  to  extend  below  the  line  of 
absolute  safety.  Louisville  &*  A'.  R.  Co.  v. 
//all,  39  Am.  (S-  Eng.  R.  Cas.  298.  87  Ala. 
708.  4  L.  R.  A.  710,  6  So.  Rep.  277. 

Where  a  railroad  company  built  a  bridge 
over  a  highway,  and  was  itself  guilty  of  no 
negligence,  and  the  bridge  was  built  upon 
such  plans  and  at  such  height  as  the  borough 
required,  the  comp.iny  is  not  bound  to  pre- 
vent the  highway  from  being  raised,  nor  to 
preserve  the  original  space  between  it  and 
the  bridge.  Gray  v.  Danbury,  29  Am.  ^ 
Eng.  R.  Cas.  486,  54  Conn.  574,  10  Atl.Jitp. 
198. 

26.  When  need  not  provide  for 
other  than  railway  traffic— Defend- 
ants were  chartered  with  power  to  build  a 
bridge  both  for  railroad  traffic  and  ordinary 
travel.  A  bill  filed  by  tiie  attorney-general 
stated  that  the  bridge  had  been  completed 
for  railway  traffic  and  leased  to  a  company  ; 
that  a  foot-passage  had  been  constructed, 
but  the  public  were  not  allowed  to  cross 
thereon,  and  that  no  carriageway  had  been 
constructed,  the  company  having  aban- 
doned the  idea  of  opening  it  for  ordinary 
travel,  //eld,  on  demurrer,  that  a  court  of 
equity  could  not  grant  a  prayer  of  the  bill 
so  far  as  it  asked  that  the  bridge  be  abated 
as  a  nuisance  by  reason  of  not  being  com- 
pleted; but  that  it  did  make  a  case  for 
equitable  relief  so  far  as  it  prayed  that  the 


footway  be  opened  to  the  public.  Attorney- 
General  v.  /niernational  Bridge  Co,,  27 
Gnint  C/i.  (Ont.)  37. 

It  was  proper  that  said  bill  be  filed  by 
the  attorney-general,  and  that  the  railroad 
'■onjpany  using  the  bridge  be  made  a  dc- 
icndant.  Attorney  General  v.  /nternational 
Bridge  Co.,  27  Grant  Ch.  (Ont.)  37.  I'OL- 
I.OWINCJ  Attorney  (Jeneral  v.  Niagara  Falls 
I.  Bridge  Co.,  20  Grant  Ch.  (Ont.)  34. 

27.  Proof  of  insiiHicleiicy.— /V/'w<i 
facie,  the  fiicl  that  a  bridg*'  gives  way  when 
a  train  is  pas.siiig  over  it  shows  negligence. 
Bedford,  S.,  O.  «S-  /i.  R.  Co.  v.  Rainbolt,  21 
Am.  &•  Eng.  R.  Cas.  466,  99  /nd  551. 

The  burden  of  proof  is  on  piiiintiff  to 
show  that  the  bridge  tlocs  not  conform  to 
the  requirements  of  the  law.  Silver  v.  Mis- 
souri Pac.  R.  Co.,  44  Am.  &>  /-ng.  R.  Cas. 
467,  101  A/o.  79,  13  S.  IV.  /\'ep.  410. 

5.  Rebuilding. 

28.  Generally.— A  corporation,  pur- 
chaser of  canals  and  public  works  of  the 
state,  "  subject  to  all  contracts  and  arrange- 
ments heretofore  made  by  act  of  Pennsyl- 
vania assembly,  or  otherwise  for  or  in  re- 
spect to  the  use  of  such  works ; "  and  re- 
quired to  "  carry  out  the  same  w  ith  all  per- 
sons interested  therein  in  the  same  manner 
as  the  commonwealth  f)r  its  agents  were  re- 
quired to  do  by  law,"  is  bound  to  rebuild  a 
bridge,  necessary  to  the  public,  which  had 
been  erected  by  the  state  over  the  canal 
when  made,  but  which  had  fallen  down 
since  the  purchase.  /Pennsylvania  R.  Co.  v. 
Duquesne  Borough,  46  Pa.  St.  223. — Re- 
viewed IN  District  of  Columbia  v.  Wash- 
ington &  G.  R.  Co.,  4  Am.  &  Eng.  R.  Cas. 
161.  I  Mackey  (D.  C.)  361. 

While  the  state  owned  the  canal  the  ques- 
tion of  the  necessity  of  the  bridge  was  for 
the  canal  commissioners  alone,  because  of 
the  immunity  of  the  state  from  suit;  but 
when  it  passed  to  a  private  corporation  the 
question  of  necessity  and  consequent  duty 
became  one  of  a  private  right,  and  passed 
into  the  jurisdiction  of  the  courts.  Penn- 
sylvania R.  Co.  v.  Duquesne  Boroug/t,  46  Pa. 
St.  223. 

Though  the  state  could  not  be  compelled 
to  rebuild  the  bridge  because  of  its  state 
character,  the  purchaser  of  the  public 
works  has  not  that  immunity;  for  a  duty 
which  cannot  be  enforced  by  action  because 
owed  by  the  state,  becomes  a  subject  of  ac- 
tion when  transferred  to  private  persons. 


HRIIXil'S -VIADUCTS,  'JiU  ilii. 


dOT 


Pennsylvania  A",  to.  v.  Duqucsnt-  liotough, 
46  Pa.  S/.  22y 
20.  Itvbullt  by  tuwii  or  county.— A 

railroad  company  having;  in  the  construction 
of  its  road  changed  the  location  of  a  town- 
sliip  road,  and  having  erected  a  bridge  over 
a  creek  for  a  new  public  road,  and  n-fused 
to  repair  and  maintain  it,  the  touii:4hip  re- 
built it.  J/e/ii,  that  the  company  was  liable 
to  the  township  for  the  cost  of  the  bridge. 
The  company  having  originally  built  the 
bridge  to  meet  the  necessities  tA  the  public, 
the  duty  devolved  upon  it  to  maintain  and 
repair  it.  Pennsylvania  K.  Co.  v.  Borough 
oj  Jnvin,  85  Pa.  St.  336,  18  Am.  Ky.  Rep. 
562. 

The  board  of  commissioners  of  a  county 
is  the  proper  party  to  bring  an  action  to  re- 
imburse the  county  for  expenses  incurred 
by  such  board  in  rebuilding  a  bridge  upon 
a  county  road  within  the  limits  of  a  village, 
which  bridge  had  been  so  far  wrongfully  in- 
jured by  a  railroad  company  in  theccmstrur 
tion  of  its  railroad  across  such  county  road 
as  to  require  the  construction  of  a  new 
bridge.  Perry  County  v.  Neivark,  S.  &*  S. 
A".  Co.,  43  Ohio  St.  451,  2  N.  E.  Pep.  854.— 
DisiiN(;uisHiNG  Lawrence  R. Co. 7'.  Com'rs 
of  Mahoning  County,  35  Ohio  St.  i.— DlS- 
TiNc.uiSHKU  IN  Com'rsof  Mahoning  County 
V.  Piiisburgh  &  W.  R.  Co.,  45  Ohio  St.  401. 

UO.  "  To  the  sutiHt'nctioa  of  board 
of  trade." — Where  a  railway  bridge  is 
blown  down  and  an  act  is  passed  authoriz- 
ing the  company  to  construct  a  new  one, 
but  requiring  it  to  remove  the  ruins  and 
debris  of  the  old  bridge  to  the  satisfaction 
of  the  board  of  trade,  this  is  an  absolute 
obligation,  and  the  board  of  trade  have  no 
discretionary  power  to  dispense  with  the 
performance  of  any  part  of  it ;  the  import 
of  the  expression,  "  to  the  satisfaction  of 
the  board  of  trade,"  is,  that  though  not 
bound  to  submit  its  plans  of  removal,  in- 
cluding the  time  and  manner,  yet,  as  a  mat- 
ter of  prudence,  the  company  ought  to  do 
so.  North  British  R.  Co,  v.  Perth,  Provost 
of,  L.  R.  10  App.  Cas.  59. 

6.  Duty  to  Keep  in  Good  Condition  and 
Repair.* 

31.  Generally.  —  Where  a  railway 
crosses  a  city  street  below  grade,  and  a 
bridge  and  approaches  are  erected  by  the 
company  to  carry  the  travel  upon  the  street 

•  See  post,  79,  85. 


above  the  track,  it  is  the  duty  of  the  com- 
pany to  keep  both  the  bridge  and  the  ap- 
proaches in  a  safe  condilii)!!.  Newton  v. 
Chicago.  R.  1.  &*  /'.  R.  Co.,  23  Ami.  6-*  ling, 
R.  Cas.  298,  66  towa  422,  23  A'.  /F.  Rep. 
905.  — Foi.l.owiNd  Farley  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  42  Iowa  237, 

If  a  railroad  company  accepts  permission 
granted  to  it  by  the  highway  commissioners 
to  construct  a  bridge  over  a  crossing,  the 
duty  is  liiereby  imposed  upon  it  of  keeping 
the  same  in  proper  repair.  Hayes  v.  New 
York  C.  &*  H.  R.  R.  Co.,  9  //un  (N.  V.)  63. 

Under  the  New  York  act  of  1850,  ch.  140, 
§  24,  a  railroad  company  carrying  a  high- 
way over  its  track,  as  therein  authorized, 
is  bound  to  keep  the  bridge  in  proper  re- 
pair, .uid  is  liable  to  indictment  for  a  failure 
to  do  so.  People  v.  New  York  C.  &*  H.  R. 
R.   Co.,  74  A'.    Y.   302;  modifying   12  Hun 

'95. 

A  railway  company  must  keep  its  bridge 
over  the  track  in  such  a  condition  as  not  to 
be  dangerous  to  any  one  using  it  in  a  lawful 
manner.  Lay  v.  Midland  R.  Co.,  34  L.  T. 
30 ;  ri"iiersing  30  /,.  'P.  529. 

A  company  must  keep  its  railroad  bridges 
in  such  condition  and  repair  as  to  make 
them  safe  for  the  travelling  public.  Cald- 
well V.  Vicksburg,  S.  &*  P.  R.  Co.,  39  Atn. 
jS-  Eng.  R.  Cas.  245,  41  La.  Ann.  624,  6  So. 
Rep.  217. 

The  bridgeway  over  the  Missouri  river  at 
Kansas  City  is  a  public  highway,  being  held 
and  operated  under  a  franchise  granted  for 
the  purpose  of  a  public  roadway  for  the 
transportation  of  passengers  over  the  river; 
and  the  company  owning  it  is  underas  much 
obligation  to  keep  it  in  a  reasonably  safe 
condition  as  if  it  were  a  ferry.  Pembroke  v. 
Hannibal  &•  St.  f.  R.  Co.,  32  Mo.  App.  61. 

32.  Scope  and  extent  of  the  rule. 
— The  duty  on  the  part  of  the  railroad  com- 
pany of  keeping  in  repair  bridges  where  a 
public  road  crosses  the  track  is  continuous. 
State  (Reed,  pros.)  v.  Camden,  53  N.f.  L.  322, 
21  All.  Rep.  565. 

The  duty  of  a  railway  company  is  not  dis- 
charged by  trusting,  without  inspecting  and 
testing,  to  the  reputation  of  manufacturers 
and  the  external  appearance  of  materials 
used  in  the  construction  of  bridges.  The  law 
requires  that  before  the  lives  of  passengers 
are  trusted  to  the  safety  of  its  bridges  the 
company  shall  carefully  and  skilfully  test 
and  inspect  the  materials  it  uses  in  such 
structures;  and  after  the  bridges  are  con- 


■i.»: 


m. 


r'-'  ■ 


m 


1, 


608 


BRinC.l'S— VIADUCTS,  US. 


5       A 

H       '!■' 

>  1       1 

1 J :  -i 

[    1 

i^k:,: 

strutted  it  is  the  duty  of  tiie  company  to 
test  them  from  time  to  time  to  ascertain 
whether  they  are  being  impaired  by  use  or 
exposure  to  the  elements.  Louisville,  N.  A. 
(J*  C.  R.  Co.  V.  Snyder,  37  Am.  <S-  Eng.  R. 
Cas.  137,  ii7/«</.  435,  20  N.  E.  Rep.  284, 
3  L.  R.  A.  434. 

Under  the  New  York  general  railroad  act 
of  1850,  where  a  bridge  becomes  necessary 
where  the  railroad  crosses  a  highway,  and  it 
is  constructed,  the  company  must  keep  it  in 
repair  as  long  as  the  highway  exists  or  as 
long  as  the  company  continues  to  exercise 
and  enjoy  its  franchise.  Such  duty  is  not 
avoided  by  mere  abandonment  of  the  road 
and  the  removal  of  the  track.  People,  ex 
rel.  V.  Troy  &*  B.  R.  Co.,  37  How.  Pr.  {N.  V.) 

427. 

Where  a  railway  company  erects  its  track 
over  a  road  by  means  of  a  bridge,  it  is 
bound  by  the  Railways  Clauses  Act  1845  to 
keep  both  bridges  and  road  and  all  ap- 
proaches in  repair.  North  Staffordshire  R. 
Co.  v.  Dale,  8  El.  &•  Bl.  836,  4  Jur.  N.  S. 
(il\,vj  L.J.  M.  C.  147. 

And  in  such  a  case  repair  includes  the 
metalling  of  the  road  on  both  bridge  and 
approaches.  North  of  England  R.  Co.  v. 
Langbaurgh,  24  L.  T.  544. 

The  statutory  duty  of  a  railway  company 
to  keep  in  repair  all  bridges  either  under  or 
over  its  track  includes  the  duty  to  keep  in 
repair  the  roadway  of  a  bridge  constructed 
over  a  track,  although  such  roadway  has  al- 
ways been  maintained  and  repaired  by  the 
inhabitants  of  the  parish.  Reg,  v.  South  E. 
R.  Co.,  32  L.  T.  858. 

A  company  owes  no  duty,  however,  to 
keep  in  repair  a  road  or  bridge  on  its  right 
of  way,  unless  it  is  rendered  necessary  by 
the  construction  of  the  railroad.  Ohio  &* 
M.  R.  Co.  v.  Bridgeport,  43  ///.  App.  89. 

33.  Under  special  statutes.*— (i) 
Maine. — Under  Maine  Rev.  St.  ph.  81,  §  62, 
it  is  the  duty  of  railroad  companies  to  erect 
necessary  bridges  where  their  tracks  pass 
over  or  under  any  turnpike  road,  canal,  or 
highway,  and  to  keep  the  same,  with  their 
approaches  and  abutments,  in  proper  repair. 
State  V.  Gorham,  37  Afe.  451. 

(2)  Massachusetts. — Where  a  railroad  com- 
pany, under  Massachusetts  Rev.  St.  ch.  30 
§  72,  constructs  a  bridge,  with  abutments, 
under  or  over  a  turnpike  road,  canal,  high- 
way, or  other  way,  it  is  under  legal  obliga- 

*  See  ante,  3. 


tion  to  keep  the  whole  structure  in  repair, 
though  a  portion  of  it  may  be  outside  of 
the  boundaries  of  its  railroad.  White  v. 
Quincy,  97  Mass.  430.  —  Distinguishino 
Stearns  v.  Old  Colony  &  F.  R.  R.  Co.,  1 
Allen  (Mass.)  493.  Quoting  Parker  v.  Bos- 
ton &  M.  R.  Co.,  3  Cush.  (Mass.)  107. 

(3)  North  Carolina.  —  The  provision  of 
Bat.  N.  Car.  Revisal,  ch.  104,  §  36,  providing 
that  "railroad  companies,  plank-road,  and 
turnpike  companies  each  shall  keep  up  at 
their  own  expense  all  bridges  on  or  over 
county  or  incorporated  roads  which  they 
have  severally  made  necessary  to  be  built  in 
establishing  their  respective  roads,"  does 
not  apply  to  railroads  built  before  the  pas- 
sage of  the  statute.  State  v,  Wilmington 
&*  W.  R.  Co.,  74  N.  Car.  143. 

Section  27  of  the  charter  of  the  Wilming- 
ton &  Weldon  Railroad  Company  does  not 
require  that  company  to  make  and  repair 
bridges  made  necessary  by  roads  laid  out 
subsequent  to  the  construction  of  said  rail- 
road. State  v.  Wilmington  6-  W.  R.  Co.,  74 
N.  Car.  143. 

(4)  Pennsylvania. — Under  the  Pennsyl- 
vania act  of  April  21, 1858,  providing  for  the 
sale  of  the  state  canals,  the  Wyoming  Canal 
Co.,  as  the  assignee  of  the  Sunbury  &  E.  R. 
Co.,  was  bound  to  keep  in  repair  a  private 
bridge  crossing  a  canal,  as  had  been  done  by 
the  commonwealth,  who  built  the  bridge 
for  the  owner  of  the  farm  when  the  canal 
was  made ;  subsequently  the  Lackawanna  & 
B.  R.  Co.,  duly  authorized  by  law,  built  their 
road  on  the  banks  of  the  canal  where  the 
bridge  crossed,  and  so  altered  the  bridge 
as  to  increase  the  cost  of  keeping  it  in  re- 
pair;  the  bridge  becoming  unsafe,  the  canal 
company  refused  to  repair,  whereupon  suit 
was  brought  by  the  owner  of  the  farm.  Held, 
that  the  canal  company  was  not  relieved 
from  its  obligation  to  keep  the  bridge  in 
repair  by  any  acts  of  the  railroad  company 
in  the  location  or  construction  of  their 
road.  Ammermanv.  Wyoming  Canal  Co.,  ^o 
Pa.  St.  256. 

(5)  English  statutes,  generally. — A  special 
act  requiring  a  railway  company,  when  its 
track  crosses  a  turnpike  road,  to  construct 
a  proper  bridge  to  carry  the  turnpike  road 
over  its  track,  and  to  keep  in  repair  the  road 
fences  for  twelve  months,  does  not  restrict 
to  a  period  of  twelve  months  from  the  com- 
pletion of  the  work  the  company's  liability 
to  keep  the  bridge  in  repair.  Netvcastle- 
under-Lyne  &*  Leek  Turnpike  Road  ( Trus- 


BRIDGES-VIADUCTS,  34. 


699 


m 


in  repair, 

Dutside  of 

IVA/U  V. 

GUISHINO 

R.  Co.,  I 
err/.  Bos- 
107. 

>vision  of 
providing 
road,  and 
eep  up  at 
or  over 
hich  tbey 
be  buili  in 
ids,"  does 
e  the  pas- 
'^ilmington 

Wilming- 

'  does  not 

md  repair 

s  laid  out 

said  rail- 

R.  Co.,  74 

Pennsyl- 
ing  for  the 
ling  Canal 
ry  &  E.  R. 

a  private 
:n  done  by 
he  bridge 

the  canal 
awanna  & 
built  their 
where  the 
he  bridge 
g  it  in  re- 
,  the  canal 
:upon  suit 
rni.  Held, 
t  relieved 

bridge  in 

company 
I  of  their 
mat  Co.,  ^ 

-A  special 
,  when  its 
construct 
ipike  road 
r  the  road 
ot  restrict 
I  the  com- 
's  liability 
\'e7vcastle- 
>ad  ( Trus- 


tees) V.  North  Staffordshire  R.  Co.,  S  H.  &• 
N.  160;  s.  c.  nom.  Leech  v.  North  Stafford- 
shire R.  Co.,  29  L.J.M.  C.  150.  %W.R.i\(i. 
Where  a  person  is  authorized  by  private 
act  to  make  a  road  under  a  railway,  and  to 
maintain  a  bridge  to  the  satisfaction  of  the 
company's  engineer,  the  company  cannot 
without  giving  such  person  notice  make 
repairs  and  hold  him  liable  for  the  expense, 
although  the  necessity  for  such  repairs 
could  only  be  ascertained  by  entry  on  and 
examination  of  the  bridge.  London  &*  S. 
W.  R.  Co.  v.  Fiower,  45  L.  J.  C.  P.  54,  33 
L.  T.  687, 

(6)  Locomotive  Act,  24  S^  25  Vic.  ch.  70,  § 
7. — The  Locomotive  Act,  24  &  25  Vic.  ch. 
70,  §  7,  relating  to  the  repair  of  bridges 
damaged  by  reason  of  any  locomotive  pass- 
ing over  or  coming  into  contact  with  the 
same,  does  not  apply  to  bridges  repairable 
by  the  inhabitants  of  the  county.  Reg.  v. 
Kitchener,  29  L.  T.  697,  12  Co.x  C.  C.  522, 
L.  R.  2  C.  C.  88,  43  L.  J.  M.  C.  9.  22  W.  R. 

«34- 

(7)  Rat/ways  Clauses  Consolidation  Act,  8 
Vic.  ch.  20,  §§  46,  65. — Where  a  railway 
crosses  a  highway,  and  the  road  is  carried 
over  the  railway  by  means  of  a  bridge,  in 
accordance  with  the  provisian  of  §  46  of  the 
Railways  Clauses  Consolidation  Act  1845, 
the  railway  company  are  bound  to  keep  in 
repair  the  roadway  upon  the  bridge,  such 
roadway  being  part  of  the  bridge  which  by 
the  section  the  company  are  to  maintain. 
Mayor,  etc.,  of  Bury  v.  Lancashire  <S*  Y.  R. 
Co.,  42  Am.  Or*  Eng.  R.  Cas.  56,  20  Q.  B.  D. 
485;  affirmed  in  \^  App.  Cas.  417. — FOL- 
LOWING North  Staffordshire  R.  Co.  v.  Dale, 
8  El.  &  Bl.  836. 

Where  §  65  of  the  Railways  Clauses  Con- 
solidation Act  1845  was  expressly  varied  by 
the  special  act  of  a  railway  company, 
providing  that  if  after  notice  the  company 
does  not  with  reasonable  expedition  repair 
a  bridge  over  a  turnpike  road  the  surveyor 
and  the  trustees  may  repair  and  recover  the 
costs,  yet  it  revived  on  the  cessation  of  the 
turnpike  trust,  and  an  order  to  repair  the 
bridge  may  be  made  under  it.  London,  C. 
&»  /J.  R.  Co.  V.  IVandsworth  Board  of 
Works,  42  L.  f.  M.  C.  70,  L.  R.  8  C.  P.  8. 

34.  Notice  or  knowledgrc  of  de- 
fects.— Railroad  companies  are  supposed 
to  know  the  condition  of  their  bridges,  and 
it  is  not  necessary  to  show  that  a  company 
had  knowledge  of  a  defective  bridge  in 
order  to  recover  for  injuries  received  in 


consequence  of  such  defect.  South  6-  N. 
Ala.  R.  Co.  V.  McLendon,  63  Ala.  266. 

It  seems  that  the  happening  of  a  violent 
rainstorm  is  sufficient  to  put  the  foreman  of 
a  section  of  railroad  npon  notice  that  the 
track  may  be  out  of  repair,  making  it  his 
duty  to  proceed  to  inspect  it.  St.  Louis  &* 
S.  F.  R.  Co.  V.  George,  85  Tex.  150,  19  S.  W. 
Rep.  1036. 

A  violent  storm  occurring  near  the  sources 
of  a  channel  or  water-way,  ordinarily  dry, 
was  observed  at  a  station  on  the  railway, 
nine  miles  distant  from  a  bridge,  by  which 
the  road  crossed  the  channel  in  question. 
Held,  that  diligence  required  the  agents  of 
the  company  to  examine  the  bridge  after 
the  storm  and  before  the  passage  of  trains. 
Kansas  Pac.  R.  Co.  v.  Miller,  2  Colo.  442,  20 
Am.  Ry.  Rep.  245. 

Railroad  bridges  should  be  subjected 
periodically  to  the  closest  examination,  so 
that  the  company  niay  be  able  to  perform 
its  duty  with  reference  to  keeping  them  in 
good  condition  and  repair.  Toledo,  P.  &• 
W.  R.  Co.  V.  Conroy,  68  ///.  560. 

Where  a  railroad  bridge  was  a  trestle- 
work  constructed  of  timbers  fifteen  years 
before  an  accident  thereon,  resulting  in  the 
loss  of  life,  and  many  of  the  timbers  were 
rotten  at  the  heart,  and  some  of  the  tenons 
had  rotted  off,  and  the  company  had  been 
notified  of  its  unsafe  condition  before,  and 
had  made  some  slight  rep>airs  at  one  end 
only,  without  thorough  examination — held, 
that  the  company  were  negligent  to  such  a 
degree  as  to  merit  the  severest  censure.  Act- 
ual knowledge  of  the  defects  is  not  neces- 
sary, but  it  is  sufficient  if  the  company 
might  have  been  informed  by  the  use  of 
such  diligence  as  the  law  requires.  Toledo, 
P.  &-  IV.  R.  Co.  V.  Conroy,  63  ///.  560. 

Where  a  bridge  is  weakened  by  a  sudden 
and  unprecedented  flood,  and  there  is  no 
time  or  opportunity  for  inspecting  it,  the 
railroad  company  is  not  responsible  for  an 
injury  resulting  from  its  giving  way  beneath 
a  train  run  with  proper  care  and  skill ;  but 
it  is  otherwise  if  its  unsafe  condition  may 
reasonably  be  discovered  in  time  to  avoid 
danger.  Louisville,  N.  A.  &•  C.  R.  Co.  v. 
Thompson,  27  Am.  &"  Eng.  R.  Cas.  88,  ro7 
fnd.  442,  57  Am.  Rep.  120,  8  A^.  E.  Rep.  18, 
9  A'.  E.  Rep.  357.— Distinguishing  Pitts- 
burg, Ft.  W.  &  C.  R.  Co.  V.  Gilleland,  56 
Pa.  St.  445;  Flori  v.  St.  Louis,  69  Mo.  341, 
33  Am.  Rep.  504;  Livezeyv.  Philadelphia, 
64  Pa.  St.  106,  3  Am.  Rep.  578;  Nashville 


•   ;n«> 


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i- 


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BRIDGES -VIADUCTS,  ;jr.-ao. 


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ll 


6  C.  R.  Co.  t'.  David,  6  Hcisk.  (Teiin.)  261, 
19  Am.  Rep.  594. 

35.  ExpcuKCS  of  repairing.— The 
plaintiff  company  repaired  a  bridge  owned 
by  the  defendant,  although  the  defendant 
had  had  no  notice  nor  any  icnowledge  or 
means  of  ascertaining  that  tlie  repairs  were 
necessary.  It  was  AM,  that  the  company 
was  i.ot  entitled  to  recover  expenses  so  in- 
curred. London  <S-  S.  IV.  Ji.  Co.  v.  Flower, 
L.  R.  I  C.  P.  D.  77.  Compare  Ammerman 
V.  Wycming  Canal  Co.,  40  Pa.  St.  256. 

36.  Duty  of  city  or  town  to  repair. 
— The  statutory  duty  imposed  upon  a  rail- 
road to  restore  streets  over  which  it  con- 
structs its  road  to  their  former  condition,  and 
to  maintain  proper  bridges  where  the  same 
are  necessary,  does  not  relieve  a  city  from  the 
duty  to  keep  the  streets  in  a  safe  condition, 
nor  relieve  it  from  liability  from  injuries  re- 
sulting from  defects  therein.  Tierney  v. 
Troy,  41  Hun  (N.  Y.)  120,  4  .V.  V.  S.  Ji.  15. 

Where  a  statute  enjoins  upon  several 
towns  and  a  railroad  company  the  joint 
duty  of  providing  for  keeping  a  bridge  in 
repair,  and  one  of  the  towns  is  charged  with 
the  duty  of  superintending  necessary  re- 
pairs, the  railroad  company  cannot  main- 
tain an  action  against  such  town  to  recover 
back  moneys  which  it  has  been  compelled 
to  pay  out  as  damages  for  injuries  caused 
by  reason  of  the  bridge  being  out  of  repair. 
Maiden  &*  M.  R.  Co.  v.  Charleston,  8  Allen 
{Mass.)  245. 

\  town  is  not  responsible  for  a  defect  or 
want  of  repair  in  a  bridge,  whereby  a  pub- 
lic highway  passes  over  a  railroad,  the  pro- 
prietors of  which  are  bound  by  law  to  keep 
the  bridge  in  repair.    Sawyer  v.  Northfield, 

7  Cush.  {M<*ss.)  490.— Distinguished  in 
Davis  7/.  Leominster,  i  Allen  (Mass.)  182. 

37.  Duty  of  canal  company  to  re- 
pair.— The  owner  of  the  farm  for  whose 
use  the  bridge  was  built  could  maintain  an 
action  against  the  canal  company  for  neg- 
lecting to  repair  it,  even  though  the  rail- 
road company  might  be  liable  to  keep  it  up, 
and  might  also  be  responsible  in  damages 
to  the  canal  company  for  injury  done  re- 
quiring greater  care  and  expense  in  keeping 
the  bridge  in  repair,  Ammerman  v.  Wyo- 
ming Canal  Co.,  40  Pa.  St.  256. 

38.  Duty  of  purcliasing:  company 
to  repair. — Where  one  railroad  company 
buys  from  another  its  road,  including  a 
completed  bridge,  it  owes  to  its  servants 
operating  the  road  the  duty  not  only  of 


maintaining  the  bridge  in  as  good  repair  as 
when  it  was  acquired,  but  also  of  repairing 
and  supplying  all  palent  defects  in  its  origi- 
nal construction.  If  it  fails  to  perform  this 
latter  duty,  and  an  injury  is  occasioned  to  a 
servant  by  reason  of  such  patent  defect,  the 
company  is  liable  in  damages.  Vosburgh  v. 
Lake  Shore  &*  M.  S.  R.  Co.,  1 5  Am.  <S-  Eng. 
R.  Cas.  249.  94  A^.  Y.  374.  46  Am.  Rep.  148  ; 
affirming  26  Hun  671,  mem. — Distinguish- 
ing Devlin  v.  Smith,  89  N.  Y.  470,  42  Am. 
Rep.  311. 

The  duty  of  keeping  in  repair  necessary 
bridges  at  highway  crossings,  which  was  im- 
posed upon  the  Montclair  R.  Co.  by  its 
charter,  devolves  upon  a  corporation  which 
purchases  the  property  and  franchises  of 
said  company  at  a  foreclosure  sale,  under  § 
56  of  the  New  Jersey  railroad  and  canal 
act.  New  York  6-  G.  L.  R.  Co.  v.  State,  32 
Am.  &*  Eng.  R.  Cas.  186,  50  A'./.  L.  303, 13 
Atl.  Rep.  I. 

A  railroad  company,  claiming  under  an- 
other company,  is  bound  by  the  conditions 
in  a  deed  of  conveyance  to  the  latter,  refer- 
ring to  the  maintenance  and  keeping  in 
repair  of  a  bridge  of  a  certain  width  over 
the  track.  Edinburgh  &•  G.  R,  Co.  v.  Camp- 
bell,^!.. T.  157. 

7.  Approaches.* 

39.  Generally.— A  portion  of  a  street 
lowered  for  the  purpose  of  allowing  passage 
under  a  railroad  bridge  is  not  an  "ap- 
proach "  to  the  bridge,  so  as  to  make  the 
company  liable  for  injuries  resulting  from  a 
failure  to  keep  approaches  to  their  bridges 
in  proper  repair,  and  exonerating  the  city 
from  liability,  within  the  meaning  of  Mass. 
Pub.  St.  ch.  112,  §  128.  Whitcher  v.  Som- 
erville,  1 38  Mass.  454. 

The  city  of  Camden  has  power  by  its 
charter  and  the  New  Jersey  statute  relating 
to  railroads  and  canals  (Rev.  p.  944,  §  163) 
to  pass  an  ordinance  vacating  part  of  a  pub- 
lic street  and  cor.tracting  with  a  railroad 
company  for  an  elevated  approach,  in  the 
remaining  part  of  the  street,  to  the  abut- 
ments of  a  bridge  to  be  constructed  across 
railroad  tracks  laid  in  another  street,  and 
for  a  depression  of  said  tracks,  giving  com- 
pensation to  abutting  landowners  sustainini; 
peculiar  damages  to  their  privare  rights. 
State  {Reed,  pros.)  v.  Camden,  53  N.J.  L.  322, 
21  Atl.  Rep.  565. 

•  See  ante,  4. 


lii 


BRIDGES -VIADUCTS,  40-42. 


701 


In  constructing  a  railroad  bridge  it  be- 
came necessary  to  elevate  the  track  over 
low  land  for  a  considerable  distance  before 
reaching  the  bridge.  In  times  of  high 
water  the  river  spread  o\rer  this  low  land, 
and  it  was  necessary  to  protect  the  roadbed 
by  rock  work.  A  dispute  arose  between 
the  company  and  its  bridge  contractors  as 
to  what  part  of  this  work  was  approaches 
to  the  bridge  and  what  paii  a  mere  dyke. 
Held,  that  the  opinion  of  a  practical  engi- 
neer on  the  question  was  proper  evidence, 
and  was  entitled  to  weight  with  the  jury. 
Union  Pac.  R.  Co.  v.  Clopper,  131  £/.  5.  192 
app'x,  26  Law  Ed.  {U.  S.)  243. 

40.  Sufficiency.— It  is  the  duty  of  a 
railroad  company  in  constructing  a  bridge 
over  which  foot-passengers  are  to  travel, 
and  in  making  the  lateral  embankments  ad- 
joining the  highway,  to  so  construct  them 
as  not  to  render  the  approach  to  the  bridge 
along  the  highway  dangerous  for  passengers 
by  day  or  night;  and  a  failure  to  perform 
this  duty  will  render  it  liable  to  a  party  who 
may  be  injured  by  falling  over  the  embank- 
jnent,  provided  he  used  reasonable  and  or- 
dinary care  to  avoid  the  injury.  Baltimore 
<S-  O.  R.  Co.  V.  Boteler,  38  Md.  568,  10  Am. 
Ry  Rep.  506. 

Where  a  statute  provides  that  no  ap-, 
proach  to  a  bridge  over  a  railroad  track  or 
at  a  grade  crossing  shall  be  over  five  de- 
grees, a  failure  to  comply  with  the  statute 
is  presumptive  evidence  of  negligence  ;  but 
still  the  company  will  not  be  liable  for  an 
injury  which  is  not  the  result  of  the  unlaw- 
ful grade.  Kyne  v.  Wilmington  &*  N.  R. 
Co.,  {Del.)  14  Atl.  Rep.  922. 

41.  Duty  to  construct. — Minnesota 
special  act  1879,  ch.  1885,  authorizing  the 
Minneapolis  &  St.  Louis  Railroad  Com- 
pany to  construct  branch  lines  and  tracks, 
and  requiring  the  city  to  build  approaches 
to  necessary  street  bridges,  is  not  applica- 
ble to  the  already  existing  line  of  road. 
State  V.  Minneapolis  &»  St.  L.  R.  Co.,  35 
Am.&»  Eng.R.Cas.  250,  39  Minn.  219,  39 
N.  W.Rep.  153. 

Under  the  special  Pennsylvania  act  of 
March  25,  1873,  P.  L.  376,  the  city  of  Ches- 
ter had  power  to  make  a  lawful  contract 
with  the  P.  W.  &.  B.  R.  Co.,  by  which,  in 
consideration  of  a  bridge  of  a  specified 
character  on  Pennell  street  over  the  railroad 
crossing,  to  be  erected  and  donated  by  the 
company,  the  grade  of  the  street  should  be 
fixed  and  established  so    that  the    street 


when  opened  and  used  over  said  bridge 
should  cross  the  railroad  at  such  a  height 
as  to  permit  the  free  operation  of  the  rail- 
road thereunder ;  by  such  contract  the  city 
is  bound  as  if  it  were  an  individual,  and 
the  rights  secured  to  the  company  thereby 
are  inviolable.  Philadelphia,  IV.  &*  B.  R. 
Co.'s  Appeal,  121  Pa.  St.  44,  15  Atl.  Rep. 
476. 

The  slope  of  the  approach  to  a  bridge 
carrying  a  road  over  a  railway  must  not  ex- 
ceed that  limited  by  statute,  and  it  is  no 
answer  to  say  that  the  statutory  requisition 
cannot  be  complied  with  without  stopping 
the  railway,  owing  to  an  injunction  having 
been  obtained  by  a  person  on  whose  land  it 
was  necessary  that  the  company  should  en- 
croach in  order  to  make  the  statutory  slope. 
Attorney-General  v.  Mid-Kent  R.  Co.,  L.  R. 
3  Ch.  100,  i6  W.  R.  258. 

42.  Duty  iu  keep  iu  good  condi- 
tion.— (i)  Generally.— VihcTt  a  company 
has  the  duty  cast  upo.i  it  of  keeping  a 
bridge  which  it  owns  in  repair,  it  must  also 
keep  the  approaches  to  the  same  in  a  safe 
condition.  Newton  v.  Chicago,  R.  I.  &*  P. 
R.  Co.,  23  Am.  6f  Eng.  R.  Cas.  298,  66  Iowa 
422,  23  N.  IV.  Rep.  905. 

Where  under  Maine  Rev.  St.  ch.  81,  §  62, 
the  company  is  required  to  erect  and  keep 
in  repair  bridges  where  the  track  crosses  a 
highway,  the  company's  duty  extends  to 
keeping  in  repair  the  approaches  to  the 
bridge.    State  v.  Gorham,  37  Me.  451. 

A  railroad  company  is  bound,  under  the 
New  York  act  of  1850,  ch.  140,  §  24,  to 
keep  the  approaches  to  its  bridges  in  proper 
repair.  People  v.  New  York  C.  df  H.  R.  R. 
Co.,  7xN,    Y,  302;  modifying  12  Hun  195. 

Where  a  railroad  company  is  authorized 
by  the  highway  commissioners  to  construct 
a  bridge  over  a  crossing;,  it  is  under  the 
same  duty  to  keep  the  approaches  to  the 
bridge  in  proper  repair  that  it  is  as  to  the 
bridge  itself.  Hayes  v.  New  York  C.  &* 
H.  R.  R.  Co.,  9  Hun  {N.  Y.)  63.— Distin- 
guishing New  Haven  v.  New  York  &  N. 
H.  R.  Co.,  39  Conn.  128.  Reviewing 
North  Staffordshire  R.  Co.  v.  Dale,  8  El.  & 
Bl.  836. 

(2)  Scope  and  extent  of  this  duty. — The 
duty  of  a  railroad  company  does  not  end 
with  the  construction  of  approaches  to  a 
bridge  and  crossings,  and  keeping  the  same  in 
repair.  When  there  is  a  change  of  condi- 
tions it  is  bound  to  conform  to  the  new  cir- 
cumstances and  conditions  as  they  arise, 


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BRIDGES— VIADUCTS,  43-46. 


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and  to  alter  such  places  from  time  to  time 
as  it  becomes  necessary.  OAt'o  &*  M.  R,  Co. 
V.  Bridgeport,  43  ///.  App.  89. 

Where  a  railroad  passes  through  a  cut 
and  the  company  constructs  a  bridge  over 
the  track  for  the  purpose  of  a  highway, 
under  the  duty  imposed  by  statute  to  keep 
abutments  in  repair,  the  company  is  bound 
to  repair  the  entire  distance  of  an  excava- 
tion made  in  crossing  the  highway  as  ap- 
proaches to  the  bridge.  Titcomb  v.  Fitch- 
burg  R.  Co.,  12  Allen  (Mass.)  254. 

Where  a  railroad  company  maintains  a 
bridge  which,  with  its  approaches,  is  part 
of  a  highway,  it  is  liable  for  an  injury  hap- 
pening through  a  defect  in  the  approach 
which  has  been  widened  after  the  bridge 
was  built,  through  the  injury  occurred  out- 
side of  the  approach  as  originally  con- 
structed. Carter  v.  Boston  6*  P.  R.  Corp., 
139  Mass.  525,  2  N.  E.  Rep.  loi. 

If  the  railroad  is  charged  witii  the  duty 
of  maintaining  the  approaches  to  a  bridge 
in  safe  condition  fur  public  travel,  it  is  the 
party  ultimately  liable.  Its  duty  is  absolute 
and  may  be  enforced  not  only  by  the  town- 
ship, but  also,  for  his  own  relief,  by  any 
person  specially  injured  by  neglect  of  it. 
Gates  V.  Pennsylvania  R.  Co.,  1 50  Pa.  St.  50, 
24  Atl.  Rep.  638. 

If  the  railroad  company  is  not  charged 
with  the  exclusive  care  and  maintenance  of 
such  approaches,  still,  if  it  undertakes  the 
duty  to  care  for  and  maintain  them,  it  is 
liable  for  negligence  in  its  performance. 
Gates  V.  Pennsylvania  R.  Co.,  1 50  Pa.  St.  50, 
24  Atl.  Rep.  638. 

(3)  Under  English  acts. — Under  the  Rail- 
ways Clauses  Consolidation  Act  1845,  a  rail- 
way company  is  bound  at  all  times  to  keep 
the  approaches  to  its  bridge  in  repair.  North 
Staffordshire  R.  Co.  v.  Dale,  8  El.  &*  Bl.  836, 
\Jur.  N.  S.  631,  27  L./.  M.  C.  147.  North 
of  Eigland  R.  Co.  v.  Langbaugh,  24  L.  T. 

544. 

Under  §  46  of  the  Railways  Clauses  Con- 
solidation Act  1S45,  a  railway  company  is 
bound  at  all  times  to  keep  in  repair  the  ap- 
proaches to  a  bridge  carrying  a  turnpike 
road  over  its  track.  Newcastle-under-Lyne 
&•  Leek  Turnpike  Road  ( Trustees)  v.  North 
Staffordshire  R.  Co.,  ^  H.^*  N.  \6o;  s.  c, 
Hom.  Leech  v.  North  Staffordshire  R.  Co.,  29 
L.J.M.  C.  150,8  IV.R.2\6. 

The  Railways  Clauses  Consolidation  Act 
184s  does  not  impose  on  a  railway  company 
which  carries  its  railway  over  a  highway  by 


means  of  a  bridge  any  liability  to  keep  in 
repair  the  immediate  approaches  on  each 
side  of  the  bridge  even  though  the  com- 
pany has  lowered  the  level  of  the  old  high- 
way in  making  such  approaches.  London 
&»  N.  IV.  R.  Co.  V.  Skerton,  33  L.  J.  M.  C.  1 58, 
SB.&'S.  559,  12  JV.  R.  1 102,  10  L.  J.  648. 

8.    Viaducts. 

43.  Generally.— A  verdict  in  favor  of 
adjacent  lot-owners  against  a  railroad  com- 
pany, for  damages  caused  by  the  erection  of 
a  viaduct  in  the  street,  under  the  direction 
of  the  city,  will  not  be  allowed  to  stand  be- 
cause the  railroad  company  paid  a  certain 
proportion  of  the  cost  of  the  viaduct  in  con- 
sideration that  it  was  allowed  to  lay  a  track 
and  operate  trains  over  it,  where  the  evi- 
dence does  not  show  what  part  of  the  dam- 
ages assessed  was  caused  by  the  building  of 
the  viaduct  and  what  by  the  laying  of  the 
track  and  the  operation  of  trains.  Atchison, 
T.  &*  S.  F.  R.  Co.  V.  Lenz,  35  ///.  App.  330. 

Where  a  railway  company  entered  into  a 
contract  with  a  city,  by  which  the  former 
agreed  to  pay  a  given  sum  on  the  cost  of  a 
viaduct  proposed  to  be  constructed  in  a 
street,  there  being  no  illegal  motive  in  ten- 
dering such  aid  to  the  city,  it  was  held,  that 
the  company  could  not  be  held  jointly  lia- 
ble with  the  city  in  tort  for  a  private  injury 
to  adjoining  property  caused  by  the  viaduct. 
Culbertson  &*  B.P.&^  P.  Co.  v.  Chicago,  1 1 1 
///.  651.— Applied  in  Peoria  G.  L.  &  C.  Co. 
V.  Peoria  T.  R.  Co.,  146  111.  372. 

44.  Ownership.— A  city  alone  has  au- 
thority to  construct  a  viaduct  in  a  street, 
and  when  one  is  so  constructed  by  the  city, 
even  when  done  under  the  joint  superinten- 
dence of  a  public  official  of  the  city  and  the 
chief  engineer  of  a  railroad  company  which 
paid  a  part  of  the  price  of  the  improvement, 
it  was  held  that  the  viaduct  was  still  public 
property  belonging  to  the  city  alone.  The 
aid  furnished  by  the  railway  in  such  case 
may  be  treated  as  a  mere  private  donation. 
Culbertson  &*  B.  P.  &*  P.  Co.  v.  Chicago,  1 1 1 
///.  651. 

45.  Authority  to  construct.— The 
Delaware  and  Bound  Brook  Railroad  Com- 
pany, in  erecting  piers  upon  the  land  under 
water  in  the  Delaware  river  to  the  middle 
of  the  stream,  for  the  erection  of  a  viaduct 
for  a  railroad  track  to  connect  with  the 
track  of  the  North  Pennsylvania  Railroad 
Company,  have  not  violated  the  36th  section 
of  the  general  railroad  law,  prohibiting  cor- 


BRIDGES— VIADUCTS,  40-48. 


703 


porations  formed  under  that  law  from  talc- 
ing  any  land  under  water  belonging  to  the 
state,  unless  the  consent  of  the  riparian 
commissioners  shall  first  have  been  ob- 
tained. Attorney-General  v.  Delaware  &* 
B.  B.  R.  Co.,  27  N.  J.  Eq.  i ;  affirmed  in  27 
N.  J,  Eq.  631. 

The  viaduct  built  by  the  Delaware  and 
Bound  Brook  Railroad  Company  from  the 
Jeiwjy  shore  to  the  middle  of  the  river,  to 
meet  part  of  the  same  structure  built  by  the 
North  Pennsylvania  Railroad  Company 
from  the  Pennsylvania  shore,  held  to  be  au- 
thorized by  the  36th  section  of  the  New 
Jersey  general  railroad  law,  conferring 
power  upon  corporations  organized  under 
it  to  build  a  viaduct  "  across  any  navigable 
or  other  river,  stream,  or  bay  in  this  state." 
Attorney-General  '>i.  Delaware  &*  B.  B.  R. 
Co.,  27  N.J.  Eq.  I ;  affirmed  in  27  N.J.  Eq. 
631. 

The  viaduct  thus  built  by  the  Delaware  & 
Bound  Brook  Railroad  Company  held  not 
to  interfere  with  the  navigation  of  the  river 
and  not  to  be  a  nuisance  in  fact.  Attorney- 
General  V.  Delaware  &»  B.  B.  R.  Co.,  27 
N.J.  Eq.  I ;  affirmed  in  27  A'^.  /.  Eq.  631. 

The  viaduct  so  constructed  is  not  a  toll 
bridge,  but  merely  the  railroad  connection 
of  two  railroads — a  highway,  by  railroad, 
over  the  river.  The  company  so  operating 
it  isnot  chargeable  with  a  usurpation  of  a 
franchise  to  take  tolls.  Attorney-General  v. 
Delaware  &»  B.  B.  R.  Co.,  27  N.  J.  Eq.  i ;  af- 
firmed in  27  A^.  /.  Eq.  631. 

The  construction  of  a  viaduct,  to  be  ex- 
clusively used  for  the  passage  of  locomotives 
and  cars,  is  not  a  bridge  within  the  meaning 
of  a  bridge  company's  charter,  granting  it 
the  exclusive  right  and  franchise  of  main- 
taining a  bridge  and  collecting  tolls  for 
travel  thereon.  Proprs.  of  Bridges  v.  Hobo- 
kiH  L.  &»  I.  Co.,  xiN.J.Eq.Zw  affirmed  in 
13  N.J.  Eq.  503. 

n.    A0TI0K8  FOB  IITJURIXS  AT  OB   NSAB 
BBIDOES. 

I.  Injuries  to  Property. 

40.  Generally.— A  bridge  with  lateral 
embankments,  erected  by  a  railroad  corpo- 
ration for  the  purpose  of  raising  a  highway 
and  carrying  it  over  their  road,  is  as  much 
a  part  of  the  structure  authorized  by  their 
charter  as  the  railroad  itself ;  and  any  per- 
son injured  by  the  erection  of  such  bridge 
and  embankments  is  entitled  to  recover  his 


damages  thereby  occasioned,  in  the  manner 
provided  by  the  Massachusetts  Rev.  St.  c. 
39.  §  56.  Parker  v.  Boston  &•  M.  R.  Co.,  3 
Cush.  {Mass.)  107.— QUOTED  IN  White  v. 
Quincy,  97  Mass.  430. 

The  erection  of  bridge  abutments  upon  the 
side  of  an  unfrequented  country  road,  which 
are  not  presently  used  or  needed  for  use, 
but  are  overgrown  with  bushes  and  weeds, 
will  not  inflict  a  serious  public  injury  of  the 
character  which  will  induce  this  court  to  in- 
terfere by  preliminary  injunction.  Raritan 
rp.  V.  Port  Reading  R.  Co.,  50  Am.  &*  Eng. 
R.  Cas.  169, 49  A^.  /.  Eq.  1 1,  23  Atl.  Rep.  127. 

An  action  will  not  lie  against  a  railroad 
company  for  consequential  damages  caused 
by  their  erection  of  a  bridge  over  their  rail- 
road, done  under  New  Hampshire  Rev.  St. 
ch.  142,  §  4.  Towle  v.  Eastern  R.  Co.,  17 
N.  H.  519.— Distinguished  in  Eaton  v. 
Boston,  C.  &  M.  R.  Co.,  51  N.  H.  504. 

The  board  of  county  commissioners  of 
Mahoning  county  can  only  maintain  such 
actions  as  are  authorized  by  statute,  and 
cannot,  under  §§  860,  863,  and  4938,  Ohio 
Rev.  St.,  giving  them  general  power  to 
erect  and  maintain  bridges,  maintain  an  ac- 
tion against  a  railroad  which,  in  constructing 
its  road  under  one  end  of  the  bridge,  ex- 
cavated dirt  near  one  of  the  abutments,  in 
such  a  way  as  to  render  it  insecure  and  to 
damage  the  bridge  and  render  it  unsafe  for 
travel.  Com'rs  Mahoning  County  v.  Pitts- 
burgh  &*  W.  R.  Co.,  45  Ohio  St.  401,  15 
A^.  E.  Rep.  468.— Distinguishing  Perrj' 
County  V.  Newark,  S.  &  S.  R.  Co.,  43  Ohio 
St.  451. 

47.  Obstructing  access  to  high- 
way.— A  railway  company  were  sued  for 
erecting  a  bridge  over  and  along  a  public 
highway  running  through  the  plaintiff's 
land  and  crossed  by  their  line  of  railway 
running  under  ^ch  bridge,  and  for  the  in- 
jury thereby  occasioned  to  the  plaintiff's 
land  in  obstructing  the  access  to  the  high- 
way, etc.  There  was,  however,  sufficient 
room  left  for  access  at  one  end  of  the  bridge. 
The  jury  found  for  the  defendants,  on  the 
ground  that  no  damage  had  been  sustained, 
and  the  court  refused  to  disturb  the  verdict. 
McDonell  v.  Ontario,  S.  6*  H.  R.  Co.,\i  U. 
C.  Q.  B.27\. 

48.  Obstructing  flow  of  water- 
Flooding  lands.*— A  railroad  company 
building  a  bridge  across   a   river  in    such 

*See(i»/^  22. 


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BRIDGES— VIADUCTS,  48. 


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manner  as  to  obstruct  the  passage  of  the 
water  are  liable  for  flooding  adjacent  lands, 
unless  they  show  that  they  have  taken 
reasonablr  precautions  to  prevent  unneces- 
sary damage  to  his  land.  MelUn  v.  Western 
R.  Co.,  4  Gray  (Mass.)  301.— DISTINGUISHED 
IN  Eaton  V.  Boston,  C.  &  M.  R.  Co.,  51  N. 
H.  504. 

A  company  bridging  a  stream  is  liable  to 
the  owner  of  a  water-mill  above  who  is  in- 
jured by  the  bridge  being  so  constructed  as 
to  prevent  the  water  from  flowing  from  the 
mill  as  freely  as  it  had  formerly  done,  but  is 
not  liable  for  increased  expense  in  getting 
logs  up  the  stream  to  his  mill,  whether  the 
stream  is  navigable  for  rafts  and  boats,  or 
not.  B/ood  v.  Nashua  &•  L.  R.  Co.,  2  Gray 
{Mass.)  137.— Distinguished  in  Eaton  v. 
Boston,  C.  &  M.  R.  Co.,  51  N.  H.  504. 

A  complaint  against  a  railroad  company 
for  flooding  the  plaintiff's  land  alleged  that 
the  same  was  caused  by  the  building  of  a 
railroad  bridge  across  a  creek  too  low  and 
the  placing  of  the  piling  so  close  as  to 
obstruct  the  stream  and  dam  up  the  water  on 
plaintiff's  land.  Held,  that  it  was  error  to 
charge  that  the  company  was  liable  if  the 
injury  was  caused  by  "  negligence,  careless- 
ness, or  improper  construction  of  the  bridge." 
There  was  no  right  to  recover  unless  the 
bridge  was  defective  in  the  particulars  speci- 
fied in  the  complaint.  Abbott  v.  Kansaz 
City,  St.  J.  6-  C.  B.  R.  Co.,  20  Am.  6-  Eng. 
R.  Cas.  103,  83  Mo.  271,  53  Am.  Rep.  581.— 
Approved  in  Jonas  z/.  St.  Louis,  I.  M.&  S. 
R.  Co.,  84  Mo.  151 ;  Moss  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.,  85  Mo.  86.  Distinguished  in 
Brink  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co., 
17  Mo.  App.  177.  Reviewed  in  SuUens  v. 
Chicago,  R.  I.  &  P.  R.  Co.,  74  Iowa  659,  7 
Am.  St.  Rep.  501,  38  N.  W.  Rep.  545 ;  Martin 
V.  Benoist,  20  Mo.  App.  262. 

Where,  however,  there  is  lawful  authority 
for  the  construction  of  a  bridge  or  other 
structure  over  such  stream,  the  person  build- 
ing it  is  liable  oniy  in  case  of  negligence  or 
unskilfulness  in  the  manner  of  doing  the 
work,  to  one  suffering  injury  from  its  inter- 
ference with  the  running  water.  Abbott  v. 
Kansas  City,  St.  J.  &•  C.  B.  R.  Co.,  20  Am. 
&»  Eng.  R.  Cas.  103,  83  Mo.  271,  53  Am.  Rep. 
581. 

The  erection  and  maintenance  of  a  bridge 
in  such  a  position  that  it  forms  an  obstruc- 
tion to  the  flow  of  waters  and  causes  a 
periodical  overflow  of  the  adjacent  lands  is 
a  continuing  nuisance,  in   consequence  of 


which  a  recovery  is  limited  to  damages 
which  may  have  accrued  before  an  action  is 
brought ;  and  a  judgment  in  one  action  is  not 
a  bar  to  a  second  action  brought  for  damages 
sustained  thereafter.  Omaha  &*  R.  V.  R. 
Co.  V.  Standen,  34  Am.  &»  Etig.  R.  Cas.  179, 
22  Neb.  343,  3S  A^.   W.  Rep.  183. 

A  railroad  company  is  liable  in  damages 
for  building  a  bridge  across  a  river,  with  a 
pier  turned  obliquely  to  the  course  of  the 
river  in  such  a  manner  as  to  turn  the  water 
of  the  stream,  in  time  of  freshets,  upon  the 
plaintiff's  grass-line,  thereby  throwing  sand 
and  earth  upon  it,  and  gullying  and  washing 
away  the  same,  it  appearing  that  the  bridge 
could,  at  an  additional  expense,  have  been 
erected,  with  safety  to  the  railroad,  in  such  a 
manner  as  not  to  injure  said  land.  Held 
further,  that  the  plaintiff  was  not  estopped 
from  maintaining  his  action  for  the  damage 
so  caused  to  his  land  by  reason  of  having 
previously,  by  deed,  conveyed  to  the  said 
railroad  corporation  a  portion  thereof  for 
the  purposes  of  a  railroad,  and,  in  consid- 
eration of  the  purchase-money,  released  all 
claim  for  damages  which  might  be  awarded 
by  commissioners,  inasmuch  as  the  commis- 
sioners could  have  appraised  and  awarded 
only  such  damages  as  would  have  resulted 
from  the  construction  of  the  road  in  a  legal 
and  proper  manner.  Spencer  v.  Hartford, 
P.  6-  F.  R.  Co.,  10  R.  I.  14,  6  Am.  Ry.  Rep. 
150. 

A  railroad  company,  although  authorized 
by  law  to  construct  its  road  across  a  stream, 
is  liable  for  damage  done  to  lands  adjacent 
thereto  by  the  construction  of  a  bridge  which 
causes  the  water  and  ice  to  gorge  and  over- 
flow such  land ;  and  in  the  selection  of  the 
character  of  bridge  to  be  built,  due  regard 
must  be  had  to  the  rights  of  the  adjacent 
landowners,  as  well  as  to  the  safety  of  the 
public  who  may  travel  over  its  road,  or  who 
may  require  the  use  of  the  same  for  the 
transportation  of  property.  McClcneghan 
v.  Omaha  <S*  R.  V.  R.  Co.,  37  Am.  S-  Eng.  R. 
Cas.  245,  25  Neb.  523,  41  N.  W.  Rep.  350.— 
Explaining  Sioux  City  &  P.  R.  Co.  v.  Fin- 
hyson,  16  Neb.  578.  Following  Omaha 
A.  R.  V.  R.Co.  V.  Brown,  14  Neb.  170.  Quot- 
ing Brown  v.  Cayuga  &  S.  R.  Co.,  12  N.  Y.  ■ 
486. 

In  an  action  for  flooding  plaintiff's  land 
by  building  bridges  and  embankments,  the 
jury  should  be  instructed  that,  if  they  find, 
from  the  evidence,  that  the  embankments 
and  abutments  were  necessary  to  the  safety 


BRIDGES— VIADUCTS,  49.  60. 


705 


damages 
n  action  is 
:tion  is  not 
)r  damages 

R.    V.  R. 

.  Cas.  i7g, 

1  damages 
'er,  with  a 
rse  of  the 
the  water 
, upon  the 
wing  sand 
d  washing 
the  bridge 
have  been 
I,  in  such  a 
Id.  //e/d 
t  estopped 
le  damage 
of  having 

0  the  said 
hereof  for 
in  consid- 
:Ieased  all 
e  awarded 
e  com  mis- 

1  awarded 
e  resulted 
>  in  a  legal 
Hart/ord, 
'.  Ry.  Rep. 

luthorized 
a  stream, 
s  adjacent 
dge  which 
and  over- 
ion  of  the 
lie  regard 
adjacent 
;ty  of  the 
d,  or  who 
e  for  the 
'^Uneghan 
>>•  Eng.  R. 

op'  35° — 
'.o.v.  Fin- 
3  Omaha 
>.  QUOT- 
12  N.  Y.  ~ 

ifl's  land 
lents,  the 
hey  find, 
nkments 
he  safety 


of  passengers  and  property  passing  over  the 
road,  and  that  it  was  built,  constructed,  and 
erected  with  care,  skill,  and  prudence,  not 
only  as  to  the  safety  of  persons  and  property 
passing  over  the  road,  but  also  for  the  pro- 
tection and  safety  of  the  property-holder, 
they  must  find  for  defendant.  Terre  Haute 
&•  I.  R,  Co.  V.  McKinley,  33  Ind.  274. 

40.  Collisious  with  the  bridge 
piers. — Where  the  owners  of  vessels  sue  to 
recover  for  damages  thereto  caused  by  the 
imperfect  construction  of  a  railroad  bridge, 
and  no  question  is  made  as  to  the  probable 
profits  of  the  voyage,  the  proper  measure 
of  damages  is  the  chartered  value  of  the 
boat  during  the  time  it  is  detained  and  the 
cost  of  necessary  repairs.  Missouri  River 
Packet  Co.  v,  Hannibal  <S-  St.  J.  R.  Co.,  20 
Am.  &*  Eng.  R.  Cas.  275,  79  Mo.  478. 

A  pilot  who  has  mistaken  his  course, 
and,  not  knowing  where  his  boat  is,  at- 
tempts the  dangerous  passage  of  a  bridge  at 
night  at  the  highest  rate  of  speed  and  without 
any  lookout  is  guilty  of  negligence.  And 
if,  under  such  circumstances,  he  collides 
with  a  barge  moored  to  a  bridge  pier  for  the 
purpose  of  constructing  the  bridge,  which 
is  out  of  the  usual  channel  of  navigation, 
and  by  the  collision  his  own  boat  is  lost, 
the  owners  of  the  boat  cannot  recover,  al- 
though the  barge  was  without  a  light.  Balti- 
more &*  O.  R.  Co.  V.  Wheeling,  P.  &*  C. 
Transp.  Co.,  32  Ohio  St.  116. 

Approaching  places  of  danger,  such  as  the 
piers  of  a  bridge,  during  the  nighttime,  a 
lookout  is  indispensable  upon  a  steamboat. 
An  omission  in  this  regard  is  such  negli- 
gence as  will  prevent  a  recovery,  unless  it 
clearly  appears  that  a  lookout  could  not  by 
any  possibility  have  prevented  disaster.  Bal- 
timore 6-  O.  R.  Co.  V.  Wheeling,  P.  <S-  C. 
Transp.  Co.,  32  Ohio  St.  116. 

A  barge  laden  with  coal  while  passing  un- 
der a  railroad  bridge  struck  a  submerged 
log  lodged  in  a  pier  of  the  bridge,  and  was 
wrecked.  Held,  that,  as  the  piers  were  con- 
structed in  accordance  with  approved 
methods,  the  railroad  company  was  not 
liable.  Ward  v.  Louisville  &•  N.  R.  Co., 
(Tenn.)  3  Am.  &>  Eng.  R.  Cas.  506. 

Where  plaintiff's  vessel  was  damaged  by 
reason  of  a  sunken  pontoon,  kept  in  the 
channel  of  the  river  by  the  railroad  com- 
pany, having  changed  the  course  of  the  cur- 
rent so  that  the  vessel  was  thrown  against 
a  bridge  pier  unlawfully  constructed  and 
maintained  by  the  defendants,  and  the  acci- 
I  D.  R.  D.— 45. 


dent  was  due  to  both  causes,  there  should 
be  a  recovery  for  the  injury  sustained.  Mis- 
souri River  Packet  Co.  v.  Hannibal  &*  St.  J. 
R.  Co..  I  McCrary  {U.  S.)  281  j  2  Fed.  Rep. 
285.— Distinguished  in  Silvers.  Missouri 
Pac.  R.  Co.,  loi  Mo.  79.  Quoted  in  Mis- 
souri River  Packet  Co.  v.  Hannibal  &  St.  J. 
R.  Co.,  20  Am.  &  Eng.  R.  Cas.  275,  79  Mo. 
478. 

Where  a  railway  company,  having  law- 
ful authority  so  to  do,  crosses  a  public 
navigable  stream  or  watercourse  with  its 
road,  erecting  in  a  proper  manner  the  proper 
and  necessary  structures  for  such  crossing, 
occupying  therewith  the  space  and  no  more 
than  the  space  permitted  to  it,  and  so  erects 
and  uses  such  structures  as  that  they  shall 
not  unnecessarily  abridge  or  destroy  the  use- 
fulness of  such  stream  to  the  public  as  a 
navigable  highway,  using  in  a  proper  man- 
ner a  movable  drawbridge  by  which  it 
crosses  that  part  of  such  stream  left  open 
for  the  public  navigation  thereof,  it  is  not 
liable  for  injuries  resulting  to  vessels  navi- 
gating such  stream  from  coming  in  contact 
with  obstructions  in  the  open  space  or  chan- 
nel of  water  under  such  drawbridge,  when 
such  obstructions  are  present  without  fault 
on  such  company's  part.  The  open  space 
left  to  be  temporarily  spanned  from  time  to 
time  by  the  railway's  drawbridge  is  left  not 
only  to  the  free  use,  but  to  the  control  and 
care  of  the  public ;  and  the  railway  company 
is  under  no  more  obligation  to  keep  it  free 
of  obstructions,  present  without  its  agency, 
than  it  is  to  care  for  any  other  part  of  the 
channel  of  such  stream.  Pensacola  &>  A.  R. 
Co.  v.  Hyer,  32  Fla.  539,  14  So.  Rep  381. 

2.  Personal  Injuries, 

60.  Generally.*— A  bridge  at  which  an 
injury  occurred  was  thirty  or  forty  feet  long 
and  sixteen  feet  high,  was  in  the  limits  of  a 
city,  and  over  a  public  street  in  the  immedi- 
ate vicinity  of  the  railroad.  It  had  been 
covered  by  defendants,  but  was  uncovered 
at  the  time  of  the  accident  for  repairs,  and 
plaintiil,  in  attempting  to  get  upon  the  cars 
at  midnight,  fell  through  the  bridge.  Held, 
that  it  was  the  duty  of  the  company  to  have 
the  bridge  covered  or,  if  uncovered  for  re- 
pairs, so  protected  as  to  prevent  such  in- 
juries. Chicago  &*  N.  W.  R.  Co.  v.  Fillmore, 
57  ///.  265,  to  Am.  Ry.  Rep,  462. 

•  Personal  injuries  resulting  from  negligence 
in  the  construction  of  bridges,  see  note,  27  Am. 
&  Eng.  R.  Cas.  314. 


I 


^■1?: 


706 


BRIDGES-VIADUCTS,  51,62. 


For  a  failure  to  perform  its  duty  as  to  the 
constructing  and  keeping  in  repair  of  its 
bridges  a  company  is  responsible  to  a  trav- 
eller who  sustains  personal  injury  by  reason 
of  the  defective  condition  of  a  bridge.  Ca/tf- 
well  V.  Vicksburg,  S.  &>  P.  R.  Co.,  39  Am. 
&»  Etig.  R.  Cas.  245,  41  La.  Ann,  624,  6  So. 
Rep.  217. 

It  being  the  duty  of  a  railroad  company 
in  constructing  its  bridge  to  make  the  lateral 
embankments  adjoining  the  highway  so  as 
not  to  render  them  dangerous  to  foot-pas- 
sengers by  day  or  night,  a  failure  to  perform 
this  duty  will  render  the  company  liable  to 
a  passenger  injured  there,  even  though  he 
may  have  accidentally  deviated  from  the 
highway.  Baltimore  &*  O.  R.  Co.  v.  Boteler, 
38  Md.  568,  10  Am.  Ry.  Rep.  506. 

A  railroad  comp<\ny  in  repairing  a  bridge 
put  down  a  plank,  the  edges  of  which  stood 
above  those  on  either  side,  and  failed  to 
bevel  it  down,  and  in  walking  across  the 
bridge  plaintiff  struck  his  foot  against  tlie 
edge  of  the  plank  and  fell  and  was  injured. 
Held,  in  a  suit  to  recover  for  the  injury,  that 
both  the  negligence  of  the  defendant  and 
the  contributory  negligence  of  the  plaintiff 
were  questions  for  the  jury.  Kelly  v.  New 
York  C.  &*  H.  R.  R.  Co..  29  N.  Y.  S.  R.  646, 
9  A^.   Y.  Supp.  90,  56  Hun  639. 

A  street-railway  company  which  uses  ap- 
proaches in  the  street  to  its  bridge,  con- 
structed of  plank,  is  liable  to  one  who  is 
injured  while  passing  along  the  street  by 
falling  over  a  board  which  lias  become  loose 
and  is  allowed  to  project  into  the  street. 
Murphy  v.  Suburban  Rapid  Transit  Co.,  40 
N.  Y.  S.  R.  228,  15  iV.  K  Supp.Zyj. 

51.  Injuries  to  passengers.— In  the 
absence  of  proof  that  the  safety  of  a  prop- 
erly constructed  railroad  bridge  may  depend 
upon  the  soundness  of  a  single  iron  rod,  the 
jury  should  not  be  instructed  that  if  the 
bridge  broke  down  because  of  a  defect  in 
such  single  rod,  which  was  not  discoverable, 
and  the  injury  to  a  passenger  resulted  there- 
from, there  could  be  no  recovery.  Bedford, 
S.,  O.  &*  B.  R.  Co.  v.  Rainbolt,  21  Am.  &■* 
Er^.  R.  Cas.  466,  99  Ind.  551. 

The  inability  of  the  company,  for  want  of 
means,  to  build  a  better  bridge  constitutes 
no  defense,  for  the  company  ought  not  to 
have  undertaken  to  carry  passengers  until 
it  could  do  so  with  safety.  Oliver  v.  New 
York  6f  E.  R.  Co.,  i  Edm.  Sel.  Cas.  (N.  Y.) 
589. 

Where  a  passenger  sues  for  an  injury  re- 


ceived by  being  precipitated  through  a 
bridge  which  was  being  repaired,  it  is  not 
sufiicient  to  rebut  the  presumption  of  neg- 
ligence on  the  part  of  tlie  carrier,  to  show 
that  it  was  using  the  means  and  appliances 
ordinarily  employed  by  prudent  persons  in 
making  such  repairs,  without  also  showing 
that  they  are  ordinarily  sufficient,  and  that 
they  were  without  known  or  discoverable 
defect,  and  were  used  with  the  utmost 
practical  care  and  diligence.  Louisville,  N. 
A.  <&*  C.  R.  Co.  V.  Pedigo,  27  Am.  &*  Eng. 
R.  Cas.  310,  108  Ind.  481,  8  N.  E.  Rep.  627. 

Plaintiff,  who  was  a  passenger  on  one  of 
defendant's  cars,  while  crossing  a  canal 
bridge  was  injured  by  the  breaking  of  an 
attachment  to  the  bridge,  which  was  defec- 
tive when  placed  in  position,  the  defect 
being  discoverable  by  the  maker  in  the  pro- 
cess of  manufacture,  but  not  discoverable 
from  any  examination  that  could  be  made 
by  any  person  using  the  bridge  for  crossing. 
The  plan  and  method  of  construction  of  the 
bridge  were  approved  by  and  it  was  bi'ilt 
under  the  direction  and  supervision  of  the 
proper  state  officers ;  it  had  been  in  position 
and  use  for  over  a  year,  and  nothing  had 
occurred  to  raise  a  doubt  as  to  its  entire 
safety.  Held,  that  an  action  was  not  main- 
tainable against  defendant  to  recover  dam- 
ages for  the  injury.  Birmingham  v.  Roches- 
ter, C.  &•  B.  R.  Co.,  137  A^.  Y.  13,  32  A^.  E. 
Rep.  995, 49  N.  Y.  S.  R.  888;  reversing  63  Hun 
635,  45  A^.  Y.  S.  R.  724,  18  A^.  Y.  Supp.  649. 

In  an  action  for  injuries  to  a  passenger 
caused  by  a  bridge  breaking  down,  it  is  a 
question  for  the  jury  whether  the  company 
engaged  the  services  of  competent  engi- 
neers, who  had  adopted  the  best  methods 
and  had  used  the  best  material.  If  the 
company  has  done  this  it  is  not  liable  ;  but 
the  mere  fact  that  it  has  engaged  the  ser- 
vices of  such  a  person  will  not  relieve  it 
from  the  consequences  of  an  accident  aris- 
ing from  a  deficiency  in  the  work.  Grote 
V.  Chester  <S-  H.  R.  Co.,  2  Exch.  2$i,  5 
Railw.  Cas.  649. 

52.  Iiijiiries  to  employes.*— Rail- 
road companies  in  providing  for  the  safety 
of  their  employes  are  not  required  to  an- 


*  Injuries  to  train-hands  from  overhead  bridges, 
see  note,  41  Am.  &  Eng.  R.  Cas.  356. 

Liability  of  company  for  injuries  to  employes 
caused  by  overhead  bridges,  see  note,  53  Am. 
Rep.  699. 

Killing  a  brakemaii  by  reason  of  a  defective 
bridge,  see  33  .Am.  &  Eng.  R.  Cas.  385  abstr. 


BRIUCiES- VIADUCTS,  53-33. 


707 


through  a 
d,  it  is   not 
ioii  of  neg- 
;r,  to  show 
appliances 
persons  in 
so  showing 
It,  and  that 
iscoverable 
he    utmost 
ouisvi'lle,  N. 
<n.  (S-  Eng, 
E.  Rep.  627. 
on  one  of 
ng  a  canal 
iking  of  an 
I  was  defec- 
the  defect 
in  the  pro- 
I  iscoverable 
d  be  made 
or  crossing, 
ction  of  the 
;  was  bi'ilt 
ision  of  the 
i  in  position 
3thing  had 
>  its  entire 
s  not  main- 
cover  dam- 
m  V.  Roches- 
3,  32  A^.  E. 
''tg  63  Hun 
.  Supp.  649. 
I  passenger 
iwn,  it  is  a 
le  company 
etent  engi- 
st  methods 
rial.    If  the 
liable ;  but 
d  the  ser- 
t  relieve  it 
:ident  aris- 
jrk.     Grote 
lxch.2$i,  5 

es.*— Rail- 
'  the  safety 
ired  to  an- 


ead  bridges, 

6. 

to  employes 

ote,    53  Am. 

a  defective 
385  abstr. 


ticipate  and  guard  against  every  possible 
danger,  but  only  such  as  are  likely  to  occur. 
So  a  company  is  not  liable  for  the  death  of 
a  brakeman  whose  train  was  stopped  on  a 
bridge  at  night,  which  was  being  repaired, 
and  who  fell  througii  and  was  killed.  Koonts 
V.  Chicago,  R.  I.  (S-  P.  R.  Co.,  18  Am.  &*  E/tg. 
R.  Cas.  85,  65  /ozva  224,  54  Am.  Rep.  5,  21 
A'.   W.  Rep.  577. 

Where  a  servant  of  a  railway  is  killed  in 
consequence  of  the  giving  way  of  a  wooden 
bridge,  which  is  defective  through  age,  the 
company  cannot  escape  liability  by  show- 
ing that  the  bridge  was  constructed  properly 
in  the  first  place,  and  that  it  employed  skil- 
ful and  competent  subordinates  to  inspect 
and  repair  its  bridges.  Toledo,  P.  &*  IV, 
R.  Co.  V.  Co/troy,  68  ///.  560. 

Where  there  has  been  an  unusually  severe 
storm  since  a  bridge  was  inspected,  the 
question  whether  a  railroad  company  is 
negligent  in  sending  out  a  work-train  with- 
out making  inspection  as  to  the  condition 
of  the  bridge  over  which  such  train  must 
pass,  is  for  the  jury.  Con/on  v.  Oregon,  S.  L. 
&*  U.  N.  R.  Co.,  53  Am.  &•  Eng.  R.  Cas. 
356,  23  Oreg.  499,  32  Pac.  Rep.  397. 

53.  Frightening  tcani8.— Where  no 
defect  of  construction  in  a  railroad  bridge 
crossing  a  city  street  is  shown,  but,  on  the 
contrary,  '  was  the  work  of  competent 
engineers,  approved  by  the  chief  engineer 
and  siirveyer  of  the  city,  and  was  in  pursu- 
ance of  an  ordinance  of  councils  authorizing 
it,  the  company  cannot  be  held  responsible 
for  injuries  resulting  from  the  frightening 
of  horses  by  the  operation  of  its  road  over 
the  bridge  without  negligence  and  without 
malice.  Ryan  v.  Pennsylvania  R.  Co.,  132 
Pa.  St.  304,  19  All.  Rep.  81. 

54.  Who  may  be  sued— Parties 
defendant.— AVhere  a  railroad  company 
has  constructed  a  bridge  over  a  street  of 
the  proper  height,  it  is  not  bound  to  raise 
the  bridge  from  year  to  year  as  the  street 
may  be  raised  by  the  municipality,  by  plac- 
ing gravel  or  earth  thereon;  and  as  the 
municipality  alone  could  make  repairs  to 
the  streets,  it  alone  is  liable  for  an  injury 
received  by  a  party  while  passing  under  the 
bridge  by  reason  of  the  earth  having  been 
raised,  so  as  to  cause  him  to  come  in  con- 
tact with  the  bridge  overhead.  Gray  v. 
Danbury,  29  Am.  &*  Eng.  R.  Cas.  486,  54 
Conn.  574,  10  All.  Rep.  198. 

Conn.  Rev.  St.  232,  §  10,  does  not  make 
a  railroad  company  liable  where  the  injury 


resulted  from  the  negligence  of  the  party 
bound  to  keep  the  highway  in  repair.  Gray 
V.  Danbury,  29  Am.  &*  Eng.  R.  Cas.  486,  54 
Conn.  574.  10  All.  Rep.  198. 

Where  a  railroad  company  is  authorized 
to  maintain  a  bridge  over  a  highway,  and 
it  becomes  necessary  to  rebuild,  and  the 
company  is  not,  in  the  opinion  of  the 
town  selectmen,  proceeding  with  necessary 
despatch,  their  whole  duty  is  discharged 
by  urging  the  company  to  proceed  with 
more  haste,  and  then  applying  to  the  dis- 
trict attorney  and  county  commissioners, 
and  filing  a  complaint  with  the  railroad 
commissioners ;  and  after  doing  so  the  town 
is  not  liable  to  a  traveller  injured  on  the 
highway  under  Mass.  Pub.  St.  ch.  52,  §  18; 
and  the  selectmen  have  no  right  to  forcibly 
tear  down  and  remove  a  temporary  bridge 
erected  by  the  company  which  they  claim 
obstructs  the  highway.  Elanders  v.  Norwood, 
141  Afass.  17,  5  A^.  E.  Rep.  256. 

Where  a  railroad  company  is  charged 
with  the  duty  of  keeping  in  proper  repair 
a  bridge  and  the  approaches  thereto,  which 
form  part  of  a  highway,  the  town  is  not 
liable  for  injuries  resulting  from  defects 
therein,  though  it  may  have  contributed 
within  six  years  to  keeping  the  same  in 
repair.  W^ilson  \.  Boston,  117  Mass.  509. — 
Qualifying  Commonwealth  v.  Deerfield, 
6  Allen  (Mass.)  449. 

A  railroad  company  upon  constructing 
their  road  along  the  bank  of  a  stream 
built  a  bridge  for  travel  over  it,  and  closed 
up  a  fording  previously  used.  Held,  that 
the  bridge  became  a  public  highway,  and 
the  township  was  liable  for  injury  arising 
from  its  being  negligently  out  of  repair. 
Tp.  of  Newlin  v.  Davis,  77  Pa.  St.  317, 

Where  a  railroad  appropriates  a  part  of  a 
public  road  and  builds  a  bridge  over  its 
roadbed  as  a  substitute  for  the  part  of  the 
road  appropriated,  the  railroad  and  the 
township  do  not  stand  in  any  relation  to 
which  the  rule  of  respondeat  superior  ap- 
plies. They  are  independent  parties,  each 
charged  with  a  duty  to  the  public  involving 
liability  to  an  individual  specially  injured 
by  a  neglect  of  such  duty.  Neither  can 
escape  liability  by  alleging  the  primary  lia- 
bility of  the  other.  Gates  v.  Pennsylvania 
R.  Co.,  150  Pa.  St.  50,  24  All.  Rep.  638. 

55.  Contributory  negligence.  — 
(1)  What  is. — In  the  construction  of  a 
railroad  across  private  property  the  com- 
pany raised  an  embankment  at  a  travelled 


:jl 


m 

W 

ilii 
M 

Mil 


ro8 


BRIDGES— VIADUCTS,  56,  57.' 


;.'■  'i 


■.  S| 


Sf'l 


'3 


I 


road,  which  had  never  been  establislied  or 
maintained  as  a  public  iiighway,  and  con- 
structed a  three-span  trestle  a  short  distance 
away,  under  which  the  public  passed  there- 
after, generally  going  under  the  middle  span 
as  it  was  higher  than  the  others.  PiaintilT, 
to  avoid  the  mud  under  the  middle  span, 
attempted  to  cross  under  one  of  the  end 
spans  on  a  loaded  wagon  and  struck  the 
trestle,  on  account  of  its  being  low,  and  was 
injured.  The  company  had  done  nothing 
to  indicate  that  the  passage  under  tlic  trestle 
was  opened  as  a  highway,  //t/ii,  in  an 
action  to  recover  for  the  injury,  that  the 
company  was  entitled  to  an  instruction  to 
the  jury  that,  if  they  believed  from  the  evi- 
dence that  tiie  company  did  not  construct 
the  trestle  for  the  purpose  of  an  undergrade 
crossing,  and  did  nothing  to  induce  plaintifl 
to  believe  that  it  was  so  intended,  they 
must  find  for  the  company.  Gu//,  C.  &*  S. 
F.  R.  Co,  V.  Montgomery,  85  Tex.  64,  19  S. 
W.  Rep.  1015. 

In  such  case,  even  if  it  appeared  that  the 
railroad  company  intended  the  place  as  a 
public  crossing,  to  entitle  the  plaintitT  to 
recover  it  must  have  appeared  that  the 
place  where  the  injury  occurred  was  in- 
cluded, it  appearing  that  the  middle  span 
was  a  safer  place.  Gulf,  C.  &»  S.  F.  R.  Co. 
v.  Montgomery,  85  Tex.  64,  19  5.  W.  Rep. 
1015. 

Where  plaintiff  goes  upon  a  railroad 
bridge,  contrary  to  directions  and  knowing 
that  it  is  defectively  constructed,  he  can- 
not recover  from  the  company  for  injuries 
received.  Carney  v.  Caraquet  R.  Co.,  29 
New  Brun.  425. 

(2)  What  is  not.— Where  a  person,  trav- 
elling on  horseback,  attempted  to  cross  a 
bridge  constructed  and  maintained  by  a 
railroad  company  as  a  portion  of  a  crossing 
over  its  right  of  way,  and  such  bridge  was  the 
only  practicable  crossing  for  him  in  the  direc- 
tion in  which  he  was  travelling,  he  was  not 
guilty  of  negligence  contributing  to  injuries 
caused  through  defects  in  such  bridge,  al- 
though he  attempted  to  cross  in  the  knowl- 
edge of  such  defects.  Gulf,  C.  &*  S.  F.  R. 
Co.  V.  Gasscamp,  34  Am.  &•  Eng.  R.  Cas.  6, 
69  Tex.  545,  7  S.  IV.  Rep.  227. 

It  is  the  duty  of  a  railway  company  to 
keep  a  bridge  over  its  track  in  such  a  state 
as  not  to  be  dangerous  to  any  one  using  it  in 
a  lawful  manner,  and  a  child  four  years  of 
age,  falling  through  an  opening  in  the  orna- 
mental ironwork   with  which  the   bridge 


was  fenced,  is  not  guilty  dI  contributory 
negligence.  Lay  v.  Mid/and  R.  Co.,  34  L. 
T.  30  Ex.  D.;  reversing  s.  c,  30  L.  T.  529. 

(3)  Question  of  fact.  —  The  question 
whether  a  party  in  attempting  to  cross  a 
bridge  on  a  totally  dark  night  without  any 
light  was  wanting  in  proper  care  and  dili- 
gence is  one  of  fact  and  not  of  law.  Swift 
V.  Newbury,  36  F/.  355. 

56.  Doclartitioii.  —  Where  a  railroad 
company  is  bound  to  keep  a  bridge  forming 
part  of  a  highway  in  a  town  in  repair,  no- 
tice to  it  that  a  person  has  been  injured  "  by 
a  defect  in  the  bridge"  is  not  sufficiently 
explicit  in  designating  the  cause  of  the  in- 
jury, as  is  required  by  Mass.  St.  of  1877,  ch. 
234i  §  3;  and  a  complaint  against  the  com- 
pany, in  an  action  to  recover  for  injuries  by 
reason  of  such  defect,  is  bad  on  demurrer 
that  alleges  the  cause  of  action  in  such  gen- 
eral way.  Dickie  v.  Boston  6-  A.  R.  Co.,  8 
Am.  &*  Eng.  R.  Cas.  203,  131  Mass.  516. 

Before  a  person  can  maintain  an  action 
against  a  company  for  injuries  received  by 
means  of  a  defective  bridge  forming  part  of 
a  highway,  and  which  the  company  is  bound 
to  keep  in  repair,  he  must  give  the  notice 
required  by  Mass.  St.  of  1877,  ch.  234,  k)  3; 
and  a  declaration  which  does  not  aver  the 
giving  of  such  notice  is  bad  on  demurrer. 
Dickie  v.  Boston  &•  A.  R.  Co.,  8  Am.  6-  Eng. 
R.  Cas.  203,  131  Mass.  516. 

67.  Evidence.— Where  a  company  is 
sued  for  the  death  of  a  passenger  caused  by 
a  bridge  giving  way,  proof  of  a  new  bridge 
being  subsequently  constructed  in  a  differ- 
ent manner  is  an  admission  that  the  one 
causing  the  injury  was  improperly  con- 
structed ;  but  it  does  not  amount  to  an  ad 
mission  that  the  defects  were  due  to  negli- 
gence. Kansas  Pac.  R.  Co.  v.  Miller,  2  Colo. 
442,  20  Am.  Ry.  Rep.  245.    " 

Where  a  railway  was  sought  to  be  charged 
with  the  death  of  a  person  resulting  from  a 
defective  bridge,  the  company's  bridge  build- 
er's opinion,  as  an  expert,  whether  the  acci- 
dent WHS  caused  by  defects  in  the  bridge  or 
not,  was  not  admissible,  the  condition  of  the 
bridge  being  shown  by  other  witnesses,  they 
testifying  to  facts.  Toledo,  P.  6-  W.  R.  Co. 
v.  Conroy,  68  III.  560. 

If  a  brick  falls  from  a  railway  bridge  over 
a  highway,  and  injures  a  person  passing  be- 
neath, there  is  prima-facie  evidence  from 
which  the  jury  may  infer  negligence  on  the 
part  of  the  company  in  keeping  the  bridge. 
Kearney  y.  London,  B.  &*  S,  C.  R.  Co.,  L.  R 


itributory 
Co.,  34  Z. 

T.  529. 

question 
o  cross  a 
Lhout  any 

and  dili- 

w.       S7t>t// 


BRIDGJiS     VIADUCTS,  58-«0. 


70!) 


s  G  //^i'.  30/-/  Q-  //•  200, 18  ir.  K.  1000. 

23  L.  r,  886 ;  affirmed  40  Z./.  g.  i9.  285.  /.. 
K.  6  (2-  ^'.  759.  24  ^-  7".  913,  20  W.  R.  24. 

08.  InHtructioiis.— In  a  suit  against  a 
railway  10  recover  for  a  personal  injury  re- 
ceived in  consequence  of  a  defective  bridge, 
un  instruction  which  seeks  to  make  defend- 
ant's liubil  Ity  depend  upon  actual  knowledge 
of  the  defects,  and  leaves  out  of  view  the 
obligation  resting  upon  the  company  to  use 
all  reasonable  means  to  acquire  knowledge 
of  ihe  condition  of  its  road,  bridges,  and 
other  structures,  is  properly  refused.  Toledo, 
P.  &*  W.  R,  Co,  v.  Conny,  68  ///.  560, 

III.    BBID0K8  OTBX  HAVIOABLB  WATEB8. 

I.  In  General. 

50.  Authority  to  construct,  gen- 
erally.— The  right  to  bridge  a  navigable 
stream  must  be  clearly  and  explicitly  given  ; 
and  it  will  not  be  implied  simply  because  a 
navigable  stream  intervenes  between  the 
terminal  points  of  the  chartered  right  of 
way  of  a  railroad.  In  such  case  the  road 
must  be  carried  across  the  stream  upon  such 
structures  or  in  such  a  manner  as  not  to 
seriously  impair  the  usefulness  of  the  stream 
for  the  purpose  of  navigation.  Little  Rock, 
M.  R.  <S-  r.  R.  Co.  V.  Brooks,  39  Ark.  403, 
17  Am.  (S-"  Eng.  R.  Cas.  152. 

The  power  conferred  on  a  railroad  com- 
pany to  build  a  main  line  Involves  the  right 
to  build  branches  and  sidings  to  carry  out 
the  purpose  of  the  company's  charter,  and  in 
doing  so  it  has  the  same  rights  in  occupying 
a  navigable  stream  that  it  has  in  the  con- 
struction of  the  main  line  ;  and  where  the 
right  to  bridge  a  stream  exists,  it  can  oc- 
cupy it  longitudinally  as  well  as  at  right 
angles  or  otherwise  in  building  branches. 
Schofieldv.  Pennsylvania  S.  V.  R.  Co.,  2  Pa. 
Dist.  57. 

The  right  to  build  a  bridge  across  a 
navigable  stream  must  be  given  by  the  sov- 
ereign power  by  special  or  general  act. 
Works  v.  Junction  R.  Co.,  5  McLean  {U,  S.) 
425. 

A  power  to  a  railroad  company  to  con- 
struct its  road  "  over  "  a  navigable  stream 
implies  the  power  of  bridging  the  stream. 
Works  V.  /unction  R.  Co.,  5  McLean  {U.  S.) 
425.  Compare  Miller  v.  Prairie  du  Chien 
&•  McG.  R.  Co.,  34  Wis.  533. 

"  Healy  Slough  "  in  the  city  of  Chicago  Is 
not  a  navigable  stream  so  as  to  render  a 


railroad  cnn)paiiy  lialjle  for  bridging  tho 
same.  Iltd/y  s.Joliet  &*  C.  R.  Co.,  1 16  U.  .V. 
191.6  Sup.  (Jt.  Rep.  352. 

00.  Authority  to  vonMtruct  ifiven 
hy  congrens.— (I)  Generally.  — '\\\t  con- 
trol of  congress  over  in'erstatc  commerce 
includes  the  power  to  regulate  the  bridging 
of  navigable  rivers  running  through  two  or 
more  states.  Gilman  v.  Philadelphia,  3  Wall. 
(U.  S.)  713.— Followed  in  Rhea  ?'.  New- 
port News  &  M.  V.  R.  Co.,  52  Am.  &  Eng.  R. 
Cas.  657,  50  Fed.  Rep.  16.  Quoted  in 
Easton  v.  New  York  &  L.  B.  R.  Co..  9  PhJla. 
(Pa.)  475- 

The  general  government  has  a  right  to 
prevent  the  bridging  of  navigable  rivers  in 
any  manner  except  as  prescribed  by  con- 
gress, and  for  this  purpose  may  bring  suits 
in  the  federal  courts.  United  States  \.  Mil- 
waukee &*  St.  P.  R.  Co..  5  Biss.  {U.  S.)  410. 

The  declarations  in  an  act  of  congress 
that  the  bridge  should  not  interfere  with 
the  free  navigation  of  the  river  beyond 
what  was  necessary  to  carry  into  effect  the 
rights  and  privileges  thereby  granted,  as 
well  as  the  grant  of  the  right  to  build  the 
bridge,  include  the  right  to  maintain  such 
structures  as  are  essential  parts  of  it.  Sil- 
ver V.  Missouri  Pac.  R.  Co.,  44  Am.  &*  Eng. 
R.  Cas.  467,  loi  Mo.  79,  135.  W.  Rep.  410. 

The  question  was  made  whether  a  certain 
body  of  water  was  a  navigable  stream  within 
the  meaning  of  the  act  of  congress  admit- 
ting the  state  into  the  union,  providing  that 
all  navigable  waters  within  the  state  should 
remain  public  highways  and  free,  so  as  to 
prevent  the  state  from  authorizing  a  railroad 
company  to  bridge  it  without  constructing 
a  draw.  It  appeared  that  congress  had 
declared  the  road  a  post-route,  and  had  ex- 
pressly provided  that  the  company  should 
construct  drawbridges  over  other  bodies  of 
water,  but  made  no  mention  of  the  one  in 
question,  and  that  in  surveying  the  govern- 
ment lands  the  body  of  water  was  included, 
and  that  above  the  bridge  it  was  only  valu- 
able for  floating  logs  for  one  and  a  half 
miles,  and  was  only  used  by  one  person. 
Held,  sufficient  to  show  that  it  was  not  a 
navigable  stream.  Peters  v.  New  Orleans, 
M.  6-  C.  R.  Co.,  56  Ala.  528. 

(2)  Particular  acts  of  congress. — The  act 
of  congress  of  June  16,  1886,  authorizing  a 
railroad  bridge  across  Staten  Island  Sound, 
and  establishing  the  same  as  a  post  road,  is 
within  the  general  power  of  congress  to 
regulate  commerce.    Stockton  v.  Baltimore 


I 


^ 


y, 


ii 


III: 


10 


BRIDdl'S-VIAlJUCTS,  Ol. 


(S-  ;V.  1'.  A'.  Co.,  I  ////.  t'(W/.  AV/.  411,  32 
/•>r/.  AV/.  9. 

The  ri){lit  given  to  the  Pac.  Railroad 
Company  in  its  original  charter  by  implica- 
tion to  bridge  the  Missouri  river  between 
Omaha  and  Coiiiiril  Hhifls,  and  expressly 
conferred  by  the  act  of  Congress  of  July  2, 
1874,  was  not  repealed,  but  increased,  recog- 
nized, and  regulated  by  the  act  of  February 
24,  1871,  entitled  "An  act  to  autiiorize  the 
Union  Pacific  Kiiii.oad  Company  to  issue 
its  bonds  to  construct  a  bridge  across  the 
Missouri  river  at  Omaha,  Neb.,  and  Coun- 
cil UlulTs,  Iowa."  United  States  v.  Union 
Pac.  R.  Co.,  4  Diil.  (U.  S.)  479. 

A  railroad  road  company  was  enjoined 
from  erecting  a  bridge  across  a  navigable 
river.  Pending  the  case  and  after  a  prelimi- 
nary injunction  had  issued,  congress  |)assed 
an  act  legalizing  the  structure.  Held:  (1)  that 
it  was  competent  for  congress  to  legalize 
the  bridge  under  its  power  to  regulate  com- 
merce ;  (2)  that  the  act  gave  the  rule  of 
decisions  for  the  court  at  a  final  hearing. 
Grav  V.  C/ticago,  I.  «S-  A'.  R.  Co.,  10  Wall. 

(t/.'5.)4S4. 
01.  Authority  given  by  Htate  Htat- 

utes.— (I)  Generally. — The  states  may  au- 
thorize the  construction  of  bridges  over 
niivigable  rivers  within  their  boundaries, 
until  congress  intervenes  and  supersedes 
the  authority.  The  power  of  congress  is 
exclusive  only  as  to  matters  that  arc  na- 
tional in  their  character  and  require  uni- 
form regulations.  Cardwell  v.  American 
River  Bridge  Co.,  113  U.  S.  205,  5  Sup.  Ct. 
Rep.  423.  —  Followed  in  Hamilton  v. 
Vicksburg,  S.  &  P.  R.  Co.,  119  U.  S.  280; 
Rhea  v.  Newport  News  &  M.  V.  R.  Co.,  52 
Am.  &  Eng.  R.  Cas.  657.  50  Fed.  Rep.  16. 

States  may  authorize  the  bridging  of  nav 
igable  streams,  if  such  authorization  does 
not  conflict  with  the  United  States  consti- 
tution and  laws.  Wilson  v.  Blackbird  Creek 
Marsh  Co.,  2  Pet.  (U.  S.)  245.— Followed 
IN  Rhea  v.  Newport  News  &  M.  V.  R.  Co., 
52  Am.  &  Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 
Quoted  in  Easton  v.  New  York  &  L.  B.  R. 
Co.,  9  Phila.  (Pa.)  475- 

A  state  legislature  may  authorize  the 
building  of  a  bridge  or  other  structure 
tending  to  obstruct  the  navigation  of  a 
navigable  ri /er  which  is  altogether  within 
its  own  own  boundary,  so  long  as  congress 
does  not  interfere.  Green  &•  B.  R.  Nav.  Co. 
V.  Chesapeake,  O.  &*  S.  W.  R.  Co.,  37  Am.  6- 
Eng.  R.  Cas.  238.  88  Ky.  i,  10  S.  W.  Rep.  6. 


—Following  Green  &  U.  R.  Nav.  Co.  ?'. 
Palmer,  83  Ky.  646.  QuoriNO  Hamihon 
V.  Vicksburg.  S.  &  P.  R.  Co.,  1 19  U.  S.  280. 
— Followed  in  Rhea  v.  Newport  News  tk. 
M.  V.  R.  Co.,  52  Am.  &  Eng.  R.  Cas.  657,  50 
Fed.  Rep.  16. 

When  a  navigable  river  is  entirely  within 
the  boundaries  of  a  state,  the  state  legislat- 
ure may  authorize  the  building  of  a  bridge 
or  other  structure  which  tends  to  obstruct 
the  navigation,  and  such  power  is  only  lim- 
ited by  the  constitutional  provision  confer- 
ring u|K)n  congress  the  right  to  regulate 
commerce  between  the  states,  when  con- 
gress has  declared  that  such  obstructions 
are  an  unlawful  exercise  of  the  power  of  the 
state.  Green  &*  B.  R.  A'av.  Co.  v.  C/iesa- 
peake,  O.  6-  .V.  W.  R.  Co.,  yj  Am.  <S-  Eng. 
R.  Cas.  238.  88  Ky.  i,  10  .V.  W.  Rep.  6.— 
yuoTiNG  Hamilton  v.  Vicksburg,  S.  &  P. 
R.  Co.,  29  Am.  &  Eng.  R.  Cas.  490,  119  U. 
S.  280. 

Where  the  law  gave  defendant,  a  railroad 
company,  the  right  to  construct  its  road 
between  certain  termini,  by  which  it  became 
necessary  to  cross  a  navigable  river,  the 
right  to  use  such  river  in  a  reasonable  man- 
ner naturally  followed,  Schofield  v.  Pennsyl 
vania  S.  V.  R.  Co.,  2  Pa.  Dist,  57.— Dls 
TINGUISHING  Edgewood  R.  C>.'s  Appe.l, 
79  Pa.  St.  257. 

The  authority  to  build  a  bridge  over  a 
navigable  stream  is  implied  from  the  powi  r 
to  construct  a  railroad  over  such  stream. 
Works  v.  /unction  R.  Co.,  $  McLean  ( U.  S.  1 
425. 

The  right  to  cross  a  navigabl'*  ^'^  ,  a 

railroad    bridge    must    be    g  the 

sovereign  power,  by  a   gener.  special 

act.     Where  this  is  not  done,        ilierth< 
state  board  of  public  works  of  Ohio  nor  the 
acting  commissioner  thereof    can  appro\c 
of  the  building  of  a  bridge  over  it.     lVo>  ks 
s.  Junction  R.  Co.,  5  McLean  {U.  S.)  425. 

(2)  California. — The  State  of  California 
was  admitted  into  the  Union  by  an  act  con- 
taining a  provision  to  the  effect  that  its 
navigable  waters  should  be  "common  high- 
ways and  forever  free."  Held,  that  this  did 
not  prevent  the  state  from  conferring  au- 
thority upon  a  company  to  bridge  a  navi- 
gable stream.  People  v.  Potrero  &*  Ji.  V. 
R.  Co.,  67  Cal.  166,  7  Pac.  Rep.  445. 

(3)  Kentucky. —  The  state  of  Kentucky, 
having  improved  the  navigation  of  the 
Green  and  Barren  rivers  by  means  of  locks 
and  dams,  incorporated  a  navigation  com- 


:' 


h 


HKIIXJKS-    VIADUCTS,  «2-«4. 


711 


fav.  Co.  7'. 

Hutnilion 

U.  S.  280. 

rt  News  A 

:as.  657,  50 

cly  within 
tc  letjislai- 
f  a  bridge 
fj  obstruct 

only  lim- 
oti  coiifcr- 
regulate 

hen  ciin- 
•structions 
wcr  of  the 
V.  Uiesii- 
.  <&>•  Jui^. 
Ri-p.  6.~ 

p.  S  &  I'. 

90,  119  U. 

a  railroad 
its  road 
it  became 
river,  the 
able  nian- 
r.  Pennsyl- 
57.-Di,s- 
's  Appe.,|. 

ge  over  a 
the  povvi  r 
h  stream. 
an  (U.  S.\ 

<  •> 
tlic 
special 
iiher  th( 

0  nor  t'  I.' 

1  appro ,  (• 

s.)  425. 

California 
I  act  con- 
that  its 
ion  high- 
t  this  did 
rring  au- 
:  a  navi- 
S-  /)'.   /'. 

Kentucky, 

of    the 

of  locks 

ion  com- 


pany  and  leased  to  it  "  the  (irecn  and  Bar- 
ren river  line  of  navigation,  together 
with  the  grounds,  houses,  etc.,  and  all 
the  franchises  thereunto  belonging  or  ap- 
pertaining." The  lessee  was  required  to 
keep  the  line  of  luivigation  in  repair 
and  to  permit  water-craft  to  navigate 
tlie  rivers  upon  the  payment  of  tolls.  //eM, 
that  the  navigation  company  only  acquired 
an  exclusive  right  to  the  use  of  the  locks 
and  dams  and  other  improvements,  that  its 
interest  in  the  right  of  navigation  was  the 
same  as  belonged  to  the  public  generally, 
and  that  the  state  might,  without  impairing 
any  contract  entered  into  by  it,  authorize  a 
railroad  company  to  construct  a  bridge 
across  the  river.  Green  &*  B.  R,  Nav.  Co. 
V.  Chesapeake,  O.  <S-  5.  \V.  R.  Co.,  37  Am.  6- 
£nj,'.  R.  Cas.  238,  88  A>.  i,  10  S.  W.  Rep.  6. 

The  repair  of  the  bridge  having  become 
necessary,  the  railway  company  gave  notice 
to  the  navigation  company  of  its  intention 
to  execute  the  necessary  repairs.  The  re- 
pairs were  made  at  a  time  of  the  year  when 
the  work  was  likely  to  interfere  with  naviga- 
tion least,  and  no  unreasonable  delay  took 
place.  Helil,  that  the  railroad  company  was 
not  bound  to  adopt  an  unusual  and  expen- 
sive course  in  executing  the  repairs  for  the 
purpose  of  leaving  the  navigation  entirely 
free,  and  that  any  loss  sustained  by  the 
navigation  company  from  the  interruption 
was  damnum  absque  injuria.  Green  &*  B. 
R.  Nav.  Co.  v.  Chesapeake,  O.  &*  S.  W.  R. 
Co.,  37  Am.  &^  Eftg.  R.  Cas.  238,  88  Ky.  i, 
10  5.  W.  Rep.  6. 

(4)  South  Carolina. — A  statute  provided 
that  a  railroad  company  might  bridge  a 
navigable  river,  although  the  bridge  might 
not  be  of  sufficient  height  to  permit 
steamboats  to  pass  without  lowering  their 
smoke-stacks,  but  that  the  company  should 
pay  all  the  expense  which  any  steamboat 
might  incur  by  reason  of  any  alterations 
which  might  be  rendered  necessary  and  by 
the  necessity  of  lowering  the  smoke-stacks 
of  such  steamers.  Held,  that,  under  this 
statute,  owners  of  steamboats  could  not 
recover  such  damages  as  resulted  to  them 
which  were  common  to  the  public  gener- 
ally, or  for  expenses  incurred  by  having 
to  keep  boats  both  above  and  below  the 
bridge,  or  for  other  expenses  not  coming 
within  the  terms  of  the  statute;  and  the 
fact  that  the  owners  of  such  boats  were  a 
corporation  would  give  them  no  greater 
rights   than    were   given    to    individuals. 


Soitlh  Carolina  Stiamhnit  Co.  v.  South  Caro- 
lina R.  Co.,  30  So.  Car.  539,  4  /,.  /\',  ./.  209, 
9  .S'.  E.  Rep.  65o.~Di,STiNGUisiiiN(i  Crouch 
V.  Charleston  &  S.  R.  Co.,  21  So.  Car.  495. 

(5)  WVift>«.y/«.— The  Wisconsin  legisla- 
ture may  authorize  the  construction  of 
bridges  across  the  navigable  waters  leading 
into  the  Mississippi  river,  but  such  bridges 
must  be  so  constructed  and  maintained  as 
not  materially  or  unnecessarily  to  obstruct 
navigation.  Sweeney  v.  Chicago,  M.  &*  St. 
P.  R.  Co.,  20  Am.  &•  Eng.  R.  Cas.  268,  60 
IVis.  60,  18  A'.  W.  Rep.  756. 

02.  Autliority  kIvcii  liy  20  Vic. 
cli.  12. — At  the  time  a  railroad  company 
built  a  fixed  bridge  across  a  navigable  river 
the  law  made  such  bridges  unlawful,  but  be- 
fore a  bill  was  filed  to  remove  the  bridge, 
the  law  was  changed  so  as,  inter  alia,  to 
provide  that  it  should  not  be  lawful  for  a 
railway  company  to  substitute  any  swing, 
draw,  or  other  movable  bridge  in  the 
place  of  any  fixed  bridge,  without  the  con- 
s'*nt  of  the  governor  in  council,  held,  that 
tlie  law  legalized  the  bridge  and  that  the 
bill  would  not  lie.  Cull  v.  Grand  Trunk  R. 
Co.,  10  Grant  Ch.  (U.  C)  491. 

It  would  seem  that  in  such  a  case  the  bill 
should  be  by  the  attorney-general,  the  stat- 
ute referred  to  having  been  passed  for  the 
general  benefit  of  the  public.  Cull  v.  Grand 
Trunk  R.  Co.,  10  Grant  Ch.  {(/.  C)  491. 

Oil.  Authority  ^ivcii  l>y  iiiiiniviiml 
ordinance. — A  bridge  built  by  a  railway 
company  over  a  navigable  stream  within 
the  limits  of  a  city,  for  the  use  of  the  rail- 
road, under  an  ordinance  of  the  city  grant- 
ing permission  and  providing  the  manner 
in  which  it  should  be  built,  may  be  regarded 
as  having  been  constructed  by  the  city,  and 
as  falling  fairly  within  the  power  given  to  it 
to  construct  and  repair  bridges  and  regulate 
the  use  thereof.  McCartney  v.  Chicago  &* 
E.  R.  Co.,  29  Am.  Sf  Eng.  R.  Cas.  326,  112 
///.  6ri. 

04.  Authority  given  by  company's 
charter. — A  provision  in  the  charter  of  a 
railroad  company  to  build  by  a  designated 
route  which  crosses  navigable  streams,  con- 
tains the  implied  right  to  the  company  to 
bridge  the  streams.  People  v.  Potrcro  &* 
B.  V.  R.  Co.,  67  Cal.  166,  7  Pac.  Rep.  445. 

A  declaration,  the  gravamen  of  which  was 
that  the  defendants  had  built  a  railroad 
bridge  over  navigable  water — held,  bad  on 
demurrer,  it  appearing  to  the  court,  from 
the  charter  of  the  defendants  and  its  sup- 


% 


i 


;;i; 


713 


BRIDGES-VIAUUCTS,  «r.-«8. 


It    ! 


plement,  that  they  were  authorized  to  ex- 
tend their  road  over  the  waters  in  question, 
and  to  erect  bridges  over  all  navigable 
waters  in  the  line  of  such  extension.  5/^- 
phens  &*  C.  Transp.  Co.  v.  Central  R.  Co., 
33  N.J.L.  229.— Distinguished  in  Weber 
V.  Morris  &  E.  R.  Co.,  35  N.  J.  L.  409. 

05.  Bridging  river  whicli  is 
boundary  between  states.*— Under  its 
power  to  regulate  interstate  commerce, 
congress  may  authorize  the  bridging  of  a 
navigable  river  which  forms  the  line  be- 
tween two  states,  though  one  of  the  states 
refuses  to  give  its  consent  thereto.  Penn- 
sylvania R.  Co.  V.  Baltimore  S-  N.  V.  R. 
Co.,  37  Fed.  Rep.  129. 

66.  Powers  and  duties  of  commis- 
sioners.— Under  the  provisions  of  3  Cur- 
wen,  Ohio  Rev.  St.  1852,  §  20,  either  the 
board  of  public  works  or  the  acting  com- 
missioner thereof,  within  his  district,  may 
approve  the  plan  of  a  proposed  bridge 
across  a  navigable  stream,  and  as  the  law 
provides  for  no  appeal  in  such  case,  the 
decision  of  such  commissioner  in  favor  of  a 
proposed  railroad  bridge  is  final.  Works  v. 
Junction  R.  Co.,  5  McLean  {U.  S.)  425. 
Compare  Waterbury's  Appeal,  57  Conn.  84, 
17  All.  Rep.  355. 

67.  Powers  and  duties  of  the  sec- 
retary of  war. — Congress  has  the  right 
to  regulate  the  building  of  bridges  across 
the  Mississippi  river,  and  it  may  delegate 
the  power  of  so  regulating  them  to  the 
head  of  one  of  the  departments  of  the  gen- 
eral government,  such  as  the  secretary  of 
war.  United  States  v.  Milwaukee  &*  St.  P. 
R.  Co.,  5  Biss.  {[/.  S.)  410. 

Under  the  acts  of  congress  of  April  i  and 
June  4,  1872,  the  secretary  of  war  has  a 
right  to  declare  that  a  bridge  across  the 
Mississippi  river  at  any  particular  place 
shall  not  be  built,  having  first  determined 
that  it  would  seriously  affect  navigation. 
United  States  v.  Milwaukee  «S-  St.  P.  R.  Co., 
I  Biss.  (U.  5.)  410. 

The  power  of  the  secretary  of  war,  under 
acts  of  congress,  to  consent  to  or  disapprove 
of  bridges  across  the  waters  of  the  Missis- 
sippi being  undoubted,  his  disapproval  in  a 
given  case  will  not  be  disregarded  by  the 
courts,  though  technically  it  is  not  in  such 
form  as  it  should  have  been,  but  where  there 

*  Power  of  congreis  with  respect  to  bridging 
navigable  streams  which  are  buuiidary  lines  be- 
tween sutet,  see  37  Am.  &  Eng.  R.  Cas.  244, 
aistr. 


is  sufficient  to  make  his  disapprobation  ap- 
parent. United  States  v.  Milwaukee  6-  St. 
P.  R.  Co.,  5  Biss.  (U.  S.)  410. 

Where  the  plans  of  a  proposed  bridge 
across  the  Ohio  river,  to  be  erected  under 
the  act  of  congress  of  December  17,  1872, 
have  been  submitted  to  the  secretary  of  war 
and  approved  bv  a  board  of  engineers  ap- 
pointed to  examine  them,  with  a  dike  300 
feet  long,  after  the  structure  is  nearly  com- 
pleted it  is  not  competent  for  the  secretary 
of  war  to  order  the  company  to  construct  a 
dike  918  feet  long,  and  the  company  need 
not  comply  with  such  order.  United  States 
e.r  rel.  v.  Pittsburgh  &*  L.  E.  R.  Co.,  26  Fed. 
Rep.  113. 

68.  Sufficiency— Must  conform  to 
the  requirements  of  law.*  — When  a 
company  bridges  a  navigable  stream  under 
authority  of  law,  the  bridge  must  be  con- 
structed and  maintained  in  conformity  with 
the  requirements  of  the  law.  Bailey  v. 
Philadelphia,  W.  6-  B.  R.  Co.,  4  Harr. 
{Del.)  389. 

Where  a  company  is  proceeding  to  erect 
a  bridge  across  a  navigable  stream  under 
an  act  of  congress,  the  United  States  may 
maintain  a  suit  to  compel  compliance  with 
the  terms  of  the  statute,  or  to  abate  the 
bridge.  United  States  ex  rel.  v.  Pittsburgh 
&>  L.  E.  R.  Co.,  26  Fed.  Rep.  113. 

'  :e  authority  from  congress,  or  from  a 
siatt,  to  bridge  a  navigable  stream  does  not 
make  the  bridge  a  lawful  structure  unless 
it  conforms  to  the  law  authorizing  it. 
Pennsylvania  R.  Co.  v.  Baltimore  &•  N.  Y. 
R.  Co.,  yj  Fed.  Rep.  129. 

Under  the  act  of  congress  of  July  25, 
1886,  authorizing  the  construction  of  a 
bridge  across  the  Missouri  river  at  Kansas 
City,  but  providing  that  such  bridge,  if  a 
drawbridge,  shall  be  built  "with  spans  of  not 
less  than  160  feet  in  length  in  the  clear  on 
each  side  of  the  central  or  pivot  pier  of  the 
draw,  and  the  pier  of  said  bridge  shall  be 
parallel  with  the  current  of  the  river,"  the 
distance  of  the  spans  must  be  obtained  by 
measuring  along  a  line,  between  the  piers, 
drawn  perpendicularly  to  the  faces  of  the 
piers  and  the  current  of  the  river ;  and  a 
bridge  measuring  less  than  160  feet  between 
the  piers,  so  calculated,  although  having  a 
span  of  160  feet  measuring  along  the  line  of 
the  bridge,  is  not  a  lawful  structure.  Han- 
nibal &•  St.  J.  R.   Co.  v.   Missouri  River 

*SeeaM/«,  21. 


1; 


i 


BRIDGES— VIADUCTS,  «0,  70. 


713 


Packet  Co.,  34  Am,  &»  Eng.  R.  Cas.  157,  125 
U.  S.  260.  8  Sup.  a.  Rep.  874. 

Where  the  charter  of  a  railroad  company 
requires  it  to  construct  a  suitable  bridge 
over  any  navigable  stream  tiiat  may  be 
crossed,  and  requires  that  such  bridge  shall 
be  located  at  a  point  convenient  for  naviga- 
tion, in  the  absence  of  any  allegation  of 
want  of  care  or  good  faith  in  the  selection 
of  the  location  of  such  bridge,  the  company 
is  not  liable  at  tlic  suit  of  an  individual  who 
claims  to  have  been  damaged  from  a  mis- 
location  of  the  bridge.  If  the  company  has 
not  exercised  good  faith  in  the  matter  the 
remedy  is  by  a  suit  in  the  name  of  the  state. 
Stephens  &*  C.  Transp.  Co.  v.  Central  R. 
Co.,  34  A^.  /.  L.  280.— Quoting  Clarke  v. 
Birmingham  &  P.  Bridge  Co.,  41  Pa.  St.  147. 
—Followed  in  Attorney-General  ex  rel. 
V.  New  York  &  L.  B.  R.  Co.,  24  N.  J.  Eq. 

49- 

A  statute  authorizing  a  company  to  bridge 
a  navigable  river,  but  providing  that  the 
bridge  should  be  at  least  42  feet  high,  re- 
quires it  to  maintain  the  structure  that 
height,  in  a  case  where  the  bed  of  the  river 
is  filled  up  after  the  bridge  is  constructed ; 
and  though  a  first  bridge  may  be  of  the 
required  height,  a  second  bridge  erected 
after  the  river  is  filled,  which  is  not  42  feet 
high,  is  a  violation  of  the  statute.  State  v. 
South  Carolina  R.  Co.,  28  So.  Car.  23,  4  S. 
E.  Rep.  796. 

Special  damages  attending  the  noncon- 
formity of  a  railroad  bridge  over  a  naviga- 
ble stream  with  the  requirements  of  the 
statute  by  virtue  of  which  it  was  con- 
structed are  actionable.  Bailey  v.  Phila' 
deiphia,  W.  &•  B.  R.  Co.,  4  Harr.  {Del.)  389. 

2.  Drawbridges. 
a.  In  General. 

69.  Authority  to  construct. — Where 
a  railroad  company  is  authorized  to  erect  a 
drawbridge  over  a  navigable  stream,  per- 
sons interested  in  its  navigation  cannot 
because  of  any  contract  between  the  legis- 
lature and  the  plaintiffs  maintain  an  action 
to  prevent  the  erection  of  the  bridge,  on  the 
alleged  ground  that  it  will  inconvenience 
tlie  navigation  of  the  river.  Each  interest, 
as  against  the  other,  is  entitled  to  all  of  a 
reasonable  construction  that  the  grant  will 
justify.  Attorney-General  ex  rel.  v.  New 
York  <S-  L.  B.  R.  Co.,  24  N.J.  Eq.  49. 

The  act  of  congress  of  February  20,  1811, 


inter  alia  declaring  that  the  Mississippi 
and  its  navigable  tributaries  should  be 
highways  and  forever  free,  does  not  pro- 
hibit a  state  from  authorizing  a  railroad 
company  to  erect  a  drawbridge  over  one  of 
said  streams.  Hamilton  v.  Vicksburg,  S.  &* 
P.  R.  Co.,  29  Am.  <S»»  Eng.  R.  Cas.  490,  119 
(/.  S.  280,  7  Sup.  Ct.  Rep.  206.— Followed 
IN  Rhea  v.  Newport  News  &  M.  V.  R.  Co.,  52 
Am.  &  Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 
Quoted  in  Green  &  B.  R.  Nav.  Co.  v. 
Chesapeake.  "  i  S.  W.  R.  Co.,  37  Am.  4 
Eng.  R.  Cat.  38,  88  Ky.  1,  10  S.  W.  Rep.  6. 
Where  a  biii  is  filed  to  restrain  the  erec- 
tion, over  a  navigable  stream,  of  a  draw- 
bridge which  is  intended  to  be  both  a 
common  highway  and  to  accommodate 
railroad  traffic,  the  question  for  the  court 
in  determining  whether  an  injunction 
fhould  be  granted  is  whether  the  naviga- 
tion of  the  river  will  be  seriously  or  materi- 
ally impaired,  taking  into  consideration  the 
amount  of  traffic  by  water  and  also  the 
number  of  trains  and  the  amount  of  travel 
that  will  pass  over  the  bridge.  Silliman  v. 
Hudson  River  Bridge  Co.,  4  Blatchf.  {U.S.) 

74- 

Under  the  acts  of  parliament  referring 
thereto,  the  erection  of  the  defendant's 
drawbridge  over  the  Desjardins  canal  was 
sanctioned  and  recognized,  and  it  must 
be  assumed  to  have  been  lawfully  erected, 
though  the  formalities  required  by  §§  136, 
137,  and  138  of  the  railway  act  may  not 
have  been  complied  with.  Desjardins  Canal 
Co.  V.  Great  Western  R.  Co.,  27  (/.  C.  Q.  B. 

363- 

70.  Duty  to  construct.*—  Under  the 
Mississippi  act  of  February  7,  1867,  it  be- 
came the  duty  of  the  New  Orleans,  Mobile 
&  Texas  Railroad  to  build  and  maintain  a 
drawbridge  over  Pearl  river,  wide  enough 
to  allow  vessels  sixty  feet  wide  to  pass ;  and 
there  is  nothing  to  relieve  the  company  of 
the  duty  to  maintain  a  draw  in  the  act  of 
congress  of  March  2,  1868,  fixing  the  width 
of  the  draw  of  other  bridges  of  the  com- 
pany, but  saying  nothing  about  the  one  over 
Pearl  river.  New  Orleans,  M.  <S«"  T.  R.  Co. 
v.  Mississippi,  20  Am.  &-  Eng.  R.  Cas.  510, 
112  I/.  S.  12,  s  Sup.  Ct.  Rep.  19. 

Under  New  York  act  of.  1846,  chartering 
the  Hudson  River  Railroad  Company,  and 
providing  that  where  the  road  crosses  any 

*  Right  of  railroad  company  to  bridge  over 
navigable  waiters  ;  duty  to  construct  drawbridge, 
see  4S  Am.  &  Eng.  R.  Cas.  76,  ahlr. 


ipi., 


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m 


S'J'    ' 


714 


BRIDGES— VIADUCTS,  71-74. 


$■: 


ki-i- 


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bay  the  company  shall  construct  a  draw- 
bridge, the  term  "  bay  "  only  includes  such 
as  have  a  general  navigation,  and  does 
not  include  an  indentation  which  at  low 
water  contains  but  a  few  inches,  and  only 
three  or  four  feet  at  any  time,  and  which  is 
only  used  by  one  person  in  transporting 
sand  across  the  river  in  the  winter-time  on 
the  ice,  and  at  other  times  by  scows.  Ge/iy 
v.  Hudson  River  R.  Co.,  2i  Burb.^N.  Y.)  617. 

It  was  sought  by  the  owner  of  a  lot  of 
ground  abutting  upon  "  Healy  Slough,"  by 
bill  in  chancery,  to  compel  a  railroad  to  re- 
move a  permanent  bridge  over  the  same  and 
restore  the  water  to  its  former  condition  by 
constructing  a  drawbridge  or  otherwise,  so 
as  not  impair  its  usefulness  and  to  enable 
complainants  to  navigate  it  from  Chicago 
river  to  a  canal  or  slip  owned  by  them.  It 
appeared  that  there  was  a  space  of  ground, 
over  which  they  had  no  contr->l,  which  cut 
off  the  water  connection.  Held,  that  a  court 
of  chancery  would  not  grant  the  prayer  of 
the  bill,  /oliet  6-  C.  R.  Co.  v.  Hea/y,  94  ///. 
416. 

71.  Sufflcleiicy.  —  A  bridge  company 
built  a  bridge  over  the  Missouri  river,  under 
authority  of  an  act  of  congress,  which  pro- 
vided that  such  bridge  should  not  interfere 
with  the  free  navigation  of  the  river,  beyond 
what  was  necessary  in  order  to  carry  into 
effect  the  rights  and  privileges  granted  the 
act ;  that  if  built  as  a  drawbridge  it  should 
be  a  pivot  drawbridge,  with  the  draw  over 
the  mam  channel  of  the  river  at  an  accessi- 
ble and  navigable  point,  and  with  spans  of 
certain  length  on  each  side  of  the  pivot  pier, 
and  that  the  piers  should  be  parallel  with 
the  current.  The  bridge  company  built 
their  bridge  with  two  draw-rests,  one  above 
and  the  other  below  the  pivot  pier,  and  one 
hundred  and  forty  feet  distant  from  it. 
Afterwards  the  brWge  company  leased  the 
bridge  structure  to  the  defendant.  Three 
years  after,  plaintiff's  boat,  while  attempting 
to  go  through  the  draw  during  a  high  stage 
of  water,  was  driven  against  one  of  the 
piers  by  the  current  and  sunk.  The  plain- 
tiff charged  that  the  piers  were  not  parallel 
to  the  current,  and  that  the  draw-rests 
above  the  bridge  caused  a  cross-current 
which  drove  the  boat  against  the  pier.  He/d, 
that  if  the  bridge  was  so  built  that  the  piers 
were  parallel  to  the  usual  and  ordinary 
course  of  the  current  it  was  a  sufficient  com- 
pliance with  the  act,  and  that  this  question 
was  properly  one  for  the  jury.    Silver  v. 


Missouri  Pac.  R.  Co.,  44  Am.  &*  Eng.  R. 
Cas.  467,  101  Mo.  79,  13  S.  W.  Rep.  410. 

There  being  no  evidence  tending  to  show 
that  the  draw-rests  were  unauthorized 
structures,  that  issue  should  not  have  been 
submitted  to  the  jury.  Silver  v.  Missouri 
Pac.  R.  Co.,  44  Am.  &•  Eng.  R.  Cas.  ^67, 
loi  Mo.  79,  13  iS".  W.  Rep.  410. 

Under  the  act  of  congress  of  July  26, 
1866,  authorizing  the  construction  of  certain 
bridges  and  providing  that  the  spans  on 
each  side  of  a  drawbridge  built  with  a  pivot 
should  be  at  least  160  feet  wide  in  the  clear 
aftd  parallel  with  the  current  of  the  river, 
in  ascertaining  whether  a  span  is  of  the  re- 
quired length  the  measurement  must  be  on 
a  line  running  at  right  angles  with  the  cur- 
rent. Missouri  River  Packet  Co.  v.  Hanni- 
bal &»  St.  J.  R.  Co.,  20  Am.  Sf  Eng.  R.  Cas. 
275,  79  Mo.  478.  Attorney-General  ex  rel. 
V.  New  York  &*  L.  B.  R.  Co.,  24  N.  J.  Eg. 

49- 

72.  Not  deemed  nnisances.'*' — The 

erection  of  bridges  over  rivers,  with  proper 
draws,  so  constructed  and  placed  as  to  do 
the  least  possible  injury  to  navigation,  has 
never  been  held  to  be  a  nuisance.  The 
slight  but  unavoidable  obstruction  which 
such  bridges  occasion  is  a  necessary  evil 
which  must  be  borne  for  the  sake  of  the 
public  good  which  demands  it.  Attorney- 
General  V.  Paterson  &*  H.  R.  R.  Co.,  9  N.  J. 
Eg.  526.— Distinguished  in  Attorney-Gen- 
eral ex  rel.  v.  New  York  &  L.  B.  R.  Co.,  24 
N.  J.  49.  Quoted  in  Raritan  Tp.  v.  Port 
Reading  R.  Co.,  49  N.  J.  Eq.  1 1.  Reviewed 
in  Stevens  v.  Paterson  &  N.  R.  Co.,  20  N.  J. 
Eq.  126. 

73.  Wideningr  the  draw.  — -  Where 
the  commonwealth  owns  a  drawbridge  over 
a  navigable  stream  its  right  to  widen  the 
draw  is  not  aifected  by  the  fact  that  it  has 
granted  to  a  street-car  company  the  right 
to  run  cars  over  the  bridge,  and  that  the 
same  will  be  temporarily  interrupted  by 
widening  the  draw.  Middlesex  R.  Co,  v. 
Wakefield,  103  Mass.  261. 

74.  Speed  of  train  while  on  bridge. 
— Where  a  railroad  drawbridge  over  a  nav- 
igable river  is  approached  on  one  side  by  a 
very  long  trestle,  and  where  the  rules  of  a 
company  and  a  statute,  conceded  by  coun- 
sel to  be  applicable,  require  trains  to  'sfow 
down  to  a  speed  of  not  more  than  four 
miles  an  hour  before  running  on  or  crossing 

*  See  post,  88. 


BRIDGES— VIADUCTS,  75-77. 


716 


5-  Eftff.  Jf. 
p.  410. 
ig  to  show 
authorized 
have  been 
r.  Missouri 
f.  Cas.  467, 

)f  July  26, 
I  of  certain 

spans  on 
itli  a  pivot 
n  the  clear 

the  river, 

of  the  re- 
nust  be  on 
th  the  cur- 
,  Hanni- 
ig.  R.  Cas. 
ral  ex  rel. 

N.  J.  Eg. 

88.*  —The 
itt/i  proper 
1  as  to  do 
gation,  lias 
ince.  The 
ion  which 
essary  evil 
ake  of  the 

Attorney- 
Co.,  9  A^.  /. 
3rney-Gen- 

R.  Co.,  24 
'p.  V.  Port 
Reviewed 
'o.,  20  N.  J. 

I  —  Where 
)ridge  over 
widen  the 
that  it  has 

the  right 
d  that  the 
rupted  by 

R.  Co.  V. 

n  bridge. 

}ver  a  nav- 
e  side  by  a 
rules  of  a 
i  by  coun- 
s  to  '•  sfow 
than  four 
3r  crossing 


any  drawbridge,"  the  restriction  as  to  speed 
applies  to  the  bridge  proper  and  not  to  the 
trestle  or  approach  thereto.  This  is  matter 
of  construction  for  the  court,  and  not  a 
question  of  fact  for  the  jury.  If  tiie  speed 
of  the  train  is  so  regulated  that  it  will  not 
be  more  than  four  miles  an  hour  when  it 
runs  on  the  drawbridge,  there  is  no  viola- 
tion of  the  rule  or  of  the  statute  in  approach- 
ing the  bridge.  Savannah,  /■ .  &*  W.  R.  Co. 
V.  Daniels,  90  Ga.  608. 

b.  Rights,  Duties,  and  Liabilities  with 
Respect  to  Passing  Vessels. 

75.  Generally.  —  Where  a  railroad 
bridge  with  its  draw  closed  is  an  obstruc- 
tion of  a  navigable  river,  parties  using  the 
river  are  not  bound  to  notify  the  railroad 
company  to  open  the  draw  every  time  they 
wish  to  pass  through,  nor  are  they  bound  to 
open  tiie  draw  themselves,  nor  to  use  only 
such  vessels  as  can  pass  under  tlie  bridge 
when  the  draw  is  closed.  Gates  v.  Northern 
Pac.  R.  Co.,  64  IVis.  64,  24  .V.  IV.  Rep.  494.— 
Quoting  Smith  v.  Chicago  &  N.  W.  R.  Co., 
23  Wis.  267.  Reviewing  Hooper  v.  Chi- 
cago &  N.  W.  R.  Co.,  27  Wis.  81. 

A  railroad  company  authorized  by  its 
charter  to  erect  a  bridge  over  a  navigable 
river,  "  provided  that  it  does  not  unneces- 
sarily impair  the  usefulness  of  the  river  to 
the  public,"  and  requin.g  it  to  construct  a 
draw,  is  not  entitled  to  i  m  injunction  to  re- 
strain towboats  from  passing  the  bridge  with 
more  than  two  boats  in  tow,  at  least  before 
the  company  establishes  its  right  by  an  ac- 
tion at  law  where  defendant  may  have  a  trial 
by  jury.  Texas  &*  P.  R.  Co.  v.  Interstate 
Transp.  Co.,  45  Fed.  Rep.  5. 

76.  Duty  to  open  draw.  —  Under 
Massachusetts  Pub.  St.  ch.  112,  §  150,  pro- 
viding that  the  superintendent  of  a  draw- 
bridge shall  at  all  hours  of  the  day  and 
night  be  ready  to  open  it  for  the  passage  of 
vessels,  but  providing  that  "  a  railroad  train 
shall  be  allowed  fifteen  minutes  to  cross  a 
draw  before  and  after  it  is  due  by  its  time- 
table, and  any  approaching  train  shall  be 
allowed  a  further  reasonable  time  to  pass," 
a  superintendent  has  no  right  to  open  the 
draw  within  the  fifteen  minutes  provided  by 
the  statute.  Jennings  v.  Fitchhurg  R.  Co., 
146  Afass.  621,  6  A^.  Etig.  Rep.  269,  16  A^  E. 
Rep.  468. 

A  railway  company  which  has  bridged  an 
unnaviKable  river  is  not  required  by  §  15  of 
the  Railways  Clauses  Act  1863  to  open  the 


span  of  the  bridge  for  a  barge  with  a  mast 
so  constructed  that  it  can  be  lowered.  IVest 
Lancashire  R.  Co.  v.  Iddon,  49  L.  T.  600,  48 

/■  P-  '99. 

A  railway  company  which  has  employed 
a  contractor  to  construct  a  bridge  in  con- 
formity with  the  provisions  of  a  statute 
forbidding  the  detention  of  vessels,  is  liable 
if,  owing  to  some  defect  in  the  construction 
of  the  bridge,  it  cannot  be  opened  and  a 
vessel  is  prevented  from  passing.  Hole  v. 
Sittingbourne  i^  S.  R.  Co.,  6  H.  &>  N.  488, 
30  L.J.  Ex.  81,  9  IV.  R.  274,  3  L.  T.  750. 

A  count  in  a  declaration  charging  defend- 
ants with  neglect  and  refusal  to  open  a 
bridge  and  permit  vessels  to  enter  or  leave 
a  canal  is  defective,  in  not  alleging  that  it 
was  not  at  such  times  being  actually  used 
by  defendants  for  the  passage  of  their  trains. 
Desjardins  Canal  Co.  v.  Great  Western  R. 
Co.,  27  U.  C.  Q.  B.  363. 

77.  Delay  in  opening  draw.— A  rail- 
road company  which  maintains  a  draw- 
bridge over  navigable  waters  must  exercise 
reasonable  care,  not  only  not  to  impede  the 
safe  navigation  of  passing  vessels,  but  also 
to  obviate  any  unnecessary  delay  to  such 
vessels;  and  where  the  character  of  the 
water-way  demands  it,  it  must  employ  and 
enforce  a  system  of  signals  by  which  ap- 
proaching vessels  can  be  informed  when  a 
safe  distance  from  the  bridge  whether  they 
can  proceed  or  must  manoeuvre  for  delay. 
Central  R.  Co.  v.  Pennsylvania  R.  Co.,  ^SAni. 
&•  Eng.  R.  Cas.  619,  59  Fed.  Rep.  192. 

The  opening  of  a  draw  in  a  railroad  bridge 
was  so  delayed  after  signals  that  those  in 
charge  of  a  tug  navigating  her  in  the  exer- 
cise of  their  best  judgment  were  unable  to 
avoid  a  collision  with  the  bridge,  whereby 
tiie  tow  sustained  injury.  Held,  that  the 
railroad  company  was  liable  because  of  its 
neglect  to  seasonably  open  the  draw  or  to 
give  proper  notice  of  its  intention  to  do  so 
when  the  tow  was  sufficiently  far  away  to 
permit  proper  precautions  to  be  taken  for 
its  safety.  Central  R.  Co.  v.  Pennsylvania 
R.  Co..  58  Am.  5-  Eng.  R.  Cas.  619,  59  Fed. 
Rep.  192. 

Where  a  railroad  company  is  authorized 
by  an  act  of  congress  to  construct  a  draw- 
bridge over  a  navigable  rivt-r,  such  act  pro- 
viding that  it  shall  keep  the  draw  "  in  effi- 
cient working  condition  at  all  times,"  the 
company  is  liable  for  delays  to  vessels  caused 
by  the  draw  being  injured  by  a  passing 
vessel,  and  consequently  closed  for  several 


m 


i' 


If 


w 

If;  I 

i'- 


m 


n\ 


n 


^^p 


716 


BRIDGES— VIADUCTS,  78-82. 


h     ■ 


days  for  repairs.    Jones  v.  Baltimore  &*  P. 
R.  Co.,  4  Mackey  (D.  C.)  io6. 

78.  Ri((ht  to  close  draw.— The  New 
Jersey  act  of  1874,  providing  that  the 
owners  of  bridges  may  in  certain  cases  ob- 
struct navigation,  does  not  authorize  an  en- 
tire obstruction  by  closing  drawbridges,  un- 
less it  be  when  work  is  being  done  on  the 
bridges  which  requires  that  they  be  closed. 
Lister  v.  Newark  Plank  Road  Co.,  36  A^.  /. 
Eq.  478. 

Which  means  of  travel — the  highway 
across  the  stream  or  the  highway  up  and 
down  the  stream — is  to  be  preferred  is  a 
question  which  can  only  be  decided  by  the 
legislature.  So  held,  where  the  owners  of  a 
railroad  bridge,  with  a  draw,  claimed  the 
right  to  close  the  draw  and  stop  the  naviga- 
tion of  the  river.  Lister  v.  Newark  Plank 
Road  Co.,  36  N.J.  Eq.  477. 

The  railway  company  had  the  control  of 
a  swing-bridge  over  a  canal.  Plaintiff's 
ship  was  navigating  the  canal  at  the  same 
time  that  trains  were  about  passing  and  re- 
passing the  bridge.  Notice  was  given  of 
plaintiiif's  vessel  being  about  to  pass  by 
blowing  a  horn  and  hailing,  and  notice  was 
given  by  the  railway  company's  servants  by 
signal  (the  usual  and  customary  one)  that 
the  bridge  could  not  then  be  swung,  and  in- 
jury was  received  by  plaintiff's  vessel  from 
the  bridge  remaining  closed.  Held,  that  as 
the  requirements  of  the  railway  traffic  com- 
pelled the  bridge  to  be  closed,  the  company 
were  not  then  bound  to  open  the  bridge, 
and  were  not  liable  for  the  injury  occasioned 
the  vessel.  Turner  v.  Great  Western  R, 
Co.,  6  U.  C.  C.  P.  536. 

70.  Iiviuries  to  vesselM  caused  by 
defective  «lpaw.s.  —  Knowledge  on  the 
part  of  persons  navigating  a  river  tiiat  a 
draw  in  a  railroad  bridge  is  defective  will 
not  relieve  the  owners  of  the  bridge  from 
all  responsibility ;  neither  is  it  such  proof  of 
contributory  negligence  as  to  authorize  a 
court  to  order  a  nonsuit  in  an  action  for  in- 
juries to  a  vessel.  Crouch  v.  Charleston  &* 
S.  R.  Co.,  29  Aw.  &*  Eiig.  R.  Cas.  495,  21 
So.  Car.  495.— Distinguished  in  South 
Carolina  Steamboat  Co.  7a  South  Carolina 
R.  Co.,  30  So.  Car.  539. 

South  Carolina  Gen.  St.  §  in 5,  provid- 
ing a  forfeiture  of  $50  against  all  vessels, 
boats,  or  rafts  passing  under  any  bridge 
without  dropping  anchor  and  dragging 
through  under  the  same,  has  no  applicRtion 
where  the  owner  of  a  vessel  sues  a  company 


owning  a  bridge  for  injuries  received  while 
navigating  the  river  by  reason  of  a  defective 
draw.  Crouch  v.  Charleston  &*  S.  R.  Co.,  29 
Am.  &*  Eng.  R.  Cas.  495,  21  So.  Car.  495. 

80.  Running  train  into  open  draw. 
— Where  a  railroad  company  negligently 
runs  a  train  into  an  open  draw,  which  it  is 
bound  to  maintain,  thereby  obstructing  the 
navigation  of  the  river,  it  is  liable  to  per- 
sons engaged  in  the  navigation  for  delays 
caused  thereby,  though  it  uses  due  dili- 
gence to  remove  the  obstruction.  Brtggs  v. 
New  York  C.  <S-  H.  R.  R.  Co.,  30  Hun  {N.  V.) 
291. 

81.  Which  of  two  vessels  entitled 
to  pass  first. — Massachusetts  act  of  1874, 
ch.  373.  §  '  'o.  gives  the  superintendent  of  a 
drawbridge  absolute  power  to  decide  which 
of  two  vessels  shall  pass  the  draw  first, 
when  the  two  apply  at  the  same  time ;  and 
if  the  company  owning  the  bridge  was  au- 
thoriz  ed  to  construct  it,  it  is  not  liable  for 
the  act  of  the  superintendent  in  allowing 
one  to  pass  before  the  other.  Common' 
wealth  V.  Chase,  1 27  Mass.  7. 

The  absolute  right  of  a  superintendent  of 
a  drawbridge  to  decide  which  of  two  vessels 
shall  pass  the  draw  first,  when  the  two  apply 
at  the  same  time,  whether  the  same  be  sail- 
ing- or  steam-vessels,  as  provided  by  Mass. 
act  1874,  ch.  372.  §  no,  is  not  affected  by 
the  act  of  1872,  ch.  221,  as  that  act  only  ap- 
plies to  opening  drawbridges  for  the  passage 
of  vessels  propelled  by  steam,  and  has  no 
reference  to  delays  of  such  vessels  in  con- 
sequence of  the  presence  of  sailing  vessels, 
or  by  reason  of  accidental  obstructions. 
Commonwealth  v.  Chase,  127  Mass.  7, 

3.  Obstructing  Navigation. 

82.  Generally.*  —  It  is  the  duty  of 
owners  of  bridges  across  navigable  streams 
to  use  reasonable  diligence  to  prevent  the 
accumulation  of  drift  against  the  piers, 
either  above  or  below  the  surface  of  the 
water,  such  as  might  endanger  navigation  ; 
and  a  failure  to  keep  their  piers  clear  will 
render  the  owners  liable  for  injuries  to  ves- 
sels which  are  navigated  with  proper  care 
and  skill.  .<>/.  Louis,  I.  M.  &>  S.  R,  Co.  v. 
Meese,  44  Ark.  414. 


•  Obstructinn  of  navigation  of  vessels  in  rivers, 
see  note.  29  Am.  &  Eng.  R.  Cas.  494. 

Broken  railroad  bridge  in  a  navigable  river. 
Duty  of  company  to  remove  debris,  see  25  Am. 
ft  Eno.  R.  Cas.  285,  abstr. 


BRIDGES— VIADUCTS,  83,  84. 


M 


:eived  while 
a  defective 

S.  R.  Co.,  29 

Car.  495. 

[>eii  draw. 

negligently 

which  it  is 

ructing  the 

able  to  per- 
for  delays 

s  due  dili- 
Briggsv. 

fun  {N.  Y.) 

entitled 

ictof  1874, 
indent  of  a 
icide  which 
draw  first, 
time;  and 
ge  was  au- 
>t  liable  for 
n  allowing 
CommoH' 

tendent  of 
:wo  vessels 
two  apply 
me  be  sail- 
d  by  Mass. 
affected  by 
::t  only  ap- 
he  passage 
nd  has  no 
!ls  in  con- 
ng  vessels, 
structions. 
f.  7. 

n. 

'■  duty  of 
e  streams 
event  the 
;he  piers, 
ice  of  the 
ivigatlon  ; 
clear  will 
es  to  ves- 
oper  care 
R.  Co.  V. 


sin  rivers, 

ible  river. 
ee  35  Am. 


The  owners  of  a  wharf  upon  which  rests 
the  end  of  a  railroad  bridge,  built  across 
navigable  water  by  authority  of  the  legis- 
lature, cannot  recover  damages  of  the  rail- 
road company  under  Mass.  Rev.  St.  ch. 
39>  §  S^i  {or  occupying  with  their  bridge 
the  space  over  the  navigable  channel,  which 
would  otherwise  serve  for  a  vessel's  berth 
at  such  wharf.  Boston  IV.  A'.  Corp.  v.  0/d 
Colony  R.  Corp.,  12  Ctish.  {Mass.)  605. — 
Criticised  in  Boston  Gas  Light  Co.  v.  Old 
Colony  &  N.  R.  Co.,  14  Allen  (Mass.)  444. 
Distinguished  in  Eaton  v.  Boston,  C.  & 
M.  R.  Co.,  SI  N.  H.  504. 

Bridges  built  under  and  pursuant  to  the 
terms  of  an  act  of  congress  are  lawful  struct- 
ures. An  act  of  congress  authorizing  a 
partial  obstruction  of  navigation  will  not, 
however,  protect  an  impediment  not  con- 
templated by  the  statute,  and  any  excess  in 
the  exercise  of  the  powers  granted  by  which 
navigation  is  impaired  becomes  a  nuisance 
pro  tanto.  Silver  v.  Missouri  Pac.  R.  Co., 
44  Am.  &-  Eng.  R.  Cas.  467,  101  Mo.  79,  13 
S.  W.  Rep.  410. 

Where  an  act  of  congress  authorizes  the 
construction  of  a  bridge  over  a  navigable 
river,  if  the  bridge  in  any  part  be  not  con- 
structed according  to  the  terms  of  the  act, 
it  will  be  an  unlawful  structure  to  the  ex- 
tent of  such  departure,  and  will  render  the 
owners  liable  for  injuries  to  vessels  where 
they  are  navigated  with  ordinary  skill  and 
care.  Missouri  River  Packet  Co.  v.  Hanni- 
bal &*  St./.  R.  Co.,  20  Am.  &*  Eng.  R.  Cas. 
275,  79  Mo.  478.— Quoting  Missouri  River 
Packet  Co.  v.  Hannibal  &  St.  J.  R.  Co.,  2 
Fed.  Rep.  290. 

The  bridge  over  the  Ohio  river  at  Par- 
kersburg  being  authorized  by  a  law  of  con- 
gress, the  obstruction  of  navigation  at  that 
point,  so  far  as  it  was  reasonable  and  neces- 
sary to  the  construction  of  the  work,  was 
justified  i  and  in  considering  the  rights  of 
navigation,  they  must  be  viewed  as  limited 
by  those  rights  which  have  been  conferred 
upon  the  bridge  company  by  the  law 
authorizing  the  structure  in  question.  Bal- 
timore &*  O.  R.  Co.  V.  Wheeling,  P.  &*  C. 
Tramp.  Co.,  32  Ohio  St.  116. 

An  act  of  congress  declaring  a  bridge  "  a 
lawful  structure  "  supersedes  a  decree  of  the 
U.  S.  Supreme  Court  ordering  it  abated  as 
an  obstruction.  Pennsylvania  v.  Wheeling 
&*  B.  Bridge  Co.,  18  How.  {(/.  S.)  421.— 
Reviewed  in  Easton  v.  New  York  &  L.  B. 
R.  Co.,  9  Phila.  (Pa.)  475. 


83.  While  the  bridge  is  being 
built.'*' — The  obstruction  of  navigation  is 
lawful  when  caused  by  the  construction  of  a 
bridge  across  a  navigable  stream  by  a  rail- 
way company  under  authority  of  its  charter, 
by  the  placing  in  the  stream  of  such  tem- 
porary structures  as  are  absolutely  essential, 
and  without  which  the  work  could  not  be 
accomplisiied,  the  railway  company  taking 
care  that  sucii  obstruction  shall  extend  no 
further  and  be  maintained  no  longer  than 
is  absolutely  necessary  for  the  erection  and 
completion  of  the  bridge  by  the  exercise  of 
due  diligence  and  the  employment  of  an 
adequate  force  of  men  and  machinery. 
Cant r ell  \.  Kno.wille,  C.  G.  <S-  L.  R.  Co.,  90 
Tenn.  638,  18  S.  W.  Rep.  271. 

Such  temporary  and  necessary  obstruc- 
tion of  navigation  is  not  within  the  prohibi- 
tion of  the  statute  which  provides:  "No 
mill-dam,  fish-trap,  bridge,  or  other  im- 
provement shall  be  allowed  so  as  to  inter- 
rupt or  in  any  way  injure  or  impair  the 
navigation  of  any  navigable  watercourse  of 
the  state."  Cantrell  v.  Kno.wille,  C.  G.  &» 
L.  R.  Co.,  90  Tenn.  638,  18  5.  W.  Rep.  271. 

Where  by  its  charter  a  railroad  company 
is  authorized  to  build  a  bridge  over  a  navi- 
gable stream,  with  the  proviso  that  the  nav- 
igation of  said  stream  shall  not  be  thereby 
obstructed,  it  is  held  that  a  temporary  ob- 
struction, such  as  the  necessary  framework 
and  scaffolding  used  in  the  erection  of  said 
bridge,  is  an  obstruction,  within  the  mean- 
ing of  tlie  charter,  for  which  the  company 
would  be  liable  to  any  person  damaged 
thereby.  Memphis  &>  O.  R.  Co.  v.  Hicks,  5 
Sneed  ( Tenn.)  427. 

Where  a  railroad  company  commenced  the 
erection  of  a  bridge  in  the  month  of  January, 
and  was  not  authorized  by  a  legislative  act 
to  build  the  bridge  until  the  March  follow- 
ing, such  authority  to  build  will  not  relieve 
tiie  company  from  liability  for  damages  oc- 
curring between  the  above  dates.  Smith  v. 
Louisville,  N.  O.  &*  T.  R.  Co.,  62  Miss.  510. 

84.  While  a  bridge  is  being  re- 
built.— A  railroad  company  which  began 
to  rebuild  a  bridge  crossing  navigable  waters 
on  January  7th,  and  finished  the  work  on 
March  2d,  is  liable  for  damages  for  obstruct- 


*  Obstruction  of  stream  while  building  a 
bridge,  how  far  allowable,  see  5a  Am.  &  Eng 
R.  CAS.667,  iihstr. 

Liability  of  railroad  companies  in  const  run - 
ing  bridges  over  navigable  rivers,  see  note,  20 
Am.  Si  Enu.  K.  Cas.  385. 


■j; 


If 


v 


ftf  ■'-■- 


718 


BRIDGES— VI/^::>UCTS,  85,  80. 


!'f« 


MM 


' 


if. ; 


511 


it  J 


ing  navigation  upon  the  last  two  days,  by 
force  of  the  provisions  of  the  act  respecting 
bridges.  New  Jersey  Rev.  p.  87,  §  10. 
Delaware,  L.SfW.  R.  Co.  v.  M^hrhof,  53  N. 
J.  L.  205,  23  At  I.  Rep.  170. 

85.  While  a  bridge  is  being:  re- 
paired."'—A  railroad  compuny  authorized 
to  bridge  a  navigable  river  is  not  liable  in 
damages  10  the  owner  of  a  vessel  for  a  tem- 
porary obstruction  of  navigation  while  re- 
pairing the  bridge.  The  inconvenience  is 
damnum  absque  injuria,  Hamilton  v.  Vicis- 
burg,  S.  &*  P.  R.  Co.,  29  Am.  Sf  Eng.  R.  Cas. 
490,  1 19  U.  S.  280, 7  Sup.  Ct.  Rep.  206.— Fol- 
lowing Escanaba  Co.  v.  Chicago,  107  U.  S. 
678;  Cardwellt/.  American  River  Bridge  Co., 
113  U.  S.  205.— Followed  in  Central  Tiust 
Co.  V.  Wabash,  St.  L.  &  P.  R.  Co.,  32  Fed. 
Rep.  566;  Rhea  I/.  Newport  News  &  M.  V.  R. 
Co.,  52  Am.  &  Eng.  R.  Cas.  657,  50  Fed. 
Rep.  16. 

A  railroad  company  was  authorized  to 
bridge  a  certain  navigable  stream  "  so  as  not 
unreasonably  to  obstruct  navigation."  After 
the  bridge  was  erected  it  became  necessary 
to  repair  it,  and  in  doing  so  it  became  neces- 
sary to  obstruct  temporarily  the  navigation 
of  the  river,  but  the  company  offered  to 
transfer  all  river  freights  without  extra 
charge  to  the  shippers.  The  amount  of 
shipping  by  railroad  largely  exceeded  that 
by  the  river.  Held,  that  this  was  not  an  un- 
reasonable obstruction,  and  that  a  shipper 
who  refused  to  send  any  freight  by  water 
could  not  recover  from  the  company  the 
extra  cost  of  sending  it  over  another  line. 
Rhea  v.  Newport  News  «S-  M.  V.  R.  Co.,  52 
Am.&»  Eng.  R.  Cas.  657,  50  Fed.  Rep.  16.— 
Distinguishing  Pennsylvania  v.  Wheel- 
ing &  B.  Bridge  Co.,  13  How.  (U.  S.)  518; 
Grand  Trunk  R.  Co.  v.  Backus,  46  Fed. 
Rep.  216.  Following  Northern  Transp. 
Co.  V.  Chicago,  99  U.  S.  635 ;  Hamilton  v. 
Vicksburg,  S.  &  P.  R.  Co..  119  U.  S.  280,  / 
Sup.  Ct.  Rep.  206 ;  Green  &  B.  R.  Nav.  Co. 
V.  Chesapeake,  O.  &  S.  W.  R.  Co.,  88  Ky.  1, 
10  S.  W.  Rep.  6.  Quoting  Cardwell  v. 
American  River  Bridge  Co.,  113  U.  S.  210, 
5  Sup.  Ct.  Rep.  423. 

In  repairing  a  railroad  bridge  it  was  nec- 
essary to  set  piles  in  the  river.  The  repairs 
were  finished  when  the  river  was  frozen 
over,  and  the  piles  were  cut  off  even  with 
the  ice,  and  as  the  river  fell  they  were  cut 

*  Obstruction  of  navigation  beyond  period  al- 
lowed by  statute  while  repairing  a  bridge  ;  see 
53  Am.  &  Enu.  R.  Ca  '.  666,  ahtr. 


oft  again,  so  that  after  the  ice  had  broken  up 
they  were  left  some  18  to  30  inches  below 
the  surface  of  the  water.  Plaintiff  was  en- 
gaged in  floating  rafted  logs  down  the  river 
and  sued  on  account  of  an  obstruction  to  the 
navigation.  The  master  found  that  plaintiff 
continued  to  safely  float  his  logs  after  the 
ice  broke  until  the  following  summer,  when 
the  river  was  too  low  to  be  so  used,  if  the 
stumps  of  the  piles  had  been  removed. 
Held,  that  this  was  equivalent  to  a  finding 
that  the  piles  had  been  properly  removed, 
and  that  plaintiff  was  not  entitled  to  dam- 
ages. Central  Trust  Co.  v.  Wabash,  St.  L. 
6>»  P.  R.  Co.,  32  Fed.  Rep.  566.— Followinc; 
Hamilton  v.  Vicksburg,  S.  &  P.  R.  Co.,  119 
U.  S.  280,  7  Sup.  Ct.  Rep.  206. 

The  power  to  build  a  bridge  across  a  navi- 
gable stream  implies  the  power  to  make  nec- 
essary repairs  thereon  ;  and  where  piling  is 
necessary  in  making  such  repairs  a  party 
temporarily  obstructed  from  navigating  the 
river  by  reason  of  such  piles  cannot  recover 
damages  therefor,  where  the  piles  are  driven 
and  used  in  an  ordinarily  skilful  manner. 
Central  Trust  Co.  v.  Wabash,  St.  L.  6-  /'.  R. 
Co.,  32  Fed.  Rep.  566. 

80.  Remedy  for  obstructing  navi- 
gation.—(i)  Generally.— Ihe  obstruction 
of  a  navigable  stream  by  a  railroad  bridge 
is  a  public  nuisance  to  be  abated  by  indict- 
ment, but  a  party  who  has  been  specially 
damaged  thereby  may  maintain  an  action 
against  the  railroad.  South  Carolina  R.  Co. 
V.  Moore,  28  Ga.  398. 

A  person  interested  in  the  navigation  of  a 
stream  or  an  arm  of  the  sea  cannot  recover 
damages  caused  by  the  navigation  being 
obstructed  by  a  bridge,  where  the  plaintiff 
is  only  damaged  in  common  with  the  whole 
public ;  and  the  fact  that  plaintiff  is  the  only 
person  maintaining  a  wharf  above  a  bridge 
which  cuts  him  off  from  reaching  it  by  vessel, 
will  not  entitle  him  to  damages  where  there 
is  nothing  to  show  that  his  injury  is  differ- 
ent from  what  may  occur  to  other  riparian 
proprietors  above  the  bridge  whenever  they 
shall  decide  to  use  their  lands  for  a  similar 
purpose.  Blackwell\.  Old  Colony  R.  Co.,  122 
Mass.  I. 

After  notice  was  given  to  a  railroad  com- 
pany to  alter  its  bridge  over  a  certain  river 
so  as  not  to  obstruct  navigation,  as  provided 
by  an  act  of  congress  of  August  11,  1888, 
but  before  lapse  of  the  time  therein  provided 
for  doing  so,  the  property  of  the  company 
passed  nito  the  hands  of  a  receiver  in  a  fore- 


BRIDGES— VIADUCTS,  87. 


719 


M 


broken  up 
:hes  below 
iff  was  en- 
n  the  river 
:tiontothe 
lat  plaintiff 

after  the 
mer,  wlien 
ised,  if  the 

removed. 

a  finding 

removed, 
d  to  dani- 
as/t,  S/.  L. 
OLLOWINC 

t.  Co.,  119 

OSS  a  navi- 
malce  iiec- 
re  piling  is 
rs  a  party 
gating  tlie 
ot  recover 
are  driven 
1  m;inncr. 
L.  Gf  P.  K. 

ugr  iiavi- 

bstruction 
3ad  bridge 
by  indict- 
1  specially 
an  action 
'/>/<i  R.  Co. 

fation  of  a 
3t  recover 
ion  being 
e  plaintiff 
the  whole 
s  the  only 
u  a  bridge 
by  vessel, 
lere  there 
r  is  differ- 
r  ripariim 
ever  they 
a  similar 
R.  Co.,  1 22 

oad  coni- 
tain  river 
provided 
II,  1888, 
provided 
company 
in  a  forc« 


closure  proceeding,  but  no  further  notice 
was  given  to  the  receivers  in  their  official 
capacity,  though  they  did  have  knowledge 
prior  to  their  appointment  of  the  notice 
that  had  been  given  to  the  company.  Held, 
that  the  receivers  were  not  liable  for  the  fine 
imposed  by  the  statute  for  failing  to  obey 
the  notice,  neither  was  the  company  liable. 
Uniteii  Slates  v.  St.  Louis,  A.  &>  T.  R.  Co., 
43  Fed.  Rep.  414. 

(2)  Jurisdiction. — The  act  of  congress  of 
July  26,  1866,  authorizing  the  construction 
of  certain  bridges  over  the  Missouri  river  at 
or  near  Kansas  City,  and  providing  further 
that  "  in  case  of  any  litigation  arising  from 
any  obstruction  or  alleged  obstruction  to  the 
free  navigation  of  said  river,  the  cause  may 
be  tried  before  tlie  district  court  of  the 
United  States  of  any  state  in  which  any 
portion  of  said  obstruction  or  bridge 
touches,"  does  not  confer  exclusive  jurisdic- 
tion upon  the  federal  courts,  but  only  con- 
current jurisdiction  with  the  state  courts. 
Missouri  River  Packet  Co.  v.  Hannibal  &» 
St.  J.  R.  Co.,  20  Am.  6-  Eng.  R.  Cas.  275,  79 
Mo.  478.— Followed  in  Silver  v.  Missouri 
Pac.  R.  Co.,  loi  Mo.  79. 

(3)  Pleading. — A  complaint  alleging  that 
the  channel  of  the  Wisconsin  river  was  so 
obstructed  by  a  bridge  built  by  the  defend- 
ant below  the  city  of  Por;age,  that  no  boats 
or  rafts  could  pass  in  :  a  ety  without  guide- 
booms  extending  up  the  river  from  each  end 
of  the  main  span ;  that  such  guide-booms 
were  not  maintained ;  and  that  in  conse- 
quence thereof  the  plaintiff  suffered  dam- 
age— is  held  to  state  a  cause  of  action,  al- 
though it  does  not  allege  that  the  channel 
span  of  such  bridge  has  been  designated  by 
the  engineer  of  the  United  States  in  accord- 
ance with  §  1605,  Rev.  St.  U.  S.,  or  that 
there  has  been  any  violation  of  §  1837, 
Rev.  St.  U.  S,  The  obstruction  to  naviga- 
tion being  unnecessary  and  unlawful,  the 
fact  that  the  channel  span  had  not  been  so 
established  could  not  be  a  defense  to  an 
action  for  actual  damages,  although  it  would 
be  a  defense  to  an  action  for  treble  damages 
under  §  1606,  Rev.  St.  Sweeney  v.  Chi- 
cago, M.  Sf  St.  P.  R.  Co.,  20  Am.  &*  Eng.  R. 
Cas.  268,  60  IVis.  60,  iSN.  W.  Rep.  756. 

jn  an  action  by  a  steamboat  company 
against  a  railroad  company  to  recover  dam- 
ages for  obstructing  a  navigable  stream  by 
the  erection  of  a  bridge,  some  particular  in- 
jury must  be  averred  in  the  declaration,  but 
It  is  not  indispensable  to  a  recovery  that  the 


injury  shall  be  proved  precisely  as  laid. 
Thus  where  the  verdict,  under  the  charge 
of  the  court,  was  based  upon  the  expenses 
incurred  by  the  boat  in  making  the  trip 
which  was  rendered  fruitless  by  the  obstruc- 
tion, and  the  declaration  based  the  dam- 
ages upon  the  fact  that  the  boat  company 
were  deprived  of  the  profits  which  they 
would  otherwise  have  made  by  the  use  of 
said  boat  in  the  carrying  trade  along  said 
stream,  it  was  held  tiiat  such  variance  could 
not  affect  the  verd  ict.  Memphis  <S-  O.  R.  Co. 
V.  Hicks,  5  Sneed  ( Tenn.)  427. 

87.  Iivliinctlou  to  restrain  the 
erection  and  operation  of  bridge.— 
Where  congress  has  not  legislated  concern- 
ing a  certain  river  and  as  to  how  it  may  be 
bridged,  a  federal  court  will  not  enjoin  the 
erection  of  a  bridge  over  it  which  is  author- 
ized by  state  law,  though  the  bridge  will  en- 
tirely prevent  navigation  except  what  may 
pass  through  draws.  East  on  v.  New  York 
<S-Z.  B.  R.  Co..  9  Phila.  (Pa.)  475.— Quoting 
Oilman  v.  Philadelphia,  3  Wall.  (U.  S.)  713; 
Wilson  V.  Blackbird  Creek  Marsh  Co.,  2 
Pet.  (U.  S.)  250.  Reviewing  Pennsylvania 
V.  Wheeling  &  B.  Bridge  Co.,  18  How. 
(U.  S.)  430. 

The  federal  courts  cannot  be  called  on  to 
prevent  a  wrong  resulting  from  the  exercise 
of  the  power  of  a  state  to  erect  bridges  over 
its  own  navigable  streams,  until  congress 
has  taken  the  initiative  by  enacting  a  com- 
mercial regulation  with  which  the  exercise 
of  such  a  power  is  inconsistent.  Easton  v. 
New  York  &-  L.  B.  R.  Co.,  9  Phila.  (Pa.) 
475- 

The  jurisdiction  of  a  United  Slates  cir- 
cuit court  to  restrain  the  building  of  a 
bridge  across  a  navigable  river  is  not  im- 
paired by  authority  from  the  state  in  which 
the  bridge  is  located,  to  erect  it.  Baird  v. 
Shore  Line  R.  Co.,  6  Blatchf.  {U.  S.)  276. 

A  suit  to  enjoin  the  erection  of  a  bridge 
over  a  river  is  not  a  suit  arising  under  the 
laws  of  the  United  States,  where  congress 
has  passed  no  law  prohibiting  such  bridge. 
Willamette  Bridge  Co.  v.  Hatch,  125  U.  S. 
I,  8  Sup.  Ct.  Rep.  811.— Followed  in  Rhea 
V.  Newport  News  &  M.  V.  R.  Co.,  52  Am.  & 
Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 

The  state  of  Pei.  isylvania  having  con- 
structed lines  r)f  canal  and  railroad,  and 
other  means  of  travel  and  transporta- 
tion, which  would  be  injured  in  their 
revenues  by  the  erection  of  a  bridgi- 
over   the    Ohio    river,    has    a   sufficiently 


w- 


ti 


720 


BRIDGES-VIADUCTS,  88,  80. 


I  1 


;M 


If  1 


1   <f 


direct  interest  to  sustain  an  application 
to  the  United  States  supreme  court,  in 
the  exercise  of  its  original  jurisdiction,  for 
an  injunction  to  remove  the  obstruction. 
The  remedy  at  law  is  inadequate.  Pennsyl- 
vania  v.  IVheeling  6-  D.  Bridge  Co.,  1 3  Hoxv. 
(U.  S.)  518.— Distinguished  in  Rhea  v. 
Newport  News  &  M.  V.  R.  Co.,  52  Am,  & 
Eng.  R.  Cas.  657,  50  Fed.  Rep.  16. 

Where  a  person  who  has  a  right  to  the 
free  navigation  of  a  river  files  a  bill  repre- 
senting that  a  contemplated  bridge  across 
the  river  will  seriously  interfere  with  navi- 
gation, and  the  defendants  only  deny  tliat 
the  bridge  will  not  "  substantially  obstruct 
or  impede  "  such  navigation,  and  the  court 
is  in  doubt  as  to  whether  the  bridge  will 
seriously  or  materially  obstruct  navigation, 
and  also  whether  it  is  about  to  be  con- 
structed in  the  manner  designated  by  the  act 
authorizing  it,  a  preliminary  injunction  will 
be  granted  to  continue  until  a  final  hearing. 
Silliman  v.  Hudson  River  Bridge  Co.,  4 
Blatchf.  (U.S.)  74. 

On  a  motion  for  a  provisional  injunction 
to  restrain  the  building  of  a  bridge  across  a 
navigable  river,  both  for  railroad  purposes 
and  to  accommodate  ordinary  travel,  on  the 
ground  that  it  will  obstruct  the  free  naviga- 
tion of  the  river,  the  court  will  grant  such 
injunction  until  an  opportunity  is  afforded 
for  a  more  thorough  examination,  if  there  is 
reasonable  ground  for  believing  that  the 
bridge  will  finally  be  held  an  obstruction 
and  subject  to  abatement.  Silliman  v.  Hud- 
son River  Bridge  Co.,  4  Blatchf.  (_U.  S.)  74. 

88.  Abatement  as  a  nuisance.'*'— A 
part  owner  of  vessels  navigating  a  river  may 
maintain  a  bill,  without  joining  his  partners, 
against  a  railroad  to  abate  a  bridge  over  the 
river  as  a  nuisance,  where  he  asks  no  dam- 
ages. Mississippi  &*  M.  R.  Co.  v.  Ward,  2 
Black  (I/.  S.)  485. 

A  suit  was  brought  in  Iowa  against  a  rail- 
road to  abate  as  a  nuisance  a  bridge  over  a 
river  which  was  the  boundary  between  that 
state  and  Illinois,  the  line  being  the  middle 
of  the  river.  Defendant  corporation  only 
owned  the  bridge  on  the  Iowa  side.  Illinois 
corporations  owned  the  Illinois  side,  and  a 
resident  of  New  York  held  a  mortgage  on 
the  bridge.  None  of  these  latter  parties 
were  made  defendants.  Held,  that  there 
was  no  defect  of  parties.  The  nuisance 
complained  of  was  in  Iowa,  and  being  local, 

•  See  an/,;  72. 


which  required  the  suit  to  be  brought  there, 
the  court  had  no  power  to  bring  in  these 
parties.  Mississippi  S^  A/.  R.  Co.  v.  Ward, 
2  Black  >i.  S.)  485.— Quoted  in  State  v. 
Portland  &  K.  R.  Co.,  57  Me.  402. 

In  such  a  case  the  lower  court  decreed  an 
abatement  of  the  bridge  on  the  Iowa  side  to 
the  middle  of  the  river.  Under  the  proofs 
it  was  extremely  doubtful  if  that  part  con- 
stituted a  nuisance,  the  main  channel  being 
on  the  Illinois  side,  where  the  damage  com- 
plained of  had  occurred.  Held,  under  the 
peculiar  circumstances  and  facts  of  the  case, 
that  the  bill  should  be  dismissed.  Missis- 
sippi &*  M.  R.  Co.  V.  Ward,  2  Black  {U.  S.) 
485.— Followed  in  Rheaz^.  Newport  News 
&  M.  V.  R.  Co.,  52  Am.  &  Eng.  R.  Cas.  657, 
50  Fed.  Rep.  16. 

Plaintiff  was  owner  of  a  steam-vessel  ply- 
ing a  lake  and  accustomed  to  run  into  a 
river  where  it  leaves  the  lake,  and  to  lie  in  a 
basin  alongside  a  wharf.  Defendants,  in  ex- 
tending their  line  of  railway,  constructed 
a  bridge  across  the  river,  which  completely 
obstructed  the  entrance,  and  caused,  it  was 
alleged,  special  damage  to  plaintiff,  who  was 
obliged  to  moor  his  boat  in  a  basin  on  the 
lake  side  of  the  bridge.  While  the  bridge  was 
in  construction  some  correspondence  took 
place  by  plaintiff  personally  and  through 
his  solicitor  with  defendants'  general  man- 
ager, in  the  nature  of  protests,  but  the 
bridge  had  been  in  use  for  several  years 
without  action  on  the  part  of  plaintiff,  when 
a  bill  was  filed  praying  that  it  might  be  de- 
clared a  nuisance  and  abated.  Held,  that  by 
the  delay  in  taking  action,  and  otherwise, 
there  had  been  unequivocal  acquiescence  in 
the  action  of  defendants.  Sanson  v.  North- 
ern R.  Co.,  29  Grant  Ch.  (Ont.)  459. 

IT.  T0LL-BBID0E8— BBIBOE  COM FANIES. 

I.  /«  General. 

89.  What  is  deemed  to  be  a  toll- 
bridge. — The  Missouri  Bridge  Act  author- 
ized bridge  companies  to  permit  railroad 
companies  to  extend  their  tracks  over 
bridges  belonging  to  the  former.  The 
powers  confe:rcd  upon  a  bridge  company 
were  conferred  upon  a  railroad  company, 
which  was  authorized,  in  connection  with 
its  railroad  bridge,  to  erect  a  bridge  for  the 
passage  of  teamt ,  carriages,  and  foot-passen- 
gers. It  was  also  provided  that  all  railroads 
might  run  their  cars  over  the  bridge.  A 
bridge  was  built  which  formed  a  necessary 


BRIDGES— VIADUCTS,  00,  01. 


rzi 


ight  there, 

in  these 

V.  IVard, 

State  V. 


part  to  the  railroad  company's  track,  al- 
though it  was  also  used  for  carriages  and 
luot-passengers.  He/d,  that  the  bridge  so 
built  was  not  a  toll-bridge,  but  was  a  rail- 
road bridge,  and  assessable  as  an  integral 
part  of  the  railroad.  S/ate  ex  rel.  v. 
Hannibal  «S-  St.  J.  R.  Co.,  37  Am.  6-  Eng. 
R.  Cas.  406,  97  A/o.  348,  10  S.  IV.  Rep.  436.— 
Distinguished  in  Glenn  v.  Mississippi 
River  Bridge  Co.,  109  Mo.  253. 

Although  ihe  Missouri  State  Board  of 
Equalization  is  empowered  to  assess  taxes 
on  toll-bridges  and  to  determine  what 
bridges  are  toll-bridges,  the  question  whether 
a  bridge  is  in  fact  a  toll-bridge  or  a  railroad 
bridge  is  jurisdictional,  and  the  conclusion 
of  the  state  board  in  that  respect  is  re- 
viewable by  the  court.  State  ex  rel.  v. 
Hannibal  **  St.  J.  R.  Co.,  37  Am.  6*  Eng. 
R.  Cas.  406,  97  Mo.  348.  10  5.  W.  Rep.  436. 

00.  Extent  aud  elt'eet  of  the  fk>un- 
chise.— A  franchise  to  erect  a  toll-bridge  is 
not  exclusive.  A  second  and  free  bridge 
may  be  chartered  over  the  same  waters,  so 
near  as  to  destroy  the  value  of  tiie  first 
franchise.  Charles  River  Bridge  v.  Warren 
Bridge,  11  Pet.  {U.  S.)  420.— Applied  in 
Aikin  v.  Western  R.  Co.,  20  N.  Y.  370. 
Commented  on  in  Raritan  &  D.  B.  R.  Co. 
V.  Delaware  &  R.  Canal  Co.,  18  N.  J.  Eq. 
546.  Followed  in  Thompson  v.  New 
York  &  H.  R.  Co.,  3  Sandf.  Ch.  (N.  Y.)  625 ; 
Fort  Plain  Bridge  Co.  v.  Smith,  30  N.  Y. 
44;  Jancsviile  Bridge  Co.  v.  Stoughton,  i 
Finn.  (Wis.)  667.  Quoted  in  Thorpe  v. 
Rutland  &  B.  R.  Co.,  27  Vt.  140;  Com- 
monwealth V.  Chesapeake  &  O.  R.  Co.,  27 
(Jralt.  (Va.)  344- 

The  proprietors  of  the  bridges  over  the 
rivers  Passaic  and  Hackensack  have,  by 
contract  with  the  state,  the  exclusive  fran- 
chise of  maintaining  said  bridges  and  taking 
toll  therein,  and  such  contract  is  within 
the  protection  of  the  constitution,  which 
declares  that  no  law  shall  be  passed  impair- 
ing the  obligation  of  contracts.  But  the 
construction  of  a  viaduct  over  said  river 
for  a  railway,  to  be  used  exclusively  for  the 
passage  of  locomotives,  engines,  and  rail- 
road cars,  is  not  a  bridge  within  the  prohi- 
bition of  said  charter.  Prop'rs  of  Bridges  v. 
Hoboken  L. &- /.  Co.,  1 3 N.J.  Eq.ii;  affirmed 
in  13  N.J.  Eq.  503.— Reviewing  Mohawk 
Bridge  Co.  v.  Utica  &  S.  R.  Co.,  6  Paige 
(N.  Y.)  564;  McRee  v.  Wilmington  &  R.  R. 
Co.,  2  Jones  (N.  Car.)  186. 

An  act  granting  a  company  the  right  to 
I  I).  R.  D.— 4". 


construct  a  toll-bridge,  but  which  does  not 
claim  to  be  an  exclusive  right,  does  not  pre- 
vent the  incorporation  of  another  company 
and  the  erection  of  another  bridge  over 
the  same  waters,  which  does  not  obstruct 
the  passage  of  the  first  bridge,  but  which 
will  have  the  effect  of  diminishing  its  tolls 
and  profits,  and  the  proprietors  of  the  first 
bridge  cannot  maintain  a  bill  to  restrain  the 
erection  and  use  of  the  second  bridge. 
Janesville  Bridge  Co.  v.  Stoughton,  i  Finn. 
( Wis.)  667.  — -  Following  Charles  River 
Bridget.  Warren  Bridge,  11  Pet.  (U.  S.)42o. 

01.  Yiulation  of  exclusive  frau- 
cliise,  generally.* — The  grant  to  a  cor- 
poration of  the  right  to  erect  a  toll-bridge 
across  a  river  without  any  restriction  as  to 
the  right  of  the  legislature  to  grant  a  simi- 
lar privilege  to  others,  does  not  deprive  a 
future  legislature  of  the  power  to  authorize 
the  erection  of  another  toll-bridge  across 
the  same  river  so  near  to  the  first  as  to 
divert  a  part  of  the  travel  which  would  have 
crossed  the  river  on  the  first  bridge  if  the 
last  had  not  been  erected;  and  ihe  building 
of  a  bridge  across  a  river  by  a  railroad  com- 
pany, and  the  transportation  of  passengers 
across  the  river  on  the  bridge,  in  railroad 
cars,  in  the  ordinary  course  of  business,  is 
not  an  infringement  of  the  chartered  rights 
of  a  toll-bridge  which  excludes  others. 
Mohawk  Bridge  Co.  v.  Utica  &•  S.  R.  Co.,  6 
Paige  {N.  Y.)  554.— Applied  in  People  v. 
Brooklyn,  F.  &  C.  I.  R.  Co.,  9  Am.  &  Eng. 
R.  Cas.  454.  89  N.  Y.  75.  Approved  in 
Mayor,  etc.,  of  New  York  v.  New  England 
Transfer  Co.,  14  Blatchf.  (U.  S.)  159.  Fol- 
lowed in  Thompson  v.  New  York  &  H.  R. 
Co.,  3  Sandf.  Ch.  (N.  Y.)  625.  Quoted  in 
McLeod  V.  Savannah,  A.  &  G.  R.  Co.,  25 
Ga.  445 ;  Prop'rs  of  Bridges  7/.  Hoboken 
L. &  I.  Co.,  13  N.J.  Eq.  503;  affirming  13 
N.  J.  Eq.  81.  Sheboygan  v.  Sheboygan  & 
F.  du  L.  R.  Co.,  21  Wis.  667.  Referred 
TO  IN  Hudson  &  D.  Canal  Co.  v.  New  York 
&  E.  R.  Co.,  9  Paige  (N.  Y.)  323.  Re- 
viewed IN  Prop'rs  of  Bridges  v.  Hoboken 
L.  &  I.  Co.,  13  N.  J.  Eq.  503;  affirming  13 
N.  J.  Eq.  81. 

Where  an  act  conferring  a  franchise  to 
build  a  bridge  and  to  take  tolls  provided 
that  the  owner  of  an  unauthorized  bridge 
or  vessel  used  to  transport  passengers  at 
the  same  point  should  pay  treble  tolls,  to  be 
recovered  by  the  donee  in  an  action  of  debt 

*  See  ante,  O. 


I 


m 


.•>.i 


798 


bRIUGES— VIADUCTS,  954. 


I  : 


^1 


before  a  justice ;  in  a  suit  in  equity  by  the 
owner  of  the  bridge,  against  a  corporation, 
for  a  violation  of  his  franchise  through  a 
new  bridge,  alleged  to  be  unauthorized— 
Ae/d:  (I)  that  the  remedy  given  by  the  act 
was  cumulative,  and  did  nut  preclude  the 
donee  from  resorting  to  other  aciiuns;  (2)  if 
the  act  were  otherwise,  the  necessity  of  the 
case  would  warrant  another  remedy,  as  the 
corporation  ceuld  not  be  sued  before  the 
justice;  (3)  that  chancery  had  jurisdiction 
to  restrain,  by  injunction,  the  unlawful  use 
of  the  new  bridge,  at  the  suit  of  the  owner 
of  the  franchise ;  (4)  that  chancery  would 
not  maintain  a  suit  in  his  behalf  for  an  ac- 
count of  the  tolls  lost  through  the  use  of 
the  new  bridge,  but  that,  if  a  case  were  made 
for  its  interposition  by  way  of  injunction,  it 
would  decree  an  account  as  an  incident  to 
such  relief ;  (5)  that  this  court  would  not 
enforce  the  penalty  provided  by  the  act. 
Thompson  v.  New  York  &*  H.  R.  Co.,  3 
Sandf.  Ch.  (N.  V.)  625. 

02.  Erection  of  railroad  bridge 
not  an  infriuffemcut  of  a  bridge 
franchise. — The  erection  of  a  railroad 
bridge  and  the  running  of  trains  thereon  is 
not  an  infringement  of  the  exclusive  right 
granted  by  the  legislature  in  1806  to  a  cer- 
tain person  to  maintain  a  toll-bridge  over 
the  Ogeechee  river  at  the  same  point,  and 
collect  tolls  upon  persons  and  the  vehicles 
and  conveyances  then  in  use.  McLeod  v. 
Savannah,  A.  &*  G.  R.  Co.,  25  Ga.  445. 

A  subsequent  grant  of  the  right  to  erect 
a  railroad  bridge  alongside  a  toll-bridge 
does  not  interfere  with  the  franchise  of  the 
toll-bridge  erected  under  a  provision  in  its 
charter  prohibiting  any  other  bridge  across 
the  same  water  within  one  mile.  Lake  v. 
Virginia  &*  T.  B.  Co.,  7  Nei>.  294.— Dis- 
approving Enfield  Toll  Bridge  Co.  v.  Hart- 
ford &  N.  H.  R.  Co.,  17  Conn.  40.  Quot- 
ing Thompson  v.  New  York  &  H.  R.  Co., 
3  Sandf.  Ch.  (N.  Y.)625;  McRee  v.  Wil- 
mington &  R.  R.  Co.,  2  Jones  (N.  Car.)  186; 
Tucker  v.  Cheshire  R.  Co.,  21  N.  H.  29. 

A  franchise  granted  by  the  assembly,  in 
1766,  to  A.,  his  heirs  and  assigns,  to  erect 
and  keep  a  toll-bridge  over  a  stream,  and 
forbidding  the  erection  of  any  other  bridge 
or  ferry  within  six  miles,  is  not  violated  by 
a  railroad  company  (incorporated  by  a  mod- 
ern act)  which  carried  passengers  over  a 
railroad  bridge,  authorized  by  their  charter 
as  part  of  the  road,  though  erected  within 
the  six  miles.    McRee  v.  Wilmington  &•  R. 


R.  Co.,  2  Jones  {N.  Car.)  186.— APPLIED  IN 
Raleigh  &  G.  R.  Co.  v.  Reid,  64  N.Car.  155. 
Appruvkd  in  Mayor,  etc.,  of  New  York  v. 
New  England  Transfer  Co.,  14  Blatchf.  (U. 
S.)  159.  yuoTEU  IN  Lake  v.  Virginia  &  T. 
R.  Co,,  7  Nev.  294.  Reviewed  in  Prop'rs 
of  Bridges  v.  Hoboken  L.  &  I.  Co.,  13  N. 
J.  Eq.  503;  affirming  13  N.  J.  Eq.  81. 

The  legislature,  in  1790,  authorized  M.  to 
erect  a  toll-bridge  across  a  navigable  river 
or  arm  of  the  sea,  where  the  tide  flowed, 
and  to  maintain  the  same  for  sixty  years ; 
and  the  act  provided  that  it  should  not  be 
lawful  for  any  person  or  persons  to  erect  or 
maintain  a  bridge  or  ferry  between  the  two 
places  which  were  to  be  connected  by  M.'s 
bridge.  The  toll-bridge  was  built  accord- 
ingly. In  1832  the  legislature  authorized 
the  construction,  between  two  distant 
places,  of  a  railway  which  would  necessarily 
cross  the  river  at  or  near  such  bridge, 
and  which  was  carried  across  the  river  by 
a  bridge  one-fourth  of  a  mile  distant  from 
the  former,  and  on  its  operation  the  railroad 
diminished  by  one-third  the  accustomed 
receipts  of  the  toll-bridge.  Held:  (i)  that 
the  act  conferring  the  franchise  on  M.  was 
not  a  covenant  or  grant  that  no  similar 
franchise  should  be  conferred  on  others, 
and  did  not  restrict  the  authority  of  a  future 
legislature  to  establish  a  toll-bridge  or  ferry 
at  the  same  place ;  (2)  that  the  grant  to  the 
railroad  company  did  not  impair  the  obli- 
gation of  any  contract  with  M.  within  the 
meaning  of  the  prohibition  in  the  constitu- 
tion of  the  United  States;  (3)  that  the  fran- 
chise granted  to  the  railroad  company  was 
not  the  same  as  that  conferred  on  M.,  nor 
so  similar  as  to  be  deemed  an  interference 
with  the  latter,  in  the  sense  in  which  a  new 
bridge  or  ferry  interferes  with  one  pre- 
viously established  at  the  same  point ;  (4) 
that  if  it  were  a  direct  interference,  the 
railroad  company  were  authorized  to  erect 
and  maintain  a  bridge  for  the  use  of  their 
railroad,  adjacent  to  M.'s  bridge.and  the  act 
granting  them  the  power  was  valid.  Thomp- 
son V.  New  York  <S-  H.  R.  Co.,  3  Sandf.  Ch. 
(N.  Y.)  625.— Following  Oswego  Fails 
Bridge  Co.  v.  Fish,  1  Barb.  (N.  Y.)  Ch.  547 ; 
Mohawk  Bridge  Co.  v.  Utica  &  S.  R.  Co., 
6  Paige  (N.  Y.)  554 ;  Charles  River  Bridge  v. 
Warren  Bridge,  1 1  Pet.  (U.  S.)  420 ;  Meads 
7'.  Warden,  4  Barb.  Notes  Chancellor's  Dec. 
14.  Applying  Stourbridge  Canal  Co.  v. 
V.'heeley,  2  B.  &  Ad.  792.  Distinguishing 
Newburgh  Turnpike  Co.  v.  Miller,  5  Johns. 


BRIDGES-VIAUUCTS,  W»-»ff. 


7S3 


PPLIED   IN 

M.  Car.  155. 
cw  York  V. 
31atchf.  (U. 
rgiiiia  &  T. 
IN  Prop'rs 
Co.,  13  N. 
.81. 

rized  M.  to 
igabie  river 
ide  flowed, 
ixty  years; 
uld  not  be 
to  erect  or 
>en  the  two 
led  by  M.'s 
lilt  accord* 
authorized 
|vo  distant 
necessarily 
ch  bridge, 
tie  river  by 
istant  from 
the  railroad 
iccustomed 
/.•  (1)  that 
on  M.  was 
no  similar 
on  others, 
'of  a  future 
Ige  or  ferry 
jrant  to  tiie 
ir  the  obli- 
within  the 
le  constitu- 
at  the  fran- 
•mpany  was 
on  M.,  nor 
nterference 
'hich  a  new 
1  one  pre- 
point ;  (4) 
srence,  the 
ed  to  erect 
ise  of  their 
and  the  act 
d.  Thomp- 
Sand/.  Ch. 
vego  Fails 
^)Ch.  547; 
S.  R.  Co., 
:r  Bridge  v, 
.20 ;  Meads 
ellor's  Dec. 
nal  Co.  V. 
NCUISHINC 
:r,  5  Johns. 


Ch.  (N.  y.)  101.— Follow Kij  in  Niagara 
Falls  I.  Bridge  Co.  v.  Great  Western  R.  Co., 
39  Barb.  (N.  Y.)  312;  Mayor,  etc.,  of  New 
York  7>.  New  England  Transfer  Co.,  14 
Blatchf.  (U.  S.)  159.  Quoted  in  Lake  v. 
Virginia  &  T.  R.  Co..  7  Nev.  294.  Rk- 
VIEWEU  in  Prop'rs  of  Bridges  z^.  Hoboken 
L.  &  I.  Co.,  13  N.  J.  Eq.  503;  affirming  13 
N.J.  Eq.  81. 

Where  a  state  granted  to  a  company  in  1 790 
the  right  to  erect  a  toll-bridge  over  a  river, 
with  a  provision  that  no  other  bridge  should 
be  erected  within  a  given  distance  of  it — 
held,  that  a  contract  was  thereby  created 
within  the  meaning  of  the  United  States 
constitution  which  could  not  be  impaired 
by  the  erection  of  any  other  bridge  in  use  at 
that  time;  hut  that  railroad  bridges  not  then 
being  known  were  not  included,  and  the 
state  mi(;iit  authorize  the  same  within  the 
prohibited  distance.  Prop'rs  of  Bridges  v. 
Hoboken  L.  &•  I.  Co.,  i  Wall.  ( U.  S.)  1 16. 

Where  a  person  is  empowered  to  build  a 
bridge  over  a  river  and  to  take  tolls,  and 
the  statute  forbids  other  persons  than  he  to 
convey  persons  across  the  river  within  cer- 
tain limits,  a  railway  company  constructing 
a  bridge  over  the  same  river  within  such 
limits  as  authorized  by  statute  cannot  be 
treated  as  a  wrongdoer,  and  no  action  can 
be  bronght  by  the  bridge-owner  to  obtain 
the  demolition  of  its  bridge ;  and  even  if  the 
owner  of  the  first  bridge  was  entitled  to 
compensation,  the  making  of  such  compen- 
sation was  not  a  condition  precedent  to  the 
exercise  of  the  powers  granted  by  the  statute 
of  the  company.  Jones  v.  Stanstead,  S.  6- 
C.  K.  Co.,  41  L.J.  P.  C.  19.  20  W.  K.  417.  8 
Moore  P.  C.  C.  N.  5.  312,  L.  K.  4  P.  C.  98,  26 
Z.  T.  456. 

03.  Forfeiture  of  flranchiHe.  —  A 
statute  authorizing  an  individual  to  erect  a 
bridge  and  to  receive  tolls  for  its  use  con- 
fers upon  him  a  franchise,  and  a  substan- 
tial compliance  with  the  conditions  imposed 
by  the  act  will  invest  him  with  its  rights 
and  privileges.  Where  a  franchise  has  be- 
come vested  in  the  donee  or  grantee,  it  is 
no  defense  to  a  suit  brought  by  him  to 
assert  or  maintain  the  franchise,  that  he 
has  forfeited  it  by  any  subsequent  acts  of 
commission  or  omission.  There  must  be  a 
judicial  forfeiture  of  the  franchise,  at  the 
suit  of  the  state,  before  individuals  can 
avail  themselves  of  such  acts.  It  cannot  be 
impeached  collaterally.  Thompson  v.  New 
York  <&«»  //.  /i*.  Co..  3  S,wdf.  Ch.  {N.  Y.)  625. 


04.  ltci;iilutloiiof  tollH  by  Hiuliite.* 

— It  seems  that  congress  has  the  power, 
under  its  right  to  regulate  commerce,  to 
prescribe  what  compensation  shall  be  paid 
for  the  use  of  a  bridge  cont-tnicted  across 
waters  which  arc  the  dividing  line  between 
the  United  States  and  Canada,  under  a 
joint  cliarter  from  the  latter  Rovcrnment 
and  one  of  the  states  of  the  Union.  Canada 
Southern  K.  Co.  v.  International  liridf;e  Co., 
8  Fed.  Rep.  190. 

The  Georgia  act  of  1828,  providing  that 
wagons  and  carriages  loaded  with  corn  and 
cotton  should  pass  the  Ocmulgee  bridge  free 
of  toll,  is  repealed  pro  tanto  by  the  act  of 
1847,  which  vests  in  the  corporate  authori- 
ties of  the  city  of  Macon  the  right  to  regu- 
late the  tolls  of  said  bridge,  and  repeals 
all  laws  or  parts  of  laws  which  would  mili- 
tate against  its  provisions.  Mayor  of  Macon 
v.  Macon  &*  W.  R.  Co.,  7  Ga.  221. 

By  incorporating  into  the  charter  of  a 
bridge  company  a  provision  authorizing  the 
president  and  directors  to  fix  the  rates  of 
toll,  and  providing  that  they  should,  from 
time  to  time,  reduce  the  rates  so  that  the  net 
profits  of  the  bridge  should  not  exceed  1 5 
per  cent  per  annum,  the  state  does  not  sur- 
render its  power  to  regulate  the  bridge  toils 
so  long  as  the  company  realized  not  ex- 
ceeding 15  per  cent  profit.  Commonwealth 
v.  Covington  &*  C.  Jiridge  Co.,  (Ky.)  54  Am. 
&-  Eng.  R.  Cas.  461,  21  S.  IV.  Rep.  1042. 

In  determining  whether  an  act  regulating 
bridge  tolls  will  reduce  the  receipts  to  less 
than  the  operating  expenses,  so  as  to  con- 
stitute a  taking  of  private  property  for  pub- 
lic use  without  compensation,  the  receipts 
of  the  entire  structure  must  be  considered, 
including  foot-  and  wagon- ways,  where  they 
are  a  part  of  the  main  bridge.  Common- 
wealth V.  Cffvington  &*  C.  Bridge  Co.,  {Ky.)  54 
Am.  <S>»  Eng.R.  Cas,  461,  21  .S'.  W.  Rep.  1042. 

05.  Coudeiiiuiiigr  lnii<lH  for  bridKO 
purposes.— Under  New  York  act  of  1867, 
ch.  399,  incorporating  a  company  to  con- 
struct a  bridge  between  the  cities  of  New 
York  and  Brooklyn,  it  is  not  necessary  to 
give  notice  to  the  actual  occupants  of  land 
over  which  the  bridge  would  pass,  or  upon 
which  it  would  rest,  as  required  by  section 
22  of  the  general  railroad  act  (Laws  1850, 
p.  211),  and  a  failure  to  give  such  notice  is 
not  a  jurisdictional  defect.  /;/  re  New  York 
Bridge  Co.,  67  Barb.  (N.  K)  295.  Compare 

•See  /^w/,  08,  100,  104. 


I 

TITTI 


724 


BRIDGES— VIADUCTS,  U(t-10O. 


I  ■■ 


•\  ( 


M 


t  ■  : 


I 


QuttH  V.  Grtat  Western  A\  Co.,  14  C/.  C. 
C  P.  462.  St.  Andrew's  Church  v.  Great 
Western  R.  Co.,  12  U.  C.  C.  P.  399- 

96.  StuukliolderM  of  bridge  coni- 
pauy.— A  stuckliulder  of  a  bridge  company 
having  an  exclusive  franchise  to  build 
bridges  has  a  vested  right  in  the  value  of 
his  stock  and  interest  in  the  frandiise  of 
exclusive  tolls,  and  is  not  bound  by  the 
action  of  a  majority  of  the  stockholders  au- 
thorizing a  railroad  company  to  bridge  the 
same  streams  without  compensating  the 
stockholders  for  the  injury  that  would  result 
to  their  franchises.  Gifford  v.  New  Jersey 
R.  &•  T.  Co.,  10  N.J.  Eq.  171. 

a.  Rights,  Duties,  and  Liabilities  of  Bridge 

Companies,  or  Persons  who 

Maintain  Bridges. 

97<  Bight  to  make  by-laws  »nd 
rules.— The  Canadian  act  20  Vic.  c.  227, 
%  16,  gave  the  Internatiiinal  Bridge  Com- 
pany power  to  make  by-laws  and  regulations 
for  the  use  of  its  bridge;  and  there  is 
nothing  in  §  2  of  the  amendment  act  (22 
Vic.  c.  124)  which  cuts  down  the  power  to 
make  regulations  for  the  use  of  the  bridge 
by  railway  trains.  Canada  Southern  R.  Co. 
V  International  Bridge  Co.,  L.  R.  8  App. 
Cas.  723. 

98.  Bight  to  charge  aud  collect 
tolls,  generally.'*'— The  act  of  congress 
authorizing  the  construction  of  a  railway 
bridge  across  the  Arkansas  river  at  Van 
Buren,  Ark.,  provides  that  no  higher  charge 
shall  be  made  for  the  transportation  of 
passengers  over  it  than  is  paid  for  similar 
transportation  over  the  railroad  leading  to 
the  bridge.  Under  the  act  of  the  general 
assembly  of  April  4,  1887,  regulating  the 
maximum  charge  for  transportation  of  pas- 
sengers by  railroads,  a  charge  of  forty  cents 
as  a  toll  for  crossing  the  bridge,  in  addition 
to  the  maximum  charge  for  transportation, 
is  illegal.  St.  Louis  &'  S.  F.  R.  Co.  v.  Steven- 
son, 54  Ark.  116,  15  S.  W.  Rep.  22. 

A  charter  authorized  the  grantees  to  col- 
lect toll  at  the  Augusta  bridge  across  the 
Savannah  river,  from  persons  going  from 
the  South  Carolina  side ;  "  but  the  collect- 
ing of  said  toll  shall  not  subject  the  rail- 
road company  or  the  community  to  the  pay- 
ment of  double  toll."  Held,  not  to  author- 
ize the  grantees  to  collect  tolls  from  persons 
going  from  the  South  Carolina  side,  as  long 

*  See  ante,  94. 


as  such  persons  are  required  to  pay  sgtln 
at  a  gate  on  the  Georgia  side,  owned  by  the 
city  council  of  Augusta.  South  Carolina  R, 
Co.  V,  Jones,  4  Rich.  Eq.  (So.  Car.)  459. 

Where  a  bridge  company  is  authorized  by 
its  charter  to  charge  such  toll  as  the  judg- 
ment of  its  officers  might  warrant,  which 
right  is  the  essential  value  of  its  franchise, 
the  power  of  the  courts  to  interfere  with 
this  right  can  only  be  exercised  where  there 
is  a  clear  and  unambiguous  declaration  to 
that  effect,  and  the  right  to  so  interfere  will 
not  be  inferred  if  the  language  of  the  act  is 
consistent  with  a  less  violent  purpose.  Can- 
ada Southern  R.  Co.  v.  International  Bridge 
Co.,  8  I'ed.  Rep.  190. 

99.  tullM  tVoni   railroad  ooiii- 

imnies  iiHiug  bridge.— It  is  incident  to 
the  corporate  powers  of  a  corporation  of  the 
character  of  the  International  Bridge  Com- 
pany, incorporated  under  20  Vic.  ch.  227, 
and  22  Vic.  ch.  124,  to  demand  payment  of 
tolls  from  railway  companies  for  the  use  of 
their  bridge.  Held,  also,  that  the  tolls  pay- 
able for  the  passage  of  trains  arc  not  fixed 
by  the  said  acts.  International  Briiige  Co. 
v.  Canada  Southern  R.  Co.,  7  Ont.  App.  226 ; 
affirming  28  Grant  Ch.  114. 

Where  a  company  is  chartered  to  con- 
struct a  bridge  "  as  well  for  the  passage  of 
persons  on  foot  and  in  carriages,  and  other- 
wise, as  for  the  passage  of  railway  trains," 
and  completes  it  for  the  passage  of  trains 
and  leases  it  to  a  railway  company,  but  makes 
no  provision  for  other  travel,  a  court  of 
equity  will  not  restrain  the  company  from 
collecting  tolls  from  the  railway  traflfic ;  nor 
from  allowing  trains  to  pass  until  the  bridge 
is  com  plcted  for  other  travel.  Attorney-Gen- 
eral V.  International  Bridge  Co.,  22  Grant 
Ch.  (Ont.)  298.— Following  Attorney-Gen- 
eral V.  Birmingham  &  O.  J.  R.  Co.,  4  DeG. 
&  S.  490.  Distinguishing  Attorney-Gen- 
eral V.  Tewkesbury  &  M.  R.  Co.,  4  Gifl.  333, 
I  De  G.  J.  &  S.  423;  Attorney-General  v. 
Mid-Kent  &  S.  E.  R.  Cos.,  L,  R.  3  Ch.  100; 
Raphael  v.  Thames  Valley  R.  Co.,  L.  R.  2  Ch. 

H7- 

The  attorney-general  is  the  proper  party 
to  file  a  bill  in  such  case.  Attorney-General 
V.  International  Bridge  Co.,  22  Grant  Ch. 
(Ont.)  298. 

100. toll  fk'om  street-railway 

companies  using  bridge.— A  charge  of 
two  cents  for  every  person  transported  over 
a  bridge  in  the  cars  of  a  street-railway  com- 
pany   is   not   unreasonable,  although   the 


i 


P*y«g«ln 
ed  by  the 
roh'na  R. 

459. 

orized  by 

the  jud^. 

nt,  which 

runchisc, 

fere  with 

Ijcre  there 

iration  to 

erfcre  will 

the  act  is 

osc.    Can- 

uil  Bridge 


BRIUGliS-VIADUCTS,   I01-104. 


\» 


I  .M 


ordinary  ciiarge  for  a  two-horse  vehicle  is 
fixed  at  twenty  cents.  Cmntigton  &*  C. 
Bridge  L'o.  v.  South  Covington  A-  C.  St.  A'. 
Co.,  {Ay.)  50  Atn.  &*  Eng.  A'.  Cas.  395,  19 
S.  IV.  Kep.  403, 

A  bridge  company  is  entitled  to  tolls  from 
a  btreet-car  company  that  runs  cars  across 
its  bridge,  but  not  damages  such  as  are  pro- 
vided for  in  ordinary  eminent  domain  pro- 
ceedings. Alonongahela  Bridge  Co.  v.  Pitts- 
burgh  <Sf  B.  Ji.  Co.,  1 14  Pa.  St.  478,  8  Atl. 
Rtp.  233. 

A  law  fixing  the  rate  of  tolls  over  a  bridge 
"  for  every  carriage,  wagon,  buggy,  or  other 
wheeled  vehicles  of  whatever  description  " 
held  not  to  include  street-cars.  Alononga- 
hela Bridge  Co.  v.  Pittsburgh  <3-  B.  R.  Co., 
114  Pa.  St.  478,  8  Atl.  Rep.  233. 

101.  Duty  to  periiiK  Htreet  cura  to 
croHS  bridge— Where  a  corfjoraiion  own- 
ing a  bridge  connecting  two  cities  has  laid 
street-car  tracks  on  such  bridge  and  has 
constructed  approaches  for  the  use  of  street 
railways,  so  as  to  make  it  a  street-railway 
brid);c  as  well  as  a  bridge  for  ordinary  travel, 
and  has  induced  street-car  companies  sub- 
sequently organized  to  expend  large  sums 
in  building  to  the  said  bridge,  and  has 
allowed  the  use  of  the  bridge  by  street  cars 
for  more  than  twenty-five  years,  it  has  as- 
sumed a  public  duty  with  reference  to  the 
street-car  companies  that  requires  it  to  per- 
mit cars  to  pass  over  the  bridge  at  reason- 
able rates  of  toll,  and  cannot,  at  its  pleasure, 
refuse  to  permit  such  cars  to  go  upon  the 
bridge.  Covington  &*  C.  Bridge  Co.  v.  South 
Covington  <S*  C.  St.  R.  Co.,  (A>.)  50  Am.  &* 
Eng.  R.  Cas.  395,  19  S.  W.  Rep.  403. 

A  company  was  jointly  chartered  in  the 
United  States  and  Canada  to  build  a  bridge 
across  the  Niagara  river,  which  forms  the 
boundary  line  between  the  two  countries. 
The  relators,  a  railroad  company  of  Canada, 
were  authorized  bv  statute  to  cross  the 
bridge,  which  was  refused.  One  railway 
company  already  had  the  privilege  to  cross, 
under  a  lease,  and  it  appeared  that  by  the 
United  States  charter  that  company  had 
the  right  to  exclude  other  roads.  Held,  that 
the  exclusive  lease  to  the  railway  company, 
under  the  Canadian  charter,  was  void ;  but 
it  appearing  that  the  court  had  no  power  to 
grant  the  complaining  company  power  to 
pass  the  centre  of  the  bridge,  and  that  it  had 
not  actually  connected  with  the  bridge,  and 
probably  could  not  do  so  without  crossing 
the  lands  of  the  road  already  crossing  the 


Ijridgc,  a  tuiiii  of  equity  could  grant  no  re- 
lief. Attorney-Lien,ral  v.  Xiagara  Falls  /. 
Bridge  Co.,  20  Grant  Ch.  (Ont.)  490. 

102.  Liability  iin  diHtliiiruiMhc>(l 
from  that  of  carrier.— As  the  proprietors 
of  a  toll-bridge  do  not  have  the  actual  and 
exclusive  possession  of  goods  transported,  as 
do  common  rarricrs,  they  arc  not  liable  to 
the  same  extent ;  that  is,  they  are  not  in- 
surers of  the  safety  of  the  goods.  Frank- 
fort liridge  Co.  v.  Williams,  9  Dana  (A>.) 
404. 

lOt'l.  Bridtru  voiiMtriictiou  voiii- 
IMiiiy  not  liable  for  deatli  of  brake- 
man.'*'— An  iron  bridge  company  that 
erects  a  bridge  over  a  railroad  track  so  low 
thai  a  brakeniiMi  cannot  sit  erect  on  top  of 
freight  cars  and  pass  thereimder  is  not 
liable  for  the  death  of  a  brakeman  who  is 
killed  by  coming  in  contact  with  such  bridge. 
Stoneback  v.  Thomas  Iron  Co.,  (Pa.)  4  Atl. 
Rep.  721. 

104.  Liability  of  lessee  for  not 
charflring  and  eolleotingrtollH.- Where 
a  railroad  company  leases  the  privilege  of 
running  cars  across  a  toll  bridge,  and  per- 
sists in  allowing  persons  to  pass  without 
paying  toll,  it  may  be  enjoined  as  for  a  con- 
tinuing nuisance.  Niagara  Falls  I.  Bri^e 
Co.  v.  Great  Western  R.  Co.,  39  Barb.  (A'.  Y.) 
212.— Following  Thompson  v.  New  York 
&  H.  R.  R.  Co.,  3  Sandf.  Ch.  625.— Di.stin- 
GUISHED  IN  Troy  &  B.  R.  Co.  v.  Boston, 
H.  T.  &  W.  K.  Co.,  7  Am.  &  Eng.  R.  Cas. 
49.  86  N.  Y.  107. 

Where  a  railroad  company  leases  the  right 
to  lay  a  track  over  a  bridge  and  to  run  cars 
on  the  same,  it  will  be  liable  to  the  pro- 
prietors of  the  bridge  for  allowing  persons 
to  pass  over  without  the  payment  of  tolls 
and  for  collecting  tolls  from  others,  and  for 
failing  to  provide  the  directors  of  the  bridge 
with  passes  over  its  road,  according  to 
agreement ;  and  the  amount  of  damages  is 
the  amount  that  such  directors  were  com- 
pelled to  pay  out  for  fares,  and  the  amount 
of  tolls  collected  from  such  persons.  Niag- 
ara Falls  I.  Bridge  Co.  v.  Great  Western  R. 
Co.,  ig  Barb.  (N.  K)  212.— Distinguished 
IN  Richmond  v.  Dubuque  &  S.  C.  R.  Co.,  33 
Iowa  422. 


BRIEFS. 
On  appeal,  see  Appeal,  etc..  137* 


i 


*  See  ante,  25. 


it.  .1: 


frr 


BY-LAWS,  1-3. 


1  i^  < 

v^I 

mi 

lit 

''1 

•;• 

.' 

•' 

'1 

BROKERS. 

Implied  power*  of  agents  to  tell  or  purchase, 

see  Agency,  15,  lU. 
Ticket  brokers,  see  Ikkeis  and  Fakks,  IV. 


BUFFERS. 

Duty  io  employes  as  to  safety  of,  see  Em- 
FLOvii,  Injuries  to,  1,  6. 


BUILDINGS. 

Injuries  to,  by  blasting,  see  Rlastinr,  4. 
Removal  of,   across    railway    track,  power 

to  authorize,  see  Aukncy,  OA. 
When  deemed  fixtures,  see  Fixturrs,  O. 


BURDEN  OF  PROOF. 

As    respects   contributory   negligence,    see 

Contributory  Negligknck,  VI. 

As  to  contributory  negligence  of  injured  em- 
ploye, see  Emi'Loyks,  Injuriks  to.  III.  8, 

As  to  limitation  of  liability,  see  Limitation 
of  Liability,  IV. 

As  to  negligence,  in  Illinois,  see  Compara- 
TiVK  Negligence,  5. 

In  actions  for  injuries  to  passengers,  see 
Carriage  of  FAssF.Nt.ERs,  III,  i. 

In  actions  for  loss  of  baggage,  see  Bargagk, 
117. 

In  actions  for  negligence,  see  Negligence, 
III.  3. 

In  cases  of  derailment,  see  Derailment,  3. 

In  cases  of  injuries  to  employes,  see  Em- 
ployes, Injuries  tu,  I,  g. 

In  collision  cases,  see  Collisions,  5. 

In  replevin,  see  Replevin,  5. 

In  suits  generally,  see  Evidence,  III,  3. 

To  show  negligence  in  causing  fires,  see 
Fires,  II.  8. 

To  shc^  negligence  in  stock-killing  cases, 
see  Animals,  Injuries  to,  S85,  280, 
495>S23. 


BURGLARY. 
Offense  of,  generally,  see  Criminal  Law,  III. 


BT-LAWS. 

Of  cities,  see  Municipal   Corporations,  I; 

Streets  and  Hiuhwavs,  V. 
Of  relief  associations,  see  Relief  Associ- 
ations, 7. 
1.  Power  to  alter,  amend,  or  mod- 
ify.—The  by-laws,  orders,  and  resolutions 
adopted  by  a  railroad  company  or  its  stock- 
holders arc  always  under  the  control  of  the 
Uiajority,  unless  expressly  provided  other- 


wise by  the  charter;  and  they  may  be  re- 
pealed, altered,  or  nioditied  from  time  to 
time,  as  in  the  judgiiieir.  of  the  majority 
may  be  deemed  expedient.  And  it  forms  no 
legal  ground  of  complaint  that  some  regu- 
lation or  resolution  of  the  company  which 
existed  at  the  time  a  particular  individual 
became  a  member,  and  upon  the  faith  uf 
the  continuance  of  which  alone  he  was  in- 
duced to  subscribe  for  stock,  was  afterwards 
abrogated  or  changed  in  a  manner  not  in- 
consistent with  the  charter.  East  Tenn.  <S>» 
V.  R.  Co.  V.  Gammon,  5  Sneed  ( Tenn.)  567. 

Though  a  by-law  of  a  company  au- 
thorizes the  directors  to  alter  or  amend 
the  by-laws,  the  directors  have  no  authority 
under  said  by-law  or  otherwise  to  disregard 
or  alter  another  by-law  which  was  Intended 
to  impose  a  limitation  on  their  powers. 
Stevens  v.  Davison,  18  Gratt.  (Fi.)  819. 

2.  Validity. — By-laws  must  be  reason- 
able and  for  the  common  benefit,  and  must 
operate  upon  all  equally.  So  a  resolution 
of  a  corporation  declaring  the  stock  of  one 
member  forfeited  for  unpaid  assessments, 
and  directing  a  sale  of  the  same,  is  not  a 
by-law  where  there  were  other  delinquent 
subscribers.  Budd  v.  Multnomah  S.  R.  Co., 
15  Oreg-.  413,  IS  Pac.  Rep.  659, 

A  bylaw  imposing  a  tine  upon  a  member 
of  an  association  of  common  carriers,  who 
might  carry  freight  for  less  than  a  prescribed 
rate,  is  against  public  polity  and  will  not  be 
enforced.  Sayre  v.  Louisville  U.  B.  Assoc, 
I  Duv.  (A>.)  143. 

The  validity  of  a  by-law  of  a  corporation 
is  a  question  of  law,  as  is  also  the  question 
whether  a  by-law  is  in  conflict  with  law  or 
with  the  company's  charter;  but  a  regula- 
tion of  common  carriers  that  affects  the 
rights  of  passengers,  such  as  requiring  that 
they  should  exhibit  tickets  when  requested, 
or  not  to  smoke  or  indulge  in  other  of- 
fensive practices,  or  that  male  passengers 
should  not  enter  a  place  set  apart  exclu- 
sively for  females,  are  not  by-laws  proper, 
and  their  validity  depends  upon  whether 
they  are  reasonable,  which  is  a  question  of 
fact  for  the  jury.    State  v.  Overton,  24  A'.  /. 

I"  435- 

3.  Interpretation  and  effect.— Third 
parties  dealing  with  a  corporatio  1  are  not 
affected  by  a  by-law  providing  how  special 
meetings  of  the  board  of  directors  shall  be 
called.     Samuel  v.  Holladay,  i  Woolw.  {U. 

S.)  AOO. 

The  by-laws  of  the  defendants  provided 


n 


CABLE   RAILWAYS,  !-3. 


m 


.:> 


that  interest  should  be  allowed  on  all  instal- 
ments until  the  road  was  completed  and  in 
running  order.  NM,  that  the  defendants 
could  not  recover  of  the  plainiiils,  who  had 
contracted  to  construct  and  complete  the 
road  by  a  specified  time,  the  interest  which 
accrued  upon  the  instalments  between  that 
time  and  the  time  when  the  road  was  actu- 
ally completed.  Barker  v.  Troy  &*  /i.  R.  Co., 
27  Vt.  766. 

A  by-law  of  a  railroad  corporation  pro- 
vided that  in  case  of  a  sale  of  shares  for 
nonpayment  of  assessments  the  treasurer 


should  give  notice  to  the  delinquent  owner, 
when  his  residence  was  known,  of  the  time 
and  place  of  sale,  by  letter  seasonably  put 
into  the  mail.  Held,  that  this  by-law  was 
directory  to  the  treasurer,  and  not  a  condi- 
tion precedent ;  and  that  a  written  notice  of 
the  time  and  place  of  sale,  signed  by  the 
treasurer,  and  delivered  to  the  owner  of  the 
shares,  or  left  at  his  dwelling  house,  and  re- 
ceived by  him  as  soon  as  he  was  entitled  to 
receive  it  by  mail,  was  sufficient.  Lexington 
&•  IV.  ex.  Co.  V.  Chandler,  13  Met.  {Mass.) 
311. 


GABLE  RAILWAYS. 

For  decisions  applicable  to  cable  railways  in 
common  with  other  street  railways,  see 
Strekt  Railways. 

I.   BIGHT  TO  C0N8TBUCT  AXD  OFEB- 

ATS 727 

U.   LIABILITY  FOB  INJUBIEB  CAUSED 

BT  NEGLIOEirCB 7^9 

1.  7'o J'assengers 729 

2,  To  Persons  in  the  Street..    731 

I.  BIOHT  TO  COKSTBUCT  ABD  OPEBATT,. 

1.  Ill  t^eueral— Under  K^iierul  rail- 
way act. — A  horse-car  company  can  only 
ciaim  an  exclusive  franchise  as  to  such 
modes  of  transportation  as  are  known  at 
the  time  that  it  is  chartered  ;  and  such  r.liar- 
ter  will  not  exclude  the  use  of  competing 
cable  cars  that  are  unknown  when  the  char- 
ter was  issued.  Omaha  Horse  A'.  Co.  v.  Caile 
Trannvay  Co.,  30  Fed.  Rep.  324.— Distin- 
guished IN  Detroit  City  R.  Co.  v.  Mills, 
85  Mich.  634. 

A  company  organized  under  the  New 
York  general  railroad  act  of  1850  obtains  no 
right  to  build  a  cable  road  on  streets  of  a 
city,  the  only  power  gained  thereby  being 
the  right  to  apply  to  the  city  authorities  for 
permission  to  do  so,  which  must  be  given 
before  a  road  can  be  built.  Schapcr  v. 
Brooklyn  &*  L.  I.  C.  R.  Co.,  4  N.  Y.  S.  R. 
860,  42  Hun  657 ;  affirmed  in  124  A^.  Y.  630, 
mem.,  3  5/77/.  A/>p.  335.  26  A^.  E.  Rep.  311, 
35  A'.  Y.  S.  R.  1 1  i.  People  ex  rel.  v.  Niwlon, 
16  N.  Y.  S.  R.  86,  I  N.  Y.  Supp.  197  ;  revers- 
ing 14  A'.  Y.  S.  R.  906. 


2.  Under  municipal  ft*anchlse8.— A 

municipality  may  grant  a  franchise  to  oper- 
ate cable  cars  on  tlie  streets,  but  it  cannot 
grant  the  right  to  operate  the  power-house 
with  its  engines,  so  as  to  relieve  it  of  lia- 
bility for  damages  to  adjoining  proprietors 
who  may  be  injured  by  the  manner  in  which 
the  power  house  is  nm.  Tuebner  v.  Cali- 
fornia St.  R.  Co.,  19  Am.  &*  Eng.  R.  Cas. 
147,  66  Cal.  171,  4  J'ac.  Rep.  1162. 

Where  a  company  holds  a  franchise  to 
operate  a  cable  railway  upon  certain  streets 
through  compliance  >.vith  the  absolute  con- 
ditions contained  in  the  grant,  but  operates 
a  horse  railway  instead  of  a  cable  railway 
upon  one  of  the  streets,  the  proper  course 
for  the  city  is  not  to  abate  such  horse  rail- 
wiiy  as  a  nuisance,  but  to  ta'xe  such  legal 
proceedings  as  will  compel  the  operation  of 
the  road  by  cable  instead  of  by  horses.  Spo- 
kane St.  R.  Co.  v.  Spokane  Falls,  6  IVask, 
521,  33  Pac.  Rep.  1072. 

!l.  Kig:lit  tu  open  streets  and  lay 
cables. — A  corporation  organized  under 
the  New  York  general  railroad  act  (Laws 
1850,  c.  140)  was  authorized  by  a  city  "  to 
lay  a  double  track  for  a  railroad  "  in  certain 
streets,  upon  condition  that  it  should  keep 
in  good  repair  the  space  between  the  tracks 
and  a  space  on  each  side  of  the  same,  and 
that  the  tracks  should  be  laid  upon  a  good 
foundation,  with  a  rail  even  with  the  sur- 
face of  the  streets.  Pursuant  to  this  au- 
thority, a  horse  railway  was  constructed  and 
operated  for  many  years.  Held,  that  th> 
authority  conferred  upon  the  company  by 
the  ciiy  did  not  authorize  it  to  open  up  the 


i 


•f 


7SW 


C^BLIi    RAILWAYS,  4-«. 


p., 


I 


u 


streets  fur  the  purpose  of  constructing  a 
cable  railroad  in  place  of  the  horse  railway. 
People  V.  Newton,  38  Am.  «S-  Eng.  A'.  Cas. 
391,  112  N.  V.  396,  19  A'.  /:.  AV/.  831,21 
A^.  V.  S.  A'.  8 ;  affirming  48  Hun  im,  i 
A'.  Y.  Supp.  197.  16  iV.  Y.  S.  A\  86.— Fol- 
lowing People  ex  rel.  v.  Thompson,  98  N.  Y. 
6.— Distinguished  in  AV  Washington  St. 
A.  &  P.  R.  C.  Co.,  1 1 5  N.  Y.  442.  22  N.  E.  Rep. 
356,  26  N.  Y.  S.  R.  504;  Hudson  River  Tel. 
Co.  V.  Watervliet  T.  &  R.  Co..  135  N.  Y. 
393;  Hudson  Riv.  Tel.  Co.  v.  Watervliet 
T.  &  R.  Co.,  48  N.  Y.  S.  R.  417  ;  revers- 
ing 39  N.  Y.  S.  R.  952. 

4.  UightH  of  abutting  uwiierH— 
Consent. — A  cable  railroad  company  which 
derives  from  the  city  its  rij^ht  to  alter  the 
grade  of  a  street  for  the  purpose  of  con- 
structing its  road  is  liable  for  the  damages 
to  the  abutliiij;  propcrty-ow  ners  caused  by 
the  alteration  of  the  street.  Sheeliy  v.  Kan- 
sas City  Cable  A'.  Co.,  32  ^Im.  6^  l\»g.  R. 
Cas.  233,  94  Mo.  574,  13  IVest  Rtp.  653.  7  S. 
W.  Rep.  579. 

An  abutting  property-owner  has  such  an 
easement  in  the  street  as  will  support  an  ac- 
tion for  the  damages  peculiar  lo  him  by 
reason  of  such  change  in  the  street.  Sheehy 
V.  Kansa:  City  Cable  R.  Co.,  32  Am.  <S-  Eng.  R, 
Cas.  233.  94  Mo.  574,  13  West.  Rep.  653.  7  S. 
W.  Rep.  579. 

Under  the  Missouri  constitution  (Const. 
1875,  art.  2,  §  21),  the  owner  of  property 
abutting  on  a  street  may  maintain  an  action 
against  a  cable  s\rect-railroad  company,  au- 
thorized by  the  city  to  change  the  estab- 
lished grade  of  the  street,  for  injury  result- 
ing to  his  property  by  such  change.  And 
the  measure  of  damages  is  the  difference  in 
the  market  value  of  the  property  before  and 
after  the  grade  of  the  street  is  altered. 
Sheehy  v.  A'ansas  City  Cable  R.  Co.,  32  Am. 
&*  Eng.  R.  Cas.  233,  94  Mo.  574,  1 3  West. 
R*p.  653.  7  S.  W.  Rep.  579. 

Where  the  petition  claimed  damages  for 
permanent  injury  to  plaintiff's  land  by 
reason  of  the  reduction  of  a  graded  street 
for  a  cable  railroad,  making  the  property 
inaccessible  except  at  great  expense,  an  in- 
struction authorizing  a  recovery  of  damages 
for  the  injury  10  the  market  value  of  such 
property  caused  by  such  excavation  and  use 
of  the  street  is  proper.  Brady  v.  Kansas 
City  Cable  R.  Co.,  in  Mo.  329,  19  S.  W.Rep. 

953- 
The  fact  that  the  abutting  property  was 

ten  feet  above  the  grade  of  the  .street  does 


not  |)reclude  the  owner  from  recvering 
damages  where  tiic  grade  is  low.-red  another 
ten  feet.  Brady  v.  Kansas  City  Cable  R.  Co., 
1 1 1  Mo.  329,  19  S.  W.  Rep.  953. 

Where  a  street  is  raised  for  the  purpose 
of  a  cable  railway,  it  is  pro|)er  to  admit  evi- 
dence, in  an  action  by  an  abutting  lot-owner 
to  recover  damages,  of  the  probable  cost  of 
a  retain ing-wall,  and  of  the  cost  Oi  raising 
his  pro|)erty  to  the  new  grade  line  of  lIh 
street.  Taylor  v.  Kansas  City  Cable  R.  Co., 
38  Mo.  App.  668. 

An  affidavit  filed  by  a  cable  railroad  com- 
pany contained  a  list  of  the  abutting  prop- 
erty-owners who  had  refused  their  consent 
to  the  construction  of  the  road.  It  also 
gave  a  list  of  the  streets  in  which  the  per- 
sons so  applied  to  resided,  and  ilie  valua- 
tion in  each  street  of  the  property  owned 
by  the  person  so  refusing.  Tivj  petition 
showed  the  total  valuation  of  the  property 
on  the  streets  along  wliiih  tlie  company 
proposed  to  construct  its  road,  and  it  ap- 
peared therefrom  that  the  refusals  to  con- 
sent represented  more  than  one-half  of  the 
total  valuation.  Held,  that  the  refusal  of 
more  than  one-half  of  the  propcrty-owne.  - 
to  consent  to  the  construction  sufficiently 
appeared.  /;/  re  People's  R.  Co.,  38  Am.  &- 
Eng.  R.  Cas.  404,  112  A^.  V.  578.  20  A'.  /:. 
Rep.  367,  2 1  A'.  Y.  S.  R.  496 ;  affirming  48 
Hun  617,  mem. — Reconciling  In  re  Broad- 
way Underground  R.  Co.,  23  Hun  693;  In 
r(  Broadway  Surface  R.  Co.,  36  Hun  644; 
In  re  New  York  Cable  R.  Co.,  36  llim  355. 

5.  Location  of  powcr-liouHe.  —  A 
company  in  the  city  of  Brooklyn  was  au- 
thorized by  its  charter  to  construct  and 
o|)erate  a  cable  road  from  a  dcsii(nate<l  street 
"  through  Montague  street  to  Wall  street 
ferry,"  and  to  erect  necessary  powei-houses 
"  in  streets  adjacent  to  Montague  street 
west  of  the  hill."  There  were  no  streets 
touching  Montague  street  west  of  the  hill, 
and  it  appeared  from  the  topography  of  the 
country  that  the  charter  would  be  worthless 
unless  the  power-house  was  erected  on  some 
street  in  the  vicinity  of  Montague  street. 
Held,  that  the  words  •  adjacent  to  Montague 
street "  must  be  const nud  to  mean  the 
neighboring  or  parallel  streets.  Brookh-. 
Heights  R.  Co.  v.  Brooklyn,  46  A'.  V.  S.  R. 
299.  18  A'.    }'.  SM/>p.  876. 

O.  RojoriilHtion  by  city  ordinance- 
Municipal  ordinances  re},^iilati'i(4  the  running 


of  streci-riiilway 
cable  and  othei 


cars  are  applicable  to  al. 
ilways  employed   in  the 


r 


CABLE    RAILWAYS,  7-l>. 


789 


transpurtutiuii  of  pussciigcis  tlirough  the 
streets  uf  a  city,  without  distinction  as  to  the 
character  of  the  nrntive  power.  Lamb  v.  St. 
Louis  C.  &*  IV.  A\  Co.,  33  A/n.  App.  489. 

An  ordinance  of  the  city  of  St.  Louis, 
which  was  in  force  for  more  than  thirty 
years,  provided  in  regard  to  street  railways 
tliat  "  the  conductor  and  driver  of  each  car 
siiall  keep  a  vigilant  watch  for  all  vehicles 
and  persons  on  foot,  especially  children, 
either  on  the  track  or  movinf^  towards  it, 
and,  on  the  first  appearance  of  danger  to  such 
persons  or  vehicles,  the  car  shall  be  stopped 
in  the  shortest  time  and  space  possible." 
Held,  that  this  ordinance  is  not  applicable  to 
street  railways  propelled  by  cable,  but  only 
to  street  railroails  propelled  by  horse-power^ 
Olenville  v.  St.  Louis  A'.  Co.,  51  Afo.  App.  629. 

7.  ItiKlitH  <>f  liorMe  railway  crosMctl 
or  iiaralhMvtl.— Where  a  line  of  horse 
cars  is  atierward  paralleled  and  crossed  by  a 
cable-car  line,  the  former  may  recover  from 
the  latter  damages  for  incovcnience  of  access 
to  its  cars  where  the  cable  cars  run  between 
the  horse-car  track  and  the  sidewalk ;  but  it 
is  not  entitled  to  recover  damages  resulting 
from  a  mere  matter  of  competition,  or  from 
the  fact  that  the  better  facilities  offered  by 
the  cable  road  attracted  passengers,  nor  for 
its  track  being  cro,  >;d  by  the  cable  line. 
Omaha  Horse  R.  Co.  v.  Cable  Tramway  Co., 
yx  Fed.  Rep.  727. 

U.  LIABIUTT    FOB   INJVBEIS  OAUUD  BT 
MEOLIOElfOE. 

I,    To  Passengers. 

8.  In  general— Pre8iiiiii>tion  of  neg- 
ligence.— A  passenger  injured  while  oc- 
cupying a  seat  upon  the  dummy-car  of  a 
cable  railway  is  not  guilty  of  contributory 
negligence,  as  such  seals  art  provided  for 
passengers,  and  any  one  sittiog  there  has  the 
same  right  to  be  protected  ag.iinst  the  neg- 
ligence of  the  company's  servants  as  pas- 
sengers in  the  trail-car.  Hawkins  v.  Front 
St.  Cable  R.  Co.,  3  H'asA.  592,  28  Pac.  Rep. 

I02I. 

Where  a  cable  car  is  stopped  so  suddenly 
as  to  throw  a  [)asscnger  from  her  scat  and  to 
break  the  glass  in  the  car-windows,  a  pre- 
sumption ul  negligence  arises  on  the  part  of 
the  ( i)m[)any.  Clow  v.  Pittsburgh  Traction 
Co.,  158  Pa.  St.  410. 

Proof  of  an  accident  and  resulting  injury 
to  a  passenger  is  not  always  sufficient  to 
raise  a  presumption  of   negligence  on   the 


part  of  the  carrier,  or  to  make  out  a  prima' 
facie  case  in  favor  of  the  passenger.  So 
where  a  passenger  on  a  cable  car  was  in- 
jured by  coming  in  collision  with  a  horse 
and  buggy  on  tiie  street,  while  the  curtains 
were  drawn  to  protect  him  from  the  rain, 
obstructing  the  view  on  that  side  of  the 
car  of  both  him  and  the  manager  of  the 
car — held,  that  the  burden  of  proof  was  on 
him  to  show  negligence.  Potts  v.  Chicago 
City  R.  Co.,  33  Fed  Rep.  610. 

U.  Defective  aiipIianceH.  —  An  in- 
struction to  the  jury  that  a  street-railway 
company  propelling  cable  cars,  as  respects 
precautions  for  the  safety  of  passengers,  is 
bound  to  exercise  the  greatest  care  and  fore- 
sight in  tiie  construction  and  operation  of 
its  cars,  correctly  slater,  .'ie  law.  Watson  v. 
St.  Paul  City  R.  Co..  41  Am.  S-  F.ng.  R.  Cas. 
1 14,  42  Minn.  46,  43  A'.   IK  Rep.  904. 

Railroad  companies  are  only  required,  in 
providing  for  the  safety  of  passengers,  to  use 
the  best  appliances  known  to  and  obtainable 
by  them,  after  inquiry  and  investigation,  and 
after  subjecting  such  appliances  to  a  reason- 
-\ble  test  as  to  strength  and  ntness.  A 
cable-car  company,  after  selecting  it's  appli- 
ances as  above,  and  after  having  properly 
tested  them,  is  not  liable  for  an  accident  re- 
sulting from  tiie  breaking  of  the  shank  of 
a  grip  through  some  hidden  defect  which 
could  not  be  discovered  by  proper  examina- 
tion. Carter  v.  Kansas  City  Cable  R.  Co., 42 
Fed.  Rep.  37. 

In  an  action  for  personal  injuries  alleged 
to  have  beer  caused  by  insufficient  and  de- 
fective grip-irons  and  brakes  on  a  cable- 
railway  car,  plaintifT  cannot  complain  that 
he  was  compelled  to  carry  the  burden 
of  proof  at  the  trial,  where  the  court  in- 
structed at  his  request  that  "  the  burden  of 
proof  is  upon  the  defendant  to  establish  to 
the  reasonable  satisfaction  of  the  jury  that 
it  could  not  discover  any  insufficiency  of 
the  grip-shanks  or  rail-brakes,  if  any  there 
was,  by  the  exercise  of  the  utmost  practica- 
ble skill  and  human  foresight."  Sharp  v. 
Kansas  City  Cable  R.  Co.,  52  Am.  &•  Eng.  R, 
Cas,  561,  714  Mo.  94,  20  .S".  H'.  Rep.  93. 

In  such  action  an  instruction  asked  by 
plaintiff,  basing  his  right  to  recover  upon 
the  defective  construction  of  the  grip-irons 
and  brakes,  should  have  been  given,  and 
the  error  in  refusing  it  was  not  cured  by 
an  instruction  given  by  the  court  of  its  own 
motion,  which  placed  his  right  to  recover 
upon  want  of  repair.     Sharp  v.  Kansas  City 


ft 


:.      t 


'! 


ii 


730 


CAULK    RAILWAYS,  10-13. 


Gid/i-  A'.  Co.,  52  ^/w.  (S-  /:\.  A'.  Cis.  561. 
1 14  Mo.  94,  20  .s'.  //'.  AV/.  95. 

An  instruction  wliicli  excuses  the  dcf-nd- 
ant,  if  the  liubility  of  the  break-shani<  to 
brake,  or  tiie  insulliciency  of  the  brake,  was 
either  not  known  tu  the  defend:int  or  was 
such  as  could  not  have  been  known  by  tiie 
utmost  practicable  care,  is  erroneous  in  the 
use  of  or  for  a/u/,  as  the  mere  want  of 
knowledge  of  the  insutriciency  of  the  grip 
or  brake  would  not  relieve  the  defendant. 
Sharp  V.  Kansas  City  Cable  R.  Co.,  52  Am. 
6-  Eni;.  K.  Cas.  561,  1 14  JA;.  94,  20  X  U'. 
A\p.  93. 

In  such  case,  proof  that  the  brakes  were 
insufTicient  to  hold  the  car  makes  a  prima 
facie  case  for  the  plai  'tifl.  Sharp  v.  Kan- 
sas City  Cable  R.  Co.,  52  Aw.  <S-  £n^.  R.  Cas. 
561,  114  A/o.  94,  20  S.  IV.  Rep.  j>3. 

A  cable  railway  company  in  supplying 
grips  and  bva'ces  for  its  cars  and  in  keeping 
them  in  repair  is  bound  to  anticipate  and 
take  into  consideration  all  such  weather 
and  conditions  of  the  track  as  may  be  rea- 
sonably expected  in  che  climate  where  oper- 
ated. Sharp.  V,  Kansas  City  Cable  R.  Co., 
52  Am.  6-  Eng.  R.  Cas.  561,  1 14  Mo.  94,  .:o 
.V.  W.  Rep.  93. 

10.  ExceHHivc  speed. — Where  a  pas- 
senger alights  from  a  cable  car  while  it  is 
running  at  a  rate  of  speed  prohibited  by 
ordinance  and  is  injured  by  a  similar  car 
moving  in  the  opposite  direction,  it  caimot 
be  said  that  the  speed  of  the  train  had  no 
direct  agency  in  causing  the  injury.  Weber 
V.  Kansas  City  Cable  R.  Co.,  41  Am.  &*  Eng. 
R.  Cas.  117,  100  Mo.  194,  12  S.  W.  Rep.  804, 
135.  IV.  Rep.  587,  7  L.  R.  A.  819. 

Evidence  held  to  justify  a  finding  of  negli- 
gence in  respect  to  the  condition  or  operation 
of  a  train  of  cable  cars  which,  while  carrying 
passengers,  ran  down  a  steep  declivity  com- 
posing a  part  of  the  line  at  very  great  and 
dangerous  speed,  and  apparently  beyond 
the  control  of  those  operating  the  train. 
Bishop  v.  St.  Raul  City  R.  Co.,  48  Minn.  26, 
50  A^.   IV.  R.p.  927. 

11.  lujiiry  tu  paMHeiiffer  boanlingr 
car. — Two  parallel  streetcar  tracks  were  so 
near  together  that  cars  goin^;  in  opposite 
directions  would  pass  witiiin  two  feet  of  each 
other.  The  cars  were  operated  by  cable. 
Held,  negligence  for  a  person,  after  dark, 
to  deliberately  stand  between  the  tracks, 
wait  for  and  attempt  to  take  passage  on 
cars  coming  on  one  track,  at  the  same  time 
paying  no  attention   to  see  whether  cars 


were  approaching  within  dangerous  prox- 
imity on  the  other  track.  Aliiler  v.  St. 
Paul  City  R.  Co.,  42  Minn.  454,  44  A'.  IV. 
Rep.  533. 

12. riding  on  platform.  —  It  is 

not  negligence  per  se  for  a  passenger  to 
stand  upon  the  front  platform  of  the  trailer 
of  a  cable  train  in  the  absence  of  any  rule 
of  the  company  forbidding  it,  and  where  it. 
is  customary  for  passengers  to  occupy  that 
position.  Muldoon  v.  Seattle  City  R.  Co., 
( Wash.)  58  Am.  &*  Eng.  R.  Cas.  546. 

Where  a  train  of  cable  cars  on  which  the 
plaintid  was  a  passenger,  standing  on  the 
platform  of  the  rear  car,  came  to  a  stop 
when  about  half-way  through  the  tunnel, 
and  remained  standing  several  minutes, 
when  another  train  descending  through  the 
tui  nel  collided  with  the  rear  car  of  the 
standing  train  and  thereby  inflicted  a  per- 
sonal injury — held,  that  the  mere  fact  of  the 
injury  raised  a  presumption  of  negligence 
which  was  sufficient  to  sustain  a  general 
charge  of  negligence  in  the  running  and 
operating  of  the  defendant's  road  and  the 
cars  propelled  ther«  on.  North  Chicago  St. 
R.  Co.  V.  Cotton,  52  Am.  &*  Eng.  R.  Cas.  238, 
140  III.  486,  29  A'.  E.  Rep.  899;  affirming  41 
III.  App.  zw. 

13.  aliKlitinfi:  fk-oni  car. —  The 

facts  that  the  door  of  a  cable  car  was  open 
on  the  side  next  to  the  parallel  track,  and 
that  no  guard  was  there  to  prevent  persons 
from  getting  of!  thro.igh  it,  cannot  be  con- 
strued as  an  invitation  to  a  passenger  to 
alight  while  the  train  was  at  full  speed.  The 
fact  that  the  train  did  not  stop  or  check  up 
was  a  warning  to  the  passengers  rot  to  get 
off.  Weber  v.  Kansas  City  Cable  .'i.  Co.,  4t 
Am.  &»  Eng.  R.  Cas.  117,  100  Mo.  194,  12  S. 
W.  Rep.  804,  13  S.  W.  Rep.  587,  7  L.  R.  A. 
819. 

One  in  the  possession  of  hisfaci  Ides,  who 
was  accustomed  to  cable  cars  and  must 
have  known  that  they  passed  each  other 
every  few  minutes,  who  left  his  seat  with- 
out signifying  to  the  brakeman  near  him 
any  desire  to  get  off,  and  who,  without  any 
reason  to  believe  the  cars  would  stop,  went 
to  the  door  of  the  car  and  jumped  oil  while 
it  was  in  full  speed,  and  was  injured  by  an 
approaching  tram,  without  looking  for  it, 
when  he  might  have  seen  it  had  he  looked, 
is  guilty  of  contributory  negligence.  Weber 
V.  Kansas  City  Cable  R.  Co.,  4«  ^m.  6-  Eng. 
/*.  f  Vcr.  117.  \aoMo.  104,  \2S.  W.  Rep.  804,  13 
S,  W.  Rep.  587,  7  Z.  R.  A.  819.— Rev»ewinu 


CABLIi    RAILWAYS,   14,16. 


781 


Chicago  City  R.  Co.  v.  Robii>son,  36  Am.  & 
Eiig.  R.  Cas.  66.  127  111.  9. 

Plaintiff  was  a  passenger  upon  a  cable  car 
and  got  out  of  it  on  the  north  side  in  a 
place  of  entire  safety.  Except  in  so  far  as 
the  cur  from  which  he  alighted  obstructed 
his  view,  he  could  bv.e  the  south  track  for  a 
square  or  more.  Without  looking  or  wait- 
ing, he  turned  sharply  around  the  rear  of 
the  car  and  started  to  cross  the  street. 
The  space  between  the  two  tracks  was  four 
and  a  ha)f  feet,  and  while  crossing  it  he 
might  have  seen  the  approaching  car.  In- 
stead of  looking,  lie  stepped  right  into  the 
car,  which  was  upon  him  at  the  instant  he 
set  foot  upon  the  south  track.  Held,  that 
the  plaintiff  was  guilty  of  contributory  neg- 
ligence and  that  a  nonsuit  was  properly 
ordered,  liuzby  v.  Philadilphia  Traction 
Co.,  42  Am.  &•'  Etig.  R.  Cas.  144,  126  /'a.  Sf, 
559,  17  At/.  Rep.  895. 

2.   To  Persons  in  the  Street. 

14.  Ill  guiierni— Carv  required  of 
{l^ripiiiau. — A  cable-railway  company  op- 
erating dangerous  machmery  at  <.  rapid 
speed  on  and  along  the  public  streets  of  a 
city  must  know,  and  in  law  is  bound  to 
know,  that  men,  women,  and  children  have 
an  equal  right  to  the  use  of  the  highway, 
and  will  be  upon  it,  Winters  v.  Kansas 
City  Cable  R.  Co.,  40  Am.  6-  Eng.  R.  Cas. 
261 ,  99  Mo.  509,  1 2  .S".  W.  Rep.  652,  6  L.  R.  A. 
536.— Quoted  in  Cambeis  7>.  Third  Ave. 
R.  Co.,  48  N.  Y.  S.  R.  709. 

It  is  the  duty  of  the  company's  servants 
to  be  on  the  lookout  and  to  take  all  reason- 
able measures  to  avoid  injuries  to  persons 
on  the  streets.  Winters  v.  Kansas  City  Cable 
R.  Co.,  40  Am.  Sf  Eng.  R.  Cas.  261,  99  Afo. 
509,  12  S.  W.  Rep.  652,  6  L.  R.  A.  536. 

It  is  not,  as  a  matter  of  law,  suflicient  care 
on  the  par',  "f  the  gripman,  when  approach- 
ing a  curve  in  the  street,  to  ring  the  bell, 
and,  having  seen  that  the  way  was  clear  in 
front,  to  go  ahead  without  thereafter  look- 
ing to  the  right  or  left.  Winters  v.  Kansas 
City  Cable  R.  Co.,  40  Am.  <S-  Eng.  R.  Cas.  261, 
99  Mo.  509,  12  .s:  W.  Rep.  652,  6  L.  R.  A. 

536- 

The  gripman  of  a  cable  car  should  always 
be  on  the  alert  to  avoid  danger,  and  his  at- 
tention sliould  never  be  diverted  from  his 
duties.  He  should  keep  his  eye  constantly 
on  the  track  before  him  and  under  no  cir- 
cumstances should  any  one  be  allowed  Uj 
ride  with  him  in  the  cab.  Schnur  v.  Citizens' 


Traction  Co.,  153  Pa.  St.  29,  25  Atl.  Rep. 
650. 

Plaintiff's  intestate  was  killed  in  the 
street,  opposite  a  new  building  that  was 
being  erected,  and  where  building  material 
obstructed  the  street  nearly  to  the  car-lii;.-. 
The  court  instructed  that  "  if  the  jury  found 
that  the  car  was  driven  at  a  rate  of  speed 
that  was  dangerous,  owing  to  the  obstruc- 
tions in  the  street,  and  that  tho  defendant 
failed  to  give  any  warning  of  the  approach 
of  the  car,  *  ♦  ♦  ^pj  x.\\a.X,  by  mason 
thereof  the  accident  happened,  and  nould 
not  otherwise  have  occurred,  then  the  de- 
fendant is  liable."  /^<f/</,  that  the  instruction 
was  too  narrow;  it  should  have  su I i milted 
whether,  under  all  the  circumstances  >f  the 
case,  the  car  was  managed  with  reasonable 
care.  Wrig/it  v.  Third  Ave.  R.  Co.,  23  A^.  Y. 
S.  A'.  483,  5  A^.  Y.  Supp.  707.  — Rkvikwing 
McGrath  v.  New  York  C.  &  H.  R.  R.  Co., 
63  N.  Y.  522. 

In  such  case  it  was  error  to  instruct  that 
it  was  the  duty  of  the  gripman  10  keep  a 
strict  lookout  forward  for  obstructions  or 
objects  which  might  come  upon  the  track, 
as  it  was  for  the  jury  to  determine  whether 
the  car  was  properly  managed,  in  the  ab- 
sence of  such  strict  lookout.  Wright  v. 
Third  Avenue  R.  Co.,  23  A^.  Y.  S.  R.  483,  5 
A'.  Y.  Supp.  707. 

15.  CulliHioiiN. — The  cable-car  gripman 
is  required  to  exercise  ordinary  care  to  pre- 
vent injuries  to  persons  on  the  street,  which 
would  include  the  duty  to  stop  the  car  so  as 
to  prevent  a  collision,  if  it  could  be  done 
with  safety  to  the  car  and  its  passengers. 
Pope  V.  Kansas  City  Cable  R.  Co.,  43  Atn.  &* 
Eng.  R.  Cas.  290,  99  Mo.  400,  12  S.  W.  Rep. 
891.— Distinguishing  Hell  v.  Hannibal  & 
St.  J.  R.  Co.,  72  Mo.  50. 

In  an  action  for  a  personal  injury  result- 
ing from  the  collision  of  a  cable  car  and 
plaintiff's  wagon,  an  instruction  which  told 
the  jury  that  "if  the  gripman  intentionally 
and  carelessly  ran  the  defendant's  car  against 
the  plaintiff's  wagon,  that  this  was  negli- 
gence,"  is  condemned,  as  "intentionally" 
and  "  carelessly  "  express  different  and  in- 
consistent views  of  the  same  manner.  Bind- 
beutal  V.  Street  R.  Co.,  43  Mo.  App.  4O3. — 
Distinguished  in  Holmes  v.  Atchison,  T. 
&  S.  F.  R.  Co.,  48  Mo.  App.  79. 

The  error  contained  in  said  instruction 
was  prejudicial,  and  the  more  so  when  taken 
in  connection  with  another  instruction, 
which  told  the  jury  that  if  they  found  that 


M 


73a 


CAULli    RAILWAVS,   IO-18. 


hi 


^  ?  ' 


p" 

H'' 

p  ■ 

i. 

the  injuries  sustained  were  wilfully  and 
intentionally  inflicted,  they  should  allow 
plaintiff  punitory  damages ;  as  also,  when 
taken  in  connection  with  u  further  instruc- 
tion to  the  effect  that  if  the  injury  was 
"  intentional,  "  then  the  defense  of  contribu- 
tory i)c}{li|i;encc  could  not  avail  defendant. 
liindbt-iitiil  V.  Street  K,  Co.,  43  Mo.  App.  463. 

In  an  action  for  damages  fur  injuries  re- 
sulting to  plaintiff  from  the  collision  of  a 
cable  car  with  her  wagon,  which  she  was 
unable  to  get  off  the  track  because  of  the 
refusal  of  her  horses  to  move,  an  instruction 
asked  by  defendant  that  "  if  it  appears  from 
the  evidence  that  the  plaintiff  was  guilty  of 
any  negli^^encc  whatever  which  contributed 
to  cause  the  injury  complained  of  in  this 
action,  or  concurred  with  the  negligence  of 
the  defendant,  if  any,  in  producing  it,  then 
your  verdict  must  be  for  defendant,"  was 
properly  refused,  on  the  ground  that  it  im- 
poses a  greater  degree  of  care  upon  the 
party  injured  than  upon  the  one  committing 
the  injury.  Spurrier  v.  Front  St.  Cable  K. 
Co.,  3  Wash.  659,  29  Pac.  AV/.346. 

Plaintiff,  who  had  hitched  his  horse  *o 
an  awning-post,  untied  the  hitching-strap 
while  standing  on  the  pavement,  with  some 
boxes  between  the  horse  and  himself.  Just 
then  a  cable  car  came  along  and  the  ringing 
of  the  bell  alarmed  the  horse.  It  pullcii  the 
strap  from  plaintiff's  hand,  ran  U|x>i)  the 
track,  and  was  struck  by  the  cable  car.  Plain- 
tiff tesliticd  that  when  the  horse  reached 
the  track  the  cable  car  was  about  eighteen  to 
twenty  feet  distant.  He  also  testified  f  nat  the 
gi  ipman  could  have  stopped  the  car  and  have 
seen  the  horse,  but  there  was  no  evidence 
to  corroborate  his  testimony  in  that  respect. 
Held,  that  there  was  not  sufficient  evidence 
to  submit  to  the  jury  the  question  whether 
the  gripman  was  negligent  in  not  stopping 
the  car  in  lime  to  prevent  a  collision,  the 
plaintiff  not  being  qualified  to  express  an 
opinion  upon  that  point;  that  the  ringing 
of  the  bell  was  not  negligence ;  and  that 
plaintilT  could  not  rficover.  Philadelphia 
Traction  Co.  v.  Bernheimer,  j8  Am  **  Kng. 
R.  Cas.  487,  r25  Pa.  St.  615,  17  ////.  AV/.  477. 
-  Followed  in  Steiner  v.  Philadelphia 
TratlionCn  .41  Am.&  Eng.  R.  Cas.  535,  134 

Pa.   St.    lyv. 

lU.  Failure  to  riiisr  bell  hi  crosHlnir. 

— Where  an  -ordinance  requires  a  bell  to  be 
rung  on  cable  cars  in  passing  street  cro.ss- 
ings,  a  failure  to  do  so  is  not  xcused  by 
showing  that  the  car-conductor  was  tempo- 


rarily absent,  and  that  the  gripman  was 
otherwise  engaged.  Driscoll  v.  Market  .s/. 
Cable  R.  Co.,  97  Cal.  553,  32  Pac.  Rep.  591. 

A  person  walking  on  the  street  was  killed 
by  a  cable  car  at  a  street  crossing.  A  city 
ordinance  required  that  a  bell  should  be 
rung  continuously  from  a  point  25  feet  from 
the  crossing  until  after  it  should  be  passed. 
Held,  that  the  failure  to  do  so  was  negli- 
gence, both  as  a  violation  of  a  reasonable 
ordinance  and  because  the  circumstances 
showed  in  this  case  that  it  was  carelessness 
not  to  do  so.  Driscoll  v.  Market  St.  Cable 
R.  Co.,  97  Cal.  SS3,  32  Pac.  Rep.  591. 

17.  Frightening  liorNeM.— Where 
damages  are  claimed  for  injuries  sustained 
through  the  plaintiff's  horses  taking  (right 
at  a  traction  car,  evidence  that  the  gripman 
rang  the  bell  of  tiie  car  at  or  near  a  b./eet 
crossing,  where  it  was  his  duty  to  ring,  does 
not  establish  negligence  on  the  part  of  the 
gripman  so  as  to  render  the  company  liable. 
Steiner  v.  Philadelphia  Traction  Co.,  41  //;//. 
&*  Eng.  R.  Cas.  535,  134  Pa.  St.  199,  19  Atl. 
AV/.  491.— Following  Philadelphia  Trac- 
tion Co.  V.  Bernheimer,  125  Pa.  St.  615. 
Quoting  Philadelphia,  W.  &  B.  R.  Co.  v. 
Stinger,  78  Pa.  St.  219. 

18.  KxceHttive  width  of  grip-»lot.— 
A  cable-car  company  was  sued  for  injuries 
caused  to  a  person  driving  on  ihi;  street  by 
the  wheels  of  his  carriage  on  one  side  droj)- 
ping  through  the  slot.  Held,  that  the  com- 
pany was  liable  if  the  widening  of  the  slot 
occurred  by  reason  of  defects  in  tho  original 
construction  or  design  of  the  road,  and  that 
it  was  equally  liable  if  the  widening  resulted 
from  frost  and  thawing,  as  it  was  che  com- 
pany's duty  to  properly  inspect  the  track,  to 
provide  against  such  accidents.  Griveaud 
V.  St.  Louis  C.  &'  IV.  R.  Co.,  33  Mo.  App.  458. 
--Qu'rriNG  KeitelT/.  St.  Louis  C.  &  W.  R. 
Co.,  28  Mo.  App.  665. 

An  instruction  to  the  effect  that  the  de- 
ft ndant  would  not  be  liable  for  the  plain- 
tiff's injuries  resulting  from  the  opening  of 
the  slot  in  a  cable  railway  if  the  said  open- 
ing was  caused  by  heavy  teams  passing  over 
the  same,  and  if  defendant  did  not  know 
that  such  opening  existed  and  could  not 
have  known  thereof  from  the  most  careful 
inspection  in  time  to  have  remedied  the  de- 
fect before  the  occurring  of  the  accident, 
was  properly  refused,  because  it  omitted  one 
possible  clement  of  the  defendant's  liability, 
namely,  that  the  roadbed  may  have  been  de- 
ficient in  original  construction  and  design. 


CABLIi   RAILWAYS,  1«.— CANALS,  1,2. 


789 


Cn'veaud  v.  St.  Louis  C  &•  IV.  /t.  Co.,  33  Mo. 
App.  458. 

A  cable-car  company  was  sued  for  injuries 
tu  a  horse  by  catching  tlie  calk  of  his  slioe 
in  the  slot.  The  liability  uf  the  company 
depended  upon  whether  the  slot  was  more 
than  three-fourths  of  an  inch  wide,  and  if 
so,  whether  the  excess  of  width  was  the 
cause  of  the  injury,  upon  which  there  was  a 
conHict  of  evidence.  Held,  that  it  was  proper 
to  submit  these  questions  to  the  jury,  and 
that  their  verdict  should  not  be  disturbed. 
Humbert  v.  Brooklyn  Cable  Co.,  12  N.  Y.  S. 
R.  172. 

In  an  action  against  a  street-cable  rail- 
way company  for  damages  occasioned  by 
the  excessive  and  improper  width  of  the 
grip-slot  at  a  particular  point,  it  is  not 
necessary  for  the  piaintifl  to  plead  the  de- 
fendant's notice  or  knowledge  of  such  de- 
fective condition  of  its  roadway.  A'eitelv. 
St.  Louts  C.  &^  IV.  A".  Co.,  28  A/o.  App.  657. 

10.  Contributory  iieglit;eiicc.— An 
attempt  to  pass  with  a  wagon  in  front  of  a 
cable  car  forty  feet  away  and  approaching 
at  a  speed  of  ten  miles  an  hour  is  negligence 
as  matter  of  law.  Hamilton  v.  Third  Ave, 
R.  Co.,  6  Misc.  (,N.  Y.)  382,  26  N.  Y.  Supp. 
754.  56  N.  Y.  S.  R.  397. 

Where  a  cable-railway  company  is  sued 
for  negligently  killing  a  person  on  the  street, 
and  there  is  evidence  tending  to  show  con- 
tributory negligence,  it  is  error  to  ignore 
such  contributory  negligence  and  simply 
charge  that  "  if  the  jury  believed  that  the 
gripman  was  looking  back,  and  the  ac- 
cident would  not  have  occurred  had  he  been 
looking  forward,  ■•■  ■*■  ■•■  and  that  this  inatten- 
tion was  the  proximate  cause  of  the  acci- 
dent, then  the  defendant  is  liable."  Wright 
v.  Third  Ave.  R.  Co.,  27  A'.  Y.  S.  R.  523,  5 
A'.  Y.  Supp.  707. — Reviewing  McGrath  v. 
New  York  C.  &  H.  R.  R.  Co.,  63  N.  Y.  522. 

An  aged  woman  of  good  eyesight,  but 
slight')  deaf,  sued  to  recover  for  injuries 
fur  being  struck  by  a  car.  At  the  trial  she 
testified  that  it  was  always  her  habit  before 
crossing  the  track  to  look  both  ways  for 
cars  but  that  she  could  not  recollect  having 
d  jnc  so  at  the  time  of  the  accident,  and  that 
she  co'-'.d  have  seen  the  car  half  a  block 
away,  but  did  not  either  see  or  hear  i'.. 
Another  witness  testified  that  plaintiff  Jid 
look  both  way.s.  Held,  sufficient  evidence 
to  support  a  finding  that  plaintiiT  used 
reasonable  care.  Cowan  v.  Third  Ave.  R. 
Co.,  <)  N.   Y.  Supp.  610. 


CALIFOSNIA. 

Animals  running  «t  large  in,  see  Animals, 

iNjURibs  TO,  244. 
State  aid  to  railroads  in,  see  Spate  Aid,  II. 
Statutes  of,  relative  to  kiUing   stock,  see 

Animals,  Injukiks  to,  19. 


CALLS. 


For  directors' meetings,  see  Dirf.ctors,  18. 
Upon  shares,  see  SuiiscKinioNs  to  Stock,  II. 


CANADA. 

Examination  of  persons  before  trial  in,  see 
Discovery,  lO. 

Government  railroads  in,  see  Government 
Railroads,  II. 

Incorporation  under  statutes  of,  see  Incor- 
I'o ration,  5. 

Land  grants  in,  see  Land  Grants,  VI. 

Protection  of  private  ways  by  statute  in,  see 
Private  Ways,  lO. 

Rule  as  to  animals  running  at  large  in,  see 
Animals,  Injuries  to,  158. 

Statutes  of,  concerning  fires  caused  by  loco- 
motives, see  Fires,  1,  2. 

Taxation  of  railroads  in,  see  Taxation,  XII. 


CANALS. 

Property  of,  when  subject  to  execution,  see 
Execution,  4. 

1.  Private     canalN,    generally.  — 

Where  a  canal  is  constructed  and  main- 
tained at  private  expense,  it  is  like  a  private 
road  built  and  maintained  in  the  same  way, 
over  which  the  public  is  permitted  to  travel 
but  in  which  it  obtains  no  vested  rights. 
Potter  v.  Indiana  &»  L.  M.  R.  Co.,  95  Mich, 
389,  S4  A'.   W.  Rep.  956. 

2.  Contracts  for  the  passage  of 
boats. — The  right  to  make  contracts  or 
agreements  for  the  passage  of  boats,  etc., 
through  the  Louisville  and  Portland  Canal 
is  a  necessary  incident  to  the  powers  speci- 
fically granted  to  the  corporation  to  which 
the  canal  belongs ;  and  for  any  failure  to 
perform  a  contract  or  undertaking  of  that 
sort,  the  corporation  is  liable,  in  the  same 
manner  and  to  the  same  extent  that  a  nat- 
ural person  would  be.  Muir  v.  Louisx'ille 
A^P.  Canal  Co..  8  Dana  (A>.)  161. 

When  a  boat  is  induced  by  a  company 
to  enter  its  canal  in  the  expectation  that, 
for  a  fair  compensation,  it  shall  have  a  pas- 
Siige  through,  the  law  implies  an  agreement 
on  the  part  of  the  corporation  that  the  boat 
sli.dl   get   tlirou^h    in   u  reasonable    time. 


f: 


CANALS,  3-7. 


«, 

•;i- 


Muir  V.  LouhvilU  &*  P.  Canal  Co.,  8  Dana 
(Ky.)  i6i. 

3.  Breukiiii;  awuy  of  cnibauk- 
ineutii.— A  cunal  company  is  bound  to  use 
all  ordinary  and  reasonable  means  and  ap- 
pliances to  guard  against  the  breaking  away 
of  the  embankment  of  its  canal ;  and  fail- 
ing to  do  so,  if  a  break  occurs  resulting  in 
injury  to  the  person  or  property  of  others, 
it  is  liable.  Ale  Arthur  v.  Green  Bay  &»  M. 
Canal  Co.,  34  Wis.  139. 

4.  Siiiiiluy  iiaviKiitioii.-A  canal  is  a 
public  highway  which  all  persons  complying 
with  ail  lawful  requirements  may  navigate 
and  use  at  their  pleasure  on  all  days  except 
Sunday,  and  on  Sunday  in  cases  of  neces- 
sity. Mc Arthur  v.  Green  Hay  &*  M.  Canal 
0,34  Wis.  139. 

A  regulation  of  a  canal  company  that "  no 
boat  will  be  allowed  to  pass  the  lock  on 
Sunday  without  a  written  permit  from  the 
superintendent  or  his  assistant,  and  this 
permit  will  not  be  granted  unless  in  case 
of  actual  necessity,"  is  unreasonable,  and 
neither  tlie  superintendent  nor  the  board  of 
directors  of  the  company  has  power  to  es- 
tablish and  enforce  it.  Mc  Arthur  v.  Green 
lUy  &'  M.  Canal  Co.,  34  Wis.  1 39. 

5.  State  oannlH— RiglitN  of  piir- 
uliasers  from  state. — The  state  of  Indi- 
ana held  the  fee  to  the  title  in  the  real 
estate  over  which  the  Wabash  &  Erie  Canal 
was  constructed,  which  passed  to  its  pur- 
chasers, and  upon  abandonment  of  the  canal 
for  navigation  and  converting  it  to  the  pur- 
poses of  a  railroad,  the  property  did  not  re- 
vert to  the  original  proprietors.  Mason  v. 
Lake  Erie,  E.  &-  S.  W.  Ji.  Co.,  9  Jiiss.  (U.  S.) 
239,  I  Fed.  Rep.  712. 

Under  a  lease  by  the  state  of  the  use  of 
so  much  of  the  surplus  water,  not  required 
for  navigation,  of  the  Wabash  &  Erie  Canal, 
owned  by  the  state,  as  would  be  sufficient  to 
propel  machinery  in  the  lessee's  mill,  the 
implied  covenant  for  quiet  enjoyment  was 
such  that  so  long  as  the  canal  was  used  for 
purposes  of  navigation,  and  while  there  was, 
during  that  period,  a  surplus  of  water,  the 
state  agreed  to  do  no  acts  which  would  de- 
prive the  lessee  of  its  enjoyment.  Hoag- 
land  V.  New  York,  C.  &^  St.  L.  R.  Co.,  30 
Am.  &*  Eng.  R.  Cas.  186,  1 1 1  htd.  443,  12  A'; 
E.  Rep.  83,  9  West.  Rep.  252. 

But  the  contract  in  such  case  did  not  im- 
pose upon  the  state,  or  upon  a  railroad  com- 
pany that  subsequently  became  its  grantee, 
any  obligation  to  keep  the  canal  in  repair. 


or  to  maintain  it  in  such  a  condition  that 
surplus  water  would  be  available,  or  to  sup- 
ply any  water  whatever ;  but  the  lessee  look 
the  lease  subject  to  the  right  of  the  state  or 
its  grantees  to  abandon  the  canal  for  the 
purpose  of  navigiition,  and  to  appropriate  it 
to  other  uses,  including  the  right  to  con- 
struct a  railroad  there(jn.  Hoaglaml  v.  New 
York,  C.  &•  at.  L.  R.  Co.,  30  Am.&'Eng.  R. 
Cas.  186,  III  /«</.  443,9  West.  Rep.  252,  12 
N.  E.  Rep.  83. 

The  state  of  Pennsylvania  acquired  the 
absolute  title  to  lands  used  and  occupied  for 
such  improvements  as  canals,  and  could 
convey  that  title,  but  not  so  of  lands  needed 
for  temporary  purposes  only.  Pennsylvania 
&'  N.  Y.  C.  &*  R.  Co.  v.  Billings,  10  Am.  &* 
Eng.  R.  Cas.  72,  94  /'a.  St.  40. 

The  Pa.  act  of  April  21,  1858,  authorizing 
the  sale  of  the  state  canals,  <s  constitutional ; 
and  the  judiciary  have  no  {.K>wer  to  declare 
the  sale  void  for  inadequacy  ul  price,  or  for 
any  undue  favor  to  local  interests  supposed 
to  have  influenced  it.  Sunbury  &*  E.  R.  Co. 
V.  Cooper,  33  Pa.  St.  278. 

The  purchasers  of  the  state  canals  under 
the  Pa.  act  of  April  21,  1858,  took  the  same 
subject  to  all  provisions  of  the  resolution  of 
April  14,  1843,  respecting  the  payment  of 
the  tolls  collected  at  Williamsport  to  the 
Williamsport  &  Eimira  Railroad  Company. 
Williamsport  &*  E.  R.  Co.  v.  Commonwealth, 
33  Pa.  St.  288. 

The  title  of  a  railroad  company  wiiich  has 
succeeded  to  the  pro[)i;rty  and  rights  of  the 
former  Pennsylvania  canals  cannot  be  at- 
tacked by  one  who  holds  no  title  except  by 
possession,  on  the  ground  that  the  land  was 
not  necessary  for  canal  purposes.  The  ac- 
tion of  the  canal  commissi  )ners  in  buyinj; 
and  selling  the  land  is  conclusive.  Harris 
V.  Pensylvania  &-  N.  Y.  C.  6-  A'.  Co.,  {Pa.)  9 
All.  Rep.  174. 

<J,  ToUh  generally.— The  term  "canal 
revenues,"  as  used  in  N.  Y.  Const,  of  1S46. 
art.  7,  did  not  include  tolls  or  taxes  upon 
merchandise  carried  by  railroads,  as  imposed 
by  the  Imws  in  force  at  the  time  of  the  adop- 
tion of  the  constitution ;  therefore  the  act 
of  1851,  ch.  497,  repealing  the  laws  imposing 
such  tolls  and  taxes  is  constitutional.  Peo- 
ple V.  New  York  C.  R.  Co.,  24  iV.  Y.  485; 
affirming  34  Barb.  123. 

7.  under    English   statutes.— 

The  word  "toll"  in  the  nth  section  of  the 
Regulation  of  Railways  Act  1873  includes 
the  tolls  which  arc  levied  for  the  use  of  a 


CAR-TRUST   ASSOCIATIONS,  1,2. 


r35 


canal.  Proprietors  of  Warwick  &*  U,  C.  A'. 
Co,  V.  Proprietor i  of  Birmingham  C.  N.  Co., 
iPy.  &*C.  T.  Cas.  113. 

A  company  may  be  a  forwarding  coinpuny 
within  the  meaning  of  the  above  section 
without  acting  as  the  carriers  uf  tlic  traffic 
they  forward.    Proprietors  of  IVarwick  &* 

B.  C.  N.  Co.  V.  Proprietors  of  Birmingham 

C.  N.  Co.,  3  By.  &>  C.  T.  Cas.  113. 

In  a  statute  granting  a  gross  toll  to  the 
Birmingham  Canal  Company,  it  was  recited 
that  it  would  be  of  public  advantage  for  the 
canal  from  Warwick  to  Birmingham  to  be 
opened  into  the  Dij^betb  branch ;  and  that, 
in  order  to  induce  the  Birminghum  Com- 
pany to  agree  to  such  junction  taking  place, 
it  had  been  proposed  and  agreed  that  the 
Birmingham  Company  should  have  the 
rates  or  dues  thereinafter  mentiotied.  Botii 
these  statutes  were  repealed  by  others  sub- 
stituting fresh  tolls.  Held,  that  the  partic- 
ular circumstances  wliich  led  to  the  original 
establishment  of  the  tolls  did  not  prevent 
them  coming  under  the  jurisdiction  of  the 
commissioners  in  fixing  through  tolls  under 
the  Regulation  of  Railways  Act  1873,  §  11. 
Proprietors  of  Warwick  &•  B.  C.  N.  Co.  v. 
Proprietors  of  Birmingham  C.  N.  Co.,  3  Ry, 
(S-  6".  7".  Cas.  1 1 3. 

A  canal  company  had  a  dividend  guaran- 
teed to  them  by  a  railway  company  under  a 
statute,  which  provided  that  they  should 
not  reduce  or  vary  their  tolls  without  ih<: 
consent  of  the  railway  company.  Held,  that 
the  consent  of  the  railway  company  to  the 
granting  of  a  through  toll  affecting  tiie  tolls 
of  the  canal  company  was  not  required. 
Proprietors  of  Warwick  &*  B.  C.  N.  Co.  v. 
Proprietors  of  Birmingham  C.  N.  Co. ,  3  Ry, 
&*  C,  T.  Cas.  113.    See  also  Id.  324. 

Upon  a  reference  to  the  railway  commis- 
sioners by  the  board  of  trade,  under  37  & 
38  Vic.  c.  40,  §  6,  they  reduced  the  lolls 
charged  by  the  Great  Western  Railway  Com- 
pany upoH  the  Kennct  &  Avon  Canal,  upon 
the  complaint  of  traders  using  the  canal 
under  the  provisions  of  the  Great  Western 
Act  1852.  Wilts,  S.  &•  B.  C.  T.  Assoc,  v. 
Great  Western  R,  Co.,  3  Ry.  <S-  C.  T.  Cas.  20. 

A  railway  company  managed  a  canal,  col- 
lected the  tolls,  repaired  the  weirs  and  lock- 
gates,  and  paid  the  rents  due  by  the  proprie- 
tors of  the  navigation.  Held,  that  they 
were  a  railway  company  "  having  the  man- 
agement of"  u  can.il,  within  the  meaning;  of 
the  Regulation  of  Railways  Act  1873,  S  17; 
but  that,  having  discontinued  the  nianiigo- 


ment  and  collection  of  tolls  before  the  date 
of  an  application  seeking  to  enforce  the 
provisions  of  that  section  against  them, 
they  had  relieved  themselves  from  liability 
to  maintain  tlie  canal  thereunder.  As  the 
company  had  given  no  public  notice  of  the 
relinquishment  of  their  management,  they 
were  ordered  to  pay  half  the  cost  of  the 
applicants.  Foster  v.  Great  Western  R,  Co., 
iRy.&*C.  J\  Cas.  14. 


CANCELLATION. 

Jurisdiction  to  order,  generally,  see  Equity, 

11-15. 
Of  corporate  bonds,  see  Bonds,  (t2. 

—  deeds,  see  Dkeds,  VI. 

—  of  unpaid  subscriptions,  see  Reorganiza* 

TION,  O. 


CAPITAL  STOCK. 

See  Stock  ;  Subsckipi  ions  to  Stock. 


CAPTION. 

Of  statute,  effect  of  recitals  in,  see  Animals, 
Injuries  to,  3. 


CAR-TRUST  ASSOCIATIONS. 
Rights  of,  as  respects  mortgaged  cars,  see 

MORTC.AGKS,   II,  4. 

1.  Validity  of  tlieircoiitractt>,Ken> 
opiilly.* — As  to  the  power  of  a  receiver  to 
contract  with  a  car-trust  association,  see 
Taylor  v.  Philadelphia  &*  R,  R.  Co.,  3  Am. 
&•  Eng.  R.  Cas.  177,  9  Fed.  Rep.  i, 

2.  Lenses  of  ciirN.— Where  a  car-trust 
association  is  represented  by  trustees,  and 
they  enter  into  an  agreement  with  a  com- 
pany that  has  already  leased  cars,  by  which 
the  terms  of  the  lease  are  modified,  but 
which  only  purports  to  bind  such  stock- 
holders of  the  trust  association  as  authorize 
it  by  an  indorsement  on  their  certificates 
representing  stock,  and  not  a  minority  who 
fail  to  assent,  the  trustees  still  represent  the 
minority,  and  may  sue  on  the  original  lease 
to  recover  for  them  according  to  its  terms. 
Humphreys  v.  Xew  York,  L.  E.  &-  W.  R, 
Co.,  43  Am.  &*  Eng.  R.  Cas.yoo,  121  A'.  V. 
435,  24  A'.  E.  Rep.  695,  31  A'.    V.  S.  R.  299. 

Tlie  iru.stees  of  a  car-trust  association 
leased  to  defendant  company  certain  cars 
anil  locomotives,  by  \\Vw\\  tlie  latter  was  to 


M 


*  Car  trusts  and  c;ir-:riist  certificates,  see  note, 
57  Am.  &  Kno   R  Cas.  243. 


r3fl  CAR-TRUST  ASSOCIATIONS,  3— CARRIAC.H  OF   LIVE  STOCK. 


VS.! 


t;l:^ 


II'T 


pay,  as  rental,  6  per  cent  on  certificates  rep- 
reMnting  the  capital  stock  of  the  trust  com- 
pany, and  a  further  fixed  sum,  to  be  applied 
in  purchasing  the  certificates.  This  lease 
was  afterward  modified  "  on  behalf  of  such 
of  the  holders  of  said  certificates  as  have 
already  autliorizcd  or  shall  hereafter  author- 
ize the  same,"  and  the  rental  was  reduced  to  5 
percentandotherchangesweremade.  Some 
of  the  certificate  holders  never  authorized 
the  same  or  assented  thereto.  Held,  that 
the  modified  lease  was  only  binding  upon 
such  certificate  holders  as  authorized  it ; 
that  the  trustees  could  maintain  an  action 
to  recover  for  the  non-consenting  certificate 
holders  according  to  the  terms  of  the  origi- 
nal lease ;  and  that  the  mere  form  of  the  lease 
was  not  binding  on  all,  as  it  was  evident 
from  the  whole  lease  that  the  trustees  only 
intended  to  bind  those  who  assented  to  the 
modification.  Humphreys  v.  New  York,  L. 
E.  &*  IV.  Ji.  Co.,  43  Aim.  &>  Eng.  R.  Cas. 
700,  131  A^.  Y.  435,  24  N.  E.  Rep.  695,  31 
A'.  Y.  S.  R.  299. 

3.  Tnxution  of.— An  association  known 
as  a  car  trust  is  a  "  person,"  within  the 
meaning  of  Maus.  Pub.  St.  ch.  11,  §  20,  pro- 
viding that  personal  property  held  in  trust, 
the  income  of  which  is  payable  to  another 
person,  shall  be  assessed  to  the  trustee  in 
the  place  where  such  other  person  resides, 
if  within  the  commonwealth.  Ricker  v. 
American  L.  &>•  T.  Co.,  140  A/ass. ^6. 

For  the  purpose  of  taxation  under  a 
stiitute  providing  that  "property  held  in 
trust,  the  income  of  which  is  payable  to 
another  person,  should  be  taxed  where  such 
other  person  resides,"  when  such  other  per- 
son, or  the  cestui  fue  trust,  is  a  partnership, 
the  place  where  the  partnership  resides  is  the 
place  where  its  business  is  carried  on  ;  and 
where  its  business  is  carried  on  by  a  trustee, 
the  latter's  place  of  business  fixes  the  resi- 
dence of  the  partnership.  Ricker  v.  Ameri- 
can L.  &*  T.  Co.,  140  Mass.  346. 

There  is  no  intermediate  form  of  organiza- 
tion  between  a  corporation  and  a  partner- 
ship known  to  the  laws  of  Massachusetts,  and 
therefore,  where  a  car-trust  association  is  not 
acorporation  it  must  be  deemed  a  partnership 
and  not  simply  an  association  of  co-owners. 
Rickers .American L.&^T.  Co.,  \\oMass.  346. 

Under  Mass.  Pub.  St.  ch.  1 1,  §  24,  provid- 
ing that  "  partners,  whether  residing  in  the 
same  or  different  places,  may  be  jointly 
taxed  under  their  partnership  name  in  the 
place  where  their  business  is  carried  on, 


for  all  the  personal  properly  employed  in 
such  business,"  and  under  §  20  of  the  same 
chapter,  providing  that  "  personal  property 
held  in  trust,  the  income  of  which  is  paya- 
ble to  another  person,  shall  be  assessed  to 
the  trustee  in  the  place  where  such  other 
person  resides  if  within  the  common- 
wealth," the  personal  profierty  of  a  car-trust 
association  which  was  so  orf>anized  as  to 
constitute  a  partnership,  whose  property 
was  held  and  business  conducted  by  a  trus- 
tee in  Boston,  and  where  the  members  of 
the  association  had  no  other  place  of  meet- 
ing or  business,  is  properly  taxable  to  the 
trustee  in  Boston.  Ricker  v.  American 
L.  &*  T.  Co.,  140  Mass.  346. 

CARBIAOE  OF  LIVS  STOCK. 

Authority  to  allow  persons  to  ride  on  cattle- 
car,  see  CoNUUcroR,  2. 
By  ferry,  see  Ferkirs,  lO. 
Duty  to  deliver  under  contract,  see  Stock- 
Yards,  3. 
I.  OBLIOATIOX    TO    BBOIITX     AMD 
CABBT 737 

1.  In  General 737 

2.  Duty  to  Furnish  Cars 737 

3.  Duty  to  Ship  Promptly 741 

n.  OELIVEBT  TO  THE  OABBIEB 743 

UI.  DOTT  OF  OABBIXB  OUBIHO  TBAH- 

M» 745 

I.  In  General. 745 

3.  Food  and  Water 750 

3.  Delays  in  Transit 753 

4.  Negligence  on  Part  of  Com- 

pany    754 

5.  Contributory   Negligence  of 

Chjner 756 

lY.  DILI7EBT  BT  THE  GABBOCB  . .     757 

1 .  In  General 757 

2.  Delivery  to  the  Wrong  Person.  760 
y.  SHIFPINO  C0NTBACT8 760 

I .  Consideration  and  Construc- 
tion    760 

3.  Limitations  of  Liability, Gen- 

erally     761 

3.  Special  Contracts  Limiting 

Liability 763 

Tl.  COHVECTINO  IINEB 783 

VII.  TBANBPOBTATIOir    OF    DISBAaBD 

LIVE  STOCK  788 

VUI    TBAN8P0BTATI0N  OF  D008 790 

IX.  0U8TODIAHSTBAVELLIHG  OX  CAT- 
TLE TBAIHS:  DB0VER8' PA88E8,  791 

1.  Rights  of.  Generally 791 

2.  Personal  Injuries 792 

X.  PBOCEDUBE  IH  ACTI0H8 801 


CARRIAGE  OF   LIVE   STOCK,  1-4. 


737 


737 

••••  737 

737 

....   741 

743 

ftAH. 

745 

....  745 
....  7SO 

....  753 
7om- 

....  754 
f  of 

....  756 
I  ..  757 
....  757 
rson.  760 
..760 
ruc- 

760 

len- 

....  761 
fi'tig 

....  763 
. ...  783 
,8XD 
. ...  788 
. ...  790 
JAT- 

8E8.  791 
...  791 
...  792 
....801 


I.   OBUOATIOV  TO  BIOIITX  AID  OAIBT. 

I.  In  Central. 

1.  Not  carriers  of  live  ttock  at  com- 
mon law.*— Railroad  companies  are  not 
by  the  common  law  carriers  of  live  stock, 
and  can  only  make  themselves  carriers  of 
that  species  of  property  by  assuming  to 
convey  it  as  carriers.  Lake  Shore  &*  M. 
S.  R.  Co.  V.  Perkins,  25  Afich.  329.— FOL- 
LOWING Michigan,  S.  &  N.  I.  K.  Co.  v. 
McDonough,  31  Mich.  165. 

Unless  required  to  do  so  by  charter  or  by 
a  statute  a  railroad  company  iti  not  bound 
to  receive  and  carry  live  stock  as  common 
carriers.  Michigan,  S.  &>  N.  I.  R.  Co.  v. 
McDonough,  i  Mich.  {N.  P.)  [Sufifi.]  Ixxxvi. 

A  railroad  charter  only  binds  the  com- 
pany as  a  common  carrier  to  transport  such 
property  as  was  usually  transported  by  rail- 
road companies  at  the  time  the  charter  was 
granted;  and  where  cattle  were  not  trans- 
ported by  rail  at  the  time  a  charter  was 
granted,  the  company  is  not  bound  to 
transport  them  as  a  common  carrier,  unless 
it  holds  itself  out  to  the  public  as  transport- 
ing them,  or  enters  into  a  special  contract 
to  do  so.  Michigan,  S.  &»  N.  I.  R.  Co.  v. 
McDonough,  21  Mich.  165. 

Evidence  that  a  company  had  carried, 
and  still  offers  to  carry,  live  stock  for  hire  for 
all  who  desired  on  terms,  as  to  duties,  lia- 
bilities, and  relations,  not  recognized  by  the 
law  of  carriers,  but  in  some  respects  variant, 
and  in  others  repugnant  thereto,  does  not 
tend  to  prove  that  such  company  is  a  carrier 
of  live  stock.  Lake  Shore  &*  M.  S.  R.  Co.  v. 
Perkins,  25  Afich.  329,  5  Am.  Ry.  Rep.  249. 

2.  Rcfkisal  to  receive,  when  proper. 
— A  railway  company  is  not  liable  for  dam- 
ages sustained  by  reason  of  its  refusal  to 
receive  cattle  for  carriage  into  a  county, 
the  local  authorities  of  which  require  that 
before  "  any  movement  into  the  county 
district "  a  license  shall  be  procured,  the 
owners  of  such  cattle  having  produced  no 
license.  Williams  v.  Great  Western  R.  Co., 
52  L.  T.  250,  49/.  P.  439. 

3.  Cattle-pens.f— Texas  Rev.  St.  art. 
4236,  providing  that  railway  companies 
"  shall  erect  stations,  suitable  buildings,  or 
iticlosures  to  protect  produce,  wares,  and 
merchandise  and  freight  of  every  descrip- 
tion,"  includes   necessary   stock-pens    for 

•  See  also  post,  22. 
f  See  also /oj/,  16,  63. 
I  D.  R.  n.— .17. 


cattle  tendered  for  shipment,  and  they  must 
be  made  sufficiently  safe.  Gulf,  C,  &*  S.  F. 
R,  Co.  v.  Trawiik,  8o  Tex.  270,  15  5.  W. 
Rep.  568,  18  i".   W.  Rep.  948. 

The  carrier  of  live  slock  cannot  exonerate 
itself  from  damages  resulting  from  a  breach 
of  its  duty  to  furnish  suitable  stock-pens,  on 
the  ground  that  the  owner  of  the  stock  .saw 
the  condition  of  the  pens.  Mason  v.  Mis- 
souri Pac.  R.  Co.,  25  Mo.  A  pp.  473.— Rk- 
VIEWING  Potts  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo.  App.  394. 

Where  stock  tendered  for  shipment  are 
placed  in  pens  provided  by  the  company  it 
cannot  relieve  itself  from  liability  for  in- 
juries occurring  through  defects  in  the  pens, 
by  showing  that  the  owner  had  knowledge 
of  such  defects.  Gulf,  C.  &*  S.  F.  R.  Co.  v. 
rra'wick,So  Tex.  270,  15  .S".  \V.  Rep.  568,  18 
S,  W.  Rep.  948.— Rkvikwed  in  Galveston, 
H.  &  S.  A.  R.  Co.  V.  Wesch.  85  Tex.  593. 

Where  a  railway  company  to  which  are 
delivered  pigs  for  carriage  places  them  in  a 
pen  where  they  are  injured  by  coming  in 
contact  with  a  covering  of  lime,  it  is  no  de- 
fense in  an  action  for  such  injury  for  the 
company  to  allege  that  the  lime  was  placed 
in  the  pen  by  order  of  the  lord  lieutenant  in 
council,  under  the  provisions  of  the  Con- 
tagious Diseases  Act  1878.  Shaw  v.  Great 
S.  6-  W.  R.  Co.,  L.  R.  8  Ir.  10. 

2.  Duty  to  Furnish  Cars. 

4.  Company  must  ftiriiish  safe  and 
secure  cars.'*' — Carriers  are  bound  to  fur- 
nish safe  and  properly  constructed  cars  in 
which  to  transport  live  stock,  and  suitable 
with  reference  to  the  kind  and  value  of  the 
stock.  Coupland  v.  Housatonic  R,  Co.,  61 
Conn.  531, 23  Atl.  Rep.  870.  Potts  v.  Wabash, 
St.  L.  6-  P.  R.  Co.,  17  Mo.  App.  394.— DIS- 
TINGUISHING Miltimore  v.  Chicago  &  N.  W. 
R.  Co.,  37  Wis.  190.  Reviewing  Illinois  C. 
R,  Co.  V.  Hall,  58  111.  410;  Betts  v.  Farmers' 
L.  &  T.  Co.,  21  Wis.  87  ;  Hawkins  v.  Great 
Western  R.  Co.,  17  Mich.  63,  18  Mich.  433. 
—Reviewed  in  Mason  v.  Missouri  Pac.  R. 
Co.,  25  Mo.  App.  473. 

A  carrier  of  live  stock  is  under  the  same 
obligation  to  provide  cars  of  sufficient 
strength  as  are  carriers  of  merchandise.  St. 
Louis  &•  S.  E.  R.  Co.  v.  Dor  man,  72  ///.  504. 

A  carrier  of  live  stock  is  only  bound  to 
provide  suitable,  safe,  and  sufficient  cars 

*  Duty  of  company  to  furnish  suitable  cars 
for  transportation  of  live  stock,  see  notes,  9  L. 
R.  A.  449,  30  Am.  &  Eng.  R.  Cas.  48. 


# 


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CARRIAGE   OF   LIVE   STOCK   5. 


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with  proper  motive  power,  and  is  not  bound 
to  provide  "  the  safest  and  best  approved 
motive  power  with  the  best  appliances  in 
use."  Illinois  C.  K.  Co.  v.  Haynes,  63  Miss. 
485. 

Where  a  common  carrier  of  live  stock 
provides  suitable  cars,  and  exercises  due 
care  in  other  respects,  it  is  not  liable  for  in- 
juries to  the  animals  resulting  from  their 
ownviciousness,or  their  struggles  in  efforts 
to  escape ;  but  it  \.>  bound  to  provide  cars 
strong  enough  '/  p  event  them  escaping, 
even  though  thi,;,  're  unruly  or  vicious. 
Smith  V.  New  Haven  &•  N.  R.  Co.,  12  Allen 
(Mass.)  53;.— QuoTKi'  'N  Bo'vie  7>.  Balti- 
more &  O,  R.  Co.,  '  M  \rth.  (D.  C.)  94; 
Mynani  v.  Syr?.cuso,  ^  N.  Y.  R.  Co.,  71 
N.  Y.  180. 

The  shipment  of  horse ;  under  a  contract 
providing  that  the  owner  assumed  the  risk 
of  loss  or  injury  in  "  loading,  unloading, 
conveyance,  and  ^-herwise,  whether  arising 
from  negligence,  default,  or  misconduct, 
gross  or  culpnble  or  otherwise,  on  the  part 
of  the  railway  company's  servants,  agents, 
or  officers,"  does  not  relieve  the  company 
from  the  duty  of  furnishing  suitable  cars, 
Hawkins  v.  Great  Western  R.  Co.,  17  Mich. 
57. — Reviewed  in  Potts  v.  Wabash,  St.  L, 
&  P.  R.  Co.,  17  Mo.  App.  394. 

Mo.  Rev.  St.  1889,  §§  2598-2600,  which 
require  railroad  companies  to  furnish  double- 
decked  cars  for  carrying  sheep  when  re- 
quested, and  impose  a  penalty  for  refusal 
to  do  so,  are  constiiuiional,  being  a  reason- 
able regulation  of  common  carriers.  Emer- 
son v.  St.  Lonis  &*  H.  R.  Co.,  iii  Mo.  161, 
195.  IV.  Rep.  1 1 13. 

The  defendant  undertook  to  transport  for 
the  plaintiff  a  car-load  of  live  stock.  Held, 
that  it  was  bound  to  furnish  a  suitable  and 
safe  car,  and  was  responsible  for  any  loss 
arising  from  neglect  of  duty  in  this  partic- 
ular; and  that  the  mere  presence  of  the 
owner  did  not  lessen  this  responsibility,  if 
he  had  no  power  over  the  train  nor  right  to 
make  any  change  in  the  disposition  of  the 
cars,  which  were  necessarily  under  the  con- 
trol of  the  agents  of  the  company.  Peters 
V.  New  Orleans,/.  &•  G.  N.  R.  Co.,  16  La. 
Ann.  222. 

5.  Llabiltty  for  failure  to  mrnish 
cars.* — A  common  carrier  of  live  stock  is 

'Liability  of  company  for  failure  to  furnish 
cars  so  thai  stock  could  reach  destination  in  tim? 
to  be  exposed  for  sale  on  Sunday,  see  55  Am.  & 
Eno.  R.  Cas.  344,  abstr. 


bound  to  furnish  suitable  cars  upon  reason- 
able notice  whenever  it  can  do  so  with 
reasonable  diligence,  without  jeopardizing 
its  other  business  ;  and  when  it  is  sued  for 
failing  to  do  so,  the  burden  of  showing  that 
it  could  not  is  upon  the  company,  even 
where  the  plaintiff  has  expressly  pleaded 
the  contrary.  Ayres  v.  Chicago  &*  N.  W. 
R.  Co.,  35  Am.  &•  Eng.  R.  Cas.  679,  71  Wis. 
372,  5  Am.  St.  Rep.  226,  37  N.  W.  Kep.  432. 
—Followed  in  Pittsburgh,  C,  C.  &  St.  L. 
R.  Co.  V.  Racer,  5  Ind.  App.  209. 

There  is  nothing  to  prohibit  a  railroad 
company  from  entering  into  a  contract  to 
furnish  cars  at  a  particular  place  and  time 
for  the  shipment  of  stock,  if  they  can  be 
had;  and  where  it  appears  that  the  cars 
were  on  hand,  but  were  used  in  shipping 
other  stock,  the  company  is  liable  under  its 
contract,  though  in  the  absence  of  such  'con- 
tract it  would  have  been  relieved  under  the 
circumstances  from  liability.  Cross  v.  Mc- 
Faden,  i  Tex.  Civ.  App.  461,  20  S.  W.  Rep. 
846. 

In  the  absence  of  a  special  contract,  a 
common  carrier  of  live  stock  is  not  liable 
for  a  failure  to  have  cars  in  readiness  on  the 
day  that  the  shipper  has  given  notice  that 
he  would  have  the  stock  ready,  where  there 
is  nothing  to  show  that  the  notice  given 
was  a  reasonable  one,  within  the  meaning 
of  Wis.  Rev.  St.  §  1798,  providing  that  every 
railroad  company  shall,  upon  reasonable 
notice,  when  within  its  power  to  do  so,  fur- 
nish cars  to  any  person  applying  therefor 
for  the  transportation  of  freight.  Richard- 
son V.  Chicago  <S-  N.  W.  R.  Co.,  18  Am.  <S- 
Eng.  R.  Cas.  530,  61  Wis.  596,  21  A^.  W. 
Rep.  49- 

If  a  shipper's  order  to  a  common  carrier 
of  live  stock  for  a  designated  number  of 
cars,  to  be  furnished  at  a  station  indicated, 
on  a  day  mentioned  in  the  future  for  the 
transportation  is  accepted  by  the  carrier, 
such  an  agreement  would  constitute  a  con- 
tract binding  on  the  company  to  furnish  the 
cars,  and  upon  the  shipper  to  furnish  the 
stock  to  load  them.  "The  validity  of  the 
contract  is  not  aflected  by  the  fact  that  the 
shipper  did  not  own  or  have  the  stock  when 
the  contract  was  made.  Pittsburgh,  C,  C. 
&»  St.  L.  R.  Co.  v.  Racer,  5  Ind.  App.  209, 
31  A^.  E.  Rep.  853. 

A  parol  contract  by  which  a  railroad  com- 
pany agrees  to  receive  cattle  on  its  cars  for 
transportation  on  a  day  certain,  and  which 
is  violated  by  not  having;  tlu'  cars  as  agreed 


CARRIAGIi   OF   LIVE   STOCK,  O. 


r39 


ipon  reason- 
do  so  with 
jeopardizing 

is  sued  for 
howing  that 
ipany,  even 
sly   pleaded 

<S-  N.  IV. 
579,  71  IVis. 
'■V.  Rep.  432. 
.  C.  &  St.  L. 

c  a  railroad 
contract  to 
ice  and  time 
they  can  be 
at  the  cars 
in  shipping 
)le  under  its 
of  such  ron- 
d  under  the 
Cross  V.  Mc' 
>  S.  W.  Rep. 

contract,  a 
is  not  hable 
liness  on  the 

notice  that 
where  there 
lotice  given 
the  meaning 
g  that  every 

reasonable 
3  do  so,  fur- 
ing  therefor 
;.  Richard- 
,  18  Am.  &* 
5,  21  JV.  W. 

mon  carrier 
number  of 
n  indicated, 
ure  for  the 
the  carrier, 
:itute  a  con- 
I  furnish  the 
furnish  the 
dity  of  the 
act  that  the 
stock  when 
'«rgA,  C,  C. 
i.  App.  209, 

liiroad  corn- 
its  cars  for 
,  and  which 
rs  as  agreed 


on,  may  be  made  the  basis  of  recovery 
against  the  company  for  all  damages  caused 
thereby.  It  cannot  claim  that  its  liability 
did  not  attach  until  the  signing  of  a  bill  of 
lading  for  the  cattle,  which  were  delivered 
at  a  subsequent  day,  and  after  ttie  contract 
had  been  violated.  The  liability  of  the 
company  for  damages  w^as  for  a  breach  of 
contract,  which  made  delivery  of  the  cattle 
at  the  time  specified  impossible;  and  arts. 
281,  282,  and  283  of  the  Rev.  St.  refer 
only  to  the  liability  of  a  common  car- 
rier after  delivery  of  the  thing  to  be  trans- 
ported and  after  signing  a  bill  of  lading 
therefor.  Texas  Pac.  R.  Co.  v.  Nicholson, 
21  Am.  &*  Eng.  R.  Cas.  133,  61  Tex.  491. 
Texas  &*  P.  R.  Co.  v.  Hamm,  2  Tex.  App. 
(Civ.  Cas.)  436.— Following  Texas  Pac.  R. 
Co.  V.  Nicholson,  61  Tex.  491. 

Where  a  railroad  company  which  is  a 
common  carrier  of  live  stock  is  requested,  a 
reasonable  time  beforehand,  to  furnish  cars 
suitable  for  the  transportation  of  live  stock 
at  a  specified  time  and  shipping  point,  it  is 
its  duty  to  inform  the  applicant  within  a 
reasonable  time  whether  it  can  furn'sh  such 
cars  at  the  time  required  ;  and  where  it  fails 
to  give  such  notice,  and  the  shipper,  relying 
upon  its  performance  of  duty  as  a  common 
carrier,  prepares  and  has  his  stock  ready  for 
shipment  at  the  time  and  place  named,  the 
company  is  liable  for  the  damages  suffered 
by  him  by  reason  of  its  failure  to  so  furnish 
the  cars.  Ayres  v.  Chicago  &*  N.  W.  R,  Co. , 
35  Am.  <S-  Eng.  R.  Cas.  679,  71  Wis.  372,  5 
Am.  St.  Rep.  226,  37  N.  W.  Rep.  432.  Pitts- 
burgh, C,  C.  &•  St.  L.  R.  Co.  V.  Racer,  5  Ind. 
App.  209,  31  N.  E.  Rep.  853.— Following 
Missouri  Pac.  R.  Co.  v.  Texas  &  P.  R.  Co., 
31  Fed.  Rep.  864;  Ayres  v.  Chicago  &  N. 
W.  R.  Co.,  71  Wis.  372,  s  Am.  St.  Rep.  226. 

Where  a  war  has  been  in  progress  for 
more  than  two  years,  a  railway  company  is 
supposed  to  be  acquainted  with  the  prior 
claims  of  the  government  to  the  use  of  its 
freight  cars,  but  it  is  its  duty,  as  a  common 
carrier,  to  provide  for  the  accommodation 
of  private  citizens  as  well  as  the  govern- 
ment; and  if  it  fails  to  do  so,  it  cannot  ex- 
cuse a  delay  in  shipping  live  stock  belonging 
to  a  private  ':itizen,  on  the  ground  that  its 
cars  were  in  use  by  the  government.  Pruitt 
V.  Hannibal  S*  St.  J.  R,  Co.,  62  Mo.  527. — 
Followed  in  Guinn  v.  Wabash,  St.  L.  & 
P.  R.  Co.,  20  Mo.  App.  453. 

A  shipper  of  live  stock  sued  the  carrier, 
declaring :  (i)  for  a  violation  of  a  parol  con- 


tract to  furnish  cars,  and  (2)  for  delay  and 
injury  to  the  stock  while  being  carried. 
The  company  set  up  as  a  defense  a  provision 
in  the  written  contract  of  shipment,  limit- 
ing the  right  to  sue  for  injuries  to  40  days. 
Held,  that  this  provision  could  not  affect 
plaintiff's  right  to  sue  and  recover  for  a 
breach  of  the  parol  contract  to  furnish 
cars.  McCarty  v.  Gulf,  C.  6-  S,  F.  R.  Co., 
79  Tex.  33,  15  5.  \V.  Rep.  164. 

6.  Liability  for  loss  or  damage 
caused  by  defects  iu  cars. — Where  a 
company  undertakes  to  transport  live  stock 
it  is  its  duty  to  furnish  good  and  sufficient 
cars  in  which  to  carry  the  same,  and,  if  it 
does  not,  and  animals  escape,  from  defects 
in  its  cars,  beyond  the  terminus  of  its  road, 
it  will  be  liable  for  the  loss,  even  though 
there  be  a  special  contract  limiting  its  lia- 
bility to  the  end  of  the  road.  Indianapolis, 
B.  (Sx  W.  R.  Co.  V.  Strain,  81  ///.  504.— Fol- 
lowed IN  Potts  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo,  App.  394. 

If  the  carrier  furnishes  an  unsafe  and  un- 
suitable car  for  the  transportation  of  live 
stock  this  is  negligence,  and  a  recital  in  the 
bill  of  lading  that  the  shipper  examined  the 
car  and  found  it  safe  and  suitable  does  not 
operate  as  an  estoppel,  but  only  imposes  on 
him  the  burden  of  proving  that  it  was  unsafe 
or  unsuitable.  Western  R.  Co.  v.  Harwell, 
45  Am.  &*  Eng.  R.  Cas.  358,  91  Ala.  340,  8 
So.  Rep.  649. 

Where  a  person  hires  cars  and  packs  his 
animals  therein  as  he  .sees  fit,  yet  if  the  death 
of  some  animals  is  caused  by  failure  of  the 
railroad  to  perform  its  contract  to  put  slatted 
doors  on  the  cars  it  will  be  liable.  East 
Tenn.  &"  G.  R.  Co.  v.  Whittle,  27  Ga.  535. 

Where  live  stock  were  shipped  under  aeon- 
tract  that  they  were  to  be  accompanied  and 
cared  for  by  the  owner,  but  were  placed  in  a 
defective  car,  which  broke  down  while  en 
ro:  V,  necessitating  changing  the  cattle  to 
an  /ther  car,  where  it  was  impossible  for  the 
owner  to  get  proper  bedding,  he  can  recover 
for  damages  resulting  from  a  want  of  proper 
bedding.  Mc  Daniels.  Chicago  SfN.  W.R. 
Co.,  24  Iowa  412. 

Where  horses  are  received  for  shipment 
uiid^r  a  contract  relieving  the  company  from 
liability  for  loss  or  injury  resulting  from  the 
negligence  of  the  company's  agents  or  offi- 
cers, but  silent  as  to  the  duty  of  the  com 
pany  to  furnish  cars,  the  company  is  required 
to  furnish  suitable  cars  and  is  liable  for  in- 
juries resulting  from  a  failuretodo  so,  unless 


2'40 


CARRIAGE   OF   LIVE   SIOCK,  7-9. 


m\ 


I'  I 
■■  < 


the  shipper,  after  full  opportunities  of  ob- 
servation, assented  to  the  cars  on  which  the 
horses  were  shipped.  Great  Western  R. 
Co.  V.  Hawkins,  i8  Mich.  427.— Quoted  in 
Kansas  Pac.  R.  Co.  v.  Nichols,  9  Kan,  235 
Reconciled  in  Lake  Shore  &  M.  S.  R. 
Co.  V.  Perkins,  25  Mich.  329. 

7.  Liability  for  defects  iu  car  re- 
ceived from  another  company.— 
When  a  second  carrier  of  live  stock  receives 
a  car  from  the  first  carrier  it  adopts  it  as 
part  of  its  own  train  and  becomes  liable  for 
stock  injured  by  means  of  defects  therein 
to  the  same  extent  as  if  it  was  its  own  car. 
Wallingford  v.  Columbia  &*  G.  R.  Co.,  30 
Am.  SfEng.  R.  Cas.\o,  26  So.  Car.  258  "  S. 
E.  Rep.  19.— Distinguishing  Feldcr  v. 
Columbia  &  G.  R.  Co.,  21  So.  Car.  35. 

A  railway  conjpany  is  bound  t<j  provide 
a  car  reasonably  fit  for  the  conveyance  of 
horses,  and  if  it  accepts  a  defective  car  from 
a  connecting  line  in  which  the  horses  were 
originally  loaded  and  sends  it  on  to  the  des- 
tination on  its  own  line  it  is  liable  for  an 
accident  caused  by  defects  in  such  car. 
Combe  v.  London  <S-  S.  W.  R.  Co.,  31  L.  T. 
613. 

8.  Liability  for  furnishings  infected 
car. — Where  a  railroad  company  furnishes 
the  car  and  fixes  the  joint  rate  of  compensa- 
tion for  the  transportation  of  cattle  over  a 
connecting  line  as  well  as  its  own,  it  cannot 
escape  liability  for  negligence  in  furnishing 
an  infected  cts  on  the  ground  that  the  bill 
of  lading  was  not  signed  by  its  agent,  but 
was  signed  by  the  initial  connecting  carrier. 
St.  Louis,  I.  M.  Of*  S.  R.  Co.  v.  Henderson,  57 
Ark.  402. 

9.  Waiver  of  defects  in  car— As- 
sumption of  rislc  by  shipper.*— Where 
the  owner  of  live  stock  to  be  transported 
makes  his  own  selection  of  cars,  with  full 
knowledge  of  their  defects  and  capabilities, 
the  carrier  is  not  liable  for  injuries  which 
may  be  exclusively  the  result  of  defects 
therein,  but  by  the  selection  of  cars  himself 
the  owner  does  not  assume  loss  which  re- 
sults from  a  detention  of  the  cars  while  in 
transit.  Harris  v.  Northern  Ind.  R.  Co.,  20 
N.  Y.  232. 

Where  the  owner  of  live  stock  loads  them 


*  Liability  of  carrier  where  consignor  selects 
car,  see  note,  30  Am.  &  Eng.  R.  Cas.  49. 

How  far  acceptance  of  cars  by  a  shipper  of 
live  stock  is  assumption  of  risks,  see  45  Am.  & 
Enc..  R.  Cas.  356,  ithtt: ;  see  also  note,  55  Am. 
&  Eng.  R.  Cas.  395. 


himself  without  objecting  to  the  character 
of  the  cars  furnished  he  ciiniiot  afterwird, 
in  an  action  to  recover  for  injuries  to  the 
stock,  testify  that  there  were  other  cars 
better  adapted  to  the  purpose  of  carrying 
stock  than  the  ones  furnished.  Chicago  &* 
N.  IV.  R.  Co.  V.  Van  Dresar,  22  IVis.  511. 

Where  the  owner  of  cattle  contracts  to 
load  them  into  cars  for  shipment,  and  ac- 
cepts a  car  not  provided  with  bedding,  he 
cannot  claim  damages  for  injuries  resulting 
from  a  lack  of  bedding.  East  Tenn.,  V.  &- 
G.  R,  Co.  V.  Johnston,  22  Am.  &>  Eng.  R.  Cas. 
437.  75  ^^"^  596.  SI  ■^"'-  Kep.  489. 

The  carrier,  however,  is  bound  to  see 
that  the  freighter  has  knowledge  of  a  defect 
in  a  car.  He  is  not  bound  to  enter  the  ve- 
hicles to  examine  them.  To  exonerate  the 
carrier  he  must  show  that  defects  not  pal- 
pable and  visible  were  pointed  out,  or  prove 
such  circumstances  as  will  justly  charge  the 
freighter  with  knowledge  of  their  existence. 
Harris  v.  Northern  Ind.  R.  Co.,  20  N.  V. 
232. 

The  acceptance  (or  assent  to  the  use)  of 
a  defective  box-car,  by  the  shipper,  does 
not  relieve  a  railroad  company  from  liability 
for  damages  caused  by  such  car.  IValiing- 
ford  v.  Columbia  &*  G.  R.  Co.,  30  Am.  &* 
Eng.  R.  Cas.  40,  26  So.  Car.  258,  2  S.  E.  Rep. 
19.  Ogdensburg  &*  L.  C.  R.  Co.  v.  Pratt,  49 
How.  Pr.  {N.  J'.)  84. 

A  railroad  company  placed  a  mare  and  a 
colt  in  an  ordinary  box  freight-car,  the  roof 
of  which  was  so  low  that  the  mare  on  lifting 
her  head  struck  it,  and  it  was  without  par- 
titions, so  that  she  was  thrown  down  by  the 
motion  of  the  cars  and  her  leg  was  broken. 
But  the  plaintiff's  agent,  who  had  charge  of 
the  animals,  was  told  of  the  defects  of  the 
car,  and  was  offered  a  more  suitable  one  if  he 
would  pay  a  higher  but  reasonable  freight, 
but  he  decided  to  have  this  one  used,  and 
padded  the  rafters  and  placed  a  stuffed 
hood  on  the  mare's  head.  Held,  that  the 
jury  should  have  been  charged  that  it  was 
competent  for  them  to  find  from  these  facts 
alone  that  the  plaintiff  assumed  the  risks 
incident  to  the  unsuitableness  of  the  car. 
Coupland  V.  Housatonic  R.  Co.,  55  Am,  &* 
Eng.  R.  Cas.  380,  61  Conn.  531,  23  At  I.  Re^. 
870. 

In  an  action  to  recover  for  the  loss  of 
hogs  which  escaped  from  the  cars  while  in 
the  course  of  transportation,  the  bill  of  lad- 
ing provided  tljat  the  hogs  should  be  taken 
care  of  by  the  owner,  and  that  the  company 


le  character 
t  afterwnrd, 
juries  to  the 

other  cars 
of  carrying 

Chicago  &• 
IVi's.  511. 
:ontracts  to 
nt,  and  ac- 
beddiiig,  he 
2S  resulting 
>««.,  V.  «S- 
%.  H.  Cas. 
}■ 

jnd  to  see 
!  of  a  defect 
Iter  the  ve- 
anerate  the 
cts  not  pa]- 
Jt.  or  prove 
charge  the 
r  existence. 
,  20  AT.  V. 

tiie  use)  of 

ipper,  does 

om  liability 

Walliiig- 

30  Am.  iS- 

2  S.  E.  Rep. 
V.  Pratt,  49 

nare  and  a 
ar,  the  roof 
e  on  lifting 
ithout  par- 
own  by  ^he 
'as  broken, 
i  charge  of 
ects  of  the 
lie  one  if  he 
ble  freight, 
:  used,  and 
a  stuffed 
i,  that  the 
hat  it  was 
these  facts 
1  the  risks 
)f  the  car. 
iS  Am.  <S- 

3  Atl.  Rey. 

he  loss  of 
s  while  in 
Jill  of  lad- 
d  be  taken 
:  company 


CARRIAGE    OF    LlVIi    STOCK,  10-12. 


741 


should  not  be  liable  for  loss  of  hogs  by 
jumping  from  cars,  except  by  reason  of  a 
collision  or  when  cars  were  thrown  from 
the  track.  The  hogs  were  shipped  in  cars 
belonging  to  another  company  and  selected 
by  plaintiff,  he  refusing  to  use  the  cars  of 
defendant.  Held,  that,  if  the  hogs  escaped 
from  the  cars  by  reason  of  any  defect  in 
them  or  of  the  door-fastenings,  defendant 
would  not  be  responsible  if  it  did  not  know 
the  fact  when  plaintiff  selected  them. 
Illinois  C.  R.  Co.  v.  Hall,  58  ///.  409,  11 
Am.  Ry.  Rep.  95. — Reviewed  in  Potts  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  \^  Mo.  App. 

394. 

10.  Contract  by  shipper  to  ftir- 
ni8h  cars.— A  shipper  is  not  in  fault  for 
failure  to  furnish  cars  under  a  contract  of 
shipment  providing  that  he  shall  furnish 
the  cars  and  load  them  at  a  certain  station, 
where  he  notifies  the  railroad  company  that 
cars  to  be  used  in  the  business  are  at  certain 
other  stations,  that  he  desires  the  company 
to  take  them  f-.-m  another  company  in 
whose  possession  they  are  and  which  had 
been  directed  to  turn  them  over,  and 
the  railroad  company  does  not  decline 
to  get  the  cars,  or  claim  that  the  shipper  is 
bound  to  make  any  other  delivery  of  them, 
or  that  there  is  any  difficulty  in  getting 
them,  but  merely  fails  to  accept  them  and 
commence  the  shipment  within  the  time 
specified  in  the  contract.  Lawrence  v.  Mil- 
waukee, L.  S.  (S-  W.  R.  Co.,  84  Wi.  427,  54 
A^.  W.  Rep.  7^7. 

3.  Duty  to  Ship  Promptly, 

11.  In  general.— It  is  the  duty  of  a  car- 
rier to  forward  cattle  by  the  next  train  after 
they  are  loaded  and  the  agent  has  knowledge 
of  the  fact,  and  if  it  fails  to  do  so  it  is  liable 
for  any  damages  resulting  from  the  delay. 
Illinois  C.  R.  Co.  v.  Waters,  41  ///.  73. 

Where  cattle  were  delivered  to  the  carrier 
for  shipment  two  days  before  duplicate  writ- 
ten bills  of  lading  were  executed,  the  liabil- 
ity of  the  company  to  ship  promptly  under 
an  oral  contract  is  not  merged  in  the  wri- 
ting, so  as  to  exclude  proof  of  a  delay  in 
failing  to  ship  promptly  before  the  execu- 
tior.  of  the  written  agreement.  Cleveland &* 
T.  R.  Co.  V.  Perkins,  17  Mich.  296. — Dis- 
tinguishing Michigan  S.  &  N.  I.  R.  Co.  v. 
Shurtz,  7  Mich.  515. 

Carriers  are  responsible  for  the  natural 
or  ordinary  and  proximate  consequences  of 


their  acts,  but  not  lor  such  as  are  remote 
and  extraordinary.  So  where  a  common 
carrier  of  live  stock  is  sued  for  a  failure  to 
receive  it  in  its  proper  order  for  shipment, 
the  necessary  expenses  of  feeding  and  taking 
care  of  the  stock  are  the  natural  and  imme- 
diate consequences  of  the  act ;  but  not  the 
death  or  shrinkage  in  weight  of  the  stock, 
unless  it  appears  to  be  caused  directly  by 
the  act  of  the  carrier.  Ballentine  v.  North 
Mo.  R.  Co.,  40  Mo.  491. 

Where  hogs  are  delivered  to  a  railroad 
company  for  shipment,  and  are  left  for  25 
days  in  the  month  of  December,  in  the 
latitude  of  Missouri,  in  uncovered  pens,  it 
is  a  question  for  the  jury  whether  loss  from 
exposure  and  smothering  might  reasonably 
have  been  expected.  Pruitt  v.  Hannibal 
&*  St.  J.  R.  Co.,  62  Mo.  527. 

A  carrier  is  not  bound  to  receive  live 
stock  for  shipment  on  Sunday,  but  if  it  does 
so  it  is  bound  by  its  obligation  to  ship 
promptly,  and  '  able  for  a  delay.  In  such 
case  the  gist  of  e  action  is  the  negligent 
delay  in  shipping  and  not  in  receiving. 
Guinn  v.  Wabash,  St.  L.  6-  P.  R.  Co.,  20 
Mo.  App.  453. 

A  railroad  company  is  not  liable  for  fail- 
ure to  promptly  carry  cattle  unless  the  jury 
believe  that  the  cattle  were  delayed  beyond 
the  usual  and  ordinary  time  of  shipment, 
or  that  they  were  injured  through  the  negli- 
gence of  the  company  while  in  its  care. 
Missouri  Pac.  R.  Co.  v.  Nicholson,  2  Tex. 
App.  {Civ.  Cas)  147. 

Where  the  stock  to  be  shipped  by  plain- 
tiff were  not  loaded  upon  the  arrival  of  the 
defendant's  train,  and  were  not  even  in  the 
yards  of  the  company,  but  in  a  private  yard, 
and  had  not  been  given  into  the  possession 
of  any  authorized  agent  of  defendant — heli 
that  defendant  was  not  liable  for  refusing 
to  delay  the  train  until  the  stock  could  be 
loaded,  notwithstanding  the  same  train  took 
cars  of  stock  at  other  stations  later,  although 
in  these  instances  the  locomotive  was  re- 
quired to  assist  in  loading  the  cars,  while 
in  plaintiff's  case  it  was  not.  Frazier  v. 
Keokuk,  C,  St.  /.  &*  C.  B.  R.  Co.,  48  Iowa 

571. 

12.  What  is  a  reasonable  time 
within  which  to  make  shipment. — 

Where  a  contract  with  a  carrier  for  the 
transportation  of  live  stock  fixes  no  time 
for  shipment,  they  must  be  shipped  within 
a  reasonable  time,  which  must  depend  upon 
the  circumstances  of  the  particular  case. 


A 


m 


4^4 


U2 


CARRIAGE   OF   LIVE   STOCK,  13,  14. 


1! 

il 


Cincinnati,  /.,  St.  L.  &*  C.  R.  Co.  v.  Case, 
42  Am.  (5-  £«j,'.  A'.  Cas.  537,  122  /«</.  310, 
23  A^.  E.  Rep.  797.— DiSlINGUISHED  IN 
Pennsylvania  R.  Co.  v.  Clark,  2  Ind.  App. 
146. 

Where  there  is  a  delay  in  shipment  from 
Friday,  6  p.m.,  till  Saturday,  4  a.m.,  the  car- 
rier having  means  of  shipment  at  hand 
when  the  stock  were  delivered,  and  in  conse- 
quence they  arrive  at  their  destination  too 
late  for  the  Saturday  market,  and  have  to 
be  cared  for  till  Monday,  the  shipment  will 
not  be  deemed  to  have  been  made  within  a 
reasonable  time.  Cincinnati,  /.,  St.  L  &*C. 
R.  Co.  V.  Case,  42  Am.  Sf  Eng.  R.  Cas.  537, 
122  /mi.  310,  23  A^.  £.  Rep.  797. 

A  railroad  company  is  bound  to  transport 
live  stock  within  a  reasonable  time  after  re- 
ceiving it,  but  it  cannot  be  said  as  a  mat- 
ter of  law  that  this  means  that  the  shipment 
must  be  made  on  the  first  train  leaving  after 
the  property  has  been  delivered  for  trans- 
portation. Pennsylvania  R.  Co.  v.  Clark,  2 
Ind.  App.  146,  27  A^.  E.  Rep.  586. 

13.  What  will  excuse  delay  in  sliip- 
meiit. — A  snowstorm  so  severe  as  to  hin- 
der and  delay  a  railroad  company  in  the 
performance  of  its  duties  is  such  an  act  of 
God  as  to  relieve  the  company  from  liability 
for  loss  or  injury  resulting  from  a  delay  in 
shipping  live  stock  within  a  reasonable  time. 
Ballentine  v.  North  Mo.  R.  Co.,  40  Mo.  491. 
Black  V.  Chicago,  B.  &•  Q.  R.  Co.,  30  Neb. 
197,  46  A^.  W.Rcp.  428. 

A  carrier  of  live  stock  is  not  liable  for  in- 
juries thereto  caused  by  a  delay,  where  the 
delay  is  caused  by  atmospheric  conditions 
beyond  the  carrier's  control,  making  it  im- 
possible to  get  telegraphic  shipping  orders  ; 
but  to  excuse  such  delay  the  carrier  must 
have  exercised  due  care  to  protect  the 
property  from  injury  during  the  delay.  In- 
ternational &*  G.  N.  R.  Co.  v.  Hynes,  3  Tex. 
Civ.  App.  20,  21  5.  W.  Rep.  622.— Apply- 
ing Gulf,  C.  &  S.  F.  R.  Co.  V.  Levi,  76  Tex. 

337- 

A  provision  in  the  charter  of  a  railroad 
company  requiring  it  to  ship  property  in 
the  order  it  is  received  at  the  depots,  way- 
stations,  and  places  desired  by  the  owners 
thereof,  is  not  violated  by  failing  to  carry 
live  stock  loaded  at  a  way-station,  but 
which,  owing  to  the  amount  of  business, 
could  not  have  been  carried  on  the  first 
train  passing  without  an  extra  engine,  which 
must  have  been  sent  out  from  a  distance 
and  at  night.    Michigan  S.  &*  N.  I.  R.  Co. 


V.  McDonough,  21  Mich.  165.— AppRovkh 
IN  Central  R.  &  B.  Co.  v.  Smitha,  85  Ala.  47. 
4  So.  Rep.  708.  UiSAPPROVEU  in  Bamberg 
V.  Soutii  Carolina  R.  Co.,  9  So.  Car.  61. 

14.  What  excuHCH  will  not  avail 
the  carrier. — A  railroad  company  cannot 
excuse  Uii.  breach  of  a  contract  to  receive  and 
transport  cattle  upon  a  certain  day  by  the 
fact  that  it  was  so  crowded  with  business 
upon  that  day  and  during  the  time  of  the 
subsequent  delay  that  it  had  no  empty  cars 
in  which  to  receive  the  cattle.  Gulf,  C.  &> 
S.  F.  R.  Co.  V.  McCorqiiodale,  35  Am.  &> 
Eng.  R.  Cas.  653,  71  Tex.  41,  9  S.  IV.  Rep. 
80. 

Railroad  agents  ?re  placed  at  stations  for 
the  express  purr  ,e  of  receiving  and  for- 
warding freights  und  making  contracts  with 
reference  thereto ;  and  where  an  agent  has 
agreed  to  receive  and  ship  stock  at  a  par- 
ticular time  the  company  is  bound  thereby, 
unless  a  delay  in  shipping  was  due  to  some 
unforeseen  event,  such  as  the  law  recognizes 
as  sufficient.  So  held,  where  a  railroad 
company  insisted  that  its  agent  was  not  au- 
thorized to  contract  for  the  shipment  of 
live  stock  during  very  cold  weather.  Pruilt 
V.  Hannibal &•  St.  J.  R.  Co.,  62  Mo.  527. 

It  is  the  duty  of  the  carrier  when  applied 
to  for  cars  to  advise  the  shipper  of  the  sit- 
uation and  circumstances  which  would 
likely  occasion  any  unreasonable  delay  ;  and 
if  he  does  not  so  advise  and  obtain  consent 
either  express  or  implied,  to  the  delay,  he  be- 
comes bound  to  carry  the  goods  within  a 
reasonable  time ;  and  he  will  not  be  heard  to 
say  that  his  delay  was  caused  by  some  con- 
tingency. And  such  unavoidable  difficulty, 
though  wholly  unknown  and  unanticipated 
at  the  time  of  acceptance,  will  not  excuse 
him.  Guinn  v.  Wabash,  St.  L.  <S-  P.  R.  Co., 
20  Mo.  App.  453. — Following  Pruitt  v. 
Hannibal  &  St.  J.  R.  Co.,  62  Mo.  539. 

Common  carriers  of  live  stock  cannot 
excuse  a  delay  in  shipping  cattle  by  reason 
of  a  washout  on  its  road,  where  it  appears 
that  the  stock  would  have  passed  the  place 
of  the  washout  before  it  occurred  if  they 
had  been  shipped  promptly.  Gulf,  C.  &*  S. 
F.  R.  Co.  V.  McCorquodale,  35  Am.  <S-  Eng. 
R.  Cas.  653,  71  Tex.  41,  9  5.  W.  Rep.  80. 

It  is  the  duty  of  common  carriers  to  pro- 
vide themselves  with  all  reasonable  facilities 
and  appliances  for  the  transportation  (if 
goods  and  live  stock ;  and  a  company  can- 
not excuse  itself  for  delay  in  forwarding 
live  stock  by  showing  that  a  bridge  was 


I ! 


CARRIAGE   OF    LIVE   STOCK,  15. 


74a 


-Approvkd 
a,  8s  Ala.  47, 
IN  Bamberj; 
Car.  61. 
not  avail 
pa ny cannot 
0  receive  and 
day  by  the 
i^itli  business 
time  of  the 
empty  cars 
Gulf,  C.  &^ 

35  ^>'i.  &^ 
S.  JV.  Rep. 

stations  for 
ng  and   for- 
ntracts  with 
n  agent  has 
)ck  at  a  par- 
ind  thereby, 
due  to  some 
V  recognizes 
a    railroad 
was  not  au- 
shipment  of 
tier.    Pruitt 
Mo.  527. 
hen  applied 
r  of  the  sit- 
hich    would 
:  delay ;  and 
ain  consent 
lelay,  he  be- 
'ds  within  a 
:  be  heard  to 
i^some  con- 
le  difficulty, 
'anticipated 
not  excuse 
*•  P.  R.  Co., 
3   Pruitt  V. 
539. 
)ck  cannot 
e  by  reason 
:  it  appears 
d  the  place 
red  if  they 
If,  C.  <S-  S. 
'I.  &*  Eng. 
Rep.  80. 
ers  to  pro- 
e  facilities 
rtation    of 
ipany  can- 
br  warding 
>ridge  was 


broken  down,  making  it  necessary  to  ship 
by  another  route.  Guinn  v.  Wabash,  St.  L. 
i^  P.  R.  Co.,  20  Mo.  App.  453. 

A  delay  of  twenty-five  days  in  shipping 
one  drove  of  hogs  and  one  of  forty-one 
days  in  shipping  another,  which  were 
claimed  by  the  company  to  be  due  to 
heavy  snows,  but  where  trains  were  oper- 
ated to  some  extent,  are  prima  -facie 
evidence  of  negligence  inexcusable,  unless 
by  the  total  cessation  of  all  business  by  the 
company  for  the  public.  Pruitt  v.  Hanni- 
bal &»  St.  J.  R.  Co.,  62  Mo.  527.— Reviewed 
IN  Davis  V.  Wabash,  St.  L.  &  P.  R.  Co.,  26 
Am.  &  Eng.  R.  Cas.  315,  89  Mo.  340. 

Where  the  negligence  of  a  carrier  of  live 
stock  concurs  in  and  contributes  £0  the 
injury,  he  is  not  exempt  from  liability  on 
the  ground  that  the  immediate  damage  was 
occasioned  by  the  act  of  God  or  inevitable 
accident.  Pruitt  v.  Hannibal  &*  St.  J.  R. 
Co.,  62  Mo.  SV  —  Approving  Michaels  v. 
New  York  C.  R.  Co.,  30  N.  Y.  564 ;  Read  v. 
Spaulding,  30  N.  Y.  630.  Bostwick  z/.  Bal- 
timore &  O.  R.  Co.,  45  N.  Y.  712.  Fol- 
lowing Wolf  V.  American  Exp.  Co.,  43  Mo. 
421 ;  Reed  v.  St.  Louis,  K.  C.  &  N.  R.  Co., 
60  Mo.  199.  Reconciling  Clark  z/.  Pacific 
R.  Co.,  39  Mo.  184. 

Snowstorms  of  sufficient  violence  or  dura- 
tion to  obstruct  the  passage  of  trains  are 
a  sufficient  excuse,  during  their  continuance, 
for  a  delay  by  a  carrier  in  shipping  live 
stock ;  but  such  violent  storms  or  excessive 
cold  weather  should  hardly  be  regarded  as 
an  extraordinary  event  in  the  latitude  of 
northern  Missouri  during  the  months  of 
December  and  January.  Pruiit  v.  Hanni- 
bal 6-  St.  J.  R.  Co.,  62  Mo.  527. 

A  carrier  cannot  be  permitted  negligently 
to  delay  a  shipment  of  cattle  beyond  the 
time  it  could  well  make  and  does  customarily 
make  shipments,  and  then  excuse  itself  by 
showing  that  it  still  made  the  trip  within  the 
period  stipulated  as  a  reasonable  time,  as 
such  interpretation  would  make  the  stipu- 
lation against  public  policy,  which  does  not 
permit  a  carrier  to  be  negligent  with  im- 
punity. Such  stipulation  means  that  the 
cattle  were  to  be  taken  with  all  reasonable 
dispatch,  and  was  a  protection  against  a 
failure  so  to  dispatch  them.  Leonard  v. 
Chicago  &*  A.  R.  Co.,  54  Mo.  App.  293. 

II.  DELIVEBT  TO  TH£  C&BBIEB. 

15.  SufScieucy,  generally.  —  Where 
plaintiff  has  contracted  to  ship  a  horse,  and 


has  brought  him  to  the  place  designated  by 
the  company's  agent  for  loading,  and  the 
horse  is  injured  while  being  loaded  by  rea- 
son of  a  rotten  gangway  breaking  down, 
there  is  such  a  delivery  as  to  render  the 
company  liable  for  a  failure  to  provide  safe 
means  of  loading.  McCuUough  v.  Wabash 
W.  R.  Co.,  34  Mo.  App.  23  —Quoting 
Mason  v.  Missouri  Pac.  R.  Co.,  25  Mo.  App. 

473- 

Where  the  owner  of  cattle,  in  considera- 
tion of  a  reduced  rate,  contracts  with  the 
carrier  to  take  personalchargeof  them  while 
being  carried,  and  to  assume  the  risk  of  trans- 
portation, there  is  no  complete  delivery  to  the 
company,  and  it  will  only  be  liable  for  injury 
or  loss  resulting  from  its  gross  negligence  or 
willful  misfeasance.  Illinois  C.  R.  Co.  v. 
Morrison,  i<)Ill.  136. — Followed  in  Illinois 
C.  R.  Co.  V.  Adams,  42  111.  474.  Quoted 
in  Annas  v.  Milwaukee  &  N.  R.  Co.,  27 
Am.  &  Eng.  R.  Cas.  102, 67  Wis.  46,  57  Am. 
Rep.  388,  note. 

Where  there  is  no  evidence  to  show  that 
a  railway  company's  porter  was  given  au- 
thority, or  held  himself  out  as  having  author- 
ity, to  receive  or  contract  for  the  carriage  of 
animals  in  any  other  than  the  usual  way, 
viz.,  by  the  porter  and  the  shipper  both  sij^n- 
ing  a  consignment  note,  a  railway  company 
is  not  liable  for  the  non-delivery  of  animals 
received  by  a  porter  without  conforming 
to  such  practice.  Slim  v.  Great  Northern 
R.  Cc,  14  C.  B.  647,  2  C.  L.  R.  864,  8  Jur. 
1 119,  23  Z./.  C.  P.  166. 

Where  a  rrvntract  was  entered  into  by 
which  four  horses  were  to  be  transported 
from  Washington  to  Baltimore  on  the  rail- 
road of  defendant,  and  the  horses  were  to  be 
accompanied  by  their  grooms,  if  the  horses, 
in  accordance  with  the  agreement,  were  ad- 
mitted to  the  inclosure  where  the  defendant 
usually  received  such  freight,  and  the  de- 
fendant notified  that  they  were  there ;  and  if 
the  process  of  loading  them  had  been  par- 
tially completed  by  the  shipment  of  three  of 
the  horses  .with  their  grooms — held,  that  al- 
though the  agents  of  both  parties  were 
engaged  in  sucli  lor.ding  when  the  injury 
occurred,  these  facts  would  constitute  a  de- 
livery of  the  animali.  Bowie  v.  Baltimore  &* 
O.  R.  Co.,  I  MacArth .  {D.  C)  609. 

Such  an  agreement  is  no  waiver  of  the 
strict  responsibility  of  the  defendant  as  a 
common  carrier,  any  further  than  it  might 
be  modified  by  the  fact  that  persons  were  to 
be  sent  by  the  owner  dong  with  the  prop- 


744 


CARRIAGE   OF    LIVE   STOCK,  1«-19. 


erty;  and  if  the  property  is  injured  through 
the  negligence  of  the  agents  of  the  defeiid- 
^nt,  it  is  liable  for  the  damage;  and  if  the 
injury  is  caused  by  the  act  or  conduct  of 
the  owner's  servants,  the  defendant  will 
not  be  responsible.  Bowie  v.  Baltimore  &* 
O.  R.  Co.,  I  MacArth.  {D.  C.)  609. 

16.  Receiving  cattle  iu  stock-pens.* 
— The  liability  of  a  railroad  company,  as  a 
common  carrier  of  live  stock,  attaches  when 
the  stock  are  received  in  its  pens  for  trans- 
portation. Gu//,  C.  &*  S.  F.  R.  Co.  V.  Tra- 
wick,  80  Tex.  270,  15  S.  W.  Rep.  568,  18  S. 
W.  Rep.  948.— Reviewing  East  Line  &  R. 
R.  R.  Co.  V.  Hall,  64  Tex.  620. 

Such  liability  attaches  from  the  moment 
of  such  delivery,  and  not  from  the  time  the 
car  in  which  they  are  loaded  is  put  in  motion. 
Mason  v.  Missouri  Pac.  R.  Co.,  25  Mo.  App. 
473.— Reviewing  Pruitt  v.  Hannibal  &  St.  J. 
R.  Co.,  62  Mo.  527. 

The  reception  of  hogs  in  the  pens  of  a 
common  carrier  for  transportation  is  equiv- 
alent to  an  obligation  to  forward  them  with- 
out unnecessary  delay,  Pruitt  v.  Hannibal 
&*  St.  J.  R.  Co.,  62  Mo.  527.— Approving 
Deming  v.  Grand  Trunk  R.  Co.,  48  N.  H. 
455. — Reviewed  in  Mason  v.  Missouri  Pac. 
R.  Co.,  25  Mo.  App.  473. 

Where  cattle  intended  for  shipment  are 
placed  in  a  railroad  company's  stock-pens 
at  a  station  on  its  road,  the  refusal  of  such 
company  afterward  to  receive  and  carry 
such  cattle  excuses  any  further  delivery,  or 
offer  to  deliver,  for  transportation  on  the 
part  of  the  shipper.  Louisville,  N.  A.  &^  C, 
R.  Co.  V.  Godman,  104  Ind.  490,  4  N.  E.  Rep. 
163.— Followed  in  Louisville,  N.  A.  &  C. 
R.  Co.  V.  Flannagan,  113  Ind.  488. 

Where  a  common  carrier  of  live  stock  re- 
ceives cattle  for  immediate  shipment,  it  is 
liable  for  a  loss  that  occurs  by  their  breaking 
through  defective  pens  before  they  are 
loaded  on  the  cars.  Mason  v.  Missouri  Pac. 
R.  Co.,  25  Mo.  App.  473.— Quoted  in  McCul- 
lough  V.  Wabash  W.  R.  Co.,  34  Mo.  App. 

23- 

Mere  permission,  to  the  owner  of  cattle, 
by  the  agent  of  a  railroad  company  to  place 
them  in  the  company's  cattle-pens  does  not 
make  the  company  liable  for  a  loss  resulting 
from  their  escaping  therefrom,  where  it  ap- 
pears that  at  the  time  of  escaping  the  cattle 
had  not  been  received  for  shipment,  nor  had 
the  company  become  responsible  therefor, 

*  See  also  ante,  3 ;  post,  53. 


or  chargeable  with  the  escape  by  reason  of 
any  negligence  on  its  part.  Ft.  Worth  &* 
D.  C.  R.  Co.  v.  Riley,  {Tex.  App.)  27  Am.  &* 
Eng.  R.  Cas.  49,  i  5.  ^r.  Rep,  446. 

A  railroad  company  holding  itself  out  as 
a  carrier  of  live  stock  is  obliged  to  provide 
suitable  facilities  for  receiving  and  discharg- 
ing such  stock.  In  certain  cases  this  duty 
cannot  be  performed  except  by  providing  in- 
closed yards  in  which  tlie  stock  may  be  re- 
ceived or  discharged ;  and  the  carrier  can- 
not, in  addition  to  the  customary  and 
legitimate  charges  for  transportation,  make 
a  special  charge  for  merely  receiving  or  de- 
livering stock  in  and  through  such  yards. 
Covington  Stock  Yards  Co.  v.  Keith,  49  Am. 
&*  Eng.  R.  Cas.  149,  139  [/.  S.  128,  11  Sup. 
Ct.  Rep.  461.— Followed  in  Oregon  S.  L. 
&  U.  N.  R.  Co.  V.  ilwaco  R.  &  N.  Co.,  51 
Fed.  Rep.  611. 

17.  Duty  of  carrier  to  ilirnish  fa- 
cilities for  loading.— In  respect  to  the 
mere  loading  and  unloading  of  live  stock  at 
a  particular  city,  the  carrier  is  required  to 
furnish  such  suitable  and  convenient  ap- 
pliances as  are  reasonably  sufficient  for  the 
business  at  that  place.  Covington  Stock 
Yards  Co.  v.  Keith,  49  Am.  &*  Eng.  R.  Cas. 
149,  139  U.  S.  128,  II  Sup.  Ct.  Rep.  461. 

18.  Duty  of  shipper  to  have  car 
loaded  before  arrival  of  train.  Where 
the  ways  and  means. for  loading  are  in 
proper  condition,  and  the  duty  of  loading  is 
upon  the  shipper,  it  is  his  duty,  to  have  the 
car  loaded  so  that  the  train  which  is  to 
move  it  may  not  be  unreasonably  delayed, 
Louisville,  N.  A.  &*  C.  R.  Co.  v.  Godman,  104 
/nd.  490,  4  N.  E.  Re'p.  163. 

Where  cattle  for  shipment  were  placed  in 
cars  and  the  train  that  was  expected  to  take 
them  passed  the  station  between  ten  and 
eleven  o'clock  at  night,  the  owner  was  not 
negligent  in  allowing  thtm  to  remain  in  the 
cars  until  nine  o'clock  of  the  next  morning 
before  he  took  them  out.  Illinois  C.  R.  Co. 
V.  Waters,  41  ///.  73. 

10.  Liability  tor  injuries  during 
loading. — A  railroad  which  undertakes  to 
transport  live  stock  is  liable  as  a  common 
carrier,  though  the  shipper  agneesto  furnish 
the  cars  and  to  load  and  unload  them  en- 
tirely. Fordyce  v.  MFlynn,  56  Ark.  424,  19 
S.  W.  Rep.  961. 

A  carrier  who  relied  upon  the  undertak- 
ing of  a  shipper  of  live  stock  to  load  and 
unload  them  will  not  be  liable  for  an  injury 
to  the  stock   occasioned  by  the  negligent 


CARRIAGE   OF    LIVE   STOCK,  20,21. 


"45 


by  reason  of 
/.  Worth  &* 
.)  27  Am.  &* 
46. 

itself  out  as 
d  to  provide 
nd  discharg- 
es this  duty 
Toviding  in- 
may  be  re- 
carrier  can- 
omary   and 
ation,  make 
iving  or  de- 
such  yards. 
?ith,  49  Am. 
28,  u  Sup. 
regon  S.  L. 
:  N.  Co.,  SI 

iriilsh  fa- 

)ect  to  the 
ive  stock  at  . 
required  to 
/enient  ap- 
ient  for  the 
gton  Stock 
ng.  R.  Cas. 
p.  461. 
have  car 
n.  Where 
ng  are  in 
f  loading  is 

0  have  the 
hich  is  to 
ly  delayed. 
odman,  104 

J  placed  in 
:ed  to  take 
n  ten  and 
er  was  not 
lain  in  the 

1  morning 
s  C.  /?.  Co. 

I  diiringr 

ertakes  to 
I  common 
to  furnish 
them  en- 
i.  424,  19 

undertak- 
load  and 
an  injury 
negligent 


manner  in  which  the  loading  was  done, 
though  there  was  a  general  duty  resting 
upon  the  carrier  to  see  that  they  were  prop- 
erly loaded.  Fordyce  v.  M'Flynn,  56  Ark. 
424,  19  5.  W.  Rep.  961. 

Where  the  property  consists  of  race- 
horses, accompanied  by  the  agent  of  the 
owner,  assisted  by  other  persons  in  the  em- 
ployment of  the  owner,  three  of  whom  are 
race-riders  for  the  horses,  and  who  travel 
with  and  take  care  of  them ;  and  where  there 
was  a  difficulty  in  loading  one  of  the  horses 
on  the  car,  such  agent  insisting  on  loading 
it  as  he  thought  best,  after  having  been  re- 
quested by  the  railroad  employes  to  place 
the  horse  under  their  control,  the  owner 
would  not  be  entitled  to  recover  for  an  in- 
jury to  the  horse  sustained  under  such  cir- 
cumstances. Bowie  v.  Baltimore  &^  0.  R. 
Co.,  I  MacArth.  (D.  C.)  94.— Quoting 
Smith  V.  New  Haven  &  N.  R.  Co.,  12  Allen 
(Mass.)  531 ;  Michigan  S.  &  N.  I.  R.  Co.  v. 
McDonough,  21  Mich.  165. 

On  the  trial  of  an  action  for  injury  to  a 
race-horse  while  being  loaded  upon  a  car, 
where  there  is  a  conflict  of  testimony 
as  to  whether  the  agents  of  the  road  or 
those  of  the  owner  had  charge  of  the 
horse  when  the  accident  occurred,  it  is 
erroneous  to  charge  the  jury  that,  if  the  ser- 
vants or  agents  of  the  owner  refused  obedi- 
ence to  the  agents  of  the  road  the  latter 
would  still  be  responsible  for  the  injury;  and 
that  it  was  their  duty,  if  they  could  not  con- 
trol the  servants  of  the  owner,  to  refuse 
transportation  of  the  horse,  in  order  to 
escape  such  responsibility.  Bowie  v.  Balti- 
more <S-  O.  R.  Co.,  I  MacArth.  (D.  C.)  94. 

In  an  action  for  negligence  in  putting 
upon  one  of  their  carriages  a  mare,  which  it 
was  alleged  had  been  delivered  to  and  re- 
ceived by  them  from  the  plaintiff,  to  be 
safely  loaded  and  unloaded  and  conveyed  to 
A.,  a  witness  for  the  plaintiff  swore  that  he 
took  the  mare  to  the  station,  where  a  man 
assisted  him  to  put  her  in  a  car,  in  doing 
which  the  accident  happened,  and  the  mare 
'vas  then  taken  on  the  train  to  A.  He/d, 
that  the  proof  was  insufficient  to  sustain  the 
issue,  and  that,  on  demu'rer  to  the  evidence, 
judgment  in  the  county  court  was  properly 
given  for  the  defendants.  Griffin  v.  Great 
Western  R.  Co.,  \r^  U.  C.  Q.  B.  507.— Re- 
viewing Walker  v.  Jackson,  10  M.  &  W. 
161. 

20.  Receivini;  overloaded  cars.— 
Where  a   railroad   company    receives    for 


shipment  a  car-lo:id  of  hogs  which  is  over- 
loaded, it  assumes  all  the  responsibility  of  a 
common  carrier  with  reference  to  it,  and 
cannot  escape  liability  for  damage  to  the 
property  on  the  ground  that  the  car  was 
overloaded.  Kinnick  v.  Chicago,  R.  I.  &* 
P.  R.  Co.,  27  Am.  <&*  Eng.  R.  Cas.  55,  69 
/owa  665,  29  A^.   W.  Rep.  772. 

Where  there  is  no  misrepresentation  on 
the  part  of  the  shipper  of  live  stock,  a  com- 
mon carrier  waives  all  exceptions  to  defects 
in  lo'iding  by  accepting  stock  so  loaded  for 
transportation.  Kinnick  v.  Chicago,  R.  I.  &» 
P.  R.  Co.,  27  Am.  &•  Eng.  R.  Cas.  55,  69 
foTva  665,  29  A^.  W.  Rep.  772. 

ni.  DUTT  OF  GABBIER  DUBIKG  TBANSIT. 

I.  In  General. 

21.  Care  and  diligence  required.*— 

In  the  absence  of  a  special  contract  limiting 
its  liability,  a  railroad  company  undertaking 
to  carry  cattle  assumes  all  the  liabilities  of 
a  common  carrier.  Georgia  R.  Co.  v. Spears, 
66  Ga.  485.  Kansas  Pac.  R.  Co.  v.  Reynolds, 
8  Kan.  623,  5  Am.  Ry.  Rep.  260.— Quoting 
Michigan  S.  &  N.  I.  R.  Co.  7>.  McDonouph, 
21  Mich.  165;  Dwight  v.  Brewster,  i  Pick. 
(Mass.)  50;  Carr  w.  Lancashire  &  Y.  R.  Co., 
7  Exch.  711.— Approved  in  Atchison  &  N. 
R,  Co.  V.  Washburn,  5  Neb.  117;  Bamberg 
V.  South  Carolina  R.  Co.,  9  So.  Car.  61. 
Not  followed  in  Lupe  v.  Atlantic  &  P. 
R.  Co.,  3  Mo.  App.  77. — Missouri  Pac.  R. 
Co.  V.  Graves,  2  Tex.  App.  {Civ.  Cas.)  594. 
Rix/ord\.  Smith,  52  A^.  H.  355,  13  Am.  Rep. 
42.  Kansas  Pac.  R.  Co.  v.  Nichols,  9  Kan. 
235,  5  Am.  Ry.  Rep.  275.— EXPLAINING  AND 
distinguishing  Michigan  S.  &  N.  I.  R.  Co. 
V.  McDonough,  2i  Mich.  165.  Quoting 
Kimball  v.  Rutland  &  B.  R.  Co.,  26  Vt.  247 ; 
Great  Western  R.  Co.  v.  Hawkins,  18  Mich. 
427, — Approved  in  Atchison  &  N.  R.  Co. 
V.  Washburn,  5  Neb.  117;  Bamberg  v.  South 
Carolina  R.  Co.,  9  So.  Car.  61. — East  Tenn., 
V.  &^  G.  R.  Co.  V.  Johnston,  22  Am.  &•  Eng. 
R.  Cas.  437,  75  Ala.  596,  51  Am.  Rep.  489.— 
Approved  in  Central  R.  &  B.  Co.  v.  Smitha, 
85  Ala.  47,  4  So.  Rep.  joi.—Moulton  v.  St. 
Paul,  M.  &•  M.  R.  Co.,  1 2  Am.  &"  Eng.  R.  Cas. 
13,  31  Minn.  85,47  Am.  Rep.  781,  16  N.  W. 

*  Liability  of  carriers  of  live  stock.  General 
rule.  Cases  in  which  liability  held  not  to  be 
that  of  common  carriers.  See  note,  67  Am.  Dec. 
208. 

Duty  c.(  carrier  of  live  stock  overtaken  by 
snowstorm.  Pleading  act  of  God.  See  45  Am. 
&  Eng.  R.  Cas.  351,  adstr. 


.'I-: 


746 


CARRIAGE   OF   LIVE    STOCK,  21. 


1 


Rep.  497.  Pringh  v.  Vennsyhmnia  R.  Co., 
3  Phila.  {Pa.)  82.  Lupc  v.  Atlantic  &*  P. 
R.  Co.,  3  Mo.  App.  77.  Atchison  &*  N.  R. 
Co.  V.  Washburn,  5  Neb,  i\7,\^  Am.  Ry.  Rep. 
139. — Approving  Kansas  Pac.  R.  Co.  v. 
Reynolds,  8  Kan.  634;  Kansas  Pac.  R.  Co.  ■7: 
Nichols,  9  Kan.  248;  Wilson  v.  Hamilton,  4 
Oliio  St.  722 ;  Palmer  v.  Grand  Junction 
R.  Co.,  4  M.  &  W.  749.  Approving  and 
QUOTING  Kimball  v.  Rutland  &  B.  R.  Co., 
26  Vt.  247. 

The  common-law  liability  of  carriers  of 
merchandise  applies  to  carriers  of  live  stock, 
so  far  as  it  may  be  applicable ;  and  it  is  only 
modified  so  far  as  made  necessary  by  the 
peculiar  character  of  the  property  to  be 
transported.  McCoy  v.  Keokuk  &*  D.  M.R. 
Co.,  44  Iowa  424. 

The  duty  of  a  railroad  in  carrying  live 
stock  is  the  same  as  a  carrier  of  goods,  so 
far  as  the  route  is  concerned.  Michigan  C. 
R.  Co.  v.  Myrick,  9  Am.  &*  Eng,  R,  Cas.  25, 
107  I/.  S.  102,  I  Sup.  Ct.  Rep.  425. 

When  a  common  carrier  undertakes  to 
transport  fat  cattle  to  niarket  in  a  live  stock 
train  it  must  be  held  to  have  undertaken 
a  business  which  calls  for  diligence  and  dis- 
patch commensurate  with  the  trust  it  has 
accepted.  Leonard  \.  Chicago  &*A.  R.  Co., 
54  Mo.  App.  293. 

A  carrier  of  live  stock,  in  the  absence  of  a 
special  agreement,  is  not  liable  for  injuries 
to  the  animals  which  could  not  be  foreseen 
or  prevented  by  the  exercise  of  due  dili- 
gence and  care.  Where  there  is  a  special 
contract  the  carrier's  liability  will  be  regu- 
lated by  it;  in  which  case  he  will  be  held 
only  to  the  duties  specified  in  the  agreement, 
or  for  injuries  resulting  from  negligence  or 
wilfulness.  Penn  v.  Buffalo  &*  E.  R.  Co., 
49  N.  Y.  204,  3  Am.  Ry.  Rep.  355  ;  revers- 
ing 3  Lans.  443. — Applied  in  Steiger  v. 
Erie  R.  Co.,  5  Hun  (N.  Y.)  345.  Quoted 
in  Central  R.  &  B.  Co.  v.  Smitha,  85  Ala. 
47,  4  So.  Rep.  708. 

While  a  carrier,  when  overtaken  by  an 
occurrence  known  as  the  act  of  God,  is  not 
bound  to  the  highest  degree  of  diligence 
to  preserve  the  property  from  injury,  yet  in 
such  an  emergency  he  is  required  to  bestow 
such  care  as  an  ordinarily  prudent  person 
or  carrier  would  use  under  like  circum- 
stances, and  if  he  fails  to  do  so  and  loss  re- 
sults therefrom,  he  is  liable.  Black  v.  Chi- 
cago, n.  &>  Q.  R.  Co.,  30  Neb.  197,  46  N.  W. 
Rep.  428.— Quoting  Gillespie  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  6  Mo.  App.  554. 


If  the  owner  of  live  stock  request  ihat 
they  be  transported  by  a  company,  as  com- 
mon carriers,  he  is  only  to  pay  a  reasonable 
compensation  therefor,  and  may  refuse  to 
enter  into  any  special  contract  on  any  other 
terms,  and  the  company  will  be  responsible 
for  their  safe  carriage  and  delivery ;  and  this 
is  so  whether  transportation  of  cattle  is  re- 
garded as  the  company's  principal  business 
or  whether  it  is  incidental  and  subordinate. 
Kimball  v.  Rutland 3^  B.  R.  Co.,  26  17.  247. 
— Following  Carr  v.  Lancashire  R.  Co.,  14 
Eng.  L.  &  Eq.  340.— Approved  and  quoted 
in  Atchison  &  N.  R.  Co.  7/.  Washburn,  5 
Neb.  117. 

Railroads,  as  carriers  of  live  stock,  are  not 
liable  to  the  same  extent  as  carriers  of  mer- 
chandise, but  are  required  to  use  reasonable 
care  and  diligence.  Baker  v.  Louis7/ille  &* 
N.  R.  Co.,  16  Am.  &•  Eng.  R.  Cas.  149,  10 
Lea  (Tenn.)  304.— Followed  in  Louisville 
&  N.  R.  Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas. 
312,  88  Tenn.  320,  14  S.  W.  Rep.  311. 

If  it  be  conceded  that  carriers  of  live 
stock  do  not  assume  the  same  liability  as 
carriers  of  merchandise,  still  they  are  bound 
to  exercise  ordinary  care.  German  v.  Chi- 
cago &»  N,  IV,  R.  Co.,  38  Iowa  1 27. 

A  common  carrier  of  live  stock  is  bound 
to  use  reasonable  diligence,  and,  failing  to  do 
so,  the  owner  may  recover  damages  for  an 
injury  or  loss  to  the  stock.  Coles  v.  Louis- 
ville, E.  <S-  St.  L.  R.  Co.,  41  ///.  App.  607. 

If  in  transporting  the  stock  the  cars  can 
be  stopped  and  started  without  doing  it  so 
abruptly  as  to  throw  the  cattle  down  and 
injure  them,  it  is  the  duty  of  the  company 
to  so  stop  and  start  thfm.  Gulf,  C.  &■  S.  F. 
R.  Co.  V.  Ellison,  70  7'ex.  491,  7  S.  IV.  Rep. 

785. 

A  railway  company  is  responsible  for  the 
safe  treatment  of  animals  from  the  moment 
they  are  received  until  they  are  unloaded. 
MoffattM.  Great  Western  R.  G?.,  15Z.  r.630. 

Cattle  are  injured,  within  the  meaning  of 
§  7  of  the  Railway  and  Canal  Traffic  Act,  if 
they  become  out  of  condition  during  the 
journey  through  the  default  of  the  com- 
pany. Allday  v.  Great  Western  R.  Co.,  5  B. 
^  S.  903,  II  /ur.  N.  S.  12,  34  L.f.  Q.  B.  5, 
13  W.R.  43,  w  L.T.  267. 

A  ra-'way  company  is  entitled  to  the  pro- 
tection against  responsibility  given  by  the 
second  proviso  in  17  &  18  Vic.  c.  31,  §  7, 
although  no  complete  contract  for  carriage 
of  the  animal  has  been  entered  into,  and  no 
complete  delivery  of   it  has  taken  place. 


CAKKIACJI-    OF    MVK    STOCK,  U'J  ti4. 


u: 


equest  that 
ny,  as  corn- 
reasonable 
ly  refuse  to 
n  any  other 
responsible 
•y ;  and  this 
cattle  is  re- 
lai  I)usines3 
ubordinate. 
26  JV.  247. 
e  R.  Co.,  14 

ND  QUOTED 

Washburn,  5 

3ck,  are  not 
iers  of  nier- 
reasonable 
out'svuVU  &^ 
Cits.  149,  10 
I  Louisville 
:ng.  R.  Cas. 
3". 

ers  of  live 
liability  as 
r  are  bound 
tan  V.  C/ti- 
27. 

k  is  bound 
ailing  to  do 
ges  for  an 
't's  V.  Loiti's- 
App.  607. 
he  cars  can 
doing  it  so 
down  and 
e  company 
C.  6f  S.  F. 
S.  W.Rep. 

ble  for  the 
le  moment 

unloaded. 
5Z.  r.630. 
neaning  of 
iffic  Act,  if 
Juring  the 

the  com- 
?.  Co.,  5  B. 
J.  Q.  B.  5, 

to  the  pro- 
ven by  the 

c-  31.  §  7. 
)r  carriage 
ito,  and  no 
ken  place. 


Hodgman  v.  WtsI  Midhuul  l\.  Co..  5  />'.  &* 
.s:  173,  \o/ur.  X.  .v.  673,  33  L.y.  Q.  B.  233. 
12  W.  R.  1054,  10  L.  7.  609;  iipfirmed  in  13 
W.R.n%,l^L.J.Q.B.  85. 

23.  How  fur  carrier  i8  an  insurer. "* 
— The  common  law  rule  which  made  car- 
riers practically  insurers  of  property  while 
l)eing  carried  by  them  has,  from  the  neces- 
sity i)f  the  case,  been  in  a  measure  relaxed 
in  the  case  of  live  stock.  Coupland  v. 
//ousatonk  R.  Co.,  61  Conn.  531,  z^Atl.  Rip. 
870. 

But  the  company  is  bound  to  the  exercise 
of  a  high  degree  of  diligence,  such  as  a 
prudent  and  careful  man  would  exercise  in 
such  matters,  and  is  liable  for  ordinary  neg- 
ligence. Louisville,  C.  &*  L.  R.  Co.  v.  Hedger, 
9  lUish  {Ky.)  645. 

A  common  carrier  of  live  stock  is  not  an 
insurer  against  injuries  unavoidably  result- 
ing from  the  inherent  nature  or  propen- 
sities of  the  animals,  or  against  loss  caused 
by  the  act  of  God.  Black  v.  Chicago,  B,  &• 
Q.  R.  Co.,  30  Neb.  197,  46  A^.  W.  /?*•/.  428. 

A  common  carrier  of  chattels  is  not 
bound  to  insure  them  against  their  own 
fault  or  the  fault  of  their  owner,  and 
is  not  liable  to  him  for  loss  or  damage 
caused  by  an  inherent  defect  in  the  thing 
or  animal  carried  without  any  fault  of  the 
carrier,  or  by  the  manner  of  packing  or 
loading,  the  responsibility  of  which  the 
owner  has  assumed,  or  by  any  want  of  care 
which  the  owner  was  to  exercise.  Rixford 
v.  Smith,  52  A^.  H.  355,  13  Am.  Rep,  42. — 
Quoting  Coggs  v.  Bernard,  2  Ld.  Raym. 
900 ;  Forward  v.  Pittard,  i  D.  &  E.  27. 

Carriers  of  live  stock  are  not  absolutely 
liable  as  insurers  for  injuries  caused  by  the 
kicking  of  one  horse  by  anotlier,  nor  for  an 
injury  caused  by  the  owner  of  stock  at- 
taching a  halter  to  the  jaws  of  a  horse 
in  a  manner  which  might  cause  or  increase 
restiveness  and  bad  temper,  nor  for  a  fail- 
ure on  his  part  to  remove  the  horse's  shoes. 
Evans  \.  Fit c hburg  R.  Co.,  11 1  Mass.  142. — 
Quoting  Hall  v.  Renfro,  3  Mete.  (Ky.)  51 ; 
Conger  v.  Hudson   River  R.  Co.,  6  Duer 

(N.Y.)37S. 

A  railroad  company  is  not  responsible  for 
losses  occasioned  by  cattle  dying  or  being 
injured  by  heat,  unless  the  loss  or  damage 
has  been  occasioned  by  some  negligence 
or  misfeasance  of  the  company  or  of  its 
servants.    Maslin  v.  Baltimore  &•  O,  R.  Co., 

*  See  also  ante,  1. 


14  ff.  I'a.  180.  Not  KOI, lowing  Lake 
Shore  &  M,  S.  U.  Co.  7-.  Perkins,  25  Mich. 
329,  12  Am.  Rep.  275;  Louisville,  C.  &  L. 
R.  Co.  V.  Hedger,  9  Bush  (Ky.)  645,  15  Am. 
Rep.  740. 

23.  lliMkH  roHiiltiiif;  from  (liseuMC  or 
from  inliercnt  vice.- The  law  does  not 
hold  carriers  of  live  stock  liable  for  injuries 
which  result  from  the  sickness  or  violence  of 
the  animals,  or  for  those  due  to  their  vicious- 
ness  or  restlessness  excited  by  the  carriage, 
where  there  is  nothing  to  show  improper 
loading  or  transportation.  Illinois  C.  R.  Co. 
v.  Brelsford,  13  ///.  App.  ?5i. 

Where  live  freight  is  carried,  the  shipper, 
in  order  to  hold  the  carrier  for  injury  to  it, 
must  show  that  a  human  agency  caused  or 
concurred  in  causing  the  injury,  the  risk 
resulting  from  disease  or  vice  inherent  to 
such  freight  being  one  which  the  shipper, 
and  not  the  carrier,  assumes.  Hance  v. 
Pacific  Exp.  Co.,  48  Mo.  App.  179.— Quoting 
Clark  V.  Rochester  &  S.  R.  Co.,  14  N.  Y. 
573. —  Great  Western  R.  Co.  v.  Blo%ver,  41  L. 
J.  C.  P.  268,  L.  R.  7  C.  P.  655,  20  W.  R.  776, 
27  L.  T.  883,  3  Ry.  &-  C.  r.  Cas.  xii. 

24.  Injuries  oceaHioned  by  tlic  in- 
herent nature  or  propensities  of  tlie 
animals.* — The  genial  rule  of  the  abso- 
lute liability  of  a  common  carrier  for  the 
safe  transportation  and  delivery  of  property 
committed  to  it  for  carriage  is  applicable, 
although  the  property  consists  of  live 
stock,  but  subject  to  the  exception  that 
it  is  not  an  insurer  against  injuries  re- 
sulting from  the  inherent  nature  or  pro- 
pensities of  the  animals,  and  without 
fault  of  the  carrier.  Lindsley  v.  Chicago, 
M.  (S-  St.  P.  R.  Co.,i\  Am.  &^  Eitg.  R.  Cas. 
86,  36  Minn.  539,  33  A^.  W.  Rep.  7.— Ap- 
proved in  Louisville  &  N.  R.  Co.  v.  Wynn, 
45  Am.  &  Eng.  R.  Cas.  312,88  Tenn.  320, 14 
S.  W.  Rep.  ^i  I. —South  6-  A'.  Ala.  R.  Co.  v. 
Henlein,  52  Ala.  606.  Western  R.  Co,  v. 
Harwell,  45  Am.  &'  Eng.  R.  Cas.  358,  91  Ala. 
340,  8  So.  Rep.  649.  Coupland  v.  Housatouic 
R.  Co.,  55  Am.  &>  Eng.  R.  Cas.  380,  61  Conn. 
531,  23  Atl.  Rep.  870.  Indianapolis  &^  St. 
L.  R.  Co.  V.  Jurey,  8  ///.  App.  160.     Central 

*  Liability  of  carriers  of  live  stock  for  injury 
or  loss  resulting  f'om  the  nature  or  propensities 
of  the  animals,  see  note,  67  Am.  Dkc.  210. 

What  are  injuries  resulting  from  the  inherent 
nature  and  propensities  of  animals  for  which  car- 
rier is  not  liable,  and  liability  where  injury  is 
caused  by  combined  negligence  of  carrier  and 
propensities  of  animals,  see  note,  31  Am.  & 
Eng.  R.  Cas.  91. 


748 


CAKklAGIi   OF    LIVli   STOCK,  24. 


s 


\  rM 


Jf.  &*  li.  Co.  v.S»u//ut,  85  .l/it.  47,  4  So.  KiJ>. 
708.— Approving  Clarke  v.  Rochester  &  S. 
R.  Co.,i4N.  Y.  570;  Michigan  S.&  N.  I.  R. 
Co.  V.  McDonough,  21  Mich.  165;  East 
Teiin.,  V.  &  G.  R.  Co.  v.  Johnson,  75  Ala. 
596.  Quoting  Penn.  v.  Buffalo  &  E.  R. 
Co.,  49  N.  Y.  204.— iV.  Louis  &>  S.  F.  K.  Co. 
V.  Cliirk,  48  Katt.  321,  29  J'ac.  Rep.  312. 
Hall  V.  Renfro,  3  Mete.  {Ky.)  51.— Quoted 
IN  Evans  v.  Fitchburg  R.  Co.,  in  Mass,  142. 
— Evans  v.  Fitchburg  R.  Co.,  iii  Mass.  142. 
JiroTVM  V.  iraias/t,  St.  L.  i^  P.  R.  Co.,  18  Mo. 
App.  >i68. -Following  Potts  v.  Wabash, 
St.  L.  &  P.  R.  Co.,  17  Mo.  App.  y^s.—My- 
Hard  V.  Syracuse,  B.  t&-  A^.  Y.  R.  Co.,  7 1  N. 
Y.  180,  15  Am.  Ry.  Rep.  412,  27  Am.  Rep. 
28;  reiursing  7  Hun  399. — APPLYING 
Palmer  v.  Grand  Junction  R.  Co.,  4  M.  & 
W.  749.  Distinguishing  Cragin  v.  New 
York  C.  R.  Co.,  51  N.  Y.  61.  Following 
Clarke  v.  Rochester  &  S.  R.  Co.,  14  N.  Y. 
573.  Quoting  Smith  v.  New  Haven  &  N. 
R.  Co.,  12  Allen  (Mass.)  531.— Followed 
IN  Holsapple  v.  Rome.  W.  &  O.  R.  Co.,  86 
N.  '^.271.— Louisville  &^  N.  R.  Co.  v.  Wynn, 
45  Am.  &'Eng.  R.  Cas.  312,  88  Tenn.  320, 14 
S,  IV,  Rep.  311.— Approving  Hart  v.  Penn- 
sylvania R.  Co.,  112  U.  S.  331;  Lindsley  z/. 
Chicago,  M.  &  St.  P.  R.  Co.,  36  Minn.  539; 
Ayres  v.  Chicago  &  N.  W.  R.  Co.,  71  Wis. 
372,  Following  Baker  v.  Louisville  &  N. 
R.  Co.,  10  Lea  (Tenn.)  304;  Nashville  &  C. 
R.  Co.  V.  Jackson,  6  Heisk.  (Tenn.)  271 ; 
East  Tenn.,  V.  &  G.  R.  Co.  v.  Hale,  85 
Tenn.  69;  Smitha  v.  Louisville  &  N.  R.  Co., 
86  Tenn.  198 ;  Louisville  &  N.  R.  Co.  v.  Ma- 
son, II  Lea  (Tenn.)  116. — Ayres  v.  Chicago 
6-  A^.  W.  R.  Co.,  35  Am.  &>  Eng.  R.  Cas.  679, 
71  IVis.  372,  5  Am.  St.  Rep.  226,  37  N.  IV. 
Rep.  ^12. — Quoting  Richardson  v.  Chicago 
&  N.  W.  R.  Co.,  18  Am.  &  Eng.  R.  Cas.  530, 
61  Wis.  601 ;  Johnson  v.  Midland  R.  Co.,  4 
Exch.  372.— Approved  in  Louisville  &  N. 
R.  Co.  V.  Wynn,  45  Am.  &  Eng.  R.  Cas.  312, 
88  Tenn.  320,  14  S.  W.  Rep.  311. 

And  for  a  stronger  reason  is  this  so  where 
they  are  shipped  under  a  contract  requiring 
the  owner  to  accompany  them  and  to  take 
the  charge  and  oversight  thereof.  IVabash, 
St.  L.  <S-  P.  R.  Co.  V.  McCasland,  1 1  ///. 
App.  491. 

Where  the  carrier  is  otherwise  free  from 
fault,  it  is  not  liable  for  self-inflicted  injuries 
upon  animals  during  transportion,  nor  for 
injuries  inflicted  by  one  animal  upon  an- 
other, where  they  are  properly  loaded. 
Louisville,  N,  0.  S"  T.  R.  Co.  v.  Bifger,  38 


Am.  &•  Eng.  R.  Cas.  373,  66  Miss.  319,  6 
So.  Rep.  234.  St.  Louis,  L  M.  Sr»  S.  R.  Co.  v. 
Lesser,  46  Ark.  236.  Boehl  v.  Chicago,  M, 
&*  St.  P.  R.  Co.,  45  Am.  6-  Eng.  R.  Cas.  351, 
44  Minn.  191,  46  A'.  W.  Rep.  333. 

Carriers  of  animals  by  a  mode  of  con- 
veyance opposed  to  their  habits  and  in- 
stincts have  not  the  sane  means  of  securing 
absolute  safety  as  the  carriers  of  goods. 
The  animals  may  die  ot  fright  or  by  refus- 
ing to  eat,  or  they  may,  after  every  precau- 
tion, destroy  themselves  in  attempting  to 
break  away,  or  they  may  kill  each  other ; 
and  in  such  cases  the  carrier  is  not  liable  if 
he  has  used  all  proper  care  and  foresight 
to  prevent  injury.  Where,  however,  the 
cause  of  the  injury  is  unconnected  with  the 
conduct  or  propensities  of  the  animals  car- 
ried, the  ordinary  responsibilities  of  the 
carrier  should  attach.  Clarke  v.  Rochester 
&■>  S.  R.  Co.,  14  A^.  Y.  570.— Applying 
Boyce  v.  Anderson,  2  Pet.  (U.  S.)  150; 
Palmer  v.  Grand  Junction  R.  Co.,  4  M.  & 
W.  749.— Approved  in  Central  R.  &  B.Co. 
V.  Smitha,  85  Ala.  47,  4  So.  Rep.  708 ;  Bam- 
berg V,  South  Carolina  R.  Co.,  9  So.  Car.  61. 
Followed  in  Mynard  v.  Syracuse,  B.  &. 
N.  Y.  R.  Co.,  71  N.  Y.  180.  Quoted  in 
Hance?/.  Pacific  Exp.  Co.,  48  Mo.  App.  179. 

A  carrier  of  live  stock  is  not  liable  for  a 
loss  or  injury  that  results  from  overexertion 
or  overheating  of  the  animal  from  its  own 
disposition,  which  is  unprovoked  by  any 
misconduct  of  the  carrier  or  its  servants. 
Chicago,  B.  &*  Q.  R.  Co.  v.    Owen,  21   ///. 

-^PP-  339- 

A  railroad  company  is  not  liable  for  the 
death  of  a  bullock  which,  after  he  has  been 
properly  fastened  in  a  proper  car,  by  his 
own  efforts  and  exertions  releases  himself. 
Great  Western  R.  Co.  v.  Blower,  41  L.  J.  C. 
P.  268,  L.  R.  7  C.  P.  655, 20  IV.  R.  776,  27  L. 
T.  883. 

Where  the  cause  of  damage  to  live  stock 
for  which  recompense  is  sought  from  a  car- 
rier is  connected  with  the  character  or  pro- 
pensities of  the  animals  undertaken  to  be 
carried,  the  ordinary  responsibility  of  the 
carrier  does  not  attach ;  but  where  it  is 
shown  that  such  propensities  are  active 
only  while  tlie  car  in  which  the  animals  are 
carried  is  standing  still,  and  it  appears  that 
the  damage  in  question  occurred  on  ac- 
count of  unusual  delay  caused  by  accident, 
and  that  the  damage  might  have  been 
avoided  by  unloading  the  animals  or  by 
giving  them  personal  attention  during  the 


it 


CARRIAGE   OF   LIVE   STOCK,  25-27. 


749 


Miss.  319,  6 

•  S.  A\  Co.  V. 

Chicago,  At, 

.a:  Crij.jsi, 

ode  of  con- 
lits  and  in- 
sof  securing 
9  of  goods, 
or  by  refus- 
I'ery  precau- 
tempting  to 
each  other; 
not  liable  if 
id  foresight 
)\vever,  the 
ed  with  the 
iniinals  car- 
ties  of  the 
V.  Rochester 
-Applying 
J.  S.)   150; 
o.,  4  M.  & 
R.  &  B.  Co. 
708 ;  Bam- 
3o.  Car.  61. 
cuse,  B.  &. 
lUOTED    IN 
•■  App.  179. 
liable  for  a 
rerexertion 
>m  its  own 
ed  by  any 
;s  servants. 
<en,  21  ///. 

3le  for  the 
e  has  been 
:ar,  by  his 
:s  himself. 
♦iZ./.  C. 
776, 27  Z. 

live  stocic 
rom  a  car- 
ter or  pro- 
ken  to  be 
ity  of  the 
here  it  is 
re  active 
limals  are 
}ears  that 
:d  on  ac- 
accident, 
ave  been 
tis  or  by 
uring  the 


delay  —  held,  that  the  rule  exempting  the 
carrier  did  not  apply.  Kinnick  v.  Chicago, 
K,  I.  «S-  P.  R.  Co.,  27  Atn.  &*  Eng.  R.  Cas. 
55,  69  /owa  665,  29  A',  py.  Rep.  772. 

25.  Accidents  attribiital>lc  to  the 
vitality  of  the  fk-eight.— Tlie  common- 
law  rule  making  common  carriers  of  mer- 
chandise liable  as  insurers,  except  for  injury 
or  loss  resulting  from  the  act  of  God  or  the 
public  enemy,  is  modified  as  to  carriers  of 
live  stock,  to  the  extent  of  relieving  them 
from  liability  for  injuries  or  loss  resulting 
by  reason  of  the  vitality  of  the  freight. 
Cragin  v.  New  York  C.  R.  Co.,  51  A'.  >'.  61, 
4  Am.  Ry.  Rep,  418.— Applied  in  Nicholas 
V.  I,\w  York  C.  &  H.  R.  R.  Co.,  4  Hun 
(N.  Y.)  327;  Steiger  v.  Eric  R.  Co.,  5  Hun 
(N.  Y.)  345.  Distinguished  in  Mynard  v. 
Syracuse,  B.  &  N.  Y.  R.  Co..  71  N.  Y.  180. 
Followed  in  Hayman  v.  Philadelphia  & 
R.  R.  Co.,  8  N.  Y.  S.  R.  86.  22  J.  &  S.  158. 
Quoted  in  Rubens  v,  Ludgate  Hill  Steam- 
ship Co..  20  N.  Y.  Supp.481.  Reconciled 
IN  Mynard  v.  Syracuse,  B.  &  N.  Y.  R.  Co., 
71  N.  Y.  \%o.—Dow  V.  Portland  Steam 
Packet  Co.,  84  Me.  490,  24  All.  Rep.  945. 
Hayman  v.  Philadelphia  &*  R.  R.  Co.,  8  N. 
V.  S.  R.  86.— Following  Cragin  v.  New 
YorkC.  R.  Co.,  51  N.  Y.  61. 

In  the  transportation  of  live  stock,  the 
carrier,  in  the  absence  of  negligence,  is  not 
responsible  for  such  injuries  as  occur  in 
consequence  of  the  vitality  of  the  freight ; 
that  is,  such  injuries  as  are  able  to  occur 
to  live  animals  by  reason  of  their  being 
alive,  and  not  to  ordinary  merchandise. 
Chicago,  R,  I,  &*  P.  R.  Co,  v.  Harmon,  12 
///.  App.  54. 

Where  a  mare  while  in  a  car  becomes 
overheated  by  reason  of  the  hot  weather,  and 
the  carrier  does  not  by  any  act  of  negligence 
contribute  to  the  result,  it  cannot  be  held 
liable  for  her  death  ;  that  is.  if  the  mare  died 
from  her  lack  of  inherent  vitality  and  not 
from  any  want  of  proper  ventilation  or  care. 
Chicago,  R.  I.  &*  P.  R,  Co,  v.  Harmon,  1 2 
///.  App,  54. 

26.  Injuries  not  attributable  to 
any  known  cause. — A  railway  company 
is  not  liable  for  an  unexplained  injury  to  a 
horse  delivered  to  it  for  carriage,  where  it 
shows  that  nothing  unusual  occurred  to 
the  train  during  the  journey.  Kendall  v, 
London  &*  S,  W,  R.  Co.,  41  L.J,  Ex.  184. 
L,  R,  7  Ex,  373,  20  W,  R,  886.  26  L,  T,  735. 

Where  it  appears  that  the  hoof  of  a  mule 
was  torn  off,  and  there  is  nothing  to  show 


whether  it  was  done  011  tlie  train  or  after 
it  left  it.  but  it  does  appear  that  the  car 
in  which  it  was  carried  was  suitable,  that 
the  track  was  in  good  ccjtidition,  that  the 
equipments  and  appliances  of  the  train 
were  adequate,  and  that  there  was  no 
culpable  delay  in  the  transit,  and  no  fault, 
negligence,  or  want  of  care  on  the  part 
of  ihe  carrier  in  handling  the  mule  or 
in  the  innagement  of  the  train,  the  carrier 
is  not  l'ali.(  for  tlie  injury,  which  may  have 
been  self-inflicted  or  caused  by  oilier  mules 
in  the  .iam<!  car.  Louisvillf,  A'.  O.  &*  T.  R. 
(■  •  ^^'jfA'"'.  38  -->''"■  <S*  E»g.  R.  Cas,  373, 
66  Miss.  319,  6  .S'l/.  Rep.  234. 

An  injin  was  caused  by  the  breaking  of 
a  wh'M  1  under  a  freight  car  m  the  train, 
which  threw  the  car  containing  plaintiff's 
horses  from  the  track.  The  track  was  in 
good  order ;  the  wheel  had  been  used  for 
only  a  short  time,  and,  upon  inspection 
after  the  accident,  showed  no  flaw  01  defect ; 
and  there  \.'as  no  evidence,  except  the  mere 
fact  of  its  breaking,  which  tended  to  show 
negligence  of  the  company.  Htld,  that 
there  was  no  error  in  directing  :i  verdict  for 
the  aefendant.  Morrison  v.  Phillips  &^  C. 
Constr.  Co.,  44  Wis.  405,  19  „•/;;/.  Ry,  Rep, 
312.— Reviewed  in  Ballou  v.  Ciiicago  &  N. 
W.  R.  Co.,  5  Am.  &  Eng.  R.  Cas.  480,  54  Wis. 
257,  41  Am.  Rep.  31. 

27.  Notice  to  carrier  of  value  or 
peculiar  condition  of  aiiliualN.— The 
owner  of  an  animal  possessing  special  value 
is  not  required  to  notify  the  carrier  of  the 
fact  at  the  time  of  shipment,  and  in  not 
doing  so  no  fraud  is  committed.  Ordinarily 
one  animal  is  entitled  to  the  same  care  in 
shipment  as  another,  regardless  of  its  value, 
and  if  the  carrier  has  any  special  rule  or 
custom  binding  its  servants  to  give  care  to 
animals  proporti(jned  to  their  value,  it  is 
its  duty  to  inquire  of  the  shipper  whether 
an  animal  possesses  any  special  value  before 
it  undertakes  the  carriage.  Chicago,  R.  I.  &• 
P,  R.  Co.  V.  Harmon,  1 2  ///.  App.  54. 

The  failure  of  the  owner  of  stock  shipped 
to  inform  the  agent  of  the  carrier  that  the 
physical  condition  of  the  animals  renders 
extraordinary  care  necessary  in  their  hand- 
ling will  not  release  the  carrier  from  liabil- 
ity for  negligence  causing  injury  to  the 
stock.  McCune  v.  Burlington,  C.  R.  &•  N. 
R,  Co.,  52  Iowa  600,  3  A^.  W.  Rep.  615. 

Where  pregnant  cows  are  shipped,  the 
owner  may  recover  from  the  carrier  dam- 
ages for  a  loss  of  the  calves  by  premature 


750 


CARRIAGE   OF    LIVE    STOCK,  28,30. 


i 


birth,  caused  by  injuiies  resulting  from  the 
negligence  of  the  carrier,  and  it  is  not 
necessary  to  shov;  that  the  company  knew 
that  the  cows  were  with  calf.  New  York, 
L.  E.  &•  W.  R.  Co.  V.  Estill,  147  C/.  5.  591, 13 
Sup.  a.  Rep.  444 ;  affirming  41  Fed.  Rep. 
849. 

28.  Duty  to  side-track  or  lay  off 
car.* — Where  the  owner  of  horses  controls 
the  arranging  of  them  in  a  car  for  ship- 
ment, and  arranges  them  so  tliat  it  is  diffi- 
cult to  take  them  out,  and  a  lay-ofT  on  the 
route  becomes  necessary  to  save  the  horses 
from  death,  the  owner  cannot  insist  that 
the  car  be  laid  off  and  then  carried  on 
under  the  same  contract.  His  right 
to  secure  the  lay-off  depends  upon  his 
contracting  anew  for  the  use  of  the  car  for 
a  longer  time;  and  if  he  refuses  to  do  this, 
the  carrier  may  continue  the  journey,  and 
will  not  be  liable  for  loss  or  injury  to  the 
horses.  Illinois  C.  R.  Co.  v.  Peterson,  49 
Am.  &*  Eng.  R.  Cas.  171,  68  Miss.  454,  10 
So.  Rep.  43. 

Where  the  shipper  of  horses  sues  the  com- 
pany to  recover  for  horses  that  die  by  reason 
of  the  company  refusing  to  allow  a  lay-off, 
tlie  rights  of  the  parties  will  not  be  deter- 
mined by  U.  S.  Rev.  St.  §  4386,  making  it  a 
crime  to  transport  animals  under  an  inter- 
suite  shipment  for  more  than  twenty-eight 
hours'  travel  without  stopping  to  unloaJ, 
water,  and  feed.  Illinois  C.  R.  Co.  v.  Peter- 
son, 49  Am.  &•  Eng.  R.  Cas.  171,  68  Miss. 
454,  10  So.  Rep.  43. 

Where  a  shipper  hires  an  entire  car  and 
loads  it  with  what  are  termed  "  emigrants' 
movables,"  including  horses,  under  a  con- 
tract requiring  him  to  feed  and  care  for  the 
animals,  and  to  accompany  the  car  and  load 
and  unload  it  at  his  own  risk  and  expense, 
and  exempting  the  company  ..om  liability 
for  delays,  the  company  is  not  required  to 
lay  the  car  off  along  the  route  for  the  pur- 
pose of  allowing  the  horses  to  be  rested  and 
the  loading  of  the  car  rearranged.  Illinois 
C.  R.  Co.  v.  Peterson,  49  Am.  &*  Eng.  R. 
Cas.  171,  68  Miss.  454,  10  So.  Rep.  43. — 
Distinguishing  Kinnick  v.  Chicago,  R.  I. 
&  P.  R.  Co.,  27  Am.  &  Eng.  R.  Cas.  55  69 
Iowa  665. 

Where  it  appeared  that  the  agents  of  the 
carrier  were  informed  that  the  transporta- 
tion was  cauiing  fright  to  the  animals,  and 
that  there  was  danger  of  their  being  killed 

*  See  also /oj/,  43. 


or  hurt  by  further  transportation,  it  was  the 
carrier's  duty  to  sidetrack  the  car,  upon  the 
request  of  plaintiff's  agents,  if  it  could  have 
done  so  with  reasonable  convenience  ;  and 
whether  or  not  the  defendant  was  guilty 
of  negligence  in  not  stopping  the  car  was  a 
question  for  the  jury,  taking  into  considera- 
tion the  value  of  the  animals  and  the  fact 
that  their  ultimate  destination  was  but  a 
short  distance  further  on.  Coupland  v, 
Housatonic  R.  Co.,  55  Am.  6-  Eng.  R.  Cas, 
380,  61  Conn.  531,  23  Ail.  Rep.  870. 

2.  Food  and  Water. 

20.  Duty  to  provide  food  and 
water.* — It  is  the  duty  of  the  company  to 
provide  water  at  suitable  points  on  the 
line  of  its  road  for  the  use  of  stock,  and 
where  hogs  while  being  transported  died 
for  the  want  of  water,  it  was  held  that  tlie 
company  was  liable.  Toledo,  IV.  &*  IV.  R. 
Co.  v.  Hamilton,  76  ///.  393. — Following 
Illinois  C.  R.  Co.  v.  Adams,  42  111.  474. 

Where  a  carrier  receives  live  stock  for 
transportation,  and  a  loss  is  sustained  by  the 
owner  in  consequence  of  their  not  being 
supplied  with  water,  the  burden  of  proof 
to  show  an  exemption  from  liability  rests 
upon  the  carrier.  Toledo,  IV.  &»  IV,  R.  Co. 
v.  Hamilton,  76  ///.  393. 

It  is  prima-facie  evidence  of  negligence 
for  a  railroad  to  permit  its  pump  at  a  sta- 
tion to  be  out  ot  repair,  so  that  water  can- 
not be  provided  for  live  hogs  on  its  train ; 
and  it  is  for  the  company  to  explain  why 
the  pump  is  so  out  of  repair,  and  show  that 
it  is  not  by  their  negligence.  Toledo,  IV.  &» 
IV.  R.  Co.  v.  T/tompson,  71  111.  434. 

A  provision  in  a  contract  for  the  shipment 
of  live  stock,  providing  that  the  sliipper 
shall  accompany  the  stock  and  feed  and 
care  for  them  at  his  own  risk,  does  not  re- 
lieve the  carrier  from  the  duty  oi  providing 
water  for  the  stock  at  suitable  points  along 
the  line,  so  that  the  owner  can  give  it  to 
the  stock.  tVadasA,  St.  L.  &*  P.  R.  Co.  v. 
Pratt,  15  Ill.App.  177. 

The  carrier,  having  the  control  of  the 
train,  is  responsible  for  any  injury  to  the 
cattle  from  their  not  being  watered  at  a 
place  of  detention.  The  owner  was  not  re- 
quired to  demand  that  the  train  should  pro- 
ceed, nor  to  persist  in  attempting  to  water 


*  Feeding  and  watering  live  stock  in  transit, 
see  note,  16  Am.  &  Eng.  R.  Cas.  171 


T 


CARRIAGE   OF   LIVE   STOCK,  30, 31. 


751 


I,  it  was  the 
r,  upon  the 
could  have 

lience  ;  and 
was  guilty 

le  car  was  a 

>  considcra- 

nd  the  fact 
was  but  a 

"oupland  v. 

>if .  R.  Can, 


'oocl    and 

:ompany  to 
Its  on  the 
stock,  and 
•orted  died 
:id  that  the 
'.  (^  W.  R. 
"OLLOWING 

111.  474. 

stock  for 
ined  by  the 

not  being 
n  of  proof 
bility  rests 

W.  K.  Co. 

negligence 
ip  at  a  sta- 
water  can- 
1  its  train ; 
cplain  why 
I  show  that 
'edo,  IV.  <S- 

W 

e  shipment 
le  siiipper 
feed  and 
)es  not  re- 
providing 
ints  along 
give  it  to 
R.  Co.  V. 

ol  of  the 
ry  to  the 
ered  at  a 
as  not  re- 
lould  pro- 
to  water 

in  transit, 


the  cattle  until  forcibly  resisted.  Harris  v. 
Northern  Ind.  R.  Co.,  20  N.  V.  232. 

Where  a  shipper  of  live  stock  claims 
damages  from  the  carrier  by  reason  of  its 
failure  to  feed  and  water  them,  it  is  not 
error  for  the  court  to  instruct  the  jury  to 
find  for  the  shipper  if  the  carrier  failed  to 
deliver  the  cattle  according  to  contract,  and 
delivered  them  in  a  bad  condition — not 
worth  as  much  as  when  shipped — there  being 
no  evidence  upon  which  the  jury  could  find 
damages  against  the  carrier,  except  for  fail- 
ing to  feed  and  water.  Taylor,  D.  &^  H.  R. 
Co.  V.  Montgomery,  4  Tex.  App.  (jCiv.  Cas.) 
401,  16  5.  W.Rep.  178. 

Cattle  are  injured,  within  the  meaning 
of  §  7  of  the  Railway  and  Canal  Traffic 
Act,  where  they  suffer  damage  in  conse- 
quence of  delay  and  from  want  of  food  and 
water.  Allday  v.  Great  Western  R.  Co.,  5 
£.  6^  S.  903,  1 1  /ur.  N.  S.  1 2,  34  L.  J.  Q. 
B.S.  13  "'■^■43.  II  L.  T.  267. 

30.  Duty  to  unload  and  have  fa- 
cilities therefor.*— Whenever  it  may  be- 
come necessary  to  unload  live  stock  during 
transit  for  the  purpose  of  watering  or  feed- 
ing, it  is  the  duty  of  the  carrier  to  have  the 
proper  facilities  for  unloading.  Dunn  v. 
Hannibal  &^  St.  J.  R.  Co.,  68  Mo.  268, 

Where  the  shipper  of  hogs  sues  to  recover 
damages  by  reason  of  the  company  not  pro- 
viding suitable  pens  in  which  to  feed  stock, 
an  instri^iction  to  the  effect  "  that  if  the 
defendant's  pens  furnished  plaintiff's  stock 
were  good  and  suitable  in  ordinary  good 
weather,  but  were  muddy  by  reason  of  re- 
cent rains,  then  defendant  would  not  be 
responsible  for  damages  resulting  from  the 
condition  of  the  pens,"  is  properly  refused, 
as  it  is  the  duty  of  the  company  to  provide 
suitable  pens  in  any  kind  of  weather,  so  far 
as  this  can  be  done  by  the  use  of  proper 
care.  International  &*  G.  N.  R.  Co.  v.  Mc- 
Rae,  8»  Tex.  614,  18  S.  IV.  Rep.,  672. 

31.  Liability  under  contract  or 
custom  that  owner  will  feed  and 
water.f — A  provision  in  a  contract  for  the 
shipment  of  mules,  providing  that  the  com- 
pany shall  not  be  bound  t  feed,  water,  or 
care  for  them,  but  that  the  rwner,  in  con- 


*  Duty  of  carriers  of  live  stock  to  unload,  feed, 
and  water,  see  note,  49  Am.  &  Eng.  R.  Cas. 
I75. 

f  Effect  of  contract  that  shipper  of  live  stock 
is  to  accompany  them  and  attend  to  loading  and 
unloading  and  feeding,  see  note,  14  L.  R.  A. 
SSO. 


sideration  of  a  free  pass,  shall  accompany 
them  for  that  purpose,  releases  the  company 
from  liability  for  damages  resulting  from  a 
want  of  food  or  water.  Central  R.  C/.  v. 
Bryant,  73  Ga.  722. 

Where  the  stipulation  in  a  special  con- 
tract contemplated  that  the  shipper  or  his 
agent  should  accompany  the  stock  while  in 
transitu,  and  contained  a  provision  that,  in 
case  of  accident  or  delay,  it  should  be  the 
duty  of  the  shipper  or  agent  to  feed,  water, 
and  take  care  of  the  stock,  the  court  should 
have  given  the  charge  requested  by  defend- 
ant, that  "under  this  contract  it  was  the 
duty  of  the  plaintiff  or  one  of  his  agents  to 
accompany  this  stock ;  and,  if  the  loss  or 
damage  was  the  result  of  his  not  accompany- 
ing the  stock,  then  he  could  not  recover." 
Georgia  R.  &•  B.  Co.  v.  Reid,  55  Am.&'Eng. 
R.  Cas.  363,  91  Ga.  277,  '7  S.  E.  Rep.  934. 

Where  a  clause  in  a  contract  of  shipments 
stipulates  that  the  consignor  is  to  feed  and 
water  the  stock  while  in  transit,  an  instruc- 
tion that  the  carrier  is  liable  if  it  failed  to 
give  the  consignor  an  opportunity  to  feed 
and  water  the  stock  is  erroneous,  where 
there  is  no  evidence  showing  that  the 
consignor  asked  for  an  opportunity  to  feed 
and  water.  Mobile  •  O.  R.  Co.  v.  Francis, 
(Miss)  9  So.  Rep.  508. 

A  provision  in  a  contract  for  shipment  of 
live  stock,  providing  that  the  owner  was  to 
feed  and  water  the  stock,  and  that  the  com- 
pany should  afford  reasonable  facilities  for 
doing  so,  does  not  relieve  the  company 
from  the  duty  of  feeding  and  watering, 
where  the  animals  are  carried  beyond  their 
place  of  destination  and  there  detained 
several  days  before  they  are  returned. 
Bryant  v.  Southwestern  R.  Co.,  6  Am.  &• 
Eng.  R.  Cas.  388,  68  Ga.  805. 

The  duty  which  the  law  imposes  upon 
carriers  of  live  stock  to  properly  feed  and 
care  for  them  during  transportation  cannot 
be  transferred  to  the  owner  by  a  mere 
custom  requiring  him  to  go  on  the  same 
train  and  care  for  them  at  his  own  risk  and 
expense.  Missouri  Pac.  R.  Co.  v.  Pagan, 
35  Am.  &«•  Eng.  R.  Cas.  666,  72  Tex.  127,  9 
S.   W.  Rep.  749,  2  Z.  R.  A.  75. 

A  requirement  by  a  railroad  company 
that  the  shipper  of  live  stock  shall  accom- 
pany such  stock  and  provide  for  it  at  liis 
own  risk  and  expense,  as  a  condition  to  re- 
ceiving such  stock  as  freight,  is  unreasona- 
ble ;  and  defendant,  in  an  action  for  the  loss 
of  such  stock,  cannot  prove  such  custom  in 


752 


CARRIAGE   OF   LIVE   STOCK,  32-34. 


-V 


i,     X 


order  to  avoid  liability  for  failure  to  so  pro 
vide  and  care  for  the  stock.    Missouri  Pac. 
R.  Co.  V.  Fagan,  35  Am,  &>  Eng.  R.  Cas. 
666,  72  Tex.  127,  9  S.  W.  Rep.  749,  2  L.  R. 
A.7S. 

Where  live  stock  are  shipped  under  a  con- 
tract that  the  shipper  shall  feed  and  water 
them  while  en  route  the  carrier  cannot  avoid 
liability  for  a  failure  to  properly  feed  and 
water,  without  showing  that  it  offered  the 
shipper  reasonable  facilities  for  doing  so ; 
neither  will  the  shipper's  failure  to  notify 
the  carrier  of  his  wish  and  readiness  to  feed 
and  water  affect  the  carrier's  liability. 
Taylor,  B.  &•  H.  R.  Co.  v.  Montgomery,  4 
Tex.  App.  (Civ.  Cas.)  401,  16  S.  IV.  Rep. 
178. 

32.  Retlisal  to  allow  shipper  to  11 11- 
load. — Where  cattle  are  shipped  under  a 
contract  providing  that  the  owner  shall 
accompany  tliem  and  care  for  them  in  feed- 
ing and  watering,  and  shall  assume  the  risk 
of  damage  sustained  by  delay,  and  the  train 
is  delayed  by  a  flood  submerging  the  track, 
the  company  is  not  bound  to  unload  the 
cattle  ;  but,  upon  being  requested  to  do  so, 
it  is  bound  to  place  the  cars  in  a  convenient 
and  accessible  place,  if  practicable,  where 
the  owner  can  unload  and  care  for  the 
stock;  and  if  it  fail;,  to  do  so  it  is  liable  for 
injuries.  Bi7/s  v.  New  York  C.  R.  Co.,  3  Am. 
<S-  Eng.  R.  Cas.  318,  84  N.  V.  5. 

That  the  company's  stock-yards  at  its 
feeding-station  were  r  n  fire  when  the  train 
arrived  there  was  no  sufficient  excuse  for  not 
furnishing  to  the  person  in  charge  of  the 
horses,  in  compliance  with  the  contract  of 
shipment,  all  proper  facilities  for  taking  care 
of  them,  nor  for  not  ^topping  the  car  con- 
taining them  there  or  at  some  other  station, 
in  compliance  with  the  statute,  so  that  they 
might  be  unloaded,  watered,  and  fed.  Nash- 
ville, C.  6-  St.  L.  R.  Co.  V.  Heggie,  86  Ga. 
210,  12  S.  E.  Rep.  363. 

Nor  is  the  company  excused  from  lia- 
bility by  the  fact  that  the  person  in  charge 
of  the  stock  was  deficient  in  urging  com- 
pliance with  the  statute,  for  the  company's 
servants  should  have  known  of  such  want 
of  diligence  on  his  part,  and  it  was  their 
duty  to  select  the  place  for  stopping  with  or 
without  his  request.  Nashville,  C.  &*  St. 
L.  R.  Co.  V.  Htggie,  86  Ga.  210,  12  S.  E. 
Rep,  363. 

Animals  were  shipped  under  a  provision 
of  the  contract  that  the  owner  should  accom- 
pany, attend,  and  feed  them.  At  an  interme- 


diate station  the  train  was  delayed  16  hours 
by  reason  of  a  collision  at  another  point. 
During  this  time  the  owner  proposed  to 
unload  the  cattle  and  water  them,  but  re- 
frained from  doing  so  upon  being  told  that 
the  train  might  start  in  ten  minutes.  Held, 
in  an  action  for  damages,  that  it  was  proper 
to  submit  to  the  jury  whether  this  amounted 
to  a  refusal  to  permit  the  owner  to  unload 
the  cattle.  Harris  v.  Northern  Ind,  R.  Co. , 
20  N.  V.  232. 

33.  Loss  in  reloading:  after  stop  to 
feed  and  water. — The  defendant  com- 
pany agreed  to  deliver  cattle  from  a  point 
on  its  line  to  a  point  on  the  line  of  the  V. 
M.  Railway,  to  the  latter  company  at  Lynch- 
burg, and  plaintiff  agreed  to  load,  transfer, 
and  unload  them  at  his  own  cost.  At  R.,  a 
regular  feeding- place  for  stock  in  transitu, 
necessary  arrangements  for  unloading,  feed- 
ing, and  reloading  were  provided  by  the 
company,  and  there  a  mistake  in  reloading 
occurred,  by  defendant's  default,  whereby 
some  of  plaintiff's  cattle  were  sent  to 
another  point  ai.d  other  cattle  were  mixed 
with  his.  Held,  that  the  company  was  liable 
for  the  consequent  loss.  Norfolk  &>  W,  R. 
Co.  V.  Sutherland,  89  Fa.  703. 

34.  Penalty  for  keepinjir  cattle  in 
cars  more  than  28  consecutive 
hours.— Under  U.  S.  Rev.  St.  §  4386,  for  a 
railroad  company  to  keep  live  stock  upon 
its  cars  for  more  than  twenty-eight  con- 
secutive hours,  without  unloading  for  rest, 
water,  and  food,  is  negligence  per  se ;  and 
such  company  is  liable,  not  only  for  the 
penalty  prescribed  in  the  statute,  but  also 
for  any  damage  or  injury  that  may  thereby 
be  sustained  by  the  owner  of  the  stock. 
Nashville,  C.  &•  St.  L.  R.  Co.  v.  Heggie,  86 
Ga,  210,  12  S,  E,  Rep,  363. 

The  above  statute  does  not  apply  to  the 
carriage  of  animals  between  points  in  the 
same  state,  but  only  where  the  carriage  is 
from  one  state  to  another.  United  States 
v.  East  Tenn.,  V.  &*  G.  R,  Co  ,  g  Am,  &* 
Eng  R,  Cas,  259,  13  Fed.  Rep.  642. 

The  statute  is  within  the  power  of  con- 
gress to  regulate  interstate  commerce. 
United  States  v.  Boston  &*  A.  R.  Co.,  1 5  Fed, 
Rep,  209. 

"The  penalty  provided  is  not  to  be  reck- 
oned upon  the  number  of  animals  confined, 
the  confinement  of  dl  being  carried  consti- 
tuting but  one  offense.  United  States  v. 
Boston  «S-  A.  R.  Co.,  1 5  Fed.  Rep.  209. 

One  of  several  connecting  lines  is  liable 


m 


■■(n— - 


CARRIAGE   OF   LIVE   STOCK,  35, 36. 


r53 


only  for  a  violation  of  the  statute  which 
occurs  on  its  own  line ;  but  where  the  stock 
have  been  confined  a  part  of  the  twenty- 
eight  hours  on  one  line,  that  time  is  counted 
against  the  next  succeeding  carrier  in  de- 
termining whether  it  violates  the  statute. 
United  States  v,  Louisville  &-  N.  R.  Co.,  i8 
Fed.  Rep.  480. 

A  violation  of  the  statute  will  not  of 
itself  render  the  carrier  liable  where  the 
animals  are  shipped  under  a  special  con- 
tract providing  that  the  owner  shall  accom- 
pany them  and  care  for,  feed,  and  water 
them  on  the  road,  and  where  there  is  no 
evidence  to  show  wiiat  part  of  the  damages 
was  caused  by  a  failure  to  feed  and  water. 
Missouri  Pac.  R.  Co.  v.  Texas  &*  P.  R.  Co., 
41  Fed.  Rep.  913. 

The  statute  imposes  a  penalty  "unless 
prevented  from  so  unloading  by  storm  or 
other  accidental  causes."  There  is  a  further 
exception  where  animals  "  have  proper  food, 
water,  space,  and  opportunity  to  rest"  on 
the  cars,  //eld,  that  in  addition  to  the  pen- 
alty imposed  by  statute,  a  railway  company 
which  failed  to  comply  with  the  above  re- 
quirement would  be  liable  in  damages  to 
the  owner  of  the  stock  ;  but  that  to  state  a 
cause  of  action  the  petition  must  show  that 
the  case  is  not  within  the  exceptions  named. 
//ale  V.  Missouri  Pac.  R.  Co.,  36  Ned.  266, 
54  iV.  IV.  Rep.  517. 

The  statute  does  not  confer  upon  carriers 
the  privilege  of  confining  the  animals  for 
twenty-eight  hours,  if  doing  so  would  be 
negligent.  The  question  of  negligence  on 
the  part  of  the  carrier  in  handling  stock, 
unloading,  feeding,  and  watering,  for  which 
a  civil  action  might  lie  for  damages,  io  still 
left  as  at  common  law,  notwithstanding  the 
statute.  Missouri  Pac.  R.  Co.  v.  /vy,  79 
Tex.  444,  155.  W.  Rep.  692. 

35.  Penalty  for  failure  to  feed  dur- 
ing transit. — Under  a  statute  which  im- 
poses upon  common  carriers  a  penalty  for 
failure  to  feed  live  stock  during  transit,  the 
statutory  grounds  of  liability  should  be 
particularly  set  forth  in  an  action  for  the 
penalty,  and  should  be  clearly  established 
by  the  proof;  and  where  two  places  were 
alleged  to  be  the  feeding-stations  on  the 
route,  and  the  evidence  shows  that  the  cat- 
tle were  fed  atone,  and  it  is  not  satisfactorily 
shown  that  they  were  not  fed  at  the  other, 
there  can  be  no  recovery.  Good  v.  Galveston, 
H.  <S-  S.  A.  R.  Co.,  (Tex.)  40  Am.  &*  Eng. 
R.  Cas.  98,  1 1  S.  IV.  Rep.  854. 
I  D.  R.  D.— 48. 


3.  Delays  in  Transit. 


36.  Duty  to  complete  transit 
irithin  a  reasonable  time.—  A  carrier 
is  liable  for  all  damage  that  is  referable  to 
the  natural  effect  of  a  negligent  delay  in 
transportation  upo.i  the  normal  condition 
or  latent  propensities  of  the  animals,  where- 
by they  are  reduced  in  weight  or  strength 
more  than  they  would  have  been  if  prompt 
carriage  and  delivery  had  been  made. 
Richmond  &»  D.  R.  Co.  v.  Trousdale,  (Ala.) 
55  Am.  &*  Eng.  R.  Cas.  400,  13  So.  Rep.  23. 

Where  there  is  unreasonable  delay  on  the 
part  of  a  carrier  in  the  transportation  and 
delivery  of  live  stock,  after  which  the  stock 
is  found  to  be  in  an  unsound  condition,  the 
burden  is  on  the  carrier  to  prove  that  the 
bad  condition  of  the  stock  is  not  due  to 
the  unreasonable  delay.  Richmond &*D.  R. 
Co.  V.  Trousdale,  (Ala.)  55  Am.  &*  Eng.  R. 
Cas.  400,  1 3  So.  Rep.  23.  //arris  v.  North- 
ern /nd.  R.  Co.,  20  N.  V.  232.  Doug- 
lass V.  //annibal  &*  St.  J.  R.  Co.,  S3  Mo. 
App.  473- 

Common  carriers  are  not  liable  for  losses 
occasioned  by  an  inherent  defe  of  the 
article  causing  its  destruction,  nor  for  the 
loss  of  weight  in  cattle  transported  by  rail ; 
but  every  reasonable  effort  must  be  used  to 
deliver  property  at  its  destination  in  proper 
time,  and  an  omission  to  perform  this  duty 
creates  a  liability,  and  all  proximate  dam- 
ages resulting  from  a  neglect  of  it  may  be 
recovered.  Ohio  &•  M.  R.  Co.  v.  Dunbar, 
20  ///.  623. 

Where  a  company  receives  cattle  as  a 
commor  carrier  the  law  imposes  the  duty 
to  carry  them  to  their  destination  within  a 
reasonable  time,  and  for  a  failure  through 
gross  negligence  to  do  so  an  action  on  the 
case  will  lie,  whether  the  cattle  were  shipped 
under  a  special  contract  or  not.  Wabash, 
St.  L.  &*  P.  R.  Co.  v.  McCasland,  u  ///. 
App.  491. 

Before  a  train  reached  a  point  where  the 
track  was  submerged  by  unusual  water  the 
owner  of  live  stock  was  informed  of  the  fact, 
and  he  requested  the  conductor  to  place 
the  cars  in  which  his  stock  were  in  a  con- 
venient position  for  unloading,  which  the 
conductor  refused  to  do.  //eld,  in  an  action 
for  damages,  that  it  was  not  error  to  charge 
the  jury  that  if  they  "believed  that  the 
conductor  had  reason  to  think  that  he 
could  run  the  train  through  without  serious 
detention,  defendant  would   not  be  liable 


HP 


754 


CARRIAGE   OF   LIVE  STOCK,  37-39. 


because  of  such  refusal."  Bills  v.  New  York 
C.  R.  Co.,  3  Am.  &*  Eng.  R.  Cas.  318,  84 
N.  Y.  5. 

Though  a  railway  company  which  receives 
cattle  for  transportation  may  not  contract  to 
carry  them  on  a  train  devoted  for  the  trip 
to  that  exclusive  purpose  or  to  carry  the 
cattle  at  a  designated  rate  of  speed,  the 
duty  remains  to  carry  them  with  reasonable 
dispatch,  in  view  of  the  character  of  the 
freight  and  its  liability  to  injury  from  delay ; 
and  evidence  showing  neglect  in  this  regard 
is  admissible,  under  proper  averments,  in  a 
suit  against  the  company  for  damages. 
Gulf,  C.  &*  S.  F.  R.  Co.  V.  Ellison,  70  Tex. 
491,7  s.  W.Rep.y^s. 

37.  liiability  for  fall  in  market 
price.* — Where  hogs  are  delayed  in  transit 
by  the  negligence  of  the  carrier,  the  meas- 
ure of  damages  is  the  difference  between 
the  market  value  of  the  hogs  at  the  time 
they  should  have  been  delivered  and  the 
time  they  were  delivered,  together  with  any 
expense  that  the  owner  has  been  put  to  in 
consequence  of  the  detention.  Sangamon 
&-  M.  R.  Co.  V.  Henry,  14  ///.  156. 

Where  a  company  only  contracts  to  carry 
live  stock  to  the  end  of  its  own  line,  but 
knows  that  the  stock  are  destined  to  a  point 
beyond,  it  is  liable  for  damages,  caused  by  a 
delay  in  not  promptly  carrying,  by  reason 
of  a  fall  in  the  market  at  the  place  of  desti- 
nation, though  the  fall  occurs  after  it  has 
delivered  to  the  next  carrier.  Sisson  v. 
Cleveland &*  T.  R.  Co.,  14  Mich.  489. 

38.  Knowledge  that  shipment  is 
intended  for  immediate  sale.— Where 
cattle  are  shipped  with  the  intention  of 
selling  in  the  market  on  a  particular  day,  in 
order  to  charge  the  carrier  with  damages 
caused  by  delay,  whereby  the  benefit  of  the 
market  of  that  day  is  lost,  it  must  be  shown 
that  it  had  knowledge,  or  from  the  circum- 
stances of  the  case  might  reasonably  have 
inferred,  that  the  cattle  were  intended  for 
that  day's  market.  Philadelphia.  W.  6-  B. 
R.  Co.  v.  Lehman,  6  Atyi.  5-  Eng.  R.  Cas. 
194,  56  Md.  209,  40  Am.  Rep.  415. 

If  the  agent  of  a  railroad  company,  at  the 
time  of  the  snipment  of  cattle  to  a  distant 
market,  knows  that  they  are  being  shipped 
there  for  immediate  sale,  the  carrier  is 
affected  with  knowledge  of  this  fact.  Ft. 
Worth  &*  D.  C.  R.  Co.  v.  Greathouse,  49 
.4m.  &•  Eng.  R.  Cas.  157,  82  Tex.  104,  17 
S.  fV.  Rep.  834. 

•  See  also  pest,  158.  " 


There  can  be  no  recovery  against  a  rail> 
road  for  an  unnecessary  delay  in  shipping 
cattle,  whereby  they  are  so  reduced  and 
emaciated  that  the  owner  could  not  sell 
them  for  the  price  that  he  had  contracted 
for,  in  the  absence  of  an  allegation  and 
proof  that  the  company  knew  that  the 
cattle  were  being  shipped  to  fill  a  contract, 
or  that  it  was  important  to  have  them  at 
their  destination  at  a  given  time.  Gulf,  C. 
&•  S.  F.  R.  Co.  v.  Cole,  4  Tex.  App.  (Crv. 
Cas.)  144,  16  S.  W.  Rep.  176. 

4.  Negligence  on  Part  of  Company. 

39.  When  presumed— Burden  of 
proof.* — The  burden  of  proof  rests  upon  a 
carrier  of  live  animals  to  show  that  loss 
resulted,  not  from  its  negligence,  but  from 
some  other  cause  for  which  it  was  not  re- 
sponsible. Louisville  «&*  A'^.  R.  Co.  v.  Wynn, 
45  Am.  &*  Eng.  R.  Cas.  312,  88  Tenn.  320, 
14  S.  W.  Rep.  311.— Quoted  in  Louisville 
&  N.  R.  Co.  V.  Manchester  Mills,  88  Tenn. 
653,  14  S.  W.  Rep.  314. 

Where  a  carload  of  horses  are  shipped, 
but  two  are  missing  at  the  place  of  destina- 
tion, in  the  absence  of  any  explanation  the 
carrier  is  liable  for  their  value.  Missouri 
Pac.  R.  Co.  V.  Texas  &*  P.  R.  Co.,  41  Fed. 
Rep.  913. 

If  property  be  lost  in  an  injurious  acci- 
dent happening  to  or  by  reason  of  that 
which  a  carrier  has  provided  for  its  trans- 
portation, the  law,  imposing  the  exercise  of 
utmost  care  upon  him,  presumes  the  accident 
to  be  due  to  the  want  of  that  care,  and  puts 
upon  him  the  burden  of  successfully  reliev- 
ing himself  from  that  presumption.  But  in 
an  action  to  recover  for  live  stock  lost  in 
transitu,  when  the  fact  of  an  "  injurious  ac- 
cident" is  not  shown  to  exist,  the  pre- 
sumption of  negligence  on  the  part  of 
the  defendant  does  not  arise,  and  the 
burden  of  proving  it  remains  with  the 
plaintiff.  Pennsylvania  R.  Co,  v.  Raiordon, 
119  Pa.  St.  577,  12  Cent.  Rep.  177,  13  Atl. 
Rep.  324,  21  W.  N.  C*  283.  International 
&>  G.  N.  R.  Co.  V.  Smith,  i  Tex.  App.  {Crv. 
Cas^)  484.  Smith  v.  Midland  R.  Co.,  57  L. 
T.  813,  6  Ry.  6r»  C.  T.  Cas.  Ixviii. 

In  an  action  on  a  contract  for  the  car- 

*  Presumption  of  negligence  where  live  stock 
i<!  injured  while  in  transit.  States  in  which  pre- 
sumption exists,  and  others  in  which  it  is  denied, 
see  note,  i;  L.  R.  A.  39.  See  also/o^/,  147,  148. 

liurden  of  proof  of  cause  of  injury  to  live 
slock  during  transportation,  see  note,  17  L.  R.  A. 
339- 


CARRIAGE   OF  LIVE   STOCK,  40-44. 


75b 


;ainst  a  rail- 

in  shipping 

educed  and 

)uld  not  sell 

I  contracted 
egation  and 
w   that   the 

II  a  contract, 
3ve  them  at 

Gu//,  C. 
:  App.  (Civ. 


otnpany. 

Surden  of 

rests  upon  a 
w  that  loss 
ce,  but  from 
was  not  re- 
'(?.  V.  Wynn, 
8  Tenn.  320, 
N  Louisville 
Is,  88  Tenn. 

ire  shipped, 

of  destina- 

lanation  the 

Missouri 

C(?.,  41  Fed. 

urious  acci- 
son  of  that 
or  its  trans- 
;  exercise  of 
the  accident 
re,  and  puts 
fully  reliev- 
on.  But  in 
;ock  lost  in 
nj urious  ac- 
t,  the  pre- 
;he  part  of 
!,  and  the 
i  with  the 
^  Raiordon, 
177,13  Atl. 
tternational 
App.  {Civ. 
Co.,  57  L. 

or  the  car- 
re  live  stock 
n  which  pre- 
it  is  denied, 
>st,  147,  148. 
ury  to  live 
17  L.  R.  A. 


riage  of  a  horse,  charging  that  the  liorse 
was  killed  while  in  transit  through  the  neg- 
ligence of  the  carrier,  it  is  not  essential  for 
the  plaintiff  to  establish  the  negligence  in 
the  flrst  instance,  since,  in  the  absence  of  a 
special  contract,  the  carrier  would  ordina- 
rily be  liable  under  his  common-law  obliga- 
tions. Doan  V.  St.  Louis,  A'.  &*  N.  IV.  R. 
Co.  38  Mo.  App.  408. 

The  mere  fact  that  a  horse  was  shipped  in 
good  condition,  and  was  delivered  sick  and 
dying,  is  not  enough  to  charge  the  carrier 
with  negligence,  or  to  charge  him  with  the 
burden  of  proof  to  show  that  he  was  not  in 
fault.  Husseyv.  Saragassa,  3  Woods  {U.  S.) 
380. 

The  loss  or  injury  of  live  stock  while  in 
the  custody  and  care  of  the  company  for 
transportation  is  prima-facie  evidence  of 
negligence,  but  where  the  owner  of  the 
stock  agrees  to  load  and  unload  them,  and 
does  in  fact  do  so,  the  burden  of  proof  is 
upon  him  to  show  negligence  causing  such 
loss  or  injury.  Louisville,  C.  6-  L.  R.  Co.  v. 
Hedger,  9  Bush  (A>.)  645. — Not  followed 
IN  Maslin  v.  Baltimore  &  O.  R.  Co.,  14  W. 
Va.  180.  Quoted  IN  Terre  Haute  &  L.  R. 
Co.  V.  Sherwood,  132  Ind.  129. 

40.  Exposure  in  stock-yard  during 
snowstorm. — The  defendant  accepted  for 
transportation  plaintiff's  live  stock,  consist- 
ing of  cows  and  calves.  Plaintiff  paid  the 
freight  and  was  given  a  receipt,  which  con- 
tained no  express  contract  or  limitation  of 
the  defendant's  common-law  liability.  The 
train  which  carried  the  stock  was  delayed 
by  a  snowstorm  and  the  cars  containing 
tbem  were  put  in  a  stock-yard.  Some  died, 
others  were  injured  by  cold  and  exposure. 
Held,  that  the  defendant  was  liable  for  dam- 
ages as  a  common  carrier.  Feinberg  v.  Dela- 
ware, L.  &••  W.  R.  Co.,  45  Atn.  &*  Eng.  R.  Cas. 
348,  52  N./.  Z.  451,  20  All.  Rep.  33. 

41.  Failure  to  provide  proper  bed- 
ding.—A  failure  of  a  railroad  company  to 
provide  proper  bedding  for  live  stock  dur- 
ing transportation  is  not  in  itself  prima-facie 
evidence  of  negligence.  Easl  Tenn.,  V.  &^ 
G.  R.  Co.  v.  Johnston,  22  Am.  &*  Eng.  R.  Cas. 
437.  75  Ala.  596,  51  Avt.  Rep.  489. 

Where  the  owner  of  a  horse  at  the  time 
of  shipment  asks  for  tan  for  bedding,  but  is 
informed  by  the  company's  agent  that  it 
cannot  be  had,  but  directs  him  where  he  can 
j;et  straw,  the  company  is  liable  for  injuries 
to  the  horse  occurring  by  reason  of  the  straw 
taking  fire   from   sparks   from   its   engine. 


Pmvell  V.  Pennsylvania  R.  Co.,  32  Pa.  St. 
414.— Followed  in  Holsapple  v.  Rome, 
W.  &  O.  R.  Co.,  3  Am.  &  Eng.  R.  Cas.  487, 
86  N.  Y.  275. 

42.  Refusal  to  relieve  overheated 
hogs. — Where  hogs  while  in  a  car  become 
heated,  necessitating  the  throwing  of  water 
upon  them,  a  failure  of  the  conductor  to 
apply  the  water,  after  a  notice  of  the  neces- 
sity of  doing  so,  where  it  is  customary  to 
furnish  water,  and  the  necessary  conveni- 
ences for  applying  it  were  provided,  consti- 
tutes gross  negligence,  rendering  the  com- 
pany liable  for  any  hogs  that  may  die  or  be 
injured.  Illinois  C.  R.  Co.  v.  Adams,  42  ///. 
474.— Followed  in  Toledo,  W.  &  W.  R.  Co. 
v.  Thompson,  71  111.  434;  Toledo,  W.  &  W. 
R.  Co.  v.  Hamilton,  76  111.  393. 

43.  Befiisal  to  side-track  or  lay 
oft"  car.*— Where  cattle  and  hogs  shipped 
together  in  the  same  car  are  found  to  be 
suffering,  it  is  no  excuse  for  a  refusal  on  the 
part  of  a  conductor  to  layoff  the  car,  so  that 
they  can  be  unloaded,  because  the  com- 
pany's stock-pens  at  the  station  were  unsafe 
for  hogs,  where  there  is  nothing  to  show 
that  the  company  was  relieved  from  the 
duty  of  making  its  pens  secure,  and  nothing 
to  show  that  the  cattle  could  not  have  been 
separately  unloaded.  Johnson  v.  Alabama 
&•  V.  R.  Co.,  69  Miss.  191,  II  So.  Rep.  104. 

The  plaintiff  claimed  that  his  agent  on 
the  way  informed  the  defendant's  agents  in 
charge  of  the  train  that  a  mare  of  plaintiff's 
was  becoming  frightened  and  acting  badly, 
and  was  in  danger  of  being  killed  by  further 
transportation,  and  requested  them  to  set 
the  car  on  a  side-track  at  a  place  where 
they  were  next  to  stop.  The  court  charged 
the  jury  that  if  they  found  the  request  to 
have  been  made,  it  was  the  duty  of  the  de- 
fendant's agents  to  have  complied  with  it 
if  it  could  reasonably  have  been  done. 
Held  to  be  correct.  Coupiand  v.  Housatonic 
R.  Co.,  55  Am.  &*  Eng.  R.  Cas.  380, 61  Conn. 
Si\,2zAtl.Rep.87o. 

44.  When  question  of  negligence 
is  for  the  Jury. — Live  stock  were  shipped 
under  a  special  contract  requiring  the  owner 
to  care  for  the  same  during  transportation. 
In  a  suit  for  injuries  there  was  evidence 
tending  to  show  that  the  train  did  not  stop 
long  enough  to  allow  the  owner  to  properly 
care  for  them,  and,  upon  inquiry  by  him 
whether  the  train  would  stop  at  a  station 

•  Src  also  ijfilr,  28. 


I 


If 


756 


CARRIAGE   OF   LIVE   STOCK,  45, 46. 


i 


m 

m 


long  enough  to  allow  him  to  do  so,  he  was 
told  by  the  conductor  to  lie  down,  that  the 
brakeman  was  looking  after  the  cattle. 
Ne/d,  that  there  was  no  error  in  submitting 
the  question  of  the  carrier's  negligence  to 
the  jury.  Dawson  v.  St,  Lout's,  K.  C.  &*  N. 
R.  Co.,  y6  Mo.  514. 

5.  Contributory  Negligence  of  Owner. 

45.  In  geueral— Burden  of  proof.* 

— Where  the  property  which  a  railroad  com- 
pany agreed  to  carry  was  live  stock,  and 
the  owner  undertook,  by  special  contract 
entered  into  with  the  company,  to  go  with 
the  stock  and  care  for  it,  he  is  bound  to 
show  that  the  injury  or  loss  for  which  he  is 
seeking  to  recover  damages  was  not  attrib- 
utable to  the  failure  to  perform  or  the 
negligent  or  improper  performance  of  acts 
which  he  undertook  to  perform.  He  must 
show  that  the  injury  was  caused  by  the  car- 
rier's breach  of  duty.  Terre  Haute  6-  L. 
R.  Co.  V.  Sherwood,  55  Am.  <S-  Eng.  R.  Cas. 
326,  132  Ind.  129,  31  N.  E.  Rep.  781.— DIS- 
TINGUISHING Inman  v.  South  Carolina 
R.  Co.,  129  U.  S.  128.  Quoting  Hull  v. 
Chicago,  St.  P.,  M.  &  O.  R.  Co.,  41  Minn. 
510,  16  Am.  St.  Rep.  722  ;  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Weakly,  50  Ark.  397,  7  Am. 
St.  Rep.  104;  McBeath  v.  Wabash,  St.  L. 
&  P.  R.  Co.,  20  Mo.  App.  445 ;  Louisville, 
C.  &  L.  R.  Co.  V.  Hedger,  9  Bush  (Ky.)  645. 

While  a  carrier  is  held  to  be  an  insurer  of 
the  safety  of  property  while  he  has  it  in  his 
possession  as  a  carrier,  the  rule  does  not 
apply  where  horses  were  transported  in  a 
car  which  was  left  in  the  exclusive  control 
of  the  shipper's  agent,  and  they  were  de- 
stroyed by  his  act ;  and  in  such  case  it  is 
immaterial  whether  the  agent  was  careful 
or  negligent.  Hart  v.  Chicago  <&*  N.  IV. 
R.  Co.,  27  Am.  &»  Eng.  R.  Cas.  59,  69  Iowa 
485,  29  A^.  IV.  Rep.  597. 

The  owner  of  live  stock,  by  agreement 
with  the  carrier,  undertook  to  care  for  it  in 
the  course  of  transportation.  The  property 
was  destroyed  through  the  act  of  the  owner. 
Sec.  1308  of  the  Code  Iowa  provides  that 
"  no  contract,  receipt,  rule,  or  regulation 
shall  exempt  any  corporation  engaged  in 
transportation  of  persons  or  property  by 
railway  from  liability  of  common  carrier." 
Held,  that  the  carrier  was  not  liable  for  the 
loss,  although  the  agreement  between  the 

*  Liability  of  carriers  of  live  stock  where  owner 
or  his  agent  contributes  to  loss  or  injury,  see 
note,  67  Am.  Dec.  212  ;  sec  also/o.r/,  149. 


owner  and  carrier  may  have  been  in  viola* 
tion  of  the  above  section.  Hart  v.  Chicago 
6-  N.  W.  R.  Co.,  27  Am.  S"  Eng.  R.  Cas. 
59,  69  Iffwa  485,  29  N.  W.  Rep.  597. 

Where  a  railroad  company  has  provided 
but  one  chute  and  one  apron  for  the  ship- 
ment of  stock  at  a  station,  a  shipper  who 
exercises  due  care  in  the  use  thereof  is  not 
guilty  of  contributory  negligence  preclud- 
ing a  recovery  for  personal  injuries,  although 
he  uses  them  in  the  knowledge  tiiat  iliey 
are  defective.  White  v.  Cincinnati,  N.  O. 
&*  T.  P.  R.  Co.,  42  Am.  6-  Eng.  R.  Cas.  547, 
89  Ky.  478,  12  5.   W.  Rep.  936. 

A  common  carrier  will  not  be  liable  for 
injury  to  a  horse  occasioned  by  the  im- 
proper or  unwarrantable  interfen  ice  of  the 
plaintiff  or  his  agent  with  the  n  ^nagement 
of  the  car  by  the  servants  or  employ6s  of 
the  company.  Roderick  v.  Baltimore  &•  O. 
R.Co.,7  W.  Fa.  54.— Reconciling  Hanni- 
bal &  St.  J.  R.  Co.  V.  Swift,  12  Wall.  (U.  S.) 
262. 

46.  Failure  to  close  or  lock  door 
of  car— Unsafe  door— Where  the  owner 
of  cattle  contracts  to  do  the  loading,  and 
his  employes  allow  the  car  to  be  attached 
to  the  train  and  started  before  tiie  doors 
are  closed,  the  company  is  not  liable  for 
cattle  killed  by  jumping  through  the  open 
doors.  Newby  v.  Chicago,  R.  I.  &*  P.  R.  Co. , 
19  Mo.  App.  391. 

The  shipper  of  horses  cannot  recover  for 
a  loss  that  occurs  by  a  horse  jumping  from 
the  car,  though  there  be  negligence  '  m-. 
part  of  the  carrier,  where  the  iii  ,  ..'  ;> 
charged  with  loading  the  horses  asVi  n  ,;;•- 
gently  leaves  the  car-door  open  Iroiti  v  -M. 
the  horse  jumped.  Hutchinson  v.  C/t.  ,io, 
St.  P.,  M.  &*  O.  R.  Co.,  37  Minn.  524,  35  "V. 
IV.  Rep.  433. 

Under  a  contract  with  a  common  carrier 
for  the  transportation  of  horses,  they  were 
placed  in  a  car,  and  an  employ^  of  the 
company  was  directed  to  lock  it,  but  was 
prevented  from  doing  so  by  an  agent  of  the 
owner  of  the  horses,  and  while  in  passage 
some  of  them  were  lost  by  escaping  through 
the  door.  Held,  that  the  company  was  not 
liable  for  the  loss.  Lee  v.  Raleigh  &*  G.  R. 
Co.,  72  N.  Car.  236. 

Where  the  shipper  of  live  stock  agrees  to 
load  them  on  the  cars,  and  knows  that  a 
car-door  is  unsafe,  and  neglects  to  inform 
the  station  agent,  who  has  no  knowledge  of 
the  fact,  he  cannot  recover  for  the  cattle 
that  escape  through  the  door.      Rttts  v. 


f '' 


3». 


ii 


CARRIAGK   OF    LIVli   STOCK,  47-50. 


en  in  viola* 
?v.  Chicago 
tg.  R.  Cas. 

97. 

IS  provided 
)r  the  ship- 
hipper  who 
:reof  is  not 
ce  preclud- 
:s,  althougii 
e  that  ihey 
naii,  N.  O. 
R.  Cas.  547, 

>e  liable  for 
by  the  im- 
I  ice  of  the 
^nagement 
mployes  of 
'■more  &*  0. 
ING  Hanni- 
bal]. (U.  S.) 

ock  door 

the  owner 
lading,  and 
je  attached 
tile  doors 
liable  for 
h  the  open 
"P.  R.Co., 

recover  for 
iping  from 
;)ce  .  '•     ■,!!; 

ill.  ,;  ,v    ;> 

aHi  fi  ..•;;'- 
'rum  V.  :!) 
V.  CV/.     ^./;, 

524,  35  JV- 

ion  carrier 
they  were 
•y6  of  the 
it,  but  was 
:ent  of  the 
n  passage 
ig  through 
y  was  not 
i  Sr'  G.  R. 

agrees  to 
ws  that  a 
to  inform 
wlcdge  of 
the  cattle 

fit//S    V. 


Farmers'  L.  S"  T.  Co.,  21  PVis.  80.— Foi,- 
LOWED  IN  Miltlmore  v.  Chicago  &  N.  W. 
R.  Co.,  37  Wis.  190;  Jenkins  v.  Chicago,  M. 
&St.  P.  R.Co.,  41  Wis.  112. 

47.  Placing^  combustible  matter 
ill  car. — When  sued  for  an  injury  to  live 
stock  the  carrier  set  up  the  defense  that 
the  injury  occurred  by  reason  of  plaintiff 
violating  a  rule  of  the  company  by  putting 
straw  and  other  combustible  matter  in  the 
cars,  which  took  fire.  Ne/d,  that  the  com- 
pany was  not  liable,  independent  of  any  such 
rule,  if  the  injury  complained  of  was  occa- 
sioned by  the  neglect  or  wrongful  act  of  the 
plaintiff  in  putting  such  material  in  the  car 
without  the  knowledge  or  consent  of  the 
company.  Prat/  v.  Ogdensburg  &*  L.  C.  R. 
Co.,  102  Mass.  557. 

48.  Overcrowding  of  hogs,  causing 
suffocation. — A  railroad  may  let  its  cars 
to  a  shipper  for  the  purpose  of  transporting 
hogs  therein,  and  in  such  case  the  shipper 
may  control  the  loading  of  his  freight  upon 
the  cars,  subject  to  certain  implied  restric- 
tions as  to  weight,  injury  to  the  cars,  etc. ; 
and  the  carrier  will  n()t  be  liable  for  injuries 
caused  to  animals  by  being  overcrowded  by 
the  owner,  who  has  chartered  the  cars.  East 
Tenn.  6-  G.  R.  Co.  v.  Whittle,  27  Ga.  535. 

Where  the  shipper  of  hogs  contracts  to 
have  them  carried  at  a  reduced  rate,  in  con- 
sideration that  the  company  be  exempted 
from  certain  risks,  including  a  loss  by  suffo- 
cation, the  company  cannot  be  held  liable 
for  injuries  arising  from  overcrowding  and 
suffocation,  to  which  the  negligence  of  the 
person  sent  by  the  owner  to  attend  the 
transportation  contributed.  Squire  v.  New 
York  C.  R.  Co.,  98  Mass.  239. 

49.  Neglect  to  feed  and  water.— 
The  shipper  of  live  stock  by  railway,  under 
a  special  contract  in  which  he  agrees  that, 
"  in  case  of  accidents  to  or  delays  of  time 
from  any  cause  whatever,"  he  "  is  to  feed, 
water,  and  take  proper  care  of  the  stock  at 
his  own  expense."  cannot  recover  damages 
resulting  from  his  own  failure  to  perform 
his  part  of  the  contract,  although  the  com- 
pany may  have  consumed  more  time  than 
necessary  in  effecting  the  transportation. 
Boaz  v.  Central  R.  Co.,  87  Ga.  463,  13  5.  £". 
Rep.  7\i. 

Where  live  hogs  are  shipped  in  cars  and 
are  doing  well,  and  are  not  suffering  for  water 
at  a  given  station,  it  is  not  negligence  on 
the  part  of  the  shippers  attending  them  not 
to  water  them  at  that  point,  in  the  absence 


of  information  that  water  cannot  be  had  at 
the  next  station ;  and  if  it  is  a  fact  that 
water  is  scarce  at  the  next  station,  it  is  the 
duty  of  the  company  to  inform  the  shippers 
of  the  fact.  Toledo,  IV.  A-  W.  R.  Co.  v. 
Thompson,  71  ///.  434. 

When  sued  for  injuries  to  horses  the  car- 
rier set  up  contributory  negligence  of  the 
owner  in  failing  to  properly  feed  and  water 
them,  as  he  was  required  to  do  under  the 
contract  of  shipment.  There  was  evi- 
dence tending  10  show  that  when  the 
defendant  company  received  the  horses 
from  a  preceding  carrier  they  were  in  ap- 
parently good  condition,  and  that  they  were 
not  transferred  and  started  on  defendant's 
road  for  several  hours  after  their  arrival  on 
the  other  road,  and  that  the  owner  was  pre- 
vented from  feeding  and  watering  them  by 
being  informed  by  the  train-dispatcher  that 
they  would  be  forwarded  promptly;  but  such 
evidence  was  contradicted  by  the  company. 
Held,\.\i&\.  the  question  of  contributory  neg- 
ligence was  for  the  jury,  and  that  it  was  error 
to  charge,  as  a  matter  of  law,  that  there  was 
no  contributory  negligence,  if  the  owner 
was  informed  that  the  horses  would  be  for- 
warded promptly.  Mobile  &*  O.  R.  Co.  v. 
Mullins,  70  Miss.  730,  1 2  So.  Rep.  826. 

IV.  DELIYEBT  BT  THE  GABBIEB. 

I.  In  General. 

50.     Obligation   to   deliver.  — The 

common-law  liability  of  a  carrier  for  de- 
livery of  live  animals  is  the  same  as  that  for 
thedeliveiyof  inanimate  things,  with  this  ex- 
ception to  the  rule,  as  generally  stated,  that 
he  is  not  liable  for  injuries  caused  by  the 
peculiar  character  and  propensities  of  the 
animals.  Bamberg  v.  South  Carolina  R.  Co., 
9  So.  Car.  61.— Approving  Kansas  Pac.  R. 
Co.  V.  Reynolds,  8  Kan.  623 ;  Kansas  Pac. 
R.  Co.  V.  Nichols,  9  Kan.  235,  12  Am.  Rep. 
494 ;  Clark  v.  Rochester  &  S.  R.  Co.,  14  N. 
Y.  570;  Great  Western  R.  Co.  v.  Blower,  2 
Moak  700.  Disapproving  Michigan  S. 
&  N.  I.  R.  Co.  7A  McDonough,  21  Mich. 
Rep.  165, 4  Am.  Rep.  466 ;  Lake  Shore  &  M. 
S.  R.  Co.  V.  Perkins,  25  Mich.  329,  12  Am. 
Rep.  275.  Quoting  Smith  v.  New  Haven 
&  N.  R.  Co.,  12  Allen  (Mass.)  $3^— North 
Pa.  R.  Co.  V.  Commercial  Bank,  35  Am.  &* 
Eng,  R.  Cas.  556,  123  U.  S.  727,  8  Sup.  Ct. 
Rep.  266. 

In  undertaking  the  carriage  of  live  stock, 
the  carrier  assumes  the  obligation  to  deliver 


758 


CARRIAGE   OF   LIVE   STOCK,  51,52. 


m 


% 


safely  and  within  a  reasonable  time,  having 
due  respect  to  the  circumstances  of  the  case. 
Philadelphia,  W.  &'  B.  R.  Co.  v.  Lehman,  6 
Am.  &»  Etig.  R.  Cas.  194, 56  Md.  209,  40  Am. 
Rep.^iy 

A  promise  "  to  deliver"  in  a  bill  of  lading 
for  the  carriage  of  live  stock  implies  un- 
loading them ;  so  also  does  a  provision  to  the 
effect  that  the  carrier  would  store  them  un- 
less called  for.  Thisbeingso,  a  usageof  the 
company's  agent  at  the  place  of  destination 
requiring  the  owner  or  consignee  to  unload 
is  of  no  consequence.  The  usage  cannot 
override  the  contract.  Benson  v.  Gray,  1 54 
Mass.  391,  28  N.  E.  Rep.  275. 

The  duty  of  the  carrier  of  live  stock  is  to 
deliver  the  animals  alive;  and  where,  dur- 
ing transportation,  they  are  killed  by  an  acci- 
dent for  which  the  carrier  is  not  responsible, 
he  is  not  required  to  deliver  their  dead 
bodies,  though  they  may  have  a  market 
value.  Lee  v.  Marsh,  28  How.  Pr.  (N.  V.) 
275,  43  Bard.  102. 

51.  Place  and  manner  of  delivery. 
— Where  the  carrier  and  shipper  ol  live  stock 
enter  into  a  written  contract  regulating  the 
terms  upon  which  the  stock  shall  be  carried 
and  delivered,  a  mere  usa^e  concerning  the 
manner  of  delivery  cannot  atTect  the  rights 
of  the  parties  when  it  is  in  conflict  with,  the 
written  contract,  especially  when  such  usage 
is  not  known  to  the  shipper.  Myrick  v. 
Michigan  C.  R.  Co.,  9  Biss.  (U.  S.)  44. 

Although  the  contract  required  the  appel- 
lants to  unload  the  stock,  it  was  the  duty  of 
the  company  to  provide  a  safe  mode  of  de- 
livery by  having  a  platform  suitable  for  the 
purpose  of  unloading  stock ;  and  if  the 
agents  of  the  company  required  appellant's 
agent  to  remove  a  horse  from  the  car  onto 
a  platform  not  ordinarily  safe  for  the  de- 
livery of  stock,  and  the  horse  was  injured 
thereby,  the  company  is  responsible,  al- 
though the  agent  of  the  owners  may  have 
been  apprised  of  the  danger.  Owen  v. 
Louisville  &*  N.  R.  Co.,  35  Am.  &»  Eng.  R. 
Cas.  687,  87  Ky.  626,  9  i".  W.  Rep.  698. 

If  the  servants  of  a  railway  company  in 
unloading  horses  from  a  car  leave  a  space 
between  the  flap  and  the  body  of  the  car, 
into  which  a  horse  steps  and  is  injured,  the 
company  is  liable.  Combe  v.  London  &*  S, 
W.  R.  Co.,  31  L.  T.  613. 

Where  a  cow  is  killed  owing  to  the  porter 
letting  her  out  of  the  car  without  waiting 
a  reasonable  time,  the  railway  company  is 
liable  to  the  owner  for  its  value.    Gill  v. 


Manchester,  S.  &'  L.  R.  Co.,  42  L.J.  Q.  B. 
89,  /..  R.  8  Q.  B.  186,  21  W.  R.  525,  28  L.  T. 

537. 

A  railway  company  is  not  bound  to  pro- 
vide fences  at  a  station  where  live  stock  may 
be  landed,  so  as  to  prevent  the  animals 
straying  onto  the  track.  Roberts  v.  Great 
Western  R.  Co.,  ^/ur.  N.  S.  1240,  4  C.  B.  A'. 
S.  506,27  L.J.  C.  P.  266. 

A  calf  died  from  overexertion  soon  after 
delivery  to  the  consignee.  The  negligence 
charged  against  tlie  carrier  was  in  unload- 
ing at  the  station  instead  of  at  cattle-pens, 
and  that  the  number  of  persons  assisting 
were  too  great  and  frightened  it.  Held,  that 
unloading  at  the  station  would  not  render 
the  company  liable,  where  it  was  the  custom 
to  unload  single  animals  there ;  neither 
would  the  large  numberof  persons  employed, 
when  they  seemed  necessary,  owing  to  the 
animal's  very  vicious  disposition  and  actions. 
Chicago,  B.  &*  Q.  R.  Co.  v.  Owen,  21  ///.  App. 

339- 

62.  Sufllciency  of  delivery.— A  com- 
mon carrier  of  live  stock  is  required  neither 
to  deliver  the  stock  to  the  consignees,  nor  to 
give  them  notice  of  its  arrival.  Its  obliga- 
tion as  a  common  carrier  ceases  when  it  has 
delivered  the  stock  at  their  place  of  destina- 
tion, and  unloaded  them  from  its  cars;  after 
which  its  only  duty  is  to  store  them  in  a 
proper  place,  to  see  that  they  are  properly 
cared  for,  and  to  deliver  them  on  demand  to 
the  shipper  or  his  consignees.  Chicago  &» 
E.  I.  R.  Co.  V.  Pratt,  13  ///.  App.  477- 

Plaintiff  shipped  horses  by  rail  consigned 
to  a  third  party,  proceeded  himself  to  the 
place  of  destination,  and  went  with  the 
consignee  to  the  company's  office,  but  could 
not  find  the  animals.  After  some  delay 
they  were  found  in  a  city  across  a  river  from 
the  place  of  destination,  in  stables,  where 
they  had  been  put  by  the  employes  of  the 
carrier,  but  for  what  reason  did  not  appear. 
Thereupon  plaintiff,  without  any  communi- 
cation with  the  company,  directed  the  owner 
of  the  stables  to  keep  the  horses  until  he 
went  home  and  returned,  taking  the  con- 
signee with  him,  who  was  a  man  in  his  em- 
ploy. During  his  absence  the  horses  were 
destroyed  by  an  accidental  fire  in  the  stables. 
/feld,  that  there  was  a  sufficient  delivery  to 
plaintiff  to  relieve  the  company  from  liabil- 
ity. Cleveland  6-  P.  R.  Co.  v.  Sargent,  19 
Ohio  St.  438. 

Cattle  arriving  at  a  station  were  placed  in 
pens  by  the  servants  of  the  company,  as- 


CARRIAGE   or   LIVli   STOCK,  53-56. 


759 


L.J.Q.Ji. 
!5.  28  L.  r. 

ind  to  pro- 
stock  may 
le  animals 
is  V.  Great 
,  4  C.  B.  A'. 

soon  after 
negligence 

n  unload- 
attle-pens, 
s  assisting 

Held,  tiiat 
not  render 
he  custom 
neither 
employed, 
ing  to  the 
nd  actions. 
'.ilil.App. 

. — A  corn- 
ed neither 
ses,  nor  to 
ts  obliga- 
hen  it  has 
[)f  destina- 
cars ;  after 
them  in  a 
e  properly 
lemand  to 
"hicago  <S^ 
477. 

consigned 
elf  to  tiie 
with    the 
but  could 
me  delay 
•iver  from 
es,  where 
'^s  of  the 
)t  appear, 
ommuni- 
he  owner 
until  he 
the  con- 
I  his  em- 
rses  were 
e  stables, 
livery  to 
m  liabil- 
■gent,  19 

ilaced  in 
)any,  as- 


sisted by  a  man  who  was  employed  by  the 
owner.  After  midnight,  when  it  was  allow- 
able to  drive  cattle  through  the  streets,  the 
owner's  drover  went  to  take  them  away  and 
found  that  two  were  dead.  The  company's 
servants  would  not  let  him  take  the  re- 
mainder away  unless  he  signed  a  receipt  for 
the  whole  number.  Afterward  the  owner 
came  himself  and  took  them  away ;  but  in 
the  meantime  the  Monday's  market  was  lost. 
Held,  that  the  liability  of  the  company  as 
carrier  was  over  before  the  damage  occurred. 
Sheperdv.  Bristol  &*  E.  R.  Co.,  37  L.J.  Ex. 
113,  L.  R.  3EX.  189,  16  W.  R.  982,  18  L. 
T.  528. 

53.  Duty  to  provide  yards  and 
pens.* — Carriers  of  live  stock  must  make 
some  preparation  in  the  way  of  yards  or 
pens  whereby  the  stock  can  be  safely  and 
properly  kept  and  cared  for  until  a  delivery 
can  be  made  to  the  consignee  according 
to  the  terms  of  the  shipment.  Myrick  v. 
Michigan  C.  R.  Co.,  9  Biss.  {U.  S.)  44. 

Where  a  railroad  company  carries  cattle 
to  their  destination  and  places  them  in  pens 
which  are  too  small,  and  the  cattle  are  being 
damaged  by  crowding,  the  owners  may  turn 
them  out,  and,  having  done  all  they  could  to 
herd  them,  may  recover  from  the  company 
for  those  that  escape  and  are  not  recovered. 
Such  damages  are  not  too  remote.  Gulf, 
C.  6h  S.  F.  R,  Co.  v.  York,  2  Tex.  App.  {Civ. 
Cas.  718. 

54.  Delay  In  unloading.— Where  it  is 
sought  to  recover  damages  for  an  injury  to 
horses  by  reason  of  a  delay  in  not  promptly 
unloading  them  after  reaching  their  place  of 
destination,  the  damages  are  not  confined  to 
the  difference  in  the  market  value  of  the  ani- 
mals between  the  time  when  they  arrived 
and  when  they  were  unloaded ;  but  the  dam- 
ages are  measured  by  the  effect  of  the  delay, 
and  there  is  no  better  way  of  ascertaining 
this  than  by  proving  the  appearance,  symp- 
toms, and  condition  of  the  animals  im- 
mediately after  being  unloaded,  together 
with  any  subsequent  injuries  or  sickness  that 
may  have  resulted.  Lake  Erie  &•  IV.  R.  Co. 
V.  Rosenberg,  31  ///.  A^p.  47. 

A  shipper  of  horses  was  assured  that  there 
would  be  no  delay  in  unloading  them  at  the 
place  of  destination,  and  by  reason  of  such 
assurance  was  induced  to  ship  so  that  the 
horses  reached  their  place  of  destination  in 
the  nighttime,  very  much  heated  by  reason 

*  See  also  ante,  3«  16* 


of  the  weather  and  of  the  excitement  caused 
by  the  transportation.  They  were  not 
promptly  unloaded,  and  were  injured  by 
cooling  off  too  suddenly.  Held,  that  the 
carrier  was  liable  for  the  i.jjury.  Lake  Erie 
&*  IV.  R.  Co.  V.  Rosenberg,  31  ///.  App.  47. 

55.  Delivery  in  bad  order. — Where 
a  carrier  is  delayed  in  delivering  live  stuck 
to  market,  it  may  excuse  the  delay  by  proof 
of  misfortune  or  accident,  although  not  in- 
evitable or  produced  by  the  act  of  God. 
But  evidence  of  such  accident  and  delay  i.s 
not  admissible  to  excuse  the  delivery  of  the 
stock  in  dad  order,  unless  there  is  (  Tcred 
with  it  evidence  to  prove  that  it  used  the 
highest  degree  of  care  during  the  delay  for 
the  preservation  and  safety  of  the  animals. 
A'innickv.  Chicago,  R.  /.  <&«•/'.  R.  Co.,  27  Am. 
&>  Eng.  R.  Cas.  55,  69  Iowa  665,  29  N.  IV. 
y?^/.  772.— Distinguished  in  Illinois  C.  R. 
Co.  V.  Peterson,  68  Miss.  454. 

When  an  animal  is  delivered  to  the  carrier 
in  a  sound,  healthy  condition,  and  when  de- 
livered at  the  place  of  destination  is  found 
to  be  lame  or  diseased,  if  the  carrier  would 
excuse  himself,  the  burden  is  upon  him  to 
prove  that  the  injury  to  the  animal  was 
without  his  fault.  Dow  v.  Portland  Steam 
Packet  Co.,  84  Me.  490,  24  Atl.  Rep.  945. 

56.  Wrongful  refusal  to  deliver.'"' 
— The  plaintiff  delivered  cattle,  carriage  pre- 
paid, to  the  defendant  railway  company  for 
carriage  on  the  terms  of  signed  conditions 
whereby,  in  consideration  of  an  alternative 
reduced  rate,  it  was  agreed  that  the  com- 
pany was  "  not  to  be  liable  in  respect  of  any 
loss  or  detention  of  or  injury  to  the  said 
animals,  or  any  of  them,  in  the  receiving, 
forwarding,  or  delivery  thereof,  except  upon 
proof  that  such  loss,  detention,  or  injury 
arose  from  the  wilful  misconduct  of  the 
company  or  its  servants."  The  cattle  were 
carried ;  but,  on  application  made  for  them 
by  the  plaintiff,  the  defendant,  in  conse- 
quence of  their  clerk  having  negligently 
omitted  to  enter  the  cattle  on  the  consign- 
ment note  as  "carriage  paid,"  refused  to 
deliver  them,  and  alleged  that  the  carriage 
was  not  paid.  The  cattle  were  kept  exposed 
to  the  weather  until  the  next  day,  when,  the 
mistake  having  then  been  ascertained,  they 
were  delivered.  They  were  damaged  by  the 
exposure.  In  an  action  for  damages  by  rea- 
son of  wrongful  detention  and  negligence — 
held,  that  the  withholding  of  the  cattle,  un- 

*  See  also /w/,  81-84. 


I>  J 


rco 


CARRIACil-    or    LIVli    STOCK,  r»7  OO. 


''■V 


m. 


'im 


m] 

'    & 

m  H 

1^ 

1 

der  a  groundless  claim  to  retain  them, at  the 
end  of  the  trans't  'vas  not  "  detention  "  with- 
in the  conditions,  and  that  the  company  was 
therefore  liable.  Gordon  v.  Great  Western 
R.  Co.,  3  Am.  &*  Eng.  R.  Cas.  619,  L.  R.  8 
Q.  £.  D.  44. 

2.  Delivery  to  the  Wrong  Person, 

67.  Cairler,  when  liable.*— Plaintiff 

loaded  his  live  stock  into  a  car  that  was 
pointed  out  to  him  by  the  company's  agent, 
but  by  a  mistake  of  a  clerk  in  the  car-num- 
ber it  was  billed  to  another  party,  and  the 
stock  were  delivered  to  him  and  lost  to 
plaintiff.  Held,  that  as  plaintiff  took  the 
specific  car  designated  by  the  company's 
agent,  and  the  matter  of  car-numbers  con- 
cerned the  carrier  alone,  it  was  liable  to 
plaintiff  for  the  loss.  Chicago  6-  N.  W.  R. 
Co.  V.  Ames,  40  ///.  249.— DISTINGUISHED 
IN  Indianapolis,  B.  &  W.  R.  Co.  v.  Murray, 
72  111.  128 ;  Illinois  C.  R.  Co.  v.  Cobb,  72  III. 
148. 

A  shipper  of  hogs  was  told  to  put  them 
in  a  certain  car,  which  he  did,  but  by  a  mis- 
take in  making  out  the  shipping  bills  the 
number  of  another  car  containing  inferior 
hogs  was  put  on  the  margin  of  the  contract, 
and  the  inferior  hogs  were  delivered  to 
plaintiff's  consignee,  his  own  hogs  going  to 
another  person.  Held,  that  a  provision  in 
the  contract  providing  that  a  claim  for  loss 
or  damage  must  be  made  within  five  days 
from  the  time  the  stock  were  removed  from 
the  cars  did  not  apply ;  neither  could  plain- 
tiff be  affected  by  the  mistake  of  the  com- 
pany's employ^  in  writing  the  wrong  car- 
number  on  the  contract.  Wilson  v.  Wa- 
bash, St.  L.  &•  P.  R.  Co.,  23  Mo.  App.  50. 

68.  When  not  liable.— A  carrier  who 
is  sued  for  improperly  surrendering  the  plain  • 
tiff's  cattle  to  a  constable  cannot  be  held 
liable  where  the  writ  is  valid  on  its  face. 
Mc  A  lister  v.  Chicago,  R.  I.  &*  P.  R.  Co.,  7 
Am.  &*  Eng,  R.  Cas.  373,  74  Mo.  351. 

Plaintiffs  shipped  certain  hogs  by  de- 
dendant's  road,  prepaying  charges;  at  tht. 
place  of  destination  they  were  taken 
from  the  carrier  by  a  stranger  and  a  dray- 
man who  was  an  employe  of  the  consignees, 
and  taken  by  them  to  consignees,  the 
stranger  representing  that  he  had  bought 
them  of  consignors,  and  exhibiting  an  ex- 

*  Liabilities  of  carriers  of  live  stock  for  mis- 
carriage and  wrongful  delivery,  see  note,  9  L. 
R.  A.  451. 


pensc  bill  which  he  had  obtained  from  the 
carrier,  whereupon  he  was  paid  for  them  by 
the  consignees.  Held,ihatthe  shipper  could 
not  recover  from  the  carrier,  and  that  his 
remedy  was  against  the  consignees.  Ryder 
v.  Burlington,  C.  R.  &*  N.  R.  Co.,  51  Iowa 
460,  I  N.  W.  Rep.  747. 

60.  Delivery  without  production 
of  bill  of  lading. — Where  a  railroad  com- 
pany receives  for  transportation  cattle  con- 
signed to  the  order  of  the  shipper,  with 
directions  to  notify  a  certain  person  at  the 
place  of  destination,  and  delivers  them  to 
the  party  whom  it  is  directed  to  notify, 
without  the  production  of  tiie  bill  of  lading, 
it  will  be  liable  to  a  bank  discounting  con- 
signor's draft  upon  the  person  whom  it  was 
directed  to  notify  for  the  value  of  the  cattle 
so  delivered ;  and  the  fact  that  it  has  been 
customary  for  defendant  to  so  deliver  other 
shipments  of  cattle  between  the  same  par- 
ties is  no  defense,  where  it  is  not  shown 
that  such  custom  was  brought  to  the  knowl- 
edge of  the  consignor.  North  Pa.  R,  Co.  v. 
Commercial  Bank,  35  Am.  Gf  Eng.  R.  Cas, 
556,  123  U.  S.  727,  8  Sup.  Ct.  Rep.  266. 

V.  8HIFFIN0  CONTRACTS. 

I.  Consideration  and  Construction, 

60.  Consideration.  —  A  complaint 
against  a  railroad  compatiy  alleged  a  breach, 
by  the  defendant,  of  an  agreement  between 
the  plaintiff  and  the  defendant,  whereby  the 
latter  agreed  to  ship  certain  live  stock  which 
the  plaintiff  agreed  and  attempted  to  de- 
li er  to  the  defendant  for  shipment.  Held, 
that  the  agreement  was  based  upon  a  suffi- 
cient consideration.  Pittsburgh,  C.  &*  St. 
L.  R.  Co.  V.  HolloTvell,  65  Ind.  188. 

Plaintiff  made  a  parol  contract  with  de- 
fendant to  furnish  a  special  live-stock  train 
to  ship  his  cattle  to  the  Chicago  market 
within  a  certain  time.  The  train  was  fur- 
nished and  the  cattle  were  loaded  as  agreed, 
and  just  as  the  train  was  about  to  move  off 
defendant's  agent  presented  him  a  contract, 
which  defendant  signed.  Held,  that  the 
written  contract  was  substituted  for  the 
original  verbal  one,  and  that  the  cancella- 
tion thereby  of  the  old  oral  contract  was  a 
sufficient  consideration  for  the  substituted 
written  one.  Leonard  v.  Chicago  &■»  A.  R, 
Co.,  54  Mo.  App.  293.* 

*  Merger  of  oral  and  written  contracts,  see 
55  Am.  &  Eng.  R.  Cas.  334,  abstr. 


II 


T^ 


CAKklACJI-    or    LIVl'    STOCK,  <ll  «•*. 


761 


ed  from  tlie 
for  them  by 
lipper  could 
nd  that  his 
ees.  Ryder 
^o„  51  Iowa 


rodiiction 

lilroad  corn- 
cattle  con- 
lipper,  with 
rson  at  the 
;rs  them  to 
to  notify, 
1  of  lading, 
jnting  con- 
hom  it  was 
)f  the  cattle 
it  has  been 
;Iiver  other 
B  same  par- 
not  shown 
the  knowl- 
ii.  R.  Co.  V. 
'.tig.  R.  Cas. 
K  266. 

'8. 
•uction, 

complaint 
d  a  breach, 
nt  between 
hereby  the 
tock  which 
ted  to  de- 
:nt.  Held, 
ion  a  sutii- 

C.  6-  St. 
t. 

;  with  de- 
tock  train 

0  market 

1  was  fur- 
as  agreed, 
>  move  off 

contract, 

that  the 
I   for  the 

cancella- 
ict  was  a 
ibstituted 

6fA.R. 


racts,  see 


<M .  How  coiiHtriied.'*'— A  written  con- 
tract entered  into  by  the  shipper  of  live 
stock  with  the  carrier,  reciting,  inter  alia, 
that  he  had  examined  the  car  and  accepted  it, 
after  he  had  orally  agreed  to  accept  the  car 
only  on  conditi(m  that  the  doors  were  loft 
open  and  slatted,  construed  to  mean  ti  aX. 
he  had  accepted  the  car  on  condition  that 
the  door  was  to  remain  open  and  be  slatted, 
as  previously  agreed.  Kansas  City,  M.  &* 
B.  R.  Co.  v.  Holland,  68  Miss.  351,  8  So.  Rep. 
516. 

Where  animals  were  shipped  under  such 
agreement  as  the  above,  but  without  the 
car-door  being  left  open  and  slatted,  and 
some  of  the  animals  died,  as  was  claimed 
by  the  owner,  from  insufficient  ventilation, 
it  is  proper,  in  an  action  for  damages,  to 
leave  the  question  of  the  suitableness  of  the 
car  to  the  jury.  Kansas  City,  M.  &*  B.  R. 
Co.  V.  Holland,  68  A/iss.  351,  8  S't*.  Re^.  516. 

PlaintifT  made  a  contract  for  the  shipment 
of  cattle  containing  this  stipulation  :  "  In 
consideration  that  the  party  of  the  first  part 
will  transport  for  the  party  of  the  second 
part  one  car  of  cattle  and  one  car  of  hogs  to 
the  National  Stock  Yards  station,  at  the 
rate  of  thirty-five  dollars  per  car,  with  priv- 
ilege of  Chicago  at  forty-five  dollars  per 
car-load,  etc.,"  and  providing  that  plaintiff 
should  unload  and  reload  at  transfer  points, 
and  St.  Louis  was  the  end  of  defendant's 
line,  and  there  would  be  a  transfer  to  some 
other  line  at  that  point  if  the  stock  should 
be  taken  to  Chicago,  and  the  fact  is  ad- 
mitted that  the  defendant  did  not  transport 
the  stock  further  than  St.  Louis— /leld,  that 
the  contract  of  shipment  meant  that  plaintifT 
could  ship  to  St.  Louis,  and  that  he  would 
there  have  the  privilege  of  determining,  in 
a  reasonable  time,  whether  he  would  go  on  to 
Chicago,  and  that,  upon  plaintiff's  demand  to 
furnish  transportation,  within  a  reasonable 
time,  to  Chicago,  and  the  failure  of  defend- 
ant so  to  furnish  it,  the  plaintiff  was  entitled 
to  recover.  WAite  v.  Missouri  Pac.  R.  Co., 
19  Mo.  App.  400. 

2.  Limitation  of  Liability,  Generally. 

02.  Power  to  limit  the  common- 
law  liability.t— A  railroad  company  trans- 
porting live  stock  may  contract  with  the 
shipper  for  a  consideration,  that  the  com- 


*  See  also  post,  96. 

t  Limitation  of  liability  of  carriers  of   live 
stock,  see  note,  49  Am.  &  Eng.  R.  Cas.  169. 


pany  shall  be  released  from  all  liability  for 
damages  accruing  to  the  stock,  disconnected 
and  apart  from  the  conduct  or  running  of 
the  trains,  as  from  overloading,  suffocation, 
heat,  and  the  like.  Georgia  R.  Co.  v.  Bcatie, 
66  Ga.  438,  42  Am.  Rep.  75.  —  Quoting 
Georgia  R.  Co.  v.  Spears,  66  Ga.  485. — 
Quoted  in  Mitchell  v.  Georgia  R.  Co.,  68 
Ga.  6^.—Mitcliell  v.  Georgia  R.  Co.,  68 
Ga.  644.  —  Quoting  Georgia  R.  Co.  v. 
Spears,  66  Ga.  485;  Georgia  R.  Co.  v. 
Beatie,  66  Ga.  438. 

A  usage  cannot  be  a  good  one  if  it  is  con- 
trary  to  law  or  public  policy.  So  a  usage  or 
custom  of  railroads  not  to  receive  live  stock 
for  transportation  unless  under  certain  con- 
ditions modifying  their  common-law  liabil- 
ity cannot  be  shown  as  a  defense,  because 
railroads  cannot  legally  refuse  to  ship  live 
stock.  Missouri  Pac.  R.  Co.  v.  Pagan,  35 
Am.  &*  Eng.  R.  Cas.  666,  72  Tex.  127,  9  5. 
W.  Rep.  749,  2  L.  R.  A.  75.— Quoted  in 
Missouri  Pac.  R.  Co.  v.  Childers,  i  Tex. 
Civ.  App.  302. 

63.  By  mere  notice.— A  common  car- 
rier of  live  stock  cannot  relieve  itself  from 
liability  by  mere  notice  appended  or  printed 
on  the  contract.  So  a  printed  statement 
appended  to  a  contract,  providing  that  the 
carrier,  in  cases  of  damage,  will  only  be 
liable  for  a  certain  limited  value,  and  a  pro- 
vision that  valuable  blooded  animals  will 
only  be  carried  on  special  contract,  do  not 
constitute  part  of  the  contract,  and  are  not 
available  as  a  defense.  Ormsby  v.  Union 
Pac.  R.  Co.,  2  McCrary  {U.  S.)  48,  4  Fed. 
Rep.  706.— Quoting  Michigan  C.  R.  Co. 
V.  Mineral  Springs  Mfg.  Co.,  16  Wall.  (U.  S.) 
328. 

While  common  carriers  may  limit  their 
liability  by  special  contract,  mere  notice 
that  a  carrier  will  not  transport  live  stock 
unless  the  shipper  will  enter  into  a  contract 
limiting  the  carrier's  liability  for  loss  or  in- 
jury to  $100,  does  not  constitute  such  spe- 
cial contract,  without  anything  to  show 
that  the  shipper  assented  to  it.  Chicago,  R. 
I.  <S-  P.  R.  Co.  v.  Harmon,  12  ///.  App.  54. 

64. by  stipulation  in  receipt.— 

A  shipper  of  horses  cannot  recover  for  in- 
jury to  them  owing  to  the  negligence  of 
the  company's  servants,  where  the  ticket  or 
receipt  delivered  to  the  shipper  stipulated 
that  he  assumed  all  risks,  and  that  the  com- 
pany would  not  be  liable  for  any  damages 
whatsoever.  Austin  v.  Manchester,  S.  &-  L. 
R.  Co.,  10  C.  B.  454,  7  Railw.  Cas.  300,  ig 


r«a 


CAKKIAlJl':   Ol"    \AV\:   STOCK    «ft-«7. 


/itr.  763,  31  A./,  t'.  /'.  179.  C/ii/>/>i»(/(i/r  V. 
LaiUits/iire  Sr'  V.  A'.  Co.,  7  Naihv.  Cas.  824, 
i^  Jiir.  1 106,  12  /..  y.  (2-  ^''  22.  i'//(i«/  V. 
York  &-  A^.  J/.  A'.  Co..  6  AVj/'/w.  Chj.  87,  13 
Q.  B.  347.  \lj">-  385.  \^L.J.Q.D.\%\. 

It  is  not  the  fluty  of  a  carrier's  agent,  on 
giving  a  receipt  for  goods  to  be  shipped,  to 
call  the  shipper's  attention  to  its  language 
limiting  the  carrier's  liability;  it  is  the 
shipper's  duty  to  read  it.  Snider  v.  Adams 
Exp.  Co.,  63  Mo.  376,  20  Am.  Ay.  Kep.  435. 

A  railroad  company's  custom  was  to 
carry  horses  ai  the  owner's  risk,  and  at  re- 
duced rates  for  that  reason,  and  the  letters 
"O.  R.,"  signifying  "Owner's  Risk,"  were 
upon  the  receipt  given  to  plaintiff  for  his 
horses,  and  retained  and  put  in  evidence  by 
him  ;  and  he  testified  that  "  he  did  not  see  " 
those  letters,  but  not  that  he  did  not  under- 
stand their  meaning.  Held,  that  the  re- 
stricted liability  of  the  company  clearly  ap- 
peared from  plaiiitiflf's  evidence.  Morrison 
V.  Phillips  Sr»  C.  Constr.  Co.,  44  Wis.  405,  19 
Am.  Ry.  Rep.  312. 

05.  General  rule  denying  right  to 
limit  liability  for  negligence.'*'— A 
common  carrier  may  limit  his  common- 
law  liability  for  live  stock  transported  by 
him,  but  may  not  exempt  himself  from  lia- 
bility for  his  own  negligence.  East  Tenn., 
V.  &*  G,  R.  Co,  V.Johnston,  22  Am.  &^  Eng. 
R.  Cas.  437,  75  Ala.  596,  51  Am.  Rep.  489. 
Sprague  v.  Missouri  Pac.  R.  Co.,  23  Am.  <S<» 
Eng.  R.  Cas.  684,  34  Kan.  347,  8  Pac.  Rep. 
465.  Chicago,  R.  I.  &*  P.  R.  Co.  v.  Witty, 
32  Neb.  275,  49  A^.  W.  Rep.  183.— Follow- 
ing Atchison  &  N.  R.  Co.  v.  Washburn,  5 
Neb.  I  ij.— Louisville  &-  N.  R.  Co.  v.  Wynn, 
45  Am.  &*  Eng.  R.  Cas.  312,  88  Tenn.  320, 14 
S.  W.  Rep.  311.— Approving  Coward  v. 
East  Tenn.,  V.  &  G.  R.  Co.,  16  Lea  (Tenn.) 
225  ;  Moulion  v.  St.  Paul,  M.  &  M.  R.  Co., 
31  Minn.  85;  Kansas  City,  St.  J.  &  C.  B.  R. 
Co.  V.  Simpson,  30  Kan.  645  ;  Chicago,  St. 
L.  &  N.  O.  R.  Co.  V.  Abels,  60  Miss.  1017  ; 
United  States  Exp.  Co.  v.  Baciv  lan,  28 
Ohio  St.  144 ;  Black  7>.  Goodrich  Transp. 
Co.,  55  Wis.  319;  Alabama  G.  S.  R.  Co.  v. 
Little,  71  Ala.  611  ;  Rosenfeld  7/.  Peoria,  D. 
&  E.  R.  Co.,  103  Ind.  121  ;  Missouri  Pac. 
R.  Co.  V.  Pagan,  72  Tex.  127.  Disapprov- 
ing Squires  v.  New  York  C.  R.  Co.,  98  Mass. 
239;  South  &  N.  Ala.  R.  Co.  v.  Henlein, 


*  Limitation  of  liability  for  negligence,  see  55 
Ah.  &  Eng.  R.  CAS.353,  abslr. 


52  Ala.  606;  Magnin  v.  Dinsmore,  56  N.  Y, 
168;  St.  Louis,  \.  M.  &  S.  R,  Co.  v.  Weakly, 
50  Ark.  397.  Distinguishing  Hart  v.  Penn- 
sylvania R.  Co.,  112  U.  S.  331;  Harvey  v. 
'rcrre  Haute  &  \.  R.  Co.,  74  Mo.  539 ;  Graves 
V.  Lake  Shore  &  M.  S.  R,  Co.,  137  Mass.  33 ; 
Brehme  v.  Uinsmore,  25  Md.  329;  Louis- 
ville &  N.  R.  Co.  7'.  Sherrod,  84  Ala.  178  — 
DisTiNOUiSHKD  IN  Louisville  &  N.  R.  Co. 
V.  Sowell,  90  Tenn.  17. 

A  common  carrier  cannot  lawfully  stipu- 
late for  exemption  from  responsibility  for 
the  negligence  of  himself  or  his  servants, or 
the  insufficiency  of  his  cars  for  the  trans- 
portation of  the  freight  deposited  in  them. 
St.  Louis,  L  M.  &*  S.  R.  Co.  v.  Lesser,  46  Ark, 
236.— Quoting  New  York  C.  R.  Co.  v. 
Lockwood,  17  Wall.  (U.  S.)  357;  Welsh  v. 
Pittsburg,  Ft.  W.  &  C.  R.  Co..  10  Ohio  St. 
65;  Rhodes  v.  Louisville  &  N.  R.  Co.,  9 
Bush  (Ky.)  688. 

06.  Contrary  rule— Siicli  limitation 
valid. — Common  carriers  cannot  by  con- 
tract stipulate  for  immunity  against  gross 
negligence,  but  may  stipulate  for  a  partial 
exemption  from  it>  full  liability.  Chicago, 
R.  I.  &•  P.  R.  Co.  v.  Harmon,  17  ///.  App. 
640. 

Where  a  railroad  conipany  contracts  for 
exemption  from  liability  from  the  negli- 
gence of  its  servants  or  from  the  insecurity 
of  its  cars,  it  will  not  be  liable  for  an  injury 
to  stock  carried  in  a  grain  car,  unsafe  for 
stock  but  suitable  for  grain,  there  being 
other  and  suitable  cars  provided  by  the 
company,  which  its  servants  neglected  to 
use.  Wilson  v.  Ne^v  York  C.  6-  H.  R.  R. 
Co.,  21  Am.  &*  Eng.  R.  Cas.  148,  97  A^.  Y. 
87 ;  affirming  27  Hun  149.— Distinguish- 
ing Nicholas  v.  New  York  C.  &  H.  R.  R. 
Co.,  89  N.  Y.  370. 

07.  Limitation  of  liability  for  wH- 
ful  acts. — A  contract  by  a  railway  com- 
pany carrying  cattle  by  sea,  exempting  it 
from  liability  for  acts  of  wilful  misconduct 
on  the  part  of  seamen  and  crew,  is  unreason- 
able. Ronan  v.  Midland  R.  Co.,  L.  R.  14 
Lr.  157. 

A  contract  for  the  shipment  of  cattle 
partly  by  rail  and  partly  by  sea,  exempting 
the  company,  among  other  things,  from 
liability  for  the  fault,  negligence, or  mistake 
of  seamen  or  crew  of  the  vessel,  does  not  in 
its  terms  exempt  the  company  from  liability 
for  icis  or  wilful  misconduct  on  the  part  of 
tfe  seamen  and  crew.  Ronan  v.  Midland 
A?.  Co.,  L.  R.  14 /r.  157. 


CARKlAdK   OF    lAVli    STOCK,  «H.  «U. 


•;«3 


ore.  56  N.  Y, 
i.  I/.  Weakly, 
lartv.  Penn- 

;  Harvey  v. 

539 ;  Graves 
37  ^'i•9s.  33; 

329;  Louis- 
[  Ala.  178.-- 
&  N.  R.  Co. 

vfully  stipii- 
nsibiiity  for 
servants,  or 
r  the  trans- 
cd  in  them. 

R.  Co.  V. 
';  Welsh  v. 
10  Oliio  St. 
f.  R.  Co.,  9 

liiuitntlon 

lot  by  con- 
^ainst  gross 
or  a  partiii! 
y.  Chicago, 
17  III'  A  pp. 

on  tracts  for 
the  negli- 
e  insecurity 
it  iin  injury 
,  unsafe  for 
here  being 
ded  by  the 
eglected  to 
'  H.  R.  R. 
8,  97  A'.  Y. 
STINGUISH- 

k  H.  R.  R. 

y  for  wH- 

ilway  com- 
empting  it 
nisconduct 
3  unreason- 
,  L,  R.  14 

■  of  cattle 
exempting 
ings,  from 
or  mistake 
Iocs  not  in 
m  liability 
he  part  of 
.  Midland 


3.  Special  Contracts  Limiting  Liability. 

«8.  l*ower  to  lliiiit  linhillty  by 
Hpecliil  4'oiitruct.'*'— Carriers  of  live  stock 
may  limit  tlicir  liability  in  respect  thereto 
by  special  contract,  iicorgia  A'.  Co.  v. 
spears,  66  Ga.  485.  Morrison  v.  PhiHips&^ 
C.  Constr.  Co.,  44  Wis.  405.  19  ^lui.  Ry.  Rep. 
312.— Foi.i.owiNd  Bettsf.  Farmers'  L.  &  T. 
Co.,  21  Wis.  80.— Rkvikwkd  in  Annas  v. 
Milwaukee  &  N.  R.  Co.,27  Am.  &  Eng.  R. 
Cas.  102,  67  Wis.  46,  57  Am.  Rep.  388,  note. 
—  Central R.  Co.  v.  Bryant,  73  Ga.  722.  Great 
Western  R.  Co.  v.  McCarthy,  2g  Am.  Sr*  Eng. 
R.  Cas.  87,  1 2  App.  Cas.  218;  reversed  in  Ir. 
L.  R.  18  Q.  R.I).  I.— AFPR()VlW(i  Peek  v. 
North  Staffordshire  R.  Co.,  10  H.  L.  Cas. 
473 ;  Manchester.  S.  &  L.  R.  Co.  v.  Brown, 
8  App.  Cas.  703. 

Where  a  person  ships  cattle  over  a  rail- 
way under  a  special  contract  of  carriage,  he 
cannot  elect  to  charge  the  railroad  company 
with  the  liabilities  of  a  common  carrier. 
Lake  Shore  &»  M.  S.  R.  Co.  v.  Bennett,  6 
Am.  &»  Eng.  R.  Cas.  391,  89  Ind.  457. 

A  railwiiy  company  is  bound,  as  a 
common  carrier,  to  receive  and  transport 
live  animals,  when  offered  for  transporta- 
tion from  one  point  to  another  in  Texas,  as 
other  property,  and  is  liable,  after  receiving 
them,  as  an  insurer  against  loss  from  any 
cause,  except  the  act  of  God  or  of  the  pub- 
lic enemy,  the  act  of  the  owner  of  the  stock, 
or  the  vicious  propensities  or  inherent 
character  of  the  animals.  This  liability  a 
railroad  company  cannot  limit  by  special 
contract,  even  in  regard  to  matters  concern- 
ing which  it  might  legally  contract  at  com- 
mon law.  Gulf,  C.  6-  S.  F.  R.  Co.  v.  Tra- 
wick,  30  Am.  6»»  Eng.  R.  Cas.  49,  68  Tex. 
314,  4  .S".  IV.  Rep.  567. 

Whenever  railroad  companies  receive 
cattle  or  live  stock  to  be  transported  over 
their  road  from  one  place  to  another,  such 
companies  assume  all  the  responsibilities  of 
a  common  carrier,  except  so  far  as  such  re- 
sponsibilities may  be  modified  by  a  special 
contract ;  and  under  the  Tex.  St.  the  modifi- 
cations which  may  be  made  by  a  special 
contract,  and  are  to  operate  within  the  lim- 
its of  the  state,  can  only  be  such  as  will  not 
diminish  the  common-law  liability  of  a  rail- 
road company  as  a  common  carrier.  Mis- 
souri Pac.  R.   Co.  v.  Harris,  I   Tex.  App. 


*  Limitation  of  liability  of  carriers  of  live 
stock  by  contract,  see  note,  67  Am.  Dec.  213. 


(C/'v.    t'<»,v. I  730.      I'i.vas  &*   /'.    A'.    Co,   V, 
Uamm,  3  Ttx.  App.  (Civ.  Cas.)  43  >. 

A  reasonable  condition  contained  in  a 
contract  for  the  carriage  of  live  stock  is 
valid  as  a  liinitaiion  of  the  currier's  com- 
mon-law liability,  where  the  contract  is 
made  in  another  state  and  the  carriage  is  to 
be  interstate,  li  such  case  the  inhibition 
of  the  Texas  statute  iigainst  common  car- 
riers limiting  their  liability  does  not  apply. 
International  \ir*  G.  X.  A".  Co.  v.  li'att,  2 
7>r.  App.  (Civ.  Ciis.}  686. 

«!l.  What  liniititiioii,H  urc  valid 
and  binding,  gracrally.  -In  so  fur  as 
a  contract  for  the  carriage  of  live  stock  un- 
dertakes to  relieve  the  company  from  lia- 
bility on  account  of  any  delay  in  tnins' 
tation,  it  is  void ;  and  it  is  also  void  in  so 
far  as  it  requires  the  shipper  to  give  notice 
of  his  claim  before  he  unloads  his  stock. 
But  it  is  valid  in  so  fat  as  it  provides  that 
the  owner  shall  go  with  the  stock  and  shall 
take  care  of  it,  and  prepare  the  car  for  the 
use  of  the  stock,  and  shall  see  to  the  load- 
ing and  unloading.  Ormsby  v.  Union  Pac. 
R.  Co.,  2  McCrary  (I/.  S.)  48,  4  Eed.  Rep. 
706. —Quoting  Michigan  C.  R.  Co.  v. 
Mineral  Springs  Mfg.  Co..  16  Wall.  (U.  S.) 
328. 

A  special  contract  by  which,  in  consider- 
ation of  reduced  rates  and  a  free  passage  for 
himself,  a  shipper  of  live  stock  assumes  (re- 
leasing the  railroad  company  from)  all 
injuries,  loss,  or  damage  the  animals  may 
sustain  from  injuries  to  themselves  or  to 
each  other,  or  from  heat,  suffocation,  over- 
loading, fright,  viciousness,  and  from  "any 
damages  incidental  to  railroad  transporta- 
tions which  shall  not  have  been  caused  by 
the  fraud  or  gross  negligence  of  said  rail- 
road," is  reasonable  and  valid,  except  in  the 
attempt  to  limit  the  liability  of  the  railroad 
to  gross  negligence.  Central  R.  <S^  B.  Co.  v. 
Smitha,  85  Ala.  47,  4  So.  Rep.  708.— Fol- 
lowing South  &  N.  Ala.  R.  Co.  v.  Henlein, 
52  Ala.  606.— Distinguished  in  Georgia 
Pac.  R.  Co.  V.  Hughart,  90  Ala.  36. 

When  a  carrier  contracts  for  exemption 
from  liability  for  less  occurring  by  fire,  the 
owner  of  goods  lost  by  fire  cannot  recover 
for  them  without  affirmative  proof  that  the 
fire  was  the  result  of  negligence.  Little 
Rock,  M.R.  <S-  T.  R.  Co.  v.  Harper,  21  Am. 
&»  Eng.  R.  Cas.  97.  44  Ark.  208. 

Limitations  upon  the  common-law  liabil- 
ity of  a  carrier,  contained  in  a  bill  of  lading 
for  the  shipment  of  live  stock,  are  unreason- 


764 


CARRIAGE   OF   LIVE   STOCK,  70. 


8 


i-i-i 


able  and  void,  notwithstanding  it  is  recited 
therein  that  the  limitations  were  agreed  to 
by  the  shipper  in  consideration  of  a  reduced 
rate,  if  the  carrier's  rules,  printed  upon  the 
bill  of  lading,  would  not  have  permitted  the 
live  stock  to  be  shipped  unless  the  shipper 
accepted  the  bill  of  lading  with  its  limita- 
tions. St.  Louis,  I.  M.  &*  S.  R.  Co.  v. 
Spann,  57  Ark.  127.— Following  Little 
Rock  &  Ft.  S.  R.  Co.  V.  Cravens,  57  Ark.  112. 

The  common  carrier  of  live  stock  may  by 
special  contract  relieve  itself  from  liability 
for  injury  to  the  animals  resulting  "  in 
consequence  of  any  of  them  being  wild,  un- 
ruly, or  weak,  or  of  diflerentages  and  classes, 
or  maiming  each  other  or  themselves." 
Illinois  C.  R.  Co.  v.  Scruggs,  69  Miss.  418, 
13  So.  Rep.  698.— Following  Chicago,  St. 
L.  &  N.  O.  R.  Co.  V.  Abels,  60  Miss.  loi; 

The  following  provisions  in  a  contract  for 
the  transportation  of  sheep  were  held  valid 
and  binding :  (i)  That  the  carrier  should  be 
released  from  all  injury  or  depreciation 
which  any  of  the  animals  might  sutler  from 
being  weak  or  escaping,  or  injuring  them- 
selves or  each  other,  or  from  overloading, 
heat,  suffocation,  fright,  viciousness,  or  by 
being  injured  by  fire;  (2)  that  the  business 
of  the  carrier  should  not  be  delayed  by  the 
detention  of  trains  to  unload  and  reload 
the  sheep  for  any  cause  whatever;  (3) 
that  should  damage  occur  the  value  of  the 
sheep  at  the  date  and  place  of  shipment 
should  govern.  Texas  &•  P.  R.  Co.  v.  Davis, 
2  Tex.  App.  {Civ.  Cas.)  156. 

70.  Special  contracts  assuminsr 
risks,  when  bind  sliipper. — A  common 
carrier  of  live  stock  may  contract  that  the 
owner  shall  a'  sume  all  risk  of  damage,  from 
whatever  cause,  in  course  of  transporta- 
tion. Bettsv.  Farmers'  L.  &•  T.  Co.,  21  Wis. 
80. — Followed  in  Morrison  v.  Phillips  & 
C.  Constr.  Co.,  44  Wis.  405.  Quoted  in 
Richardson  v.  Chicago  &  N.  W.  R.  Co.,  18 
Am.  &  Eng.  R.  Cas.  530,  6i  Wis.  596.  Re- 
viewed in  Potts  V.  Wabash,  St.  L.  &  P.  R. 
Co.,  17  Mo.  App.  394. 

A  stipulation  that  horses  should  be  car- 
ried at  the  owner's  risk  is  not  unreasonable 
or  void.  M'Cance  v.  London  &»  N.  W.  R, 
Co.,  7  H.&'N.  477,  31  L.  J.  Exch.  65.  S.  P. 
Gannell  v.  Ford,  5  L.  T.  604.  Harrison  v. 
London,  B.  <S-  S.  C.  R.  Co.,  2  B.  &*  S.  122, 
%Jur.  N.  S.  740,  l\  L.J.  Q.  B.  113. 

A  stipulation  in  a  special  contract,  by 
which  the  shipper  agrees  "  to  load,  unload, 
and  transfer  the  stock  at  his  own  risk  with 


the  assistance  of  tiic  railroad  agents,  and,  in 
case  of  accidents  or  delays  from  any  cause 
whatever,  to  feed,  water,  and  take  care  of  the 
stock  at  his  own  expense,"  being  furnished 
with  all  proper  facilities  by  the  railroad, 
contemplates  that  he  shall  himself  accom- 
pany the  stock  the  entire  route  and  perform 
the  stipulated  services;  and  the  fact  that,  at 
one  of  the  stations  on  the  route,  on  presen- 
tation of  his  bill  of  lading  the  agent  in 
charge  gave  him  a  ticket  which  enabled 
him  to  travel  on  a  passenger  train,  though 
he  might  have  travelled  on  the  train  with 
his  stock,  does  not  show  a  waiver  of  these 
stipulations  or  relieve  him  of  the  perform- 
ance of  the  specified  services.  Central  R. 
&>  B.  Co.  v.  Smitha,  85  Ala.  47,  4  So.  Rep. 
708. 

Under  provisions  in  a  contract  for  the 
transportation  of  live  stock  releasing  the 
company  from  liability  for  delays  at  termi- 
nal points,  and  for  delays  at  points  where 
the  stock  were  to  be  delivered  to  connect- 
ing lines,  the  shipper  agreeing  to  assume 
the  risk  of  transportation,  a  carrier  is  not 
liable  for  the  injury  that  results  to  the  stock 
by  reason  of  a  delay  caused  by  a  strike  on 
its  road,  which  it  could  not  control.  Bart- 
lett  V.  Pittsburgh,  C.  Of  St.  L.  R.  Co.,  18  Am. 
&*  Eng.  R.  Cas.  549,  94  fnd.  281. 

Where  live  stock  are  shipped  under  a  con- 
tract that  the  shipper  assumes  all  risk  of 
delay  caused  by  a  *'  strike  "  or  threatened 
violence  to  personal  property,  there  can  be 
no  recovery  against  the  company  for  a 
delay  caused  by  a  "  strike  "  of  such  magni- 
tude as  to  require  the  military  force  of  the 
state  to  suppress  it.  Gulf,  C.  <S-  5.  F.  R. 
Co.  V.  Gatewood,  79,  Tex.  89,  14  S.  W.  Rep. 

913. 

Where,  by  the  terms  of  a  contract  for  the 
shipment  of  sheep,  the  shipper,  in  consid- 
eration of  reduced  rates,  is  to  care  for  thti.i 
while  in  transit,  and  attend  to  loading  and 
unloading  them,  and  assume  all  risks  inci- 
dent thereto,  and  of  all  injuries  from  any 
cause,  he  cannot  cast  the  duty  upon  the 
carrier  of  caring  for  the  sheep  after  being 
unloaded  at  their  destination,  although  its 
stock-yards  were  too  small  to  hold  them  all. 
Myers  v.  Wabash,  St.  L.  &>  P.  R.  Co.,  27 
Am.  &*  Eng.  R.  Cas.  53.  90  Mo.  98,  2  S.  W. 
Rep.  263. 

A  provision  in  a  bill  of  lading  of  live 
stock  providing  that  the  owner  should  ac- 
company them  and. take  care  of  them,  and 
should  assume  the  risk  of  injury  that  they 


gents,  and,  in 
"n  any  cHuse 
ke  care  of  the 
ng  furnished 
the  railroad, 
mself  accom- 
and  perform 
fact  that,  at 
e,  on  presen- 
he  agent   in 
licli  enabled 
train,  though 
le  train  with 
iver  of  these 
the  perforin- 
Central  R. 
7,  4  So.  Hefi. 

tract  for  the 
■eleasing  the 
lys  at  termi- 
joints  where 
to  connect- 
er to  assume 
arrier  is  not 
1  to  the  stock 
'  a  strike  on 
itrol.  Bart- 
\.Co.,  i8Am. 
I. 

underacon- 
is  all  risk  of 
r  threatened 
here  can  be 
npany  for  a 
such  magni- 
force  of  the 
<S-  -S".  r.  R. 

S.  IV.  Rep. 

tract  for  the 
>  in  consid- 
ire  for  thti.j 
oading  and 

risks  inci- 
s  from  any 
'  upon  the 
after  being 
Ithough  its 
Id  them  all. 

Ji.  Co.,  27 
?8.  2  S.  IV. 

ng  of  live 

should  ac- 

them,  and 

f  that  thejr 


CARRIAGE   OF   LIVE   STOCK,  71. 


765 


night  do  to  themselves  or  to  each  other, 
will  not  be  treated  as  waived  upon  proof 
that  the  company  had  been  in  the  habit  of 
conveying  cattle  for  the  same  party  without 
his  presence  on  the  train.  Chicago  <S-  N. 
IV.  R.  Co.  v.  Van  Vresar,  22  Wis.  511, 

To  a  declaration  against  a  railroad,  set- 
ting out  a  special  contract  entered  into 
with  plaintiff  lo  carry  certain  cattle,  where- 
by plaintiff  undertook  "all  risk  of  loss, 
injury,  damage,  and  other  contingencies  in 
leading,  unloading,  transportation,  convey- 
ance, and  otherwise,  no  matter  how  caused," 
and  alleging  the  consequent  duty  on  defend- 
ants' part  to  furnish  suitable  and  safe;  car- 
riages, and  the  breach  of  such  duty,  whereby 
some  of  the  cattle  were  killed  and  others  in- 
jured, deferdaiits  pleaded  this  special  con- 
tract, and  that  while  said  cattle  were  being 
so  conveyed  a  door  of  one  of  the  cars  became 
open  and  some  of  the  cattle  fell  out  and  were 
injured.  Held,  that  the  terms  of  the  special 
contract  protected  defendants  against  lia- 
bility for  the  damage  caused  by  the  accident. 
Hood  V.  Grand  Trunk  R.  Co.,  20  U.  C.  C.  P. 
361.— Following  O'Rorke  v.  Great  West- 
ern R.  Co.,  23  U.  C.  Q.  B.  427.  Disapprov- 
ing Shaw  V.  York  &  N.  M.  R.  Co.,  13  Q.  B. 
34.7;  McManus  v,  Lancashire  R.  Co.,  2  H. 
&  N.  693. 

71.  Special  co^^racts  assuming 
rislcs,  when  do  not  bind  shipper.*— 
A  provision  in  a  contract  for  the  shipment 
of  live  stock,  providing  that  the  owner  as- 
sumed risks  of  injury  resulting  from  heat 
or  suffocation,  cr  from  being  crowded  in 
the  cars,  does  not  relieve  the  company  from 
liability  for  a  loss  of  stock  which  results 
from  insufficient  ventilation.  Kansas  City, 
M.  &*  B.  R.  Co.  V.  Holland,  68  Miss.  351,  8 
So.  Rep.  516. 

A  contract  for  the  shipment  of  live  stock 
by  a  railroad  company  provided  that,  in 
consideration  of  a  certain  reduced  rate  of 
transportation,  the  owner  of  said  stock 
should  assume  all  risks  of  injuries  which 
the  animals,  or  either  of  them,  might  receive 
in  consequence  of  any  of  them  being  wild, 
unruly,  vicious,  weak,  escaping,  maiming 
and  killing  themselves  or  each  other,  or 
from  delays,  or  in  consequence  of  heat, 
suffocation,  or  the  ill  effects  of  being 
crowded  upon  the  cars  of  said  company,  or 
on  account  of  being  injured  by  the  burning 
of  hay,  straw,  or  any  other  material  used 

•  See  also /w/,  127,  138. 


by  the  owner  in  feeding  the  stock,  or  other- 
wise, and  any  damage  occasioned  thereby, 
and  also  all  risks  of  any  loss  or  damage 
which  might  be  sustained  by  reason  of  any 
delay,  or  from  any  other  cause  or  thing  in 
or  accident  to,  or  from  or  in  the  loading  or 
unloading  of,  said  stock ;  that  said  owner 
should  load  or  unload  said  stock  at  his  own 
risk,  the  railroad  company  furnishing  the 
necessary  laborers  to  assist,  under  the  direc- 
tion and  control  of  said  owner,  who  should 
examine  for  himself  all  the  means  used  in 
loading  and  unloading,  to  see  that  they 
were  of  sufficient  strength,  of  the  right 
kind,  and  in  good  repair  and  order ;  that 
each  person  riding  free  to  take  care  a-nd 
charge  of  said  stock  should  do  so  at  his 
own  risk  of  personal  injury  from  whatever 
cause;  and  that  the  owner  should  release 
and  hold  harmless  and  keep  indemnified 
the  railroad  company  from  all  damages,  ac- 
tions, claims,  and  suits  on  account  of  any 
and  every  injury,  loss,  and  damage  hereto- 
fore referred  to,  if  any  should  occur  or 
happen.  In  a  suit  against  the  railroad  com- 
pany to  recover  for  certain  animals  shipped 
by  the  plaintiff  under  this  contract,  and  lost 
while  in  course  of  transportation  by  escap- 
ing through  a  window  open  in  the  end  of 
the  car  in  which  they  had  been  loaded  by 
the  plaintiff's  agent,  who  accompanied  them 
on  the  route,  and  who,  after  the  escape  of 
one  of  the  animals,  told  the  conductor  to 
fix  said  window,  and,  the  conductor  not 
doing  so,  fixed  it  himself — held,  that  the 
railroad  company  was  liable  for  the  loss. 
Indianapolis,  P.  &»  C.  R.  Co.  v.  Allen,  31 
fnd.  394. 

A  railroad  company  undertook  the  trans- 
portation of  cattle  under  a  special  agree- 
ment, by  which  the  owner  of  the  cattle 
assumed  the  risk  of  all  injury,  loss,  or  damage 
which  might  be  occasioned  in  certain  con- 
tingencies, including  the  escaping  of  the 
cattle  and  possible  injury  to  them  by  fright 
or  their  own  viciousness,  as  well  as  any  other 
injury  which  might  happen  to  them  inci- 
dental to  railroad  transportation,  not  caused 
by  the  fraud  or  gross  negligence  of  the 
railroad  company.  Held,  that  while  this 
special  contract  devolved  on  the  owner 
the  personal  care  of  the  cattle,  with  the 
duties  and  risks  connected  with  it,  includ- 
ing the  risk  of  their  escaping  or  being  in- 
jured in  consequence  of  their  ow  i  restive- 
ness  or  viciousness,  it  did  not  cxo  lerate  the 
company  from  responsibility  for  damages 


U 


I 


766 


CARRIAGE   OF   LIVE   STOCK,  73. 


1^*  ' 


i^i. 


1 


resulting  from  a  failure  to  provide  a  suita- 
ble and  safe  car  for  the  carriage  of  the  cat- 
tle. If  the  car  furnished  was  insufficient 
and  unsuitable,  the  company  is  responsible 
for  the  damage  resulting  therefrom,  even 
though  the  restiveness  or  viciousness  of  the 
cattle  may  have  contributed  to  the  injury 
incurred.  Rhodes  v.  Louisville  &-  N.  R.  Co., 
9  Bush  {Ky.)  688. 

A  contract  for  the  shipment  of  live  stock 
provided  that  the  owners  assumed  "  all  and 
every  risk  of  injuries  which  the  animals 
might  receive  in  consequence  of  being  wild, 
unruly,  and  vicious,  weak,  escaping,  maim- 
ing, or  the  killing  of  themselves  or  each 
other,  or  from  delays,  and  risk  of  any  loss 
or  damage  which  may  be  sustained  by  reason 
of  any  delay,  or  from  any  other  cause  or 
thing  in  or  incident  to  or  from  or  in  the 
loading  or  unloading  of  the  stock."  Held, 
that  this  provision  referred  to  loss  or  dam- 
age by  reason  of  injuries  to  the  stock  caused 
by  delay,  etc.,  upon  the  cars,  and  to  loss  or 
damage  by  reason  of  delay  in  loading  or 
unloading,  and  had  no  reference  to  losses 
which  the  delays  of  the  carriers  might 
cause.  Sissonv.  Cleveland &-  T.  R.  Co.,  14 
Mich.  489. 

72.  Rule  that  carrier  cannot  ex- 
empt himself  from  liability  for  neg- 
ligence by  provisions  in  special  con- 
tract.*— A  common  carrier  cannot  relieve 
himself  from  responsibility  for  his  own  neg- 
ligence or  the  negligence  of  his  employes 
by  any  contract  that  he  may  enter  into 
with  the  shipper.  He  may,  however,  enter 
into  stipulations  which  do  not  relieve  him 
in  any  degree  from  his  responsibility  for 
negligence,  if  the  shipper  assents  and  agrees 
to  them  by  a  special  contract,  either  verbal 
or  in  writing.  Ormsby  v.  Union  Pac.  R.  Co., 
2  McCrary  {[/.  S.)  48,  4  Fed.  Rep.  706. 
Louisville,  C.  <S-  L.  R.  Co.  v.  Hedger,  9 
Bush  {Ky.)  645. — Followed  in  Rhodes  v. 
Louisville  &  N.  R.  Co.,  9  Bush  (Ky.)  688. 

A  provision  in  a  contract  for  the  carriage 
of  horses,  providing  that  the  carrier  is  not 
to  be  liable  for  any  one  of  certain  specified 
causes  of  injury,  will,  not  relieve  it  from  in- 
juries that  result  from  a  want  of  ordinary 
care.  Welch  v.  Boston  &•  A.  R.  Co.,  41 
Conn.  333,  6  Am.  Ry.  Rep.  95. 

As  the  carrier  did  not  stipulate,  by  his 
special  contract,  against  liability  for  his  own 


*  Exemption  from  liability  for  negligence,  see 
note,  16  Am.  &  Eng.  R.  Cas.  149,  157. 


negligence,  even  if  he  could  do  so  effec- 
tively, the  existence  of  a  special  contract 
for  the  shipment  of  live  stock,  with  certain 
stipulations  therein  exempting  the  carrier 
from  liability,  is  no  obstacle  to  the  main- 
tenance of  an  action  of  tort  based  on  his 
legal  duty  and  a  breach  thereof  by  negli- 
gence. Nicoll  v.  East  Tenn.,  V.  &*  G. 
R.  Co.,  89  Ga.  260,  15  S.  E.  Rep.  309.— 
Reconciling  Boaz  v.  Central  R.  Co.,  87 
Ga.  463. 

In  the  absence  of  fault  by  a  shipper  of 
live  stock,  a  contract  by  the  carrier,  limit- 
ing its  liability  to  a  certain  value,  is  not  en- 
forceable where  a  loss  occurs  through  the 
negligence  of  the  carrier  or  its  employes. 
Baughman  v.  Louisville,  E.  &*  S/.  L.  R.  Co., 
{Ky.)  21  S.  W.  Rep.  7  si- 
lt is  not  competent  for  a  railroad  com- 
pany to  provide  by  special  contract  that  it 
will  not  be  responsible  for  its  neglect  or  the 
unsafe  condition  of  the  doors  of  its  cattle- 
cars.  Welsh  v.  Pittsburg,  Ft.  W.  &*  C.  R. 
Co.,  10  Ohio  St.  65.— Approving  Sager  v. 
Portsmouth,  S.  &  P.  &  E.  R.  Co..  31  Me. 
228.  Not  following  Chippendale  v.  Lan- 
cashire &  Y.  R.  Co.,  7  Eng.  L.  &  Eq.  395. 
— Approved  in  Atchinson  &  N.  R.  Co.  v. 
Washburn,  5  Neb.  117.  Quoted  in  St. 
Louis,  I.  M.&  S.  R.  Co. 7/.  Lesser,  46  Ark.  236. 
A  railroad  company  acting  as  a  common 
carrier  of  live  stock  cannot  by  special  con- 
tract procure  exemption  from  responsibility 
for  losses  arising  from  its  own  neglect  of 
the  duties  incident  to  such  employment. 
It  is  liable  for  damage  resulting  from  de- 
fective and  unsafe  cars  or  vehicles,  notwith- 
standing an  express  contract  to  the  con- 
trary. Welsh  V.  Pittsburg,  Ft.  W.  <S-  C.  R. 
Co.,  10  Ohio  St.  65.— Followed  in  Potts  v. 
Wabash,  St.  L.  &  P.  R.  Co.,  17  Mo.  App. 
394;  Baltimore  &  O.  R.  Co.  v.  Campbell,  36 
Ohio  St.  647. 

When  a  railroad  company  is  sued  for 
damages  to  live  stock  while  being  carried, 
it  cannot  set  up  as  a  defense  a  provision  in 
the  contract  of  shipment  that  the  shipper 
agreed  to  accept  the  cars  furnished  to  him  by 
the  company,  so  far  as  such  agreement  tends 
to  relieve  the  company  from  liability  for 
injuries  resulting  from  defective  or  insuffi- 
cient cars.  Such  a  stipulation  is  unreason- 
able and  invalid,  as  a  carrier  cannot  relieve 
himself  from  liability  for  loss  and  injury 
caused  by  his  own  negligence.  Gttl/,  C.  &> 
S.  F.  R.  Co.  v.  Wilhelm,  3  Tex.  App.  {Civ. 
Cas.)  558. 


■  tiyv"-".  1^1"  w'f»i** 


CARRIAGE   OF   LIVE   STOCK,  73-75. 


767 


do  so  effec- 
cial  contract 

with  certain 
;  the  carrier 
:o  the  main- 
based  on  his 
eof  by  negli- 

,    y.    6m   G. 

Rep.  309.— 
1  R.  Co.,  87 

a  shipper  of 
arrier,  limit- 
le,  is  not  en- 
through  the 
s  employes. 
St.  L.  K.  Co., 

lilroad  com- 
tract  that  it 
eglect  or  the 
of  its  cattle- 
W.  &^  C.  A\ 
NG  Sager  v. 
Co.,  31  Me. 
idale  V.  Lan- 
&  Eq.  395. 
N.  R.  Co.  V. 

)TED  IN  St. 
,46  Ark.  236. 
IS  a  common 

special  con- 
esponsibility 
1  neglect  of 
;mployment. 
ig  from  de- 
les, notwith- 
to  the  con- 

«'.  <S-  C.  R. 
•  IN  Potts  V. 
17  Mo.  App. 
Campbell,  36 

is  sued  for 
ing  carried, 
jrovision  in 
the  shipper 
:d  to  him  by 
Jment  tends 
liability  for 
;  or  insuffi- 
s  unreason- 
mot  relieve 
and  injury 
Gti//,  C.  &> 
App.  (Civ. 


A  contract  exonerating  the  company 
from  all  claims  which  may  arise  for  injury 
to  stock  whilst  in  the  cars  of  the  com- 
pany does  not  exonerate  them  from  the 
consequences  of  negligence  in  the  perform- 
ance of  their  duty  as  common  carriers. 
Pffwell  V.  Pennsylvania  R.  Co.,  32  Pa.  St. 
414. — Following  Goldey  v.  Pennsylvania 
R.  Co.,  30  Pa.  St.  242. 

A  cattle  dealer  delivered  to  the  Va.  &  T. 
R.  Co.  a  lot  of  fat  cattle  for  transportation. 
The  cattle  were  received  by  an  agent  of  the 
company,  and  a  paper,  signed  by  the  agent, 
was  delivered  to  and  accepted  by  the  owner, 
which  provided  that,  in  consideration  of  the 
reduced  charge  for  freight  by  the  company, 
the  company  was  released  from  all  injury, 
loss,  and  damage  or  depreciation  which  the 
animals,  or  any  of  them,  might  suffer  in 
consequence,  etc.  (specifying  several  modes 
of  injury),  and  from  all  other  damage  inci- 
dental to  railroad  transportation,  wnich 
shall  not  be  established  to  have  been  caused 
by  the  gross  negligence  or  delinquency  of 
any  of  the  officers  or  agents  of  the  said  rail- 
roaa  company.  The  cattle  were  all  de- 
stroyed in  consequence  of  the  car  in  which 
they  were  carried  being  precipated  over  a 
bridge  on  said  railroad.  Held  that,  not- 
withstanding the  contract,  the  company  was 
responsible  if  the  damage  was  caused  by 
any  negligence  of  the  company  or  its  agents. 
Virginia  &*  T.  R.  Co.  v.  Sayers,  26  Gratt. 
(Va.)  328.— Approving  New  York  C.  R. 
Co.  V.  Lockwood,  17  Wall.  (U.  S.)  357. 
Disapproving  Wells  v.  New  York  C.  R. 
Co.,  26  Barb.  (N.  Y.)  641.  Quoting  Wyld 
V.  Pickford,  8  M.  &  W.  442 ;  Philadelphia 
&  R.  R.  Co.  V.  Derby,  14  How.  (U.  S.)  486 ; 
Farnham  v.  Camden  &  A.  R.  Co..  55  Pa.  St. 
53.  Reviewing  New  Jersey  S.  N.  Co.  v. 
Merchants'  Bank,  6  How.  (U.  S.  344; 
United  States  Exp.  Co.  v.  Kountze,  8  Wall. 
(U.  S.)  342. 

A  common  carrier  cannot,  by  special  con- 
tract with  a  shipper  of  live  stock,  shield 
himself  from  the  consequences  of  his  own 
negligence ;  and  where  certain  causes  of 
injury  are  excepted  in  a  special  contract, 
which  limits  the  liability  for  injuries  from 
such  causes,  and  the  testimony  in  an  action 
is  not  sufficient  to  show  from  what  cause 
the  death  of  animals  ensued,  the  burden  is 
upon  the  carrier  to  show  that  death  resulted 
from  the  excepted  causes,  and  that  it  was 
not  guilty  of  negligence  as  a  common  car- 
rier.   Johnstone  s.  Richmond  &*  D.  R.  Co., 


55  Am.  &-  Eng.  R.  Cas.  346,  39  So.  Car.  55, 
17  S.  E.  Rep.  512. 

73. or  bill  of  lading.— A  com- 
mon carrier  of  live  stock  cannot  contract 
in  the  bill  of  lading  against  damages  which 
result  from  the  carrier's  own  negligence. 
Louisville  &*  N.  R.  Co.  v.  Owens,  {Ky.)  19  S. 
W.  Rep.  590.— Following  Louisville,  C.  & 
L.  R.  Co.  V.  Hedger,  9  Bush  (Ky.)  645; 
Rhodes  z/.  Louisville  &  N.  R.  Co.,  9  Bush 
(Ky.)  688. 

Where  a  railroad  receiving  mules  for 
shipment  placed  them  in  a  car,  bedded  with 
straw,  next  to  the  engine,  which  the  uncon- 
troverted  evidence  showed  was  negligent 
and  dangerous  conduct  on  its  part,  and  the 
car  was  ignited  by  sparks  from  the  engine 
and  the  mules  were  burned,  the  provision 
in  the  bill  of  lading  whereby  the  shipper 
assumed  the  risk  of  loss  or  injury  to  the 
mules  by  fire,  or  on  any  account  whatever, 
is  no  protection  to  the  carrier.  McFadden 
V.  Missouri  Pac.  R.  Co.,  30  Am.  &*  Eng.  R. 
Cas.  17,  92  Mo.  343,  10  West.  Rep.  372,  4  S. 
IV.  Rep.  689. — Explained  in  Doan  v.  St. 
Louis.  K.  &  N.  W.  R.  Co.,  38  Mo.  App. 408. 
Reviewed  IN  Conoverz/.  Pacific  Exp.  Co., 
40  Mo.  App.  31. 

In  a  provision  in  a  bill  of  ladii.g  for  the 
carriage  of  live  stock,  providing  that  when 
the  company  furnishes  the  shipper  with 
laborers  to  assist  in  loading  or  unloading 
they  shall  be  deemed  the  servants  of  the 
shipper,  and  that  the  company  shall  not  be 
liable  for  their  negligence,  is  void.  Missouri 
Pac.R.  Co.  V.  Smith,  (Tex.)  16  S.  W.  Rep. 
803. 

74.  Limits  and  exceptions  to  the 
rule. — A  common  carrier's  liability  does 
not  attach  to  a  railway  company  contracting 
to  move  a  menagerie  in  the  latter's  own 
cars  controlled  by  its  own  agents,  and,  though 
operated  by  railway  smploy6s,  run  upon  a 
time-schedule  to  suit  the  menagerie.  And 
a  stipulation  that  the  company  shall  not  be 
liable  for  injuries  to  the  menagerie  caused 
by  want  of  care  may  be  upheld.  Coup  v. 
IVabask,  St.  L.  <S>»  P.  R.  Co.,  18  Am.  &^  Eng. 
R.  Cas.  542,  56  Mic/t.  iii,  22  A^.  IV.  Rep. 
215,  56  Am.  Rep.  374. 

75.  New  York  rule  allowing  lia- 
bility for  negligence  to  be  limited.— 
The  common-law  liability  of  common  car- 
riers of  merchandise,  making  them  msurers 
against  loss  or  injury,  except  it  be  by  the 
act  of  God  or  tne  public  enemy,  does  not 
apply  in  its  full  extent  to  the  carriage  ol 


768 


CARRIAGE   OF   LIVE   STOCK,  76,  77. 


i^K. 


n 

ft*! 


m-  '  !-* 


nil 


live  stock ;  and  in  New  York  it  is  well  set- 
tled that  a  common  carrier  may  by  express 
contract  exempt  itself  from  damages  result- 
ing from  any  degree  of  negligence  on  the 
part  of  its  servants,  agents,  or  employes. 
Therefore,  where  hogs  are  shipped  under 
an  agreement  entered  into  for  reduced 
rates,  whereby  the  owner  assumes  the  risk 
of  injuries  to  them  in  consequence  of  heat, 
the  contract  will  exempt  the  carrier  from 
loss  by  heat,  due  to  its  negligence  in  not 
watering  and  cooling  the  hogs,  as  otherwise 
the  contract  would  be  meaningless  in  not 
giving  more  than  the  law  gives.  Cragin 
V.  New  York  C.  R.  Co.,  Si  N.  K  6i,  4  A»t. 
Ry.  Rep.  418.— Distinguished  in  Magnin 
V.  Dinsmore,  56  N.  Y.  168 ;  Holsapple  v. 
Rome,  W.  &  O.  R.  Co.,  3  Am.  &  Eng.  R. 
Gas.  487,  86  N.  Y.  275. 

The  shipment  of  horses  under  a  special 
contract  by  which  the  owner  assumes  "  all 
risk  of  loss,  injury,  damage,  and  other  con- 
tingencies in  loading,  unloading,  convey- 
ance, and  otherwise,"  relieves  the  company 
from  liability,  and  a  nonsuit  is  properly  al- 
lowed, even  though  the  horses  are  wilfully 
and  negligently  run  on  a  side-track  and 
there  left  locked  up  for  four  days  without 
food,  it  being  impossible  to  feed  them  in  the 
car,  and  the  agent  of  the  company  refuses 
to  permit  them  to  be  unloaded.  Heineman 
v.  Grand  Trunk  R.  Co.,  31  How.  Pr.  (N.  V.) 
430,  I  SAe/d.  95.  —  Commented  on  in 
Keeney  v.  Grand  Trunk  R.  Co.,  59  Barb. 
(N.  Y.)  142. 

76.  Cases  not  witbln  the  New 
York  rule. — A  provision  in  a  contract  for 
the  shipment  of  live  stock  which  attempts 
to  relieve  the  company  from  liability  result- 
ing from  negligence  in  the  loading,  unload- 
ing, or  conveyance,  or  in  failing  to  trans- 
port them  promptly,  does  not  apply  to  a 
case  where  the  cars  are  wilfully  detached 
and  placed  on  a  side-track  to  allow  other 
freight  to  pass,  and  are  kept  there  for  several 
days  locked  up  where  it  is  impossible  to 
feed  or  water  the  stock,  as  such  conduct  is 
not  negligence,  but  a  wilful  breach  of  con- 
tract. Keeney  v.  Grand  Trunk  R.  Co.,  47 
A';  y.  525,  I  Am.  Ry.  Rep.  466 ;  affirming  59 
Barb.  104. 

A  contract  with  two  railroad  companies 
for  the  transportation  of  certain  sheep,  by 
its  terms,  in  consideration  of  a  reduction  of 
the  charges  for  freight,  released  them  from 
liability  for  injuries  to  the  sheep  "caused 
by  burning  of  hay,  straw,  or  other  material 


used  for  feeding  said  animals,  or  otherwise." 
The  contract  contained  no  words  expressly 
exempting  the  carriers  from  liability  for 
their  own  negligence.  A  fire  occurred  in 
the  cars  which  destroyed  a  number  of  the 
sheep,  the  loss  resulting,  as  found  by  the 
jury  in  an  action  brought  to  recover  dam- 
ages, from  the  negligence  of  the  defendant, 
one  of  said  companies,  in  omitting  to  sup- 
ply the  train  with  such  appliances  as  would 
have  enabled  those  in  charge  to  have 
stopped  it  and  extinguished  the  fire  before 
serious  damage  had  resulted.  Held,  that 
the  exemption  did  not  include  negligence, 
and  that  defendant  was  liable.  Holsapple  v. 
Rome,  W.  <S-  O.  R.  Co.,  3  Am.  &»  Eng.  R. 
Cas.  487,  86  A''.  Y.  rj^. — Distinguishing 
Cragin  v.  New  York  C.  R.  Co.,  51  N.  Y.  61. 
Following  Mynard  v.  Syracuse,  B.  &  N.  Y. 
R.  Co.,  71  N.  Y.  180;  Pratt  w.  Ogdensburg 
&  L.  C.  R.  Co.,  102  Mass.  557;  Powell 
V.  Pennsylvania  R.  Co.,  32  Pa.  St.  414. 
—Quoted  in  Zimmer  v.  New  York  C.  & 
H.  R.  R.  Co.,  42  N.  Y.  S.  R.  63. 

77.  English  and  Canadian  rule.— 
A  condition  upon  a  shipping  bill,  as  well  as 
upon  a  pass  granted  to  a  drover,  that  de- 
fendants will  not  be  responsible  for  any 
negligence,  default,  or  misconduct,  gross, 
culpable,  or  otherwise,  on  the  part  of  de- 
fendants or  their  servants,  or  of  any  other 
person  causing  or  tending  to  cause  the  death, 
injury,  or  detention  of  an  animal  shipped, 
will  protect  defendants  where  it  suffi- 
ciently appears  that  the  loss  must  have 
happened  from  some  cause  described  within 
the  conditions.  Farr  v.  Great  Western  R. 
Co.,  35  U.  C.  Q.  £.  534.— Quoting  Shaw  v. 
York  &  N.  M.  R.  Co.,  13  Q.  B.  347;  Wise  v. 
Great  Western  R.  Co.,  i  H.  &  N.  63;  Par- 
dington  v.  South  Wales  R.  Co.,  1  H.  &  N. 
392.  Reviewing  Austin  v.  Manchester,  Z. 
L.  R.  Co.,  10  C.  B.  454. 

Under  the  general  railway  act  1868,  31 
Vic.  ch.  68,  §  20,  sub-sec.  4,  as  amended  by 
34  Vic.  ch.  43,  §  5,  re-enacted  by  Consol. 
Ry.  Act  1879  (42  Vic.  ch.  9),  §  25,  sub- 
sees.  2,  3,4,  prohibiting  railway  companies 
from  protecting  themselves  against  liability 
for  negligence  by  notice,  condition,  or  dec- 
laration, and  which  applies  to  the  Grand 
Trunk  Railway  Company,  that  company 
cannot  avail  themselves  of  a  stipulation,  in  a 
contract  for  the  carriage  of  live  stock,  that 
they  should  not  be  responsible  for  the  neg- 
ligence of  themselves  or  their  servants. 
Grand  Trunk  R.   Co.  v.    Vogel,  27  Am.  &- 


im 


CARRIAGE   OF   LIVE   STOCK,  78,  79. 


769 


otherwise." 
ds  expressly 
lability  for 
occurred  in 
nber  of  the 
und  by  tiie 
cover  dam- 
!  defendant, 
ing  to  sup- 
es  as  would 
e   to   have 

fire  before 

Held,  that 
negligence, 
iolsappU  V. 
&>•  Eng,  R. 
NGUISHING 
I   N.  Y.  6i. 

B.  &  N.  Y. 
)gdensburg 
\T,  Powell 
a.  St.  414. 
York  C.  & 

\n  rule.— 

,  as  well  as 
X,  that  de- 
le for  any 
uct,  gross, 
)art  of  de- 
any  other 
I  the  death, 
il  shipped, 
e  it  sufli- 
must  have 
bed  within 
Vestern  R, 
G  Shaw  V. 
7 ;  Wise  v. 
f.  63;  Par- 
I  H.  &  N. 
chaster,  3. 

t  1868,  31 
nended  by 
jy  Consol. 
§  25,  sub- 
companies 
St  liability 
3n,  or  dec- 
he  Grand 

company 
lation,  in  a 
stock,  that 
r  the  neg- 

servants. 
7  Am.  &• 


Eng.  R.  Cas.  18, 1 1  Can.  Sup.  Ct.  612;  affirm- 
ing 10  Ont.  App.  162,  which  affirms  2  Ont. 
UJ7. 

78.  Liiniitatiou  of  liability  to  cases 
iiivolviug  "  t^ross  or  wilful "  iiegli- 
{{Ciice.  —  A  railroad  company  receiving 
cattle  for  transportation  as  a  common  car- 
rier cannot  by  special  stipulations  limit  its 
liability  to  injuries  caused  by  "  gross  or  wan- 
ton negligence,"  or  to  that  of  a  mere  agent 
of  the  consignor,  in  the  matter  of  delivering 
the  cattle  to  tiie  next  connecting  road,  such 
stipulations  being  contrary  to  public  policy. 
Alabama  G.  S.  R.  Co.  v.  Thomas,  32  Am.  &■* 
Eng.  R.  Cas.  464,  83  Ala.  343,  3  So.  Rep. 
802. 

Though  under  the  contract  of  shipment  a 
railroad  may  have  been  liable  only  for  dam- 
ages arising  from  gross  negligence  in  not 
attending  to  live  stock,  yet  where  it  carried 
the  stock  beyond  the  agreed  destination, 
and  there  kept  them  for  a  time,  its  liability 
as  to  such  time  was  not  limited  to  the  re- 
sults of  gross  negligence.  Bryant  v.  South- 
western R.  Co.,  6  Am.  &•  Eng.  R.  Cas.  388, 
68  Ga.  805. 

By  the  contract  releasing  the  company 
from  all  claims  for  damage  to  stock  while 
in  the  cars  of  the  company,  or  for  delay  in 
their  carriage,  or  for  escape  thereof  from  the 
cars,  and  generally  from  all  claims  relating 
thereto,  except  such  as  might  arise  from  the 
gross  negligence  of  the  company,  the  burden 
is  on  the  plaintiff  of  proving  not  merely 
that  the  live  stock  were  i.  jured  and  damaged 
by  accident  and  delay  occurring  in  their 
transportation,  but  also  that  these  were 
caused  by  the  gross  negligence  or  default  of 
the  defendant's  agents.  Bankard  v.  Balti- 
more &»  O.  R.  Co.,  34  Md.  197. 

The  fact  that  cattle  were  injured  by  ac- 
cidents while  in  the  course  of  transporta- 
tion, that  considerable  delays  occurred  in 
their  carriage,  and  that  they  were  lessened 
in  weight  and  value  from  these  causes,  does 
not  raise  the  presumption  of  negligence 
against  the  company,  within  the  meaning  of 
a  contract  limiting  the  company's  liability 
to  cases  of  gross  negligence  only.  Bankard 
v.  Baltimore  (S-  O.  R.  Co.,  34  Md.  197. 

Provisions  in  the  contract  for  transporta- 
tion of  horses,  attempting  to  discharge  the 
carrier  from  any  liability  for  any  cause,  ex- 
cept wilful  negligence  of  its  agents,  or  pro- 
viding that  the  damage  in  no  case  should 
exceed  $100  per  head,  are  not  valid,  as  being 
an  attempt,  in  whole  or  in  part,  to  exempt 
I  D.  R.  D  — 49 


the  carrier  from  liability  for  its  own  negli- 
gence. Moulton  v  St.  Paul,  M.  &*  M.  R. 
Co.,  12  Am.  &*  Eng.  R.  Cas.  13,  31  Minn.  85, 
47  Am.  Rep.  781,  16  N.  W.  Rep.  497.— 
Approved  in  Louisville  &  N.  R.  Co.  v. 
Wynn,  45  Am.  &  Eng.  R.  Cas.  312,  88  Tenn. 
320,  14  S.  W.  Rep.  311.  Disapproved  in 
Hart  V.  Pennsylvania  R.  Co.,  112  U.  S.  331. 

The  doctrine  once  held  that  carriers  of 
animals  did  not  incur  the  responsibilities  of 
common  carriers,  that  they  were  private  car- 
riers, and  were  subject  only  to  such  liabilities 
as  the  law  imposed  upon  such  bailees,  or  as 
the  contract  between  the  parties  tixed,  does 
not  obtain  in  Texas.  The  carriers  of  such 
property  are  common  carriers,  subject  to  the 
same  responsibilities  imposed  by  law  on  car- 
riers of  other  property,  except  as  these  are 
modified  by  the  inherent  character  of  such 
property.  It  follows  that  a  special  contract 
which  by  Its  terms  purports  to  exempt  a 
railway  company  from  liability  ior  injury  in 
the  transportation  of  cattle,  except  such  as 
might  result  from  the  wilful  negligence  of 
the  company,  cannot  be  enforced.  Missouri 
Pac.  R.  Co.  V.  Harris,  28  Am.  &*  Eng.  R. 
Cas.  107,  67  Tex.  166,  2  S.  W.  Rep.  574.— 
Followed  in  Missouri  Pac.  R.  Co.  v. 
Cornwall,  70  Tex.  611.  Quoted  in  Good 
V.  Galveston,  H.  &  S.  A.  R.  Co.,  40  Am.  & 
Eng.  R.  Cas.  98,  11  S.  W.  Rep.  854  —Mis- 
souri Pac.  R.  Co.  v.  Cornwall,  70  Tex.  611, 
8  5.  W.  Rep.  312.— Following  Missouri 
Pac.  R.  Co.  V.  Harris,  67  Tex.  i66. 

Where  a  bridge  was  washed  away  and  a 
shipment  of  stock  delayed  such  a  length  of 
time  that  loss  was  occasioned  by  extra  feed- 
ing, etc.,  and  it  appeared  that  had  the  rail- 
road company  forwarded  the  stock  promptly 
they  would  have  been  transferred  to  another 
road  before  the  bridge  went  down,  and  the 
delay  avoided— /4tf/d^,  that  the  delay  of  the 
railroad  company  was  such  gross  negligence 
as  to  Invalidate  a  release  e.xecuted  to  them 
by  the  plaintiff  exempting  the  company 
from  all  liability  except  that  occasioned  by 
their  own  gross  negligence,  and  that  a  judg- 
ment far  plaintiff  should  be  affirmed.  In- 
dianapolis <S-  St.  L.  R.  Co.  V.  Adams,  36  ///. 
App.  629. 

79.  Limitation  of  liability  in  con- 
sideration of  reduced  rates.*— A  pro- 
vision in  a  contract  for  the  shipment  of  live 
stock  entered  into  in  consideration  that  the 

*  Carrying  at  reduced  rate  in  consideration 
that  carrier's  liability  be  limited,  see  35  Am.  & 
Eng.  R.  Cas.  614,  abstr. 


770 


CARRIAGE   OF   LIVE   STOCK,  80. 


IfK'l 


\>l 


shipper  gets  reduced  rates,  to  the  efTect  that 
he  shall  attend  and  care  for  the  stock  at  bis 
own  expense,  is  reasonable,  and  will  relieve 
the  carrier  from  liability  for  loss  or  injury 
if  it  is  not  the  result  of  its  want  of  diligence. 
SoutA  &*  N.  Ala.  R.  Co.  v.  Henlein,  52  Ala. 
606. 

A  common  carrier  cannot  limit  his  com- 
mon-law liability  by  a  special  contract  in 
writing  with  the  shipper,  unless  it  is  freely 
and  fairly  made ;  and  the  carrier  cannot  ex- 
act as  a  condition  precedent  for  carrying 
stock  or  goods  that  the  shipper  must  sign 
a  contract  in  writing,  limiting  or  changing 
the  common-law  liability.  If  the  carrier 
has  two  rates  or  charges  for  carrying  stock 
or  goods— one,  if  carried  under  the  old 
common-law  liability ;  and  the  other,  if 
carried  under  a  special  contract — the  shipper 
must  have  real  freedom  of  choice  in  making 
his  selection.  Atchison,  T.  &*  S.  F.  R.  Co. 
V.  Dill,  55  Am.  &»  Eng.  R.  Cas.  375,  48  Kan. 
210,  29  Pac.  Rep.  148. 

Where  a  contract  for  the  shipment  of  live 
stock  recites  that  the  company's  liability  is 
limited,  as  to  certain  specified  matters,  "  in 
consideration  of  reduced  rates,"  but  the  fact 
shows  that  no  reduced  rates  were  given, 
there  is  no  consideration  for  such  limitation, 
and  the  shipper  is  not  bound  thereby. 
Gulf,  C.  &•  S.  F.  R.  Co.  v.  McCarty,  82  Tex. 
608, 18  S.  W.Rep.  716.— Reviewed  in  Gulf, 
C.  &  S.  F.  R.  Co.  V.  Wright,  i  Tex.  Civ. 
A  pp.  402. 

80.  Stipulation  requiringr  notice 
of  claim  before  removal  of  stock.— 
(i)  Validity  of  the  stipulation. — A  common 
carrier  of  live  stock  may  limit  its  liability 
except  as  against  negligence  or  misconduct, 
>nd  may  contract  that  no  claim  will  be 
'lowed  for  loss  or  injury  unless  it  is  pre- 
f,  /"u  in  writing  at  or  before  the  stock  are 
.ii.OE'led;  but  it  is  competent  for  the  carrier 
u  ■  ■  ^^e  such  written  notice.  Rice  v.  Kan- 
./';  .  'cc.  R.  Co.,  63  Mo.  314,  20  Am.  Ry.  Rep. 
424.  — Following  Southern  Exp.  Co.  v. 
Caldwell,  21  Wall.  (U.  S.)  264.  — Distin- 
guished IN  Dunn  V.  Hannibal  &  St.  J.  R. 
Co.  68  Mo.  268.  Followed  in  Dawson 
V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  76  Mo.  514 ; 
Carroll  v.  Missouri  Pac.  R.  Co.,  88  Mo.  239. 
Quoted  in  Wabash,  St.  L.  &  P.  R.  Co.  v. 
Black,  1 1  111.  App.  465. 

A  provision  in  a  contract  for  the  ship- 
ment of  horses,  that  in  case  of  injury  the 
shipper  shall  give  notice  of  his  claim  to 
some  officer  of  the  company,  or  to  its  nearest 


station  agent,  before  the  horses  are  removed 
from  the  place  of  destination  or  mingled 
with  other  stock,  is  reasonable  and  binding, 
if  fairly  entered  into.  Sprague  v.  Missouri 
Pac.  R.  Co.,  23  Am.  &»  Eng.  R.  Cas.  684,  34 
Kan.  347,  8  Pac.  Rep.  465.— Following 
Goggin  V.  Kansas  Pac.  R.  Co.,  12  Kan.  416. 
Distinguished  in  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Temple,  47  Kan.  7. — Owen  v.  Louis- 
ville &*  N.  R.  Co.,  35  Am.  &*  Eng.  R.  Cas. 
687,  87  Ky.  626,  9  S.  IV.  Rep.  698.  Selby  v. 
Wilmington  &*  IV.  R.  Co.,  11^  N.  Car.  588, 
18  S.  E.  Rep.  88.— Distinguishing  Cape- 
hart  V.  Seaboard  &  R.  R.  Co.,  81  N.  Car. 
438.  Following  Rice  v.  Kansas  Pac.  R. 
Co.,  63  Mo.  314;  Goggin  v.  Kansas  Pac. 
R.  Co.,  12  Kan.  ^16.— Texas  C.  R.  Co.  v. 
Morris,  16  Am.  &*  Eng.  R.  Cas.  259,  i  Tex. 
App.  {Civ.  Cas:)  158.  Galveston.  H.  &•  S. 
A.  R.  Co.  V.  Harman,  2  Tex.  App,  {Civ, 
Cas.)  128.  Texas  6-  P.  R.  Co.  v.  Scrivener, 
2  Tex.  App.  {Civ.  Cas.)  284. — FOLLOWING 
McMillan  v.  Michigan  S.  &  N.  1.  R.  Co., 
16  Mich.  112. 

Where  live  stock  are  shipped  under  a  bill 
of  lading  containing  a  provision  that  the 
shipper,  in  case  of  loss  or  damage,  will  give 
notice  in  writing,  verified  by  affidavit,  of  his 
claim  to  some  general  officer  of  the  com- 
pany, or  to  its  nearest  station  agent,  the 
giving  of  such  notice  is  a  condition  prece- 
dent to  the  shipper's  right  to  recover,  and  it 
is  necessary  to  both  allege  and  prove  that 
such  provision  was  complied  with.  Texas 
&>  P.  R.  Co.  V.  Hamm,  2  Tex.  App.  {Civ. 
Cas.)  436. 

In  order  that  a  carrier  may  take  advantage 
of  a  stipulation  requiring  the  shipper  to  give 
notice  of  his  claim  before  removing  the  cat- 
tle from  the  place  of  delivery,  he  must  prove 
that  such  a  condition  in  the  contract  is  rea- 
sonable, and  must  show  by  proper  pleadings 
and  evidence  the  existence  of  facts  that  call 
for  an  enforcement  of  the  condition.  Ft. 
Worth  &»  D.  C.  R.  Co.  v.  Greathouse,  49 
Am.  6-  Eng.  R.  Cas.  157,  82  Tex.  104,  17  S. 
W.  Rep.  834. 

A  condition  in  a  bill  of  lading  for  a 
through  shipment  of  live  stock,  providing 
that  the  owner  or  consignee  shall  give  writ- 
ten notice  of  any  claim  for  damage  to  the 
company  issuing  the  bill  of  lading,  before 
the  stock  is  removed  from  its  place  of  des- 
tination, or  mixed  with  other  stock,  is  un- 
reasonable and  cannot  be  enforced.  Coles 
v.  Louisville,  E.  &>  St.  L.  R.  Co.,  41  ///.  App. 
607.    Gulf,  C  &>  S.  F.  R.  Co.  V.    Vaughn. 


CARRIAGE   OF   LIVE   STOCK,  80. 


ri 


are  removed 
or  mingled 

md  binding, 
V.  Missouri 
Cas.  684,  34 

Following 
2  Kan.  416. 

'.  &  S.  F.  R. 

>en  V.  Louis- 

r«^.  R.  Cas. 

98,    Seiby  V. 

N.  Car.  588, 

HI  NO  Cape- 
81  N.  Car. 

sas  Pac.  R. 

Cansas  Pac. 

^.  R.  Co.  V. 

•  259.  I  Tex. 

on.  H.  &*  S. 
App.   (Civ. 

V.  Scrivener, 

Following 

r.  I.  R.  Co., 

under  a  bill 
3n  that  the 
ge,  will  give 
pdavit,  of  his 
of  the  com- 
™  agent,  the 
lition  prece- 
cover,  and  it 
1  prove  that 
'ith.  Texas 
.  App.  {Civ. 

e  advantage 
pper  to  give 
ing  the  cat- 
:  must  prove 
tract  is  rea- 
:r  pleadings 
cts  that  call 
dition.  Ft. 
eathouse,  49 
r.  104,  17  S. 

ding  for  a 
;,  providing 
I  give  writ- 
age  to  the 
ing,  before 
ace  of  des- 
ock,  is  un- 
ced.  Coles 
\\  III.  App. 
'.    Vaughn. 


4  Tex.  App.  (Civ.  Cas.)  269,  \6  S.  IV.  Rep. 

775- 

Such  a  contract  is  void  for  uncertainty  as 
to  the  person  to  whom  the  notice  should  be 
given,  and  because  it  is  an  attempt  to  pro- 
tect the  carrier  from  liability  from  losses 
caused  by  its  own  fault,  by  imposing  an  un- 
reasonable and  difficult  duty  on  the  shipper 
as  a  condition  precedent  to  his  right  to  re- 
cover. Smitha  v.  Louisville  &*  N.  A.  Co., 
86  Tenn.  198,  6  S.  W.  Rep.  209.— Followed 
IN  Louisville  &  N.  R.  Co.  v.  Vvynn,  45  Am. 
&  Eng.  R.  Cas.  312,  88  Tenn.  320,  14  S.  W. 
Rep.  311. 

Where  a  railroad  company  sets  up,  in  an 
action  against  it  for  failing  to  deliver  cattle 
within  a  reasonable  time,  a  special  contract 
by  which  it  was  agreed  that  as  a  condition 
precedent  to  the  plaintiff's  right  to  recover 
damages  for  loss  or  injury  the  shipper 
should  give  notice  in  writing  of  his  claim  to 
the  officers  of  the  company  or  to  iis  nearest 
station  agent  before  the  cattle  were  removed 
from  the  place  of  destination  or  mingled 
with  other  stock,  and  it  appears  that  the 
defendant's  line  of  railway  does  not  extend 
to  the  point  of  destination,  and  that  both 
parties  understood  that  the  cattle  were  to 
pass  to  a  connecting  road,  the  provision  is 
unreasonable  and  invalid,  and  will  not  be 
enforced.  Missouri  Pac.  R.  Co.  v.  Harris, 
28  Am.  &■*  Eng.  R.  Cas.  107.  67  Tex.  166,  2 
S.  IV.  Rep.  574.—  Quoting  Southern  Exp. 
Co.  V.  Caperton,  44  Ala.  103.  Reviewing 
Southern  Exp.  Co.  v.  Caldwell,  21  Wall.  (U. 
S.)  264 ;  United  States  Exp.  Co.  v.  Harris,  51 
Ind.  127;  Westcottw.  Fargo,  61  N.  Y.  542; 
Adams  Exp.  Co.  v.  Reagan,  29  Ind.  21. 
Quoted  in  Missouri  Pac.  R.  Co.  v.  Child- 
ers,  I  Tex.  Civ.  App.  302. 

(2)  T/ie  person  to  be  notified. — Where  a 
contract  for  shipment  provides  that  notice 
shall  be  given  to  some  officer  of  the  com- 
pany, before  the  stock  are  removed,  of  any 
claim  for  damages,  but  the  company  lias  no 
officer  at. the  place  of  destination,  and  not 
even  in  the  state,  the  burden  is  upon  it  to 
show  that  such  provision  is  reasonable.  St. 
Louis,  A.  &*  T.  R.  Co.  v.  Turner,  i  Tex.  Civ. 
App.  625,  20  S.  IV.  Rep.  1008. 

Where  a  railroad  company  relies  upon  a 
noncompliance  with  such  provision  it  must 
allege  and  prove  that  it  had  an  officer  or 
agent  at  or  near  the  place  at  which  the  prop- 
erty was  to  be  delivered,  to  whom  the  notice 
could  be  given,  and  in  the  absence  of  proof 
of  such  facts  the  provision  as  to  notice  will 


be  deemed  unreasonable  and  not  binding. 
Galveston,  H.  &>  S.  A.  R.  Co.  v.  Soothe,  3 
Tex.  App.  (Civ.  Cas.)  433.— Quoting  Mis- 
souri Pac.  R.  Co.  V.  Harris,  67  Tex.  166. — 
Good\.  Galveston,  H.  iS"*  S.  A.  R.  Co.,  (  Tex.) 
40  Am.  &•  Eng.  R.  Cas.  98,  1 1  S.  W.  Rep. 
854.— Quoting  Missouri  Pac.  R.  Co.  v. 
Harris,  67  Tex.  172. 

Where  live  stock,  for  injury  to  which  dam- 
^es  are  claimed  from  the  railroad  company 
which  transported  it,  was  shipped  from  a 
point  at  which  the  company  had  no  agent,  it  is 
incompetent  for  defendant  to  show  a  custom 
among  railroad  companies  to  require  the 
shipper  of  live  stock  to  agree,  as  a  condition 
precedent  to  his  right  of  recovery  for  loss  or 
damage  to  the  stock  during  shipment  or 
transportation,  that  he  will  immediately  and 
before  removal  of  the  stock  from  the  point 
of  shipment,  or  from  the  possession  of  the 
company  at  its  destination,  as  the  case  may 
be,  give  notice  of  his  claim  to  an  agent  or 
officer  of  the  road  ;  for  it  is  not  reasonable  to 
require  such  a  notice  where  the  company 
has  no  agent  at  the  point  of  shipment  upon 
whom  such  a  notice  can  be  served.  Mis- 
souri Pac.  R.  Co.  v.  Fagan,  35  Am.  &*  Eng. 
R.  Cas.  666,  72  7V.V.  1 27,  9  5.  W.  Rep.  749. 

(3)  Sufficiency  of  the  notice,  generally. — 
Where  a  railroad  company  contracts  to  carry 
stock  beyond  its  own  terminus,  and  there  is 
a  stipulation  in  the  contract,  which  is  a  con- 
dition precedent  to  a  right  to  recover  for 
loss  or  injury,  that  the  shipper  must  give 
written  notice  of  his  claim  to  an  officer  of 
the  company,  or  to  its  nearest  station  agent, 
before  the  stock  are  removed  from  the  place 
of  destination  or  delivery,  or  is  mingled  with 
other  stock,  the  officers  and  agents  of  the 
connecting  company  used  and  adopted  by 
the  contracting  company  should,  for  the 
purposes  of  the  contract,  be  treated  as  the 
officers  and  agents  of  the' latter  company; 
and  notice  given  to  the  agent  of  the  con- 
necting company  at  the  place  of  destination 
will  be  sufficient.  Wichita  &*  W.  R.  Co.  v. 
Koch,  55  Am.  &*  Eng.  R.  Cas.  452,  47  Kan. 
753,  28  Pac.  Rep.  1 01 3. 

A  contract  between  a  railroad  company 
and  a  shipper  of  stock  stipulated  that,  as  a 
condition  precedent  to  his  right  to  recover 
damages  for  any  loss  or  injury  to  such  stock, 
he  should  give  notice  in  writing  to  some 
officer  of  the  railroad  company,  or  its  near- 
est station  agent,  before  the  removal  of  such 
stock  from  the  place  of  delivery.  In  an  ac- 
tion to  recover  damages  for  injuries  to  such 


772 


CARRIAGE   OF   LIVE   STOCK,  80. 


I 


m 


» 


stock  while  en  route,  where  the  condition  of 
the  stock  was  made  known  to  the  station 
agent  of  the  railroad  company  at  the  place 
of  destination,  and  such  agent  consented  to 
the  removal  of  the  stock  from  the  car,  and 
had  an  opportunity  to  examine  and  inspect 
the  animals  after  such  removal  and  before 
they  had  mingled  with  other  stock,  or  had 
been  removed  from  the  place  of  destination, 
and  a  written  notice  for  damages  was  trans- 
mitted to  the  claim  agent  of  the  railroad 
company  within  four  days  after  the  removal 
of  the  stock  from  the  car ;  and,  ten  days 
thereafter,  upon  the  death  of  one  of  the  ani- 
mals, a  subsequent  notice  for  damages  was 
given  to  the  railroad  company— ^fW,  that 
there  had  been  asubstantial  compliance  with 
the  contract  upon  the  part  of  the  sliipper. 
Atchison,  T.  6-  S.  F.  Ji.  Co.  v.  Temple,  47 
Kan.  7,  27  Pac.  Rep.  98.— Distinguishing 
Goggin  V.  Kansas  Pac.  R.  Co.,  12  Kan.  416; 
Sprague  v.  Missouri  Pac.  R.  Co.,  34  Kan. 

352. 

A  letter  written  by  a  shipper  of  cattle  to 
the  general  freight  agent  of  a  railroad  com- 
pany, complaining  that  his  cattle  had  been 
delayed  en  route  and  that  an  agent  had  com- 
pelled him  to  pay  $15,  expetise  of  transporta- 
tion, in  addition  to  the  contract  price  per  car, 
without  making  any  mention  of  loss  or  in- 
jury to  the  cattle,  or  any  claim  for  damages 
thereto,  is  not  a  compliance  with  a  condition 
in  the  bill  of  lading  requiring  him  to  give 
notice  in  writing,  of  any  claim  for  damages* 
to  some  general  officer  of  the  company  or 
to  the  nearest  station  agent  before  removing 
the  cattle,  and  will  prevent  any  recovery  for 
damage  to  the  cattle.  Texas  &*  P.  R.  Co. 
V.  /ackson,  3  Tex.  App.  (Civ.  Cas.)  65. 

(4)  fVAen  verbal  notice  is  sufficient. — The 
object  of  such  a  provision  in  a  contract  for 
the  shipment  of  cattle  is  to  give  the  com- 
pany and  plaintiff  time  to  inspect  the  stock 
before  they  are  mixed  with  others,  or 
slaughtered,  so  as  to  ascertain  their  true  con- 
dition ;  and  such  a  provision  is  substantially 
complied  with  where  stock  arrived  at  the 
place  of  destination  in  the  nighttime,  and 
the  owner  asserted  a  claim  for  damages  to 
tiie  company's  yard-master, and  notified  him 
tiiat  he  would  not  receive  the  cattle  unless 
under  protest,  and  the  yard-master  assured 
the  owner,  without  making  any  objection  to 
the  demand  not  being  in  writing,  that  it  was 
not  necessary  to  go  to  the  company's  office 
that  night,  and  advised  the  owner,  on  ac- 
count of  the  rain  and  the  condition  of  the 


stock-yards,  to  remove  the  cattle  at  once  to 
his  own  place  ;  and  so  far  as  such  contract 
was  not  complied  with,  it  was  waived,  where 
the  written  notice  was  not  given  till  after 
the  stock  were  removed.  Rice  v.  Kansas 
Pac.  R.  Co.,  63  Mo.  314,  20  Am.  Ry.  Rep. 
424.— Distinguishing  Goggin  v.  Kansas 
Pac.  R.  Co.,  12  Kan.  416.— Distinguished 
IN  Oxley  V.  St.  Louis,  K.  C.  &  N.  R.  Co., 
65  Mo.  629. 

Mules  were  shipped  under  a  special  con- 
tract providing  that  the  shipper  should  give 
notice  in  writing  to  the  agent  of  the  carrier 
of  his  claim  for  damages  before  the  stock 
should  be  removed  from  the  place  of  desti- 
nation, and  before  it  was  mingled  with  other 
siock.  At  the  place  of  destination  one  mule 
was  unloaded  in  the  presence  of  the  station 
agent,  who  saw  that  it  was  injured,  and  the 
owner  refused  to  receive  it,  and  it  was  al- 
lowed to  run  on  the  commons  about  the 
station.  Held,  in  an  action  to  recover  for 
the  injuries,  that  it  was  proper  to  refuse  to 
instruct  the  jury  that  the  plaintiff  could  nut 
recover  because  of  his  failing  to  give  notice 
in  writing  of  his  claim  for  damages,  as  the 
mule  had  never  been  removed  from  its  place 
of  destination,  nor  mingled  with  other  .stock, 
within  the  meaning  of  the  provision  in  tlie 
contract.  Chicago,  St.  L.  &*  N.  O.  R.  Co.  v. 
Abels,  21  Ant.  &*  Eug.  R.  Cas.  105,  60  Miss. 
1017. 

Where  cattle  are  shipped  under  such  a 
contract,  a  verbal  notice  to  the  superintend- 
ent of  a  stock-yard  and  to  the  conductor  of 
the  train  is  not  a  sufficient  compliance 
with  the  condition  requiring  notice.  And 
being  informed  by  these  parties  that  a  mem- 
ber of  the  company  would  come  and  settle 
with  him  did  not  amount  to  a  waiver  on  the 
part  of  the  company  of  such  written  notice. 
Missouri  Pac.  R.  Co.  v.  Scott,  2  Tex.  App. 
(Civ.  C«J.)  279. 

Cattle  shipped  under  such  a  contract 
reached  the  place  of  destination  at  night, 
when  it  was  dark  and  raining,  and  they  were 
put  off  without  the  company  having  pens  to 
put  them  in.  They  scattered,  and  it  was 
several  days  before  they  could  be  collected, 
and  some  of  them  never  were  recovered. 
Held,  under  the  circumstances,  that  verbal 
notice  on  the  night  of  the  arrival  and  a 
written  notice  aa  soon  as  the  cattle  were  re- 
covered were  a  reasonable  compliance  Willi 
the  provision  of  the  contract.  Houston  &* 
T.  C.  R.  Co.  V.  Hester,  2  Tex.  Unrep.  Cas. 
396. 


at  once  to 
h  contract 
ved,  where 

till  after 
f^ansas 

/>.  A\J). 
V.   Kansas 

NGUISHED 

R.  Co., 


N 


pecial  con- 
hould  give 
the  carrier 
the  stock 
e  of  desti- 
with  other 
n  one  mule 
the  station 
;d,  and  the 
it  was  al- 
about  the 
ecover  for 
>  refuse  to 
'.  could  not 
jive  notice 
ges,  as  the 
m  its  place 
ther  stock, 
iion  in  tiie 
?.  R.  Co.  V. 
5,  60  Miss. 

ler  such  a 
perintend- 
nductor  of 
ompliance 
ice.  And 
at  a  mem- 
and  settle 
ver  on  the 
sn  notice. 
Tex.  App. 

contract 
at  night, 
they  were 
g  pens  to 
d   it  was 
;ollected, 
^covered. 
at  verbal 
al  and  a 
were  re- 
mce  with 
'iiston  &* 
rep.  Cas. 


1 


CAKRIAGE    OF    LI\  l-    SIOCK,  81. 


778 


(5)  Construction — Reasonable  time  to  give 
notice, — A  stipulation  requiring  notice  of  the 
injury  before  the  removal  of  animals  at  the 
place  of  delivery  is  not  to  be  strictly  con- 
strued against  the  shipper,  and  the  shipper 
has  a  reasonable  time  after  tiie  removal,  in 
case  the  injury  is  not  then  discovered,  in 
which  to  give  the  notice,  and  what  is  a  rea- 
sonable time  is  a  question  for  the  jury. 
Western  R.  Co.  v.  Harwell,  97  Ala.  341,  11 
So.  Rep.  781.  Western  R.  Co.  v.  Harwell, 
45  Am.  &*  Eng.  R.  Cas.  358,  91  Ala.  340,  8 
So.  Rep.  649. 

Where  a  railway  company,  being  a  com- 
mon carrier  of  live  stock,  transports  a  car- 
load of  cattle  for  the  plaintiff  at  special 
rates,  under  a  special  contract  signed  by 
both  parties,  by  the  terms  of  which  tiie 
plaintiff  is  to  accompany  the  stock  and  su- 
perintend it  on  the  way;  and  where,  by  an- 
other clause  in  the  contract  it  is  stipulated 
that  damages  to  such  stock  in  transit  shall 
not  be  allowed  unless  notice  in  writing  of  a 
claim  therefor  be  given  to  the  company  at 
or  before  the  time  of  unloading  the  cattle; 
and  it  appears  that  plaintiff  did  accompany 
the  stock  and  knew  at  the  time  that  they  had 
been  injured,  but  did  not  give  notice  of  such 
injury  for  more  than  a  year,  he  cannot  re- 
cover. Goggin  v.  Kansas  Pac.  R.  Co.,  12 
Kan.  416.— Reconciling  Adams  Exp.  Co. 
V.  Reagan,  29  Ind.  21 ;  Southern  Exp.  Co.  z'. 
Carperton,  44  Ala.  loi. — Distinguished  in 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Temple,  47 
Kan.  7 ;  Rice  v.  Kansas  Pac.  R.  Co.,  63  Mo. 
314.  Followed  in  Sprague  v.  Missouri 
Pac.  R.  Co.,  23  Am.  &  Eng.  R.  Cas.  684,  34 
Kan.  347. 

Where  notice  was  not  given  to  the  carrier 
until  twelve  days  after  the  delivery  and  re- 
moval of  the  stock,  such  notice  was  not 
given  as  the  contract  required,  or  within  a 
reasonable  time.  Wichita  <S^  W.  R.  Co.  v. 
Koch,  47  Kan.  753,  28  Pac.  Rep.  1013. 

Where  stock  is  shipped  to  a  distant  point, 
and  the  contract  of  affreightment  provides 
that  notice  shall  be  given,  before  removal  of 
the  stock  from  the  place  of  destination,  of 
any  claim  for  loss  or  damage,  and  the  ship- 
per does  not  accompany  the  stock,  it  is  his 
duty  to  send  the  contract  to  the  consignee 
that  he  may  give  it.  Galveston,  H.  &*  S.  A. 
R.  Co.  V.  Harman,  2  Tex.  App.  {Civ.  Cas.) 
128. 

(6)  Impossibility  0/ giving  notice. — Such  a 
provision  in  a  contract  for  the  shipment  of 
live  stock  does  not  apply  where  the  animals 


are  ill  at  the  time  of  reaching'  their  place  of 
destination,  and  it  was  impossible  at  the 
time  and  for  some  time  thereafter  to  know 
the  full  extent  of  the  injury.  Ormsby  v. 
Union  Pac.  R.  Co.,  2  McCrary  (U.  S.)  48,  4 
Fed.  Rep.  706  ;  affirming  4  Fed.  Rep.  \  70. 

A  company  iiaving  been  sued  for  a  loss  of 
cattle  which  it  had  carried  set  up  as  a  de- 
fense a  condition  in  the  bill  of  lading  that  in 
case  of  loss  the  owners  would  give  notice  be- 
fore taking  the  cattle  away  from  the  place  of 
delivery.  It  appeared  that  the  loss  was 
caused  at  the  place  of  delivery  by  certain  of 
the  cattle  straying  away  by  reason  of  the 
company  failing  to  furnish  sufficient  pens. 
Held,  that  the  defense  was  not  good,  (i)  be- 
cause the  company  had  rendered  it  impos- 
sible for  the  owners  to  give  the  notice ;  (2) 
that  to  enforce  the  contract  would  be  allow- 
ing the  company  to  take  advantage  of  its 
own  misconduct.  Gulf,  C.  &-  S.  F.  R.  Co.  v. 
Vori,  2  Tex.  App.  {Civ.  Cas.)  718. 

(7)  Waiver  of  notice  by  company. — Appel- 
lants contracted  with  appellee  to  carry  a  horse 
from  Shelbyville,  Ky.,  to  the  fair  grounds, 
near  Chicago,  the  contract  containing  the 
stipulation  as  to  notice  of  clain)  for  damages 
above  referred  to.  In  removing  the  horse 
from  the  cars  at  the  place  of  destination  he 
was  injured.  The  fact  of  the  injury  and  of 
appellant's  claim  for  damages  was  not  only 
known  to  the  officers  and  agents  of  the  com- 
pany, but  an  exatnination  of  the  horse 
was  made  by  a  surgeon  at  the  instance  of 
the  company.  In  his  crippled  condition  the 
horse  was  brought  back  from  Chicago  on  the 
same  line  of  road  and  delivered  at  the  same 
depot  from  which  he  had  been  originally 
shipped.  Held,  that  the  removal,  although 
at  the  instance  of  the  owner,  must  be  re- 
garded as  by  the  consent  of  both  parties  and 
as  a  waiver  of  the  notice  required  by  the 
contract.  Owen  v.  Louisville  <S-»  N.  R.  Co., 
35  Am.  6r-  Eng.  R.  Cas.  687,  87  Ky.  626,  9  5. 
W.  Rep.  698. 

81.  Stipulation  requiring  notice 
of  claim  within  stated  time  after  in- 
jury.— A  provision  in  a  bill  of  lading,  pro- 
viding that  the  shipper  shall  give  notice 
within  a  certain  time  of  any  damage  to  the 
stock  shipped,  does  not  apply  to  a  claim 
for  damages  already  due  to  him  by  reason  of 
the  company  having  failed  to  furnish  cars  as 
agreed.  Missouri,  K.  &*  T.  R.  Co.  v.  Graves, 
4  Tex.  App.  (Civ.  Ca^.)  149,  16  5.  W.  Rep. 
102. 

Plaintiff  shipped  a  car-load  of  goods,  in- 


^Sm 


774 


CAKki.\(ii';  oi"  Livi<:  stocf-:,  8a  84. 


1  ■  I 


i 


i 


m 


■J 


eluding  some  horses,  fruiii  K.,  111.,  to  C, 
over  the  C,  S.  F.  &  C.  R.  R.,  which  termi- 
nated ill  C.  He  intended  to  have  the 
property  transported  to  L.,  in  this  state, 
and  verbally  agreed  with  the  C,  S.  F.  &  C. 
R.  R.  Co.  as  to  what  the  charge  should  be 
to  that  point.  He,  however,  entered  into 
a  written  contract  with  that  company  merely 
for  transportation  to  C.  for  a  specified  price, 
and  that  a  person  in  behalf  of  the  plaintiff 
should  have  passage  with  the  car  to  take 
care  of  the  property.  Plaintiff  sent  a  man 
with  the  car,  giving  him  money  to  pay  the 
freight,  but  gave  him  no  express  authority 
to  enter  into  any  contract  in  his  behalf.  At 
C.  this  agent,  in  behalf  of  his  principal,  con- 
tracted with  the  defendant  for  the  further 
transportation  from  there  to  L.,  in  which 
contract  it  was  provided  that  no  claim  for 
loss  or  damage  to  the  stock  should  be  valid 
unless  made  in  writing  within  30  days  after 
the  same  should  have  occurred.  After  the 
car  reached  its  destination  the  defendant  re- 
tained possession  for  a  few  days  for  nonpay- 
ment of  freight.  In  an  action  for  alleged 
negligence  in  the  care  of  one  of  the  horses 
after  the  transportation  had  ceased — /le/d: 
(i)  that  the  above  condition  as  to  notice 
was  applicable  in  respect  to  the  carrier's  con- 
duct as  a  warehouseman,  that  relation  being 
properly  incident  to  that  of  carrier ;  (2)  that 
such  a  contract,  if  made  by  the  owner,  or  if 
authorized  by  him,  is  reasonable  and  valid  ; 
(3)  that  from  the  circumstances  it  must  be 
inferred  that  the  agent  in  charge  of  the  prop- 
erty was  authorized  to  make  any  necessary 
and  reasonable  contract,  as  he  did  do,  for 
its  transportation  from  C.  to  L.,  for  which 
purpose  he  stood  in  place  of  the  owner. 
Armstrong  v.  Chicago,  M.  &*  St.  P.  R.  Co., 
53  Minn.  183,  .54  A^.  W.  Rep.  1059. 

82.  or  alter  date  of  shipment. 

— The  shipper  of  live  stock  is  not  debarred 
from  the  right  to  sue  for  a  loss  by  a  pro- 
vision in  the  contract  of  shipment  provid- 
ing that  any  claim  for  loss  or  damage  must 
be  presented  within  thirty  days  from  date 
of  shipment  "  in  order  to  receive  atten- 
tion," the  words  "to  receive  attention" 
being  too  vague  and  uncertain  as  to 
what  results  would  follow  for  a  failure  to 
present  a  claim  to  deprive  a  party  of  a  right 
of  action.  Dunn  v.  Hannibal  &*  St,  J.  R. 
Co.,  68  Mo.  268.— Distinguishing  Rice  v. 
Kansas  Pac.  R.  Co.,  63  Mo.  314. 

83. or  after  arrival  at  destina- 

tiou. — A  stipulation   in  a  contract  of  af- 


freighiment,  that  notice  for  loss  must  be 
made  at  the  time  the  goods  are  delivered, 
will  not  protect  the  carrier  vhere  the  claim 
is  made  in  a  reasonable  time  after  the  loss 
is  ascertained  ;  and  where  a  calf  was  shipped 
under  a  contract  requiring  service  of  notice 
of  loss  within  one  day  after  delivery,  and 
the  injuries  sustained  were  such  as  to  take 
time  to  ascertain  their  nature  and  extent, 
and  when  ascertained  notice  was  given  and 
reparation  demanded,  the  compliance  was 
sufficient;  and  bet  ides,  in  this  case,  such 
compliance  was  waived  by  the  carrier's  agent 
admitting  the  possession  of  the  notice  and 
promising  to  settle  the  claim  on  its  merits. 
Harned  v.  Missouri  Pac.  R.  Co.,  51  Mo.  App. 
482. 

The  provision  of  a  shipping  contract,  that 
the  shipper  shall  give  notice  of  his  damages 
within  five  days  after  the  train's  arrival  at 
its  destination,  relates  to  damage  to  the 
cattle  themselves  and  not  to  damage  suf- 
fered by  a  change  in  the  market;  nor  docs 
a  provision  relieving  the  carrier  from  liabil- 
ity for  loss  or  damage  after  delivering  upon 
stock-yards  tract  refer  to  loss  by  fall  in 
market.  Leonard  v.  Chicago  &«•  A.  R.  Co., 
54  Mo.  App.  293. 

A  provision  in  the  contract  for  the  ship- 
ment of  live  stock,  providing  that  there 
should  be  no  recovery  for  damages  unless 
the  owner  gave  notice  in  writing  of  his 
claim  to  the  station  agent  or  a  general 
officer  of  the  road  carrying  ihe  cattle  to 
their  destination,  within  one  day  after  their 
arrival,  is  on  its  face  unreasonable,  casting 
the  burden  on  the  company  to  show  that 
it  is  in  fact  reasonable.  Missouri  Pac.  R. 
Co.  V.  Paine,  i  Tex.  Civ.  App.  621,  2 1  S.  W. 
Rep.  78. 

A  provision  in  a  contract  of  shipment  of 
live  stock,  providing  that  in  case  of  damage 
in  transportation  the  owner  must,  within 
twenty-four  hours  after  arrival  at  the 
point  of  destination,  give  notice  thereof  in 
writing,  verified  by  affidavit,  is  waived 
where  a  written  unverified  demand  is  made 
and  received,  without  objection,  under  a 
promise  to  look  up  the  claim  and  adjust  it. 
Hess  V.  Missouri  Pac.  R.  Co.,  40  Mo.  App. 
202. 

84. or  after  removal  t^om  car. 

— A  stipulation  in  a  shipping  contract,  vol- 
untarily and  understandingly  entered  into 
by  a  shipper  of  live  stock  for  transportation, 
that  in  consideration  of  a  reduced  rate  no 
claim  for  damages  accruing  to  the  shipper 


CARRIAGE    OF    LIVE   STOCK,  H5,  8«. 


775 


»s  must  be 
delivered, 
the  claim 
■r  the  loss 
as  shipped 
of  notice 
ivery,  and 
as  to  take 
nd  extent, 
«iven  and 
liance  was 
case,  such 
•ier's  agent 
notice  and 
its  merits. 
Mo.  Afifi. 

itract,  that 
s  damages 
arrival  at 
,'e  to  the 
"lage  suf- 
;  nor  does 
'om  liabil- 
ring  upon 
by  fall  in 
A.  R.  Co., 

the  ship, 
hat  there 
^es  unless 
i'lg  of  his 
a  general 

cattle  to 
ifter  their 
e,  casting 
how  that 
i  Pac.  R. 
21  S.  W. 

pment  of 
f  damage 
^  within 

at    the 
>ereof  in 

waived 

is  made 

under  a 

djust  it. 

fo.  App. 

•n  car. 

ict,  vol- 
ed  into 
rtation, 
rate  no 
shipper 


shall  be  allowed  or  paid  by  the  carrier,  or 
sued  for  in  any  court,  unless  a  claim  for 
such  loss  or  damage  shall  be  made  in  writ- 
ing, verified  by  the  affidavit  of  the  shipper 
or  his  agent,  and  delivered  to  the  general 
freight  agent  of  the  carrier,  at  his  office, 
within  five  days  from  the  time  such  stock  are 
removed  from  the  cars,  will  be  binding  upon 
the  shipper,  and  is  not  void  as  being  con- 
trary to  any  law  or  to  public  policy.  Black 
V.  Wabash,  St.  L.  6r*  P.  R.  Co.,  25  Am.  d- 
A/^f.  R.  Cas.  388,  HI  ///.  351.— Reviewed 
IN  Coles  7/.  Louisville,  E.  &  St.  L.  R.  Co.,  41 
III.  App.  607. — Dawson  v.  St.  Lout's,  K.  C, 
&*  N.  R.  Co.,  76  Mo.  514.— Following  Rice 
V.  Kansas  Pac.  R.  Co.,  63  Mo.  314. — Fol- 
lowed IN  Brown  v.  Wabash,  St.  L.  &  P.  R. 
Co..  18  Mo.  App.  ybZ.—McBeath\.  Wabash, 
St.  L.  &*  P.  R.  Co.,  20  Mo.  App.  445. 

The  five  days  within  which  notice  is  to 
be  given  only  begin  to  run  from  the  time 
the  stock  were  removed  from  the  car.  Wil- 
son V.  Wabash,  St.  L.  <S-  P.  R.  Co.,  23  Mo. 
App.  50. 

The  word  "  goods,"  in  a  contract  of  ship- 
ment, providing  that  no  claim  in  respect  of 
goods  will  be  allowed  unless  made  within 
three  days  after  delivery,  and  that  all  goods 
arc  received  subject  to  the  company's  gen- 
eral lien  for  carriage,  does  not  include  horses 
or  cattle.  Moore  v.  Great  Northern  R.  Co., 
L.  R.  8  Ir.  95. 

85.  Liiiiitatiou  of  time  within 
wliicli  to  sue.— A  common  carrier  of  live 
stock  may  contract  with  the  shipper,  that 
any  claim  for  damages  must  be  brought 
within  forty  days  after  the  occurrence  of  the 
damage,  and  such  contract  will  bar  a  suit 
brought  seventy-seven  days  after  the  deliv- 
ery of  cattle,  where  the  company  notified  the 
shipper  twenty-five  days  after  the  delivery 
that  his  claim  would  not  be  paid.  Gulf,  C. 
&*  S.  F.  R.  Co.  V.  Gatewood,  79  Tex.  89,  14 
.S'.  W.  Rep.  913.— Following  Gulf,  C.  &  S. 
F.  R.  Co.  V.  Trawick,  68  Tex.  314. 

8G.  Limitation  of  amount  recover- 
abie,  wlien  valid. — A  provision  in  a  con- 
tract for  the  transportation  of  live  stock, 
limiting  the  carrier's  liability  in  case  of  loss 
to  a  certain  specified  sum,  entered  into  in 
consideration  of  reduced  rates,  is  valid. 
Zimmer  v.  New  York  C.  &*  H.  R.  R.  Co., 
42  A^.  Y.  S.  R.  63,  62  Hun  619,  16  A''.  Y. 
Supp.  631. 

A  stipulation,  in  a  contract  for  the  ship- 
ment of  mules,  that  in  consideration  of  a 
reduced  rate  of  freight  the  carrier  shall  in 


no  case  be  liable  for  more  than  one  hundred 
dollars  for  a  mule,  is  valid.  Western  R.  Co. 
v.  Harwell,  97  Ala.  341,  ii  So.  Rep.  781.  St. 
Louis,  /.  M.  &-  S.  R.  Co,  v.  Weakly,  35  Am. 
&*  Eng.  R.  Cas,  635,  50  Ark.  397,  7  Am.  St. 
Rep.  104,  8  S.  W.  Rep.  134.— Quoting  and 
following  Hart  v.  Pennsylvania  R.  Co., 
112  U.  S.  331.  Reviewing  New  York  C. 
R.  Co.  V.  Lockwood,  17  Wall,  (U.  S.)  357; 
South  &  N.  Ala.  R.  Co.  v.  Henh'in,  52  Ala. 
606. 

Such  is  a  proper  and  lawful  n\ode  of  se- 
curing a  due  proportion  between  the  amount 
for  which  they  might  be  responsible  and  the 
freight  which  they  received,  and  of  protect- 
ing themselves  against  extravagant  and 
fanciful  valuations.  Squire  v.  New  York 
C.  R.  Co.,  98  Mass.  239. —Approved  in 
Hart  V.  Pennsylvania  R.  Co.,  112  U.  S.  331. 
Disapproved  in  Louisville  &  N.  R.  Co.  v. 
Wynn,  45  Am.  &  Eng.  R.  Cas.  312,  88  Tenn. 
320,  14  S.  W.  Rep.  31 1.  Reviewed  in  Nel- 
son V.  Hudson  River  R.  Co.,  48  N.  Y.  498. 

Where  a  railroad  limits  its  liability  on 
"ordinary  horses  "  to  $200,  one  who  ships  a 
valuable  horse  as  an  "ordinary  horse"  is 
estopped  from  claiming  more  than  $200 
damages  if  an  injury  is  received  in  transit. 
Duntley  v.  Boston  &^  M.  R.  Co.,  {N.  H.)  20 
All,  Rep.  327.— Applying  Hart  v.  Pennsyl- 
vania R.  Co.,  112  U.  S.  331,  5  Sup.  Ct.  Rep. 
151. 

A  regulation  requiring  the  shipper  of  a 
valuable  race-horse  to  notify  the  carrier  of 
the  character  and  value  of  the  animal,  and 
to  offer  to  make  a  special  contract  for  his 
transportation,  is  reasonable;  and  if  the 
shipper  remains  silent  on  that  point  when 
entering  into  an  agreement  providing  what 
his  loss  shall  be  if  the  animal  is  killed, 
he  is  estopped  from  claiming  more  than 
the  agreed  amount  as  fixed  in  the  con- 
tract ;  in  which  case  the  contract  will  be  con- 
strued not  as  an  attempt  to  exempt  the 
carrier  from  the  consequences  of  his  own 
negligence,  but  as  a  reasonable  limitation  of 
its  liability.  Hart  v.  Pennsylvania  R.  Co.,  2 
McCrary  \u.  5.)  333.— Reviewed  in  Black 
V.  Goodrich  Transp.  Co.,  55  Wis.  319, 42  Am. 
Rep.  713- 

A  common  carrier  is  bound  to  serve  the 
public  without  discrimination,  and  has  no 
right  to  demand  the  signing  of  a  special  con- 
tract as  a  condition  precedent  to  receiving 
and  carrying  freight  for  a  particular  individ- 
ual ;  but  although  a  shipper  has  the  right 
to  refuse  to  sign  a  contract  for  the  shipment 


\ 


r76 


CAUKI.\(ii:    ()|-    LIVI'    SI'OCK,  H7,HH. 


m 


imi 


of  live  slock  by  wliicli  the  cuiriL-r's  lialjiliiy 
is  limited  to  a  certain  amount  ii\  c.iseol  loss 
or  mjury,  yet  if  he  dues  sii;ii  it  lie  is  bound 
tiiereby,  tiiough  tlie  actual  loss  may  be 
greater  than  tlie  amount  specified  in  the 
contract.  Nar/  v.  J\nnsjflvaiiia  A.  Co.,  2 
AfcCrary  ((/.  S.)  333. 

The  agent  of  plaintid  brought  a  cow  to  a 
railroad  contieciing  with  defendant's  road 
for  shipment.  The  agent  signed  a  shipping 
agreement  in  which  it  was  provided  that  the 
carrier  assumed  no  liability  for  injuries  to 
the  animal  except  from  collision  of  trains, 
in  which  case  it  was  not  to  be  liable  for  a 
greater  sum  than  that  speciiled  in  the  agree 
ment,  namely,  seventy-five  dollars.  Cows 
of  greater  value  were  to  be  charged  at  an 
additional  rate.  While  in  the  course  of 
transporiatun  the  cow  was  injured  by  fire, 
and  died  in  consequence.  He/</,  that  plain- 
tiff wasi  bounil  by  the  shipping  agreement 
signed  by  his  agent,  and  that  the  liability  of 
defendant,  was  limited  to  the  value  expressed 
therein.  U///  v.  Bos/oh,  H.  T.  &^  » '.  Ji.  Co. , 
28  A»t.  (^  Eng.  iV.  Cas,  87,  144  A/ass.  284,  10 
N.  E.  Rep.  836.—  Following  Graves  v.  Lake 
Shore  &  M.  S.  R.  Co.,  137  Mass.  33. 

87.  Limitation  of  amount  recover- 
able, when  invalid.— A  stipulation  in  a 
contract  for  the  carriage  of  live  stock  that 
in  case  of  total  loss  the  carrier  shall  only  be 
liable  for  "  the  actual  cash  value  at  the  time 
and  place  of  shipment,  but  in  no  case  to 
exceed  f  100  per  head,"  is  invalid  as  an  ex- 
emption of  the  carrier  from  liability  for 
negligence.  Southern  Pac.  R.  Co.  v.  Mad- 
dox,  42  Am.  &*  Eng.  R.  Cas.  528,  75  Tex. 
300,  12  5.  W.  Rep.  815.  Eells  v.  St.  Louis, 
K.  &»  N.  W.  R.  Co.,  55  Am.  6-  Eng.  R.  Cas, 
339.  52  Fed.  Rep.  903.— Distinguishing 
Hart  V.  Pennsylvania  R.  Co.,  112  U.  S.  331, 
5  Sup.  Ct.  Kep.  151.*  Following  Scruggs 
V.  Baltimore  &  O.  R.  Co.,  18  Fed.  Rep.  318 ; 
York  Mfg.  Co.  v.  Illinois  C.  R.  Co.,  3  Wall. 
(U.  S.)  107  ;  New  York  C.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357 :  Bank  of  Ky.  v. 
Adams  Exp.  Co.,  93  U.  S.  1 74 :  Grand  Trunk 
R.  Co.  V.  Stevens,  95  U.  S.  t^t^.— Missouri 
Pac.  R.  Co.  V.  Edwards,  78  Tex.  307, 14  S.  IV. 
Rep.  607.— Distinguishing  International 
4G.  N.  R.  Co.  V.  Tisdale,  74  Tex.  17.— 5/. 
Louis,  A.  &*  T.  R.  Co.  v.  Robbins,  4  Tex. 
App.  {Civ.  Cas)  63,  14  S.  W.  Rep.  1075.— 
Disapproving  Hart  v.  Pennsylvania  R.  Co., 
112  U.  S.  331,  5  Sup.  Ct.  Rep.  157.  Fol- 
lowing Southern  Pac.  R.  Co.  v.  Maddox, 
42  Am.  &  Eng.  R.  Cas.  528,  75  Tex.  300,  12 


S.  W,  Rep.  815.  OvKKKULiNd  Interna- 
tional &  G.  N.  R.  Co.  V.  Caldwell,  3  Tex. 
App.  (Civ.  Cas.)  530. 

A  custom  among  railroad  companies  lim> 
iting  their  liability  for  injuries  to  or  loss  or 
destruction  of  live  stock  to  the  sum  of 
|ioo  is  against  the  policy  of  the  law  and 
will  not  be  enforced,  as  it  niiglu  enable  the 
carrier  to  contract  against  iis  own  negli- 
gence or  that  of  its  servatits.  Chicago,  R.  I, 
&*  P.  R.  Co.  V.  Harmon,  12  ///.  App.  54. 

A  regulation  of  a  railway  company  to  the 
effect  that  no  animal  possessing  a  special 
value,  such  as  blooded  stock,  shall  be  re- 
ceived for  shipment  until  a  contract  is 
signed  by  the  owner  releasing  the  company 
from  liability  for  injury  to  such  stock  above 
the  value  of  ordinary  stock,  is  void  under 
Iowa  Code,  §  1308,  providing  that  "no  con- 
tract, receipt,  rule,  or  regulation  shall  ex- 
empt any  corporation  engaged  in  transport- 
ing persons  or  property  by  railway  from 
the  liability  of  a  common  carrier,  or  carrier 
of  passengers,  which  would  exist  had  no 
contract,  receipt,  rule,  or  regulation  been 
made  or  entered  into."  McCune  v.  Burling' 
ton,  C.  R.  &-  N.  R.  Co.,  52  Iowa  600,  3  N. 
IV.  Rep.  61$. 

Where  tlie  owner  of  a  horse  sent  it  in 
care  of  a  boy  to  be  shipped,  and  the  agent 
had  knowledge  of  the  fact  that  it  was  a  race- 
horse and  very  valuable,  and,  without  any 
inquiries  as  to  its  actual  value,  and  against 
the  protest  of  the  boy,  arh'trarily  inserted  a 
provision  in  the  bill  of  lading  limiting  the 
company's  liability  to  $100,  the  owner  will 
not  be  bound  thereby,  and  may  recover  full 
damages.  Kansas  City,  St.  J.  &•  C.  B. 
R.  Co.  V.  Sitnpson,  16  /////.  <&«•  Eng.  R.  Cas. 
1 58, 2  Pac.  Rep.  82 1 ,  30  A'rtw.  645, 46  Am.  Rep. 
104.— DiSAPPKOVKD  in  Hart  v.  Pennsyl- 
vania R.  Co.,  112  U.  S.  331.  Distinguished 
in  Pacific  Exp.  Co.  v.  Foley.  46  Kan.  457. 

88.  Such  limitation  inoperative 
where  neg^ligence  in  the  cause  of  loss. 
— A  provision  in  a  bill  of  lading  fixing  the 
carrier's  liability  at  $100  for  an  animal  worth 
$800  is  not  the  measure  of  the  carrier's  lia- 
bility in  case  of  loss  through  its  negligence, 
where  there  was  no  agreed  valuation  adopted 
as  a  basis  forfreightcharges.  Louisville  dr^N. 
R.  Co.  V.  IVynn,  45  Am.  &*  Eng.  R.  Cas.  312, 
88  Tenn.  320,  14  S.  W.  Rep.  311.— Disap- 
proved IN  Pacific  Exp,  Co.  v.  Foley,  46 
Kan.  457. 

The  company  gave  the  owner's  agent  a 
receipt  for  a  number  of  horses,  stating  that 


CAURr.\(ii':  OK  i.ivi-:  stock,  m»,oo. 


r77 


N(;   Iiiteriiu- 
Iwell,  3  Tex. 

iipuiiics  litn- 
to  or  loss  or 
ilic  sum  of 
lie  law  and 
t  enable  the 
own  negli- 
liicago.  A'.  /, 

///•  54. 
pany  to  the 
IK  a  special 
ihall  be  rc- 
contract    is 
ic  company 
lock  above 
void  under 
It  "no  con- 
n  shall  ex- 
1  transport- 
ilway  from 
r,  (jr  carrier 
ist  had   no 
lation  been 
V.  Burling, 
a  6oo,  3  N. 

sent  it  in 
i  tlie  agent 
was  a  race- 
lithout  any 
and  against 
S  inserted  a 
imiting  the 

owner  will 
recover  full 

<3^  C.  B. 
ng.  R.  Cas. 
[6  Am.  Rep. 
.  Pennsyl- 
INGUISHED 
Can.  457. 
►perative 
*e  of  loss. 

fixing  the 
imal  worth 
irrier's  lia- 
legligence, 
3n  adopted 
svilleSr'N. 
if.  Cas.  312, 
r.— DlSAP- 

Foley,  46 

's  agent  a 
ating  that 


ill  consiiieration  of  special  latcs  the  lialiility 
assumed  could  not  exceed  $100  per  heail, 
unless  by  special  agreement  noted  thereon. 
Till.:  (i.iuse  was  held  void  as  against  gross 
negligence,  but  would  have  been  valid  as 
respects  damages  resulting  from  any  cas- 
ualty  against  which  the  carrier  might  limit 
his  liability  if  knowingly  assented  to  by  the 
shipper.  Chicago  6^  N.  W.  R.  Co.  v.  Chap- 
man, 42  ^lin.  Sr*  Kitg.  A'.  Cas.  392,  133  ///. 
96,  24  A'.  E.  Rep.  417 ;  ajfirming  30  ///.  A  pp. 
504. 

8ft.  liimitatioii  to  chhIi  value  at 
place  of  Nliipincnt.— A  provision  in  a 
contract  for  the  shipment  of  live  stock  en- 
tered into  in  consideration  of  the  shipper 
getting  reduced  rates,  limiting  the  carrier's 
liability  in  case  of  injury  or  loss  to  the  value 
of  the  animals  at  the  place  of  shipment, and 
in  no  case  exceeding  $5°  per  head  for  ordi- 
nary beef  cattle,  is  valid,  and  will  be  held  as 
the  measure  of  the  carrier's  liability.  South 
&*  N.  Ala.  R.  Co.  V.  Henlein,  52  Ala.  606.— 
Approved  in  Hart  z'.  Pennsylvania  R.Co., 
112  U.  S.  331.  Followed  in  Louisville  & 
N.  R.  Co.  V.  Oden,  80  Ala.  i^.— South  &* 
A^.  Ala.  R.  Co.  V.  Henlein,  56  Ala.  368,  19 
Am.  Ry.  Rep.  200.— Following  South  & 
N.  Ala.  R.  Co.  V.  Henlein,  52  Ala.  606. — 
Missouri  Pac.  R.  Co.  v.  Ryan,  2  Tex.  App. 
(Civ.  Cas.)  378. 

Independent  of  any  right  of  a  "ommon 
carrier  of  live  stock  to  stipulate  against 
negligence,  a  contract  between  the  shipper 
and  carrier,  to  the  effect  that  the  value  of 
the  animals  at  the  place  of  shipment  shall 
constitute  the  measure  of  damages  in  case  of 
loss,  is  neither  unreasonable  nor  against 
public  policy.  Chicago,  R.  I.  6-  P.  R.  Co. 
V.  Harmon,  17  ///.  App.  640. 

A  carrier  has  no  right  to  require,  as  a 
condition  precedent  to  receiving  live  stock 
for  transportation,  an  agreement  by  the 
shipper  that,  in  case  of  total  loss  of  the  live 
stock,  the  measure  of  damages  shall  not  ex- 
ceed its  cash  value  at  the  place  of  shipment. 
Missouri  Pac.  R.  Co.  v.  Fagan,  35  Am.  &• 
Eng.  R.  Cas.  666,  72  Tex.  127,  9  S.   IV.  Rep. 

749- 

Where  cat'le  are  shipped  by  rail  and  in- 
juries and  damages  result  from  a  violation 
of  the  contract  of  shipment,  growing  out  of 
the  negligence  of  the  carrier,  the  carrier 
cannot  restrict  and  limit  its  liability  to  less 
than  the  true  value  of  the  property,  and  a 
stipulation  that  in  case  of  loss  or  partial  loss 
the  shipper's  damages  shall  be  limited  to 


the  valui'  o(  the  cattle  at  the  place  of  ship- 
ment cannot  alltti  the  shipper's  right  to 
recover  the  value  of  the  cattle  at  the  place 
of  their  destination.  Ft.  Worth  &*  I).  C. 
R.  Co,  V.  Grtathouse,  49  //;;/.  ir*  Eng.  R, 
Cas.  157,  82  Tex.  104,  17  S.  If.  Hep.  834.— 
yuoTi'.D  IN  Missouri  I'ac.  R,  Co.  v.  Chil- 
ders,  I  Tex.  Civ,  Api».  302. 

A  common  carrier  of  live  stock  cannot 
limit  its  liability  in  the  bill  of  lading  by  a 
provision  that  in  case  of  loss  the  damage 
shall  not  exceed  the  value  of  the  stock  at 
the  place  of  shipment,  regardless  of  its  value 
at  the  place  of  destination.  Taylor,  B.  &• 
H,  R,  Co.  v.  Montgomery,  4  Tex.  App.  {Civ. 
Cas.)  \o\,  16  .S",  \V.  Rep.  178.— Approving 
Southern  Pac.  R.  Co,  v.  Maddox,  75  Tex. 
300,  12  S.  VV,  Kep.  815. 

00.  Liiiiitutioii  to  value  agreed 
upon  at  time  of  sliipnieiit.*— Where  a 
shipper  of  stock  by  s|)ecial  contract  agrees 
upon  a  value  to  be  placed  upon  such  stock 
in  case  of  loss,  and  in  consideration  thereof 
obtains  a  reduced  rate  of  transportation,  he 
is  bound  by  such  stipulation,  and  is  estopped 
from  showing  that  the  real  value  of  the 
stock  was  greater  than  tliat  specified  in  the 
contract ;  and  he  will  not  be  relieved  froiii 
the  terms  of  the  agreement  merely  because 
he  signed  the  contract  hurriedly  and  with- 
out reading  it.  Johnstone  v.  Richmond  &» 
D.  R.  Co.,  55  Am.  6-  Eng.  R.  Cas.  346,  39  So. 
Car.  55,  17  S.  E.  Rep.  512.  M'Cance  v.  Lon- 
don 6-  A'.  W.  R.  Co.,  3  iV.  <S-  C.  343,  34  L. 
J.  Ex.  39,  10  Jur.  N.  S.  1058,  12  W.  R. 
1086,  II  L.  T.  426;  affirming  -j  H.  &*  N. 
j^77,  31  L.J.  £".»-.  65,  7  Jur.  N.  S.  1304,  10  W. 
^.154. 

Where  the  shipper  of  live  stock,  in  con- 
sideration of  reduced  rates,  contracts  with 
the  carrier  that,  in  case  of  a  total  loss  of  any 
of  the  stock,  the  valuation  shall  not  exceed 
a  specified  sum,  in  case  of  a  partial  injury 
the  damages  will  be  the  proportion  of  that 
sum  to  the  lessened  value  of  the  stock  by 
reason  of  the  injury.  St.  Louis,  /.  M.  &^  S. 
R.  Co.  v.  Lesser,  46  Ark.  236.— Quoting 
Hart  V.  Pennsylvania  R.  Co.,  112  U.  S.  337. 
—Followed  in  St.  Louis,  L  M.  &  S.  R.  Co 
V.  Weakly,  35  Am.  &  Eng.  R.  Cas.  635.  50 
Ark.  397,  7  Am.  St.  Rep.  104,  8  S.  W.  Rep. 

134. 

A  stipulation  in  a  bill  of  lading  of  live 
stock  at  reduced  rates,  fixing  values  of  the 

*  Right  of  company  to  limit  its  liability  to  loss 
or  damage  to  live  stock  according  to  value  fixed 
thereon,  sec  45  Am.  &  E.ng.  R.  Cas.  357,  abstr. 


778 


CARRIAGE    OF    LIVE    STOCK,  »1,»2. 


tl 


m 


respective  animals,  is  not  an  unlawful  limi- 
tation upon  tlie  carrier's  liability,  if  fair  and 
reasonable  in  itself,  and  based  upon  a  sufli- 
cient  consideration,  and  freely  and  under- 
standingly  assented  to  by  the  shipper,  it  is 
valid,  although  the  values  agreed  upon  are 
r.iuch  below  those  proved.  Louisville  &^  A'. 
/".  Co.  V.  SoTt'ell,  49  Ami.  &^£n^.  R.  Cas.  i66, 
90  7'enft.  17,  15  .v.  JV.  Rep.  837.— Distin- 
guishing Coward  v.  East  Tenn.,  V.  &  G,  R. 
Co.,  16  Lea  (Tenn.)  225  ;  Louisville  &  N.  R. 
Co.  V.  Wynn,  88  Tenn.  320;  New  Yo-kC. 
R.  Co.  V.  Lockwood,  17  Wall.  (U.  S,"'  357. 

A  common  carrier  may,  by  special  agree- 
ment, just  and  reasonable  in  itself,  and 
fairly  made  between  it  and  the  consignor  of 
a  horse  at  the  time  of  shipment,  fix  the 
value  of  such  horse,  upon  consideration 
that  the  rate  of  charges  for  transportation 
shall  be  commensurate  with  the  value  of  the 
horse  thus  ascertained,  and  may  also  limit 
its  liability  in  case  of  loss  to  the  amount 
thus  agreed  upon,  even  though  the  loss  may 
be  the  result  of  negligence  on  the  part  of 
the  carrier,  provided  said  negligence  be  not 
gross,  wanton,  or  wilful ;  but  it  cannot 
wholly  exempt  itself  from  liability  for  loss 
resulting  from  negligence.  Zouch  v.  Chesa- 
peake &«•  0.  R.  Co.,  36  W.  Va.  524,  15  5.  E. 
Rep.  185.— Following  Maslin  v.  Baltimore 
&  O.  R.  Co.,  14  W.  Va.  180;  Hart  v.  Penn- 
sylvania R.  Co.,  1 12  U.  S.  331.  Disapprov- 
ing Gould  V.  Hill,  2  Hill  (N.  Y.)  623. 

The  bill  of  lading  gave  one  hundred 
dollars  as  the  value  of  a  mare.  The  plain- 
tiff now  claims  that  she  was  worth  two 
thousand  dollars.  Held,  that  the  liability 
of  th<  efendant  was  limited  to  the  value 
stated  in  the  bill  of  lading.  And  this, 
although  the  plaintiff  was  not  informed  and 
did  not  understand,  in  giving  the  value, 
that  he  would  be  limited  to  that  sum  if  the 
mare  was  injured.  Coupland  v.  Housatonic 
R.  Co.,  55  Am.  (S^  Eng.  R.  Cas.  380, 61  Conn, 
531,  23  Atl.  Rep.  870.— Following  Hart  v. 
Pennsylvania  R.  Co.,  112  U.  S.  331. 

The  owner  of  horses  delivered  them  to  a 
common  carrier  for  transportation  under  a 
contract  signed  by  him,  stating  the  terms 
and  conditions  upon  which  the  property 
was  to  be  transported,  by  which  it  was 
agreed  "that  the  value  of  the  live  stock  to 
be  transported  under  this  contract  does  not 
exceed  the  following-mentioned  sums,  to 
wit:  Each  horse,  $100;  each  ox,  $50;  each 
bull,  I30 ;  each  cow,  $30 ;  *  *  ♦  such  valua- 
tion being  that  whereon  the  rate  of  com- 


pensation to  the  company  for  its  services 
and  risk  connected  with  said  property  is 
based."  Held,  that,  assuming  that  the  con- 
tract was  fairly  made  for  the  purposes 
therein  expressed,  the  sums  named  being 
approximately  the  average  values  of  ordi- 
nary domestic  animals,  this  was  a  just  and 
reasonable  mode  of  securing  a  due  propor- 
tion between  the  amount  for  which  the  car- 
rier becomes  responsible  and  the  freight 
which  he  receives,  and  of  protecting  himself 
against  extravagant  valuation  in  case  of 
loss,  and  that  the  recovery  of  the  owner  will 
be  limited  to  the  sums  named,  even  though 
the  loss  occurred  through  the  negligence  of 
the  carrier  or  his  servants.  Alair  v.  North- 
ern Pac.  R.  Co.,  55  Am.  &*  Eng  R.  Cas.  357, 
S3  Minn.  160,  54  N.  W.  Rep.  1072. — Re- 
viewing New  York  C.  R.  Co.  v.  Lockwood, 
17  Wall.  (U.  S.)  357. 

91.  Statutory  liinitatioii  of  amount 
recoverable. — Where  an  animal  delivered 
to  a  railway  company  for  carriage  is  injured 
through  the  negligence  of  its  servants,  and 
no  declaration  of  its  value  is  made,  the 
liability  of  the  company  is  limited  to  the 
amount  specified  in  the  second  proviso  of 
§  7  of  the  Railway  and  Canal  Traffic  Act, 
although  no  written  contract  was  made. 
Hill  V.  London  6-  N.  W.  R.  Co.,  42  L.  T. 

513- 

02.  What  limitations  are  "just 
and  reasonable"  in  England. — It  is 

not  an  unreasonable  conditir)n  within  §  7  of 
the  Railway  and  Canal  Traffic  Act  for  a  rail- 
way company  to  make  a  special  agreement 
to  carry  cattle  at  a  lower  rate,  on  condition 
that  it  shall  be  liable  for  negligence  only. 
Harris  v.  Midland  R.  Co.,  2$   W.  R.  63. 

A  condition  in  a  special  contract  for  the 
carriage  of  live  stock,  relieving  the  carrier 
from  liability  for  the  suffocation  of  the  ani- 
mals, the  drover  who  signed  the  condition 
being  given  a  free  pass  and  seeing  in  what 
sort  of  cars  the  cattle  were  loaded — held  to 
be  just  and  reasonable,  although  the  cattle 
were  put  into  ordinary  freight-cars  and  were 
suffocated  owing  to  the  lid  of  the  only 
opening  in  the  car  becoming  closed.  Pard- 
ington  V.  Souih  Wales  R.  Co.,  i  H.  &*  N.^ 
392,  2  Jur.  N.  S.  1 2 10,  26  L.J.  C.  P.  105.      i 

A  condition  stipulating  that  the  carrier 
shall  not  be  liable  for  any  loss  or  damage  to 
animals,  unless  their  value  is  declared  and 
increased  charges  are  paid,  is  just  and  rea- 
sonable, and  is  not  to  be  construed  as  ex- 
empting the  company  from  liability  for  loss 


CARRIAGE   OF   LlVli   STOCK,  ««. 


ro 


its  services 
property  is 
hat  the  con- 
le  purposes 
imed  being 
les  of  ordi- 
'.  a  just  and 
due  propor- 
lich  tlie  car- 
the  freight 
ting  himself 
n  case  of 
e  owner  will 
ven  though 
gligence  of 
>r  V.  North- 
R.  Cas.in, 
1072.— Re- 
Lockwood, 

[>f  amount 

al  delivered 
fe  is  injured 
ervants,  and 
made,  the 
ited  to  the 
\  proviso  of 
Traffic  Act, 
was  made. 
:<?.,  42  Z.  T. 

ire    "just 
ftlMl.— It  is 

vithin  §  7  of 
ctfor  a  rail- 
agreement 
ti  condition 
gence  only. 
^.  R.  63. 
ract  for  the 
the  carrier 
of  the  ani- 
E  condition 
ing  in  what 
ed — held  to 
1  the  cattle 
rs  and  were 
f  the  only 
ied.    Pard- 

H.  &.  n: 

'.  P.  105.  i 
the  carrier 
damage  to 
clared  and 
5t  and  rea- 
•ued  as  ex- 
lity  for  loss 


caused  by  its  wilful  neglect  or  misconduct. 
Harrison  v.  London,  B.  &-  S.  C.  R.  Co.,  2  B. 
<S-  S.  122,  8  /itr.  A'.  ,!>.  740,  31  L.  /  Q.  B. 
113,  6/,.  T.  466.— Overruled  in  Ashen- 
den  V.  London.  B.  &  S.  C.  R.  Co.,  L.  R.  5 
Ex.  D.  190,  42  L.  T.  586,  28  W.  R.  511,  44 
J.  P.  203. 

A  condition  that  horses  shall  be  carried 
entirely  at  the  owner's  risk  is  just  and 
reasonable  where  there  is  the  alternative  of 
a  higher  rate  under  a  different  contract,  but 
such  a  condition  will  not  protect  the  com- 
pany from  liability  for  delay  where  the 
contract  was  to  deliver  in  a  reasonable 
time.    Robinson  v.  Great  Western  R.  Co.,  14 

IV.  R.  206.  I  //.  &*  R.  97,  35  L.  J.  C.  P.  123, 
L.  R.  I  C.  P.  329.— Followed  in  D'Arc  v, 
London  &  N.  VV.  R.  Co..  L.  R.  9  C.  P.  325. 
30  L.  T.  763,  22  W.  R.  919. 

93. what  are  "  unjust "  op  "  un- 
reasonable."—A  special  contract  entered 
into  respecting  the  carriage  of  live  stock, 
providing  that  the  stock  shall  be  conveyed 
"  at  the  owner's  risk  in  connection  with  the 
sea  part  of  the  transit,"  is  unjust  and  un- 
reasonable. Corrigan  v.  Great  Northern  &* 
M.  F.  L.  R.  Cos.!  L.  R.  6  /r.  90.    Doolan 

V.  Mid/and  R.  Co.,  25  IV.  R.  882.  37  L.  T. 
317;  reversing  L.  R.  10  Jr.  C.  L.,  and  re- 
storing 9  Ir.  C.  L.  20. 

A  condition  in  a  special  contract  for  the 
carriage  of  live  stock,  to  the  effect  "  that 
where  the  charge  of  conveyance  is  per 
wagon,  as  the  owner  or  his  servant  is  re- 
quired to  superintend  the  loading  of  the 
stock  and  is  allowed  to  place  as  many  ani- 
mals in  such  wagons  as  he  considers  may  be 
conveyed  with  safety,  the  company  will  not 
be  responsible  for  loss  arising  in  any  way 
from  the  overcrowding  of  such  wagons,  or 
for  injuries  done  in  the  loading  or  unload- 
ing thereof,  or  in  consequence  of  one  ani- 
mal i.juring  another,"  is  unjust  and  un- 
reasonable. Corrigan  v.  Great  Northern  &* 
M.  '^.  L.  R.  Cos.,  L.  R.  6  Ir.  90. 

it.  condition  in  a  carrier's  oflfer  to  carry  at 
certain  reasonable  rates,  "  that  it  would 
not  be  accountable  for  the  correct  selection 
of  the  owners' cattle  on  landing,  nor  on  load- 
ing into  the  wagon  at  L."  (the  termination 
of  the  sea  journey),  "  nor  on  unloading  at 
destination,"  is  unreasonable  and  unjust. 
McNally  v.  Lancashire  &*  V.  R.  Co.,  L.  R. 
8  fr.  81, 

A  condition  in  a  special  contract  for  the 
carriage  of  live  stock  that  the  owner  shall 
undertake  all  risks,  and  that  the  company 


shall  not  h*^  liable  for  any  loss  or  injury 
from  any  cause 'vhatsoevcr,  is  unreasonable, 
although  by  another  condition  the  company 
undertakes  to  give  free  passes  to  persons 
having  the  care  of  live  siock,  as  an  induce- 
ment to  owners  to  send  proper  persorfs  to 
take  care  of  them.  Such  conditions  do  not 
relieve  the  company  from  its  common-law 
duty  10  keep  its  station  in  a  proper  condi- 
tion and  to  deliver  the  cattle  at  a  proper 
place.  Root  A  v.  Northeastern  R.  Co.,  36  L.y, 
Exch.  83.  L.  R.  2  E.xch.  173,  15  W.  R.  695, 
1 5  Z.  r.  624. 

A  condition  is  unreasonable,  within  the 
meaning  of  §  7  of  the  Railway  and  Canal 
Traffic  Act  1854,  where  it  stipulates  that  the 
company  is  not  to  be  lial)le  for  any  conse- 
quences arising  from  over-carriage,  deten- 
tion, or  delay  in  or  in  relation  to  the  con- 
veying or  delivering  of  the  cattle  to  be 
carried,  no  matter  how  caused,  there  being 
no  reduced  rate  as  a  consideration  for  the 
special  contract.  Allday  v.  Great  Western 
R.  Co.,  s  B.  &'  S.  903,  1 1  /ur.  N.  S.  1 2,  34  Z. 
/.  Q.  B.S.13  '^-  ^-  43.  II  L.  T.  267. 

A  condition  whereby  a  railway  company 
stipulates  to  be  free  from  any  injury  to 
cattle  in  consequence  of  over-carriage,  de- 
tention, or  delay  is  unreasonable,  although 
a  reduced  rate  is  charged.  Allday  v.  Great 
Western  R.  Co.,  $  B.  &•  S.  903.  1 1  /ur.  N. 
S.  12,  34  Z./.  Q.  B.  5,  13  W.  R.  43,  II  L.T. 
267. 

Under  the  Railway  and  Canal  Traffic  Act 
1854,  §  7,  a  railway  company  cannot  stipu- 
late that  it  will  not  be  liable  "  in  any  case  " 
above  certain  specified  values  for  loss  or 
damage  to  a  horse  or  dog,  unless  the  value 
is  declared  ;  such  a  condition  is  not  just  and 
reasonable  within  the  meaning  of  the  act. 
Ashenden  v.  London  &*  B.  R.  Co.,  L.  R.  5 
Ex.  D.  190,  42  Z.  T.  586.  28  W.  R.  511. 

Conditions  in  a  contract  for  the  carriage 
of  cattle  that  the  company  is  to  be  relieved 
from  all  liability  and  that  the  owner  is  to 
see  to  the  efficiency  of  the  car  before  his 
stock  is  placed  therein,  complaint  to  be 
made  in  writing  to  the  company's  agent  be- 
fore the  car  leaves  the  station,  are  neither 
just  nor  reasonable.  Gregory  v.  West  Mid- 
land R.  Co.,  2  //.&*  C.  944, 10 /ur.  AL  S.  243, 
33  Z./.  Exch.  155,  n  W.  R.  528. 

A  condition  in  a  special  contract  for  the 
carriage  of  horses,  exempting  the  company 
from  all  liability  whatsoever,  is  unjust  and 
unreasonable,  although  the  horses  are  car- 
ried at   a   reduced  rate.    Such  condition 


jmrr 


iiSO 


CARRIAGE    OF   LIVE   STOCK,  M4,  95. 


il 


m 


i     '       :.f 


is  not  aided  by  an  altenuuivc  condilion 
wiiereby  llie  cunipany  assumes  tlie  risk 
upon  payment  of  additional  charges,  but 
refuses  to  entertain  any  claim  unless  the 
injuries  are  pointed  out  to  the  company's 
agent  at  the  time  of  unloading,  that  condi- 
tion also  not  being  in  itself  just  and  reason- 
able. L/(>yti  V.  Water/ ord  &^  L.  R.  Co.,  15 
//-.  C.  L.  37,  9  ^-  T.  89. 

A  condition  in  a  contract  for  the  carriage 
of  horses,  relieving  the  company  of  all 
liability  whatsoever,  is  neither  just  nor 
reasonable ;  and  if  the  truck  in  which  the 
horses  are  conveyed  is  defective,  owing  to 
which  the  horses  are  injured,  the  company 
is  liable.  M'Manus  v,  Lancashire  &*  Y.  R. 
Co.,  4//.&^N.  327,  5  /«/-.  A^.  5.  651,  28  L. 
J.  Ex.  353,  33  L.  T.  259;  reversing  27  L.  J. 
E.x.  201,  2  H.&^  N.  693. 

94.  Execution  of  the  contract- 
Duress. — Where  the  owner  of  live  stock 
has  contracted  with  the  carrier  for  cars  for 
several  loads  and  has  himself  delivered  one 
car-load  and  signed  a  contract  containing 
provisions  limiting  the  carrier's  liability,  it 
will  be  presumed  that  persons  whom  he 
sends  with  others  are  authorized  to  sign 
contracts  containing  similar  provisions.  Illi- 
nois C.  R.  Co.  V.  Morrison,  1 9  ///.  1 36. 

A  provision  in  a  contract  for  the  shipment 
of  live  stock  to  the  effect  that  the  owner 
should  have  a  pass  on  the  road  for  the 
purpose  of  taking  care  of  the  stock,  and 
that  he  should  assume  the  risk  of  injury  to 
the  stock  by  each  other,  but  not  signed 
until  after  most  of  the  stock  had  been 
shipped,  is  without  consideration,  and  will 
not  relieve  the  carrier  from  the  duty  of 
exercising  ordinary  care.  German  v.  Chi- 
cago Gf  N.  W.  R.  Co.,  38  Iowa  \  27. 

The  Railway  and  Canal  Traffic  Act  1854 
applies  to  cases  where  a  special  contract  has 
been  signed,  in  accordance  with  the  proviso 
in  §  7,  that  no  special  contract  between  com- 
pany and  shipper  respecting  the  receiving 
of  animals  shall  be  binding  unless  signed  by 
the  shipper  or  the  person  delivering  the 
animals,  M'Manus  v.  Lancashire  &*  Y.  R, 
Co.,  ^  H.  &*  N.  327,  5  Jur.  N.  S.  651,  28 
L.  J.  Ex.  353,  33  L.  T.  259:  reversing  27 
L.  J.  Ex.  201,  2H.Sr'  N.  693. 

After  plaintiff  had  purchased  certain 
horses  he  contracted  with  the  soliciting 
agent  of  defendant  railroad  company  to  ship 
by  its  line,  and  he  delivered  the  horses  to  the 
ap;ent,  who  afterward  handed  plaintiff  a  bill 
of  lading  which  was  signed  by  the  agent  in 


the  name  of  the  persons  from  whom  plain- 
tiff bought,  and  contained  conditions  limit- 
ing the  carrier's  liability,  plaintiff  having 
given  no  authority  to  either  party  to  sign 
such  a  bill  of  lading.  Held,  that  he  was  not 
bound  thereby.  Ohio  &*  M.  R.  Co.  v.  Ham- 
lin, 42  ///.  App.  441. 

Where  a  railway  company  had  in  fact 
only  one  rate  at  which  it  carried  or  offered 
to  carry  cattle  from  O.  to  S. ,  although  it  had 
posted  up,  in  the  office  of  its  agent  at  O., 
other  and  higher  rates,  and  an  owner  of 
cattle,  without  anything  being  said  about 
any  special  contract,  but  with  the  consent 
of  the  company,  placed  liis  cattle  in  the 
company's  cars  ai  O.,  to  be  transported  to  S., 
and  the  agent  of  the  company  at  O.  then 
presented  to  the  shipper  a  certain  special 
contract  for  carrying  such  cattle  at  the  full 
rate  at  which  the  company  carried  cattle, 
though  less  than  the  posted  rates,  and  with 
certain  restrictions,  limitations,  etc.,  as  to 
the  company's  responsibility,  and  demanded 
that  the  shipper  should  sign  such  special 
contract  or  have  his  cattle  unloaded,  and 
gave  to  the  shipper  no  other  option  or 
alternative,  whereupon  the  shipper  signed 
such  special  contract — held,  that  the  spe- 
cial contract,  so  far  as  it  attempted  to 
restrict  the  liability  of  the  railway  company, 
or  to  impose  additional  burdens  upon  the 
shipper,  as  conditions  precedent  to  a  re- 
covery for  damages  resulting  from  the  neg- 
ligence of  tlie  railway  company,  was  with- 
out consideration  and  void.  Kansas  Pac. 
R.  Co.  v.  Reynolds,  17  Kan.  251. 

95.  Igrnorancc  of  shipper  as  to 
contents  of  special  contract.—  Where 
a  party  who  can  read  accepts  a  bill  of  lading 
containing  limitations  of  the  carrier's  liabil- 
ity for  injuries  to  live  stock  shipped,  in  the 
absence  of  proof  of  fraud  or  coercion  '  i 
cannot  relieve  himself  from  its  terms  on  t  . 
ground  that  he  did  not  know  its  conten'.s, 
where  lack  of  such  knowledge  was  because 
he  did  not  choose  to  read  it  and  inform 
himself.  Wabash,  St.  L.  &*  P.  R.  Co.  v. 
Black,  1 1  ///.  App.  465. 

Where  a  common  carrier  enters  into  a 
contract  for  the  carriage  of  live  stock,  with 
conditions  limiting  its  common-law  liability 
such  as  are  reasonable  and  binding,  the 
shipper  can  only  recover  for  a  breach  by 
declaring  upon  the  contract ;  and  he  cannot 
avoid  such  conditions  on  the  ground  tliat 
he  had  not  read  them  or  did  not  know  their 
contents  when  he  executed  the  contract. 


whom  plaiii- 
iditions  limit- 
aintiff  having 
party  to  sign 
lat  he  was  not 
i'.  Co.  V.  //am- 

r  had  in   fact 
ied  or  offered 
though  it  had 
agent  at  O., 
an  owner  of 
>g  said  about 
1  the  consent 
cattle  in  the 
isported  to  S., 
ly  at  O.  then 
ertain  special 
ttle  at  tile  full 
carried  cattle, 
ates,  and  with 
•s,  etc.,  as  to 
ind  demanded 
I  such  special 
unloaded,  and 
ler  option  or 
hipper  signed 
that  the  spe- 
aitempted    to 
way  company, 
ens  upon  the 
dent  to  a  re- 
from  the  neg- 
my,  was  with- 
A'ansas  Pac. 
I. 

|»per   r.s  to 

•act.-  Where 

bill  of  lading 

:arrier's  liabil- 

fiipped,  in  the 

coercion  '  ; 

i  terms  on  i    . 

its  contcnis, 

was  because 

:  and   inform 

P.  R.  Co.  V. 

inters  into  a 
e  stock,  with 
i-Iaw  liability 
binding,  the 
a  breach  by 
nd  he  cannot 
ground  that 
It  know  their 
he  contract. 


CARRIAGE   OF   LIVE   STOCK,  OO,  97. 


781 


International  &*  G.  N.  R.  Co.  v.  Watt,  2 
Tex.  App.  {Civ.  Cas.)  686. 

Plaintifl  sent  some  cattle  from  B.  by  de- 
fendants' railway,  signing  a  paper  which 
declared  he  undertook  all  risk  of  loss, 
injury,  or  damage,  in  conveyance  and  other- 
wise, whether  arising  from  the  negligence, 
default,  or  misconduct,  criminal  or  other- 
wise, on  the  part  of  defendants  and  their  ser- 
vants. He  was  told  by  the  station-master 
that  he  would  have  to  sign  these  condi- 
tions, which  he  did,  without  taking  time  to 
read  them.  To  an  action  for  negligence  in 
the  carriage  of  the  cattle,  by  which  five  of 
them  were  killed,  defendants  pleaded  these 
conditions,  which  the  jury  found  that  the 
plaintiff  had  signed.  Held,  that  he  was 
bound  by  them,  though  he  might  not  have 
read  or  understood  the  paper.  O'Rorke  v. 
Great  Western  R.  Co.,  23  U.  C.  Q.  B.  427.— 
Distinguishing  Simons  v.  Great  Western 
R.  Co.,  2  C.  B.  N.  S.  620.— Followed  in 
Hood  V.  Grand  Trunk  R.Co.,  20  U.  C.  C.  P. 
361. 

There  was  also  a  count  in  trover  for  con- 
version of  the  five  cattle,  as  to  which  the 
defendants  paid  into  court  $52,  being  the 
price  for  which  they  were  sold  by  defend- 
ants' station-master  after  they  had  been 
killed.  Held,  that  such  payment  admitted 
only  a  cause  of  action,  not  the  particular 
cause  sued  for,  and  that  the  evidence 
proved  no  conversion  by  defendants,  the 
sale  not  being  the  ordinary  duty  of  a  sta- 
tion-master. O'Rorke  v.  Great  Western  R. 
Co.,  23  U.  C.  Q.  B.  427.— Quoting  Perren 
V.  Monmouthshire  R.  Co.,  11  C.  B.  865. 

06.  Interpretation  of  special  con- 
tracts limiting  liability."' — A  clause  in 
a  contract  for  the  shipment  of  live  stock, 
among  other  things  exempting  the  carrier 
from  liability  for  loss  caused  by  suffocation, 
will  not  relieve  the  company  in  case  of  loss, 
if  the  suffocation  is  the  result  of  unnecessary 
delay,  Ballv.  Wabash,  St.  L.  &•  P.  R.  Co., 
25  Am.  &*  Eng.  R.  Cas.  384,  83  Afo.  574. 

A  provision  in  a  contract  for  the  trans- 
portation of  horses,  that  the  carrier  should 
not  be  liable  for  various  specified  injuries, 
including  "being  injured  by  the  burning  of 
hay,  straw,  or  any  other  material  for  feed- 
ing the  stock,  or  in  any  way,"  does  not 
relieve  the  carrier  from  liability  for  a  horse 
that  is  killed  by  a  collision.  The  words 
"in   any  way"  should  be  restricted   to  a 


•Secrtw/^  «1. 


burning  in  any  way,  or  at  least  they  are  too 
indefinite  to  include  a  loss  from  any  cause. 
Zimmcr  v.  New  York  C.  6f*  H.  R.  R.  Co., 42 
N.  Y.  S.  R.  63,  62  Hun  619,  16  A'.  Y.  Supp. 
631.— Quoting  Holsapple  v.  Rome,  W.  & 
O.  R.  Co.,  86  N.  Y.  278. 

Where  cattle  are  shipped  under  a  con- 
tract providing  "  that  in  case  of  accident  to 
or  delay  from  any  cause  whatever  the 
owners  or  shippers  are  to  feed,  water,  and 
take  proper  care  of  the  stock,"  it  is  error  to 
charge  that  in  all  cases,  except  of  unavoid- 
able delay,  accident,  or  collision,  the  car- 
rier was  obliged  to  feed  and  water  the 
stock,  as  the  contract  does  not  undertake 
to  bind  the  carrier  to  feed  and  water  in  all 
cases  where  the  owner  is  not  to  do  so. 
Louisville  &-  N.  R.  Co.  v.  Trent,  16  Am.  &* 
Eng.  R.  Cas,  170,  11  Lea  {Tenn.)  82. 

Where  by  special  contract  a  railway  com- 
pany is  relieved  of  all  liability  for  damage 
to  horses  carried,  it  is  not  liable  for  injury 
to  a  horse  which,  at  its  destination,  is  for- 
gotten and  left  tied  up  in  the  car  in  an  ex- 
posed place  for  twenty-four  hours.  Wise 
V.  Great  Western  R.  Co.,  i  H.  &•  N.  63,  25 
L.  J.  Ex.  258. 

Where  a  "shipper  of  horses  signs  a  special 
contract  relieving  the  company  from  lia- 
bility for  injuries  occasioned  by  the  fear  or 
resiiveness  of  the  animals,  the  company  is 
not  relieved  from  liability  in  cases  where 
the  injury  flowed  immediately  from  the  fear 
and  restiveness  of  the  animals,  directly  oc- 
casioned by  some  act  of  negligence  on  the 
part  of  the  company.  Moore  v.  Great 
Northern  R.  Co.,  L.  R.  10  Ir.  95. 

HI.  illustrations.—  A  shipper  of 

live  stock  signed  a  bill  of  lading  which  pro- 
vided that  the  railroad  company  should  not 
"  be  liable  for  damage  or  loss  ♦  *  ♦  by  rea- 
son of  breaking,  chafing,  weather,  fire,  or 
water,  except  where  collision  or  running 
from  the  track,  resulting  from  negligence  of 
the  corporation's  agents,  shall  cause  the 
same,  and  the  shipper  and  owner  hereby 
promise  to  pay  the  freight,  and  to  claim  no 
deduction  therefrom  by  reason  of  any  dam- 
age or  loss."  Held,  that  the  breaking  of  an 
animal's  leg,  and  other  injuries  occasioned 
by  the  movement  of  the  car,  were  not  prop- 
erly described  by  the  words  "  breaking  " 
and  "chafing"  in  the  bill  of  lading,  and 
were  not,  therefore,  injuries  against  which 
the  defendant  undertook  to  exempt  itself 
from  liabilitv;  and  that  the  bill  of  lading 
did  not  prevent  recovery  from  the  defend- 


782 


CARRIAGE   OF   LIVE   STOCK,  08. 


M 


ant  under  its  common-law  "  liability  as  car- 
rier of  livestock,"  Coupland \ .  Housatonic 
R.  Co.,  6 1  Conn.  531,  23  Ail.  Rep.  870,  55 
Am.  &*  Eng.  R.  Cas.  380. 

In  an  action  for  delay  in  transporting 
hogs,  it  appeared  that  the  contract  was  that 
the  company  should  not  be  liable  for  loss 
"  by  delay  of  trains,  or  any  damage  said 
property  might  sustain,  except  such  as  might 
result  from  a  collision  of  a  train."  or  when 
cars  were  thrown  from  the  track,  while  all 
the  cars  containing  the  hogs  remained  on 
the  track.  Held,  that  the  company  were 
liable  for  whatever  hogs  were  lost,  or  what- 
ever shrinkage  occurred  by  reason  of  tiie 
delay  caused  by  the  accident ;  but  not  for 
injury  resulting  from  delay  caused  by  cold 
weather.     Illinois  C.  R.  Co.  v.  Owens,  53  ///. 

39»- 

A  contract  of  affreightment  provided 
that  in  case  of  total  loss  of  any  of  the  stock 
shipped  the  actual  cash  value  at  the  time 
and  place  of  shipment,  but  in  no  case  to 
exceed  $100  per  head,  should  be  taken  and 
deemed  full  compensation.  Held,  that  the 
provision  did  not  fix  the  actual  cash  value 
of  the  stock,  but  only  limited  the  compen- 
sation, and  that  parol  evidence  was  admissi- 
ble to  show  that  tlie  shipper  had  agreed  with 
the  carrier's  agent  at  the  time  of  shipping 
at  $10  per  head.  Named  v.  Missouri  Pac. 
R.  Co.,  51  Mo.  APP.4.S2. 

Cattle  were  shipped  under  a  contract  pro- 
viding that  the  owner  assumed  the  risk  of 
all  damage  from  delays,  or  in  consequence 
of  heat,  suffocation,  or  the  ill  effects  of 
being  crowded'  on  the  cars,  and  was  to 
have  a  man  accompany  the  stock,  and 
was  to  load  and  unload  them  at  his 
own  risk,  with  the  carrier's  "  assistance, 
if  required."  While  in  transit  the  car 
was  detained  some  three  days  by  reason 
of  a  snowstorm,  and  the  cattle  remained 
during  a  large  part  of  the  time  in  the  car 
without  proper  attention,  by  reason  of  the 
carrier  failing  to  provide  a  platform,  or  the 
necessary  means  of  unloading,  whereby 
some  of  the  cattle  died  and  others  were  in- 
jured. Held,  that  the  provision  that  the 
carrier  should  assist  if  necessary  in  loading 
and  unloading  referred  only  to  the  ends  of 
the  route,  and  did  not  require  it  to  furnish 
facilities  for  unloading  at  any  other  point. 
Penn  v.  Buffalo  &*  E.  R.  Co.,  49  A^.  Y.  204, 
3  Am.  Ry.  Rep.  355  ;  reversing  3  Lans.  443. 

Contracts  are  to  be  construed  so  as  to 
give  to  every  part  of  them  such  meaning  as 


will  best  effectuate  the  intention  of  the  par- 
ties. A  written  bill  of  lading  of  live  stock 
in  one  provision  recited  that  the  place  of 
destination  was  the  terminal  point  of  the 
receiving  company's  line,  and  in  otiier  pro- 
visions recited  that  an  intermediate  point 
was  the  end  of  its  line,  and  contained  pro- 
visions limiting  its  liability  to  its  own  line. 
Held,  that  upon  a  comparison  of  all  of  the 
provisions  it  was  apparent  that  the  interme- 
diate point  was  the  terminus  of  the  receiv- 
ing company's  line,  and  that  it  was  therefore 
not  error  to  introduce  oral  evidence  to  show 
the  fact,  as  it  only  tended  to  make  certain 
what  was  a  fair  construction  of  the  contract 
itself.  Swank  v.  San  Antonio  &^  A.  P.  R. 
Co.,  I  Tex.  Civ.  App.  675,  23  S.  W.  Rep. 
249. 

The  plaintiff  delivered  cattle,  carriage 
prepaid,  to  the  defendant  railway  company 
for  carriage  on  the  terms  of  signed  condi- 
tions, whereby,  in  consideration  of  an  alter- 
native reduced  rate,  it  was  agreed  that  the 
company  were  "  not  to  be  liable  in  respect 
of  any  loss  or  detention  of  or  injury  to  the 
said  animals,  or  any  of  them,  in  the  receiv- 
ing, forwarding,  or  delivery  thereof,  except 
upon  proof  that  such  loss,  detention,  or 
injury  arose  from  the  wilful  misconduct  of 
the  company  or  its  servants."  The  cattle 
were  carried  ;  but,  on  application  made  for 
them  by  the  plaintiff,  the  defendants,  in 
consequence  of  their  clerk  having  negli- 
gently omitted  to  enter  the  cattle  on  the 
consignment  note  as  "carriage  paid,"  re- 
fused to  deliver  them,  and  alleged  that  the 
carriage  was  not  paid.  The  cattle  were 
kept  exposed  to  the  weather  until  the  next 
day,  when,  the  mistake  having  been  dis- 
covered, they  were  delivered.  They  were 
damaged  by  the  exposure.  In  an  action  for 
damages  by  reason  of  wrongful  detention 
and  negligence — held,  that  the  withholding 
of  the  cattle  under  a  groundless  claim  to 
retain  them  at  the  end  of  the  transit  was 
not  "detention"  within  the  conditions,  and 
the  company  were  therefore  liable.  Gordon 
V.  Great  Western  R.  Co.,  ^  Q.B.D.  ^,^\  L. 
J.  Q.  B.  58.  4  Ry.  <S-  C.  T.  Cas.  xix. 

98.  Proof  of  oral  agreement  iiot- 
'withstandiug  written  contract.  — 
A  prior  verbal  understanding  as  to  the 
terms  of  the  shipment  of  live  stock  cannot 
be  proven  as  against  the  provisions  of  a 
written  bill  of  lading,  where  it  is  delivered 
to  the  shipper  without  fraud  or  mistake, 
though  it  contains  conditions  limiting  the 


CARRIAGE   or   LlVli   STOCK,  99-101. 


r83 


)n  of  the  par- 
of  live  stock 
tlie  place  of 
point  of  the 
in  otlier  pro- 
lediate  point 
>ntained  pro- 
its  own  line, 
of  all  of  the 
the  interme- 
'f  the  receiv- 
was  therefore 
lence  to  show 
make  certain 
the  contract 
&^  A.  P.  a. 
S.  IV.    Rep. 

tie,    carriage 
.'ay  company 
igned  condi- 
1  of  an  alter- 
eed  that  the 
jle  in  respect 
njury  to  the 
n  the  receiv- 
ereof,  except 
Retention,  or 
lisconduct  of 
The  cattle 
on  made  for 
;fendants,   in 
aving  negli- 
:attle  on  the 
fe  paid,"  re- 
jed  that  the 
cattle    were 
itil  the  next 
g  been   dis- 

They  were 
m  action  for 
il  detention 
withholding 
ss  claim  to 

transit  was 
ditions,  and 
•le.     Gordon 

xix. 

nent  iiot- 

litraet.  — 

as  to  the 
;ock  cannot 
isions  of  a 
is  delivered 
or  mistake, 
imiting  the 


carrier's  liability,  and  is  presented  to  him 
for  signature  after  the  stock  are  loaded  in 
the  cars,  and  when  he  has  not  sufficient 
time  to  examine  its  contents.  St,  Louis,  K. 
C.  <S-  N.  R.  Co.  V.  Cleary,  i6  Am.  &*  Eng.  R. 
Cas.  122,  77  Mo.  634,  46  Ant.  Rep.  13.— 
Quoting  O'Bryan  v.  Kinney,  74  Mo,  125. 
Reviewing  Mulligan  v.  Illinois  C.  R.  Co., 
36  Iowa  181.— Followed  in  Brown  v.  Wa- 
bash, St.  L.  &  P.  R.  Co..  18  Mo.  App.  568. 

Where  a  shipper  of  live  stock  pays  the 
carrier  the  freight  charges  and  receives  a 
writing,  without  reading  it,  which  he  sup- 
poses contains  merely  a  receipt,  but  which 
contains  a  contract  exempting  the  carrier 
from  liability  for  a  failure  to  carry  promptly, 
the  shipper  may  show  by  parol  a  contract  to 
deliver  with  dispatch.  K'tigv.  Woodbridge, 
34  Vt.  565.— Criticised  in  Haddv.  United 
States  &  C.  Exp.  Co.,  6  Am.  &  Eng.  R.  Cas. 
443,  52  Vt.  335,  36  Am.  Rep.  757.  Fol- 
lowed in  Doorman  v.  American  Exp.  Co., 
2!  Wis.  152. 

In  an  action  to  recover  damages  for  the 
death  of  hogs  which  had  been  transported 
over  the  railroad,  the  shipper  claimed  and 
testified  that  an  ora"  contract  was  made  for 
transportation  to  a  point  beyond  the  line 
of  the  contracting  company,  in  which  there 
was  no  limitation  of  liability,  and  that  the 
stock  was  shipped  under  that  contract ; 
that,  after  the  stock  were  loaded  and  had 
left  the  station,  he  signed  a  paper  which  he 
could  not  well  read,  and  did  not  read,  but 
which  he  supposed  to  be  a  receipt  contain- 
ing nothing  inconsistent  with  the  contract 
under  which  the  stock  were  shipped.  The 
company  contended,  and  offered  testimony 
to  show,  that  the  only  contract  made  with 
the  shipper  was  the  written  one  embodied 
in  the  paper  or  bill  of  lading  signed  by  the 
shipper,  and  which,  to  a  gr«^t  extent, 
limited  the  liability  of  the  cor  ->any  for 
losses  that  might  occur.  Held,-\.\\2X  the 
court  waL  warranted  in  submitting  to  the 
jury  the  question  of  what  constituted  the 
contract  of  the  parties,  and  also  in  defining 
what  the  common-law  liability  of  the  com- 
pany was,  in  case  they  should  find  in  favor 
of  the  theory  of  the  shipper.  St.  Louis  &• 
S.  F.  R.  Co.  V.  Clark.  55  Am.  <&*  Eng.  R. 
Cas.  367,48  R'an.  321,  29  Pac.  Rep.  312. — 
Following  Missouri  Pac.  R.  Co.  v.  Bee- 
son.  30  Kan.  298.— Followed  in  St.  Louis 
&  S.  F.  R.  Co.  V.  Clark,  48  Kan.  329. 

99.  Effect  of  deviation  by  eoiiipaiiy 
flroiii  terms  of  special  contract.— If  a 


railroad  company  deviates  from  a  contract 
to  transport  live  stock  by  shipping  them  by 
freight  service  instead  of  passenger  service, 
as  agreed  upon,  and  the  stock  are  injured  by 
the  delay  and  rougher  service,  the  company 
cannot  avail  itself  of  the  stipulation  in  the 
contract  relieving  it  from  liability  as  insurer 
at  common  law  ;  but  such  deviation  does 
not  relieve  the  shipper  from  notifying  the 
company  of  his  claim  for  damages  within 
five  days,  where  the  contract  provides  for 
such  notice.  Pavitt  v.  Lehigh  Valley  R. 
Co.,  1 53  Pa.  St.  302,  25  Atl.  Rep.  1 107. 

Where  a  contract  for  the  shipment  of  live 
stock  contains  mutual  conditions  and  limi- 
tations, such  as  that  the  shipper  shall  be  en- 
titled to  ride  free  on  the  train  with  his 
stock,  and  other  conditions  in  favor  of  the 
carrier  limiting  its  common-law  liability,  a 
violation  by  the  carrier  of  the  contract,  in 
failing  to  carry  the  shipper,  releases  him 
from  all  stipulations  that  are  favorable  to 
the  carrier.  Texas  &^  P.  R.  Co.  v.  Davis,  2 
Tex.  App.  {Civ.  Cas.)  156. 

100.  Burden  on  carrier  to  show 
loss  witliin  limitation.* — In  an  action 
for  tlie  death  of  live  stock  in  the  course  of 
transportation  and  while  wholly  under  the 
care  of  the  carrier,  the  burden  is  upon  the 
defendant  to  show  that  the  death  was  within 
tlie  exception  qualifying  its  general  liability. 
Lindsley  v.  Chicago,  M.  <S-  St.  P.  R.  Co.,  31 
Am.  &•  Etig.  R.  Cas.  86,  36  Minn.  539,  33  N. 
W.  Rep.  7. 

VI.  CONHECTINO  LIHES. 

101.  Bights  and  liabilities  of  ini- 
tial carrier,  generally.  —  A  company 
which  receives  live  stock  as  a  common  car- 
rier for  transportation  over  its  own  line  and 
delivery  to  another  railroad,  to  be  thus  car- 
ried to  its  destination  in  another  state,  is 
liable  only  for  the  proper  and  safe  transpor- 
tation of  such  stock  over  its  own  road  and 
its  proper  delivery  to  the  next  connecting 
line.  Alabama  G.  S.  R.  Co.  v.  Thotnas,  32 
Am.  &*  Eng.  R.  Cas.  464,  83  Ala.  343,  3  So. 
Rep.  802.— Distinguishing  Mobile  &  G. 
R.  Co.  V.  Copeland,  63  Ala.  219;  Buckland 
7'.  Adams  Exp.  Co.,  97  Mass.  124;  Nashua 
Lock  Co.  V.  Worcester  &  N.  R.  Co.,  48  N.  H. 
339 ;  Cutts  7A  Brainerd,  42  Vt.  566 ;  Wilcox 
V.  Parmelee,  3  Sandf.  (N.  Y.)6!o;  Mercan- 

•  Burden  of  proof  in  anion  against  carrier 
where  its  liability  lias  been  litnited,  see  note,  45 
Am.  &  Eng.  R,  Cas.  367  ;  see  also  pest,  147, 
148. 


784 


CARRIAGE   OF    LIVE   STOCK,  102,  103. 


5    J    ! 


1^1 


I 


tile  Mut.  Ins.  Co.  v.  Chase,  i  E.  D.  Smiih 
(N.  Y.)  115;  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Rogers,  6  Heisk.  (Tenn.)  143 ;  St,  Louis, 
K.  C.  &  N.  W.  R.  Co.  V.  Piper,  13  Kan.  505. 

When  a  company  contracts  to  ship  stocic 
to  a  given  point,  it  is  bound  to  forward  and 
deliver  it  at  that  point  within  a  reasonable 
time.  It  will  not  be  released  by  a  delivery 
to  a  connecting  road,  but  will  still  be  liable 
for  any  unreasonable  delay,  although  the 
s.ime  is  caused  by  the  cm /ded  condition  of 
sucli  road.     In  <  rder  *  .   '  against  delay 

oil  a  connecting  rovtj  .0      any  should 

so  provide  in  the  ccn  .a  ...,  c,i  contract  only 
to  transport  over  its  own  road  and  deliver 
to  the  next  succeediiiy;  'ine  to  th-^  place  of 
destination.  Toledo,  IV.  C  IV.  .  .j.  v. 
Lockhart,  71  ///.  627. 

Where  a  company  contracts  to  forward 
cuttle  from  a  point  on  its  line  to  a  point  be- 
yond its  line,  the  word  "  forward  "  means 
the  same  as  transport  or  carry,  and  it  be- 
comes responsible  as  a  common  carrier,  ex- 
cept so  far  as  its  liability  is  limited  by  spe- 
cial contract ;  and  a  provision  in  the  contract 
of  shipment,  that  the  owner  assumes  the 
risk  of  loss  or  injury  for  certain  specified 
causes,  except  gross  negligence  of  the  car- 
rier, does  not  apply,  and  it  will  become  lia- 
ble as  a  common  carrier  for  ordinary  negli- 
gence. St.  Louis,  K.  C.  &-■  N.  A'.  Co.  v.  Piper, 
13  Kan.  505,  8  Am.Ry.  Rep.  204..— DISTIN- 
GUISHED IN  Alabama  G.  S.  R.  Co.  v. 
Thomas,  32  Am.  &  Eng.  R.  Cas.  464,  83  Ala. 
343,  3  So.  Rep.  802. 

A  contract  for  the  shipment  of  live  stock 
was  made  by  using  a  printed  blank.  Fol- 
lowing an  acknowledgment  of  the  receipt 
of  the  stock  by  the  carrier  were  the  printed 
words :  "  To  be  delivered  at  *  ♦  *,"  and 
here  were  inserted  in  writing  the  words, 
"Consigned  to  T.,  B.  &  Co.  Chicago,  111." 
The  further  agreement  was  expressed  that, 
where  stock  should  pass  over  more  than  one 
road  to  reach  its  destination,  the  company 
upon  whose  road  any  damage  should  occur 
should  alone  be  liable  therefor.  This  con- 
tract is  not  an  agreement  on  the  part  of  the 
carrier  to  transport  the  stock  to  Chicago,  if 
in  fact  its  line  of  transportation  did  not  ex- 
tend to  that  point.  Ortt  v.  Minneapolis  &> 
St.  L.  R.  Co.,  36  Minn.  396,  31  A^.  W'.  Rep. 

102.  Duty  to  notify  second  car- 
rier.— A  bill  of  lading  given  by  a  railroad 
for  live  stock  which  recites  that  the  com- 
pany is  to  notify  a  party  beyond  its  own 


line,  is  not  in  itself  a  contract  to  carry  the 
cattle  to  that  point.  Michigan  C.  R.  Co.  v. 
Myrick,  gA/u.  &<•  £n£.  R.  Cas.  25,  107  C/.  S. 
102,  I  Sup.  Ct.  Rep.  425.— Reviewed  in 
Phifer  V.  Carolina  C.  R.  Co.,  89  N.  Car. 
311,45  Am.  Rep.  687. 

Where  a  carrier  undertakes  to  transport 
cattle  to  a  point  beyond  its  own  line,  it  is 
liable  for  a  delay  at  the  end  of  its  line 
caused  by  the  train  on  the  connecting  line 
having  departed  before  the  one  carrying  the 
cattle  arrived;  and  it  is  proper  to  admit 
evidence  to  show  that  the  owner  had  re- 
quested an  agent  to  telegrapli  ahead,  notify- 
ing the  connecting  line  that  the  stock  were 
coming,  where  it  appeared  that  it  was  usual 
to  give  such  telegraphic  notice,  and  for  one 
road  to  hold  its  trains  for  cars  on  the  other ; 
and  evidence  to  show  the  condition  of  the 
stock  at  the  place  of  destination,  their 
value,  and  what  the  value  would  have  been 
if  there  had  been  no  delay.  Dunn  v.  Han- 
nibal &>  St.  /.  R.  Co.,  68  Mo.  268. 

103.  Delivery  to  Hiicceeding  car- 
rier.*— A  railroad  company  receiving  cat- 
tle as  a  common  carrier  for  transportation 
over  its  own  road,  to  be  delivered  at  its 
terminus  to  the  next  connecting  road,  and 
thence  by  other  connecting  roads  to  the 
place  of  destination  in  another  state,  is  lia- 
ble only  for  the  safe  transportation  of  the 
cattle  over  its  own  road  and  their  proper 
delivery  at  its  terminus  to  the  next  connect- 
ing road.  Alabama  G.  S.  R.  Co.  v.  Thomas, 
32  Am.  &•  Eng.  R.  Cas.  464,  83  Ala.  343,  3 
So.  Rep.  802.— Distinguishing  Mobile  &  G. 
R.  Co.  V.  Copeland,  63  Ala.  219;  Buckland 
V.  Adams  Exp.  Co.,  97  Mass.  124;  Nashua 
Lock  Co.  V.  Worcester  &  N.  R.  Co.,  48  N.  H. 
339;  Cutts  V.  Brainerd,  42  Vt.  566;  Wilcox 
V.  Parmelee,  3  Sandf.  (N.  Y.)6io;  Mercan- 
tile Mut.  Ins.  Co.  V.  Chase,  i  E.  D.  Smith 
(N.  Y.)  115;  East  Tenn.,  V.  &  G.  R.  Co.  v. 
Rogers,  6  Heisk.  (Tenn.)  143;  St.  Louis,  K. 
C.  &  N.  W.  R.Co.  V.  Piper,  13  Kan.  505. 

The  defendant  company  having  received 
cattle  for  transportation  over  its  own  road 
and  safe  delivery  at  its  terminus  to  a  con- 
necting road,  and  having  transferred  them 
at  its  terminus  to  cars  furnished  by  the 
connecting  road,  was  bound  to  permit  the 
consignor  to  put  the  cars  in  proper  condi- 

*  Duty  of  carrier  of  live  stock  to  torward  by 
connecting  lines,  see  note,  3  L.R.  A.  766. 

Duty  of  company  in  receiving  stock  for 
through  shipment  to  deliver  to  next  connecting 
carrier,  see  note,  9  L.  R.  A.  450. 


CARRIAGE   OF   LIVE   STOCK,  104. 


785 


o  carry  the 
C  /?.  Co.  V. 
5.  107  U.  S. 

VIEWED    IN 

89  N.  Car. 

0  transport 
■n  line,  it  is 

of  its  line 
lecting  line 
:arryingthe 

to  admit 
ler  had  re- 
ead,  notify- 
stock  were 
t  was  usual 
and  for  one 

1  the  other ; 
tion  of  the 
tion,  their 

have  been 
ntt  V.  /fan- 

ling  car- 

eiving  cat- 
isportation 
ered  at  its 
;  road,  and 
ads  to  the 
state,  is  lia- 
:ion  of  the 
leir  proper 
xt  connect- 
V.  Thomas, 
^^/a.  343,  3 
lobile  &  G. 
Buckland 
4;  Nashua 
i.,  48  N.  H. 
)6;  Wilcox 
•  ;  Mercan- 
.  D.  Smith 

r.  R.  Co.  V. 

.  Louis,  K. 
an.  505. 
g  received 
own  road 
to  a  con- 
rred  them 
ed  by  the 
hermit  the 
iper  condi- 

torward  by 
766. 

slock    for 
connecting 


dition  for  the  safe  transportation  of  the 
cattle,  as  he  had  agreed  to  do,  or  to  have 
that  duty  performed  by  its  own  servants 
with  reasonable  care  and  diligence,  provid- 
ing suitable  bedding,  necessary  partitions, 
etc.,  and  avoiding  undue  crowding  of  the 
animals  in  the  cars;  and,  the  injury  to  the 
cattle  resulting  from  the  negligent  perform- 
ance of  this  duty  by  defendant's  servants, 
after  plaintiff  had  offered  to  discharge  it 
himself,  the  defendant  is  liable.  Alabama 
G.  S.  K.  Co.  V.  Thomas,  89  Ala.  294,  7  So. 
Rep.  762. 

In  such  a  case  it  is  competent  to  prove 
that,  on  the  arrival  of  the  cars  at  the  de- 
fendant's terminus,  plaintifl  asked  the 
depot  agent  if  the  cattle  were  to  be  trans- 
ferred to  oliier  cars,  as  he  desired  to  super- 
intend the  transfer  and  preparation  of  the 
cars,  and  was  told  by  the  agent  that  no 
transfer  would  be  made;  that  the  cattle 
were  afterwards  transferred  during  his  tem- 
porary absence,  and  that  he  then  notified  the 
agent  that  if  any  injury  resulted  from  the 
improper  transfer  or  preparations  he  would 
hold  the  defendant  liable  for  it.  As  to 
these  matters,  the  agent  was  acting  within 
the  scope  of  his  authority  and  duties,  and 
the  evidence  tends  to  show  an  offer  by 
plaintiff  to  perform  the  duties  imposed  on 
him  by  the  contract.  Alabama  G.  S.  R. 
Co.  V.  Thomas,  89  Ala.  294,  7  So.  Rep.  762. 

Where  cattle  have  been  carried  to  the  end 
of  the  first  line,  it  is  gross  negligence  for 
the  carrier  to  hold  them  for  three  hours 
before  delivering  to  a  connecting  line,  or 
to  fail  to  notify  the  connecting  line  or  the 
consignees,  during  which  lime  repeated  in- 
quiries are  made  therefor.  Rock  Island  &• 
P.  R.  Co.  v.  Potter,  36  ///.  App.  590. 

Though  the  owner  of  mules  is  travelling 
with  them,  under  a  contract  with  the  car- 
rier that  he  shall  take  care  of  them  while 
in  transit,  still  if  a  delay  is  necessary  in  de- 
livering them  to  a  sec  ind  carrier,  it  is  the 
duty  of  the  company  to  unload  and  feed 
and  water  them,  and  this  duty  cannot  be 
imposed  upon  the  owner  until  the  contract 
of  shipment.  Dunn  v.  Hannibal  &-  St.  J.  R. 
R.  Co.,  68  Mo.  268. 

A  common  carrier  of  live  stock  has  a 
right  to  unload  them,  upon  receiving  them 
from  a  connecting  carrier,  for  the  purpose 
of  transferring  them  to  its  own  cars,  pro- 
vided there  be  no  delay  in  doing  so,  and 
where  there  is  no  contract  nor  circum- 
stances making  it  its  duty  to  carry  them 
I  D.  R,  D.— 50. 


through  without  a  change  of  cars.  McAl- 
lister V.  Chicago,  R.  I.  &>  P.  R.  Co.,  7  Am. 
&*  Eng.  R.  Cas.  373,  74  Mo.  351. 

104.  Right  of  initial  carrier  to 
limit  liability  to  Hh  own  line.— (1) 
General  rule. — A  carrier  of  live  stock  may 
limit  the  damages  recoverable  from  It  for  loss 
or  injury  thereto  to  injuries  occurring  on  its 
own  line.  Gul/,  C.  &*  S.  F.  R.  Co.  v.  Thoinp. 
son,  {Tex.  Civ.  App.)  21  S.  W.  Rep.  186.— 
Following  McCarn  v.  International  &  G. 
N.  R.  C(j.,  84  Tex.  352,  19  S.  W.  Rep.  547. 

An  initial  carrier  of  live  stock  is  not  lia- 
ble for  an  injury  thereto  after  it  has  been 
reloaded  on  cars  of  a  connecting  carrier, 
where  the  stock  is  shipped  under  a  contract 
providing  that  the  initial  carrier  shall  not 
be  liable  for  injuries  received  after  delivery 
to  a  connecting  line.  Gulf,  C.  6r*  S.  F.  R. 
Co.v.  Tennant,  (Tex.  Civ.  App)  22  S.  W. 
Rep.  761. 

A  bill  of  lading  whereby  a  carrier  agrees 
to  ship  cattle  over  its  own  line  and  certain 
connecting  lines  at  a  fixed  rate  for  the  whole 
distance,  is  construed  to  be  Ji  through  bill 
of  lading;  and  a  stipulation  therein  limit- 
ing the  liability  of  the  carrier  to  loss  on  its 
own  line  is  not  binding.  Gulf,  C.  &*  S.  F. 
R.  Co.  V.  Vaughn,  4  Tex.  App.  (Civ.  Cas.) 
269,  16  5.  JV.  Rep.  775.— Quoting  Bank  of 
Ky.  V.  Adams  Exp.  Co.,  93  U.  S.  180. 

(2)  Illustrations. — Cattle  were  shipped  to 
a  point  in  another  state  which  would  re- 
quire them  to  pass  over  connecting  lines. 
The  bill  of  lading  provided  that  suit  for 
damages  should  be  brought  within  forty 
days  ;  that  the  company  would  not  be  liable 
for  delays  caused  by  "strikes"  or  mobs, 
and  that  the  company  would  only  be  liable 
while  the  cattle  were  on  its  road.  The 
shipment  was  delayed  in  another  state  by 
a  connecting  line  failing  to  carry  them 
promptly  on  account  of  a  "strike."  Held, 
that  the  limitations  of  liability  contained 
in  the  bill  of  lading  were  valid,  whether  the 
contract  of  shipment  were  deemed  inter- 
state or  to  be  wholly  performed  within  the 
state.  Gul/,  C.  &•  S.  F.  R.  Co.  v.  Gatewood, 
(Tex.)  14  5.  W.  Rep.  913. —  Approving 
Gulf,  C.  &  S.  F.  R.  Co.  V.  Trawick,  68  Tex. 
314,  4  S.  W.  Rep.  567. 

A  company  operated  another  road  under 
a  lease,  and  contracted  to  carry  certain  live 
stock  from  a  point  on  the  line  of  the  lesser 
company  to  a  point  out  of  the  state,  and  be- 
yond the  line  of  either  lessor  or  lessee,  the 
contract  containing  a  provision  limiting  the 


786 


CARRIAGE   OF   LIVE   STOCK,  106. 


it. 


is 


fiability  for  damages  to  loss  upon  its  own 
line,  //>/</,  in  an  action  against  the  lessee, 
that  the  provision  as  to  the  exemption 
would  inure  to  the  benefit  of  each  carrier 
over  whose  line  the  stock  went,  and  that  the 
defendant  company  would  not  be  liable  be- 
yond its  own  line.  International  &*  G.  N. 
Ji.  Co.  V,  Mahula,  i  Tex.  Civ.  App.  182,  20 
S.  W.  Rep.  1002.— Followed  in  Interna- 
tional &  G.  N.  R,  Co.  V.  jfhornton,  3  Tex. 
Civ.  App.  197. 

The  Missouri  P.  P..  Co.,  while  operating 
the  International  &  G.  N.  Railway,  con- 
tracted to  carry  certain  cattle  from  P,.  on  the 
line  of  the  International  &  G.  N.  Railway 
to  Ch  icago.  I  nj  u  ry  to  the  cattle  was  alleged 
to  have  been  caused  at  D.,  Texas,  on  the 
Missouri,  K.  &  T.  Railway.  Suit  against  the 
International  &  G.  N.  R.  Co.  for  damages. 
Held,  that  the  shipping  contract,  providing 
that  in  case  the  cattle  are  shipped  over  other 
roads  than  the  Missouri  P.  Railway  the 
latter  should  be  released  from  all  liability 
after  they  shall  have  left  its  road,  protected 
the  International  &  G.  N.  R.  Co.  against 
loss,  regardless  of  its  being  the  lessor  of 
the  road  upon  which  the  cattle  were  first 
shipped.  The  loss  happening  after  the  stock 
had  left  the  line  of  the  Missouri  P.  R.  Co., 
it  would  be  unjust  to  impose  the  burdens  of 
the  contract  upon  the  lessor  and  not  give 
it  the  benefit  of  its  restrictions.  Interna- 
tional &*  G.  N.  R.  Co.  V.  Thornton,  3  Tex. 
Civ.  App.  197,  22  S.  W.  Rep.  67.— Follow- 
ing Gulf  C.  &  S.  F.  R.  Co.  V.  Baird,  75  Tex, 
256;  Ft.  Worth  &  D.  C.  R.  Co.  v.  Williams, 
77  Tex.  121 ;  International  &  G.  N.  R.  Co.  v. 
Mahula,  i  Tex.  Civ.  App.  182;  Hunter  v. 
Southern  Pac.  R.  Co.,  76  Tex.  195 ;  Texas 
&  P.  R.  Co.  w.  Adams,  78  Tex.  373. 

Plaintiff  made  a  contract  for  through 
shipment  of  stock  from  a  point  in  Texas  to 
Chicago.  Certain  sheep  shipped  under  the 
contract  were  placed  in  cars  with  double 
decks.  On  reaching  St.  Louis  a  connecting 
line  removed  the  sheep  from  the  cars  with 
double-decks,  and  refused  to  carry  them 
further,  compelling  plaintiff  to  ship  his  sheep 
over  a  different  line  of  railroad  under  a  new 
contract,  and  he  brought  suit  against  the 
company  that  he  first  contracted  with  for 
the  wrongful  taking  and  conversion  of  his 
double-decks,  for  extra  freight,  extra  ex- 
penses, and  loss  of  time.  Held,  that  the 
plaintiff  had  a  right  to  recover,  though  the 
contract  of  shipment  provided  that  the  ini- 
tial carrier's  liability  should  cease  at  the  end 


of  its  own  line.  Texas  &*  P.  R.  Co.  V. 
Scrivener,  2  Tex.  App.  {Civ.  Cas.)  284. 

105.  Itights  and  liability  of  second 
carrier,  generally.*— One  railroad  com- 
pany is  not  bound  to  receive  cars  from  a  con- 
necting road  loaded  with  hogs  so  crowded 
that  they  are  in  danger  from  suffocation ; 
and  if  it  does  it  makes  the  act  of  that  road 
its  own,  and  is  bound  for  the  damages  re- 
sulting to  the  hogs  from  suffocation  or  im- 
proper loading.  Paramore  v.  Western  R. 
Co.,  S3  Ga.  383. 

A  carrier  receiving  freight  from  another 
company  is  liable  directly  to  the  consignor 
for  any  breach  of  the  contract  between  him 
and  its  connecting  line,  and  it  is  also  entitled 
to  the  benefit  of  any  valid  exemption  or 
limitation  on  the  liability  of  the  carrier  con- 
tained in  such  contract.  St.  Louis,  I.  M.  &* 
S.  R.  Co.  V.  Weakly,  35  Am.  d*  Eng.R.  Cas. 
635,  50  Ark.  397,  7  Am.  St.  Rep.  104,  8  S. 
W.  Rep.  134.— Following  St.  Louis,  I.  M. 
&  S.  R.  Co.  V.  Lesser,  46  Ark.  236. 

When  one  carrier  received  live  stock  at 
Atlanta  to  be  transported  to  Americus  over 
its  own  road  and  that  of  another  carrier,  and, 
by  a  mistake  on  the  part  of  the  first  road  they 
were  consigned  to  a  point  beyond  Americus, 
and  were  so  received  and  carried  by  the  con- 
necting road,  such  facts  would  not  relieve 
the  latter  from  damages  occurring  by  reason 
of  inattention  to  the  stock  at  the  place  to 
which  they  were  actually  carried.  Bryant 
V.  Southwestern  R.  Co.,  6  Am.  &*  Eng.  R. 
Cas.  388, 68  Cr«.  805.— Followed  in  South- 
western R.  Co.  V.  Thornton,  71  Ga.  61. 

When  live  stock  are  received  by  a  carrier 
for  transportion  over  its  own  road,  limiting 
its  liability  by  special  exemptions,  a  con- 
necting carrier  receiving  the  property  at  the 
terminus  of  the  first  road  cannot  claim  the 
benefit  of  these  exemptions  for  injuries 
happening  on  its  own  road ;  but,  when  the 
receiving  carrier  contracts  for  the  through 
transportation  of  the  freight  over  connect- 
ing lines  to  its  destination,  or,  by  authority 
of  the  connecting  lines  fixes  the  compensa- 
tion for  the  entire  transportation,  the  special 
exemptions  of  the  contract  inure  to  their 
benefit,  unless  otherwise  expressly  limited ; 
and  also  when  the  receiving  carrier,  while 
limiting  its  liability  to  its  own  road,  con- 


*  Upon  a  through  shipment  of  '.v:  stock,  as  to 
the  authority  of  agent  of  connecting  line  to 
change  stock  to  other  cars,  and  the  liability  of 
the  company  for  sufficiency  of  cars,  see  45  Am.  ft 
Eng.  R.  Cas.  356  abstr. 


CARRIAGE   OF   LIVE   STOCK,  10U-108. 


R.  Co.  V. 
s.)  284. 
of  second 

ilroad  com- 
from  a  con- 
so  crowded 
sufTocation ; 
of  that  road 
damages  re- 
ation  or  im- 
IVestern  H. 

om  another 
le  consignor 
jetween  him 
also  entitled 
icemption  or 
:  carrier  con- 
'">,  /.  M.  &* 
Eng.R.Cas. 
p.  104,  8  .9. 
Louis,  I.  M. 
!36. 

ive  stock  at 
nericus  over 
carrier,  and, 
rst  road  they 
id  Americus, 
dbythecon- 
!  not  reh'eve 
ng  by  reason 
the  place  to 
ed.    Bryant 
6-  Ettg.  R. 
D  IN  South- 
Ga.  61. 
by  a  carrier 
>ad,  limiting 
ions,  a  con- 
perty  at  the 
>t  claim  the 
for  injuries 
t,  when  the 
tlie  through 
^er  connect- 
)y  authority 
!  compensa- 
.  the  special 
ire  to  their 
sly  limited ; 
irrier,  while 
road,  con- 

s  stock,  as  to 
titiK  line  to 
le  liability  of 
lee  45  Am.  k. 


tracts  also  for  its  "connecting  lines,"  and  it 
is  declared  that  the  exemptions  shall  inure 
to  the  benefit  of  the  connecting  lines,  "  un- 
less they  shall  otherwise  stipulate  "  on  re- 
ceiving the  goods.  Western  R.  Co.  v.  Har- 
well, 45  Am.  (S-  Eng.  R.  Cas.  358, 91  Ala.  340, 
8  So.  Rep.  649. 

Where  the  initial  carrier  by  accepting 
live  stock  destined  to  a  point  beyond  its 
line  makes  a  contract  for  the  entire  journey, 
and  places  the  stock  in  cars  belonging 
to  a  connecting  line,  and  some  of  the  stock 
are  found  to  be  injured  on  arriving  at  their 
destination  at  a  station  on  such  connecting 
line  owing  to  a  defect  in  one  of  the  cars,  the 
connecting  line  is  not  liable.  Coxen  or 
Coxon  v.  Great  Western  R.  Co.,  5  H.  &*  N. 
274,  29  L.  J.  Exch.  165,  I  L.  T.  S.  442. 

106.  As  respects  damaf^e  done  be- 
fore stock  reached  second  carrier's 
line.— Where  the  initial  carrier  of  live  stock 
contracts  for  transportation  beyond  its  own 
line,  but  limits  its  liability  to  its  own  road, 
the  last  of  several  connecting  lines  which 
carries  the  stock  to  their  place  of  destination 
is  not  liable  as  a  joint  contractor  or  partner 
.  for  injuries  received  by  the  stock  before  they 
'  reach  its  line.    Ft.  Worth  6-  D.  C.  R.  Co.  v. 
Williams,  42  Am.  &*  Eng.  R.  Cas.  464,  77 
Tex.  i2i,i^S.W.  Rep.  637.— Followed  in 
International  &  G.  N.  R.  Co.  v.  Thornton,  3 
Tex.  Civ.  App.  197  ;   McCarn  v.  Interna- 
tional &  G.  N.  R.  Co.,  84  Tex.  352. 

Receiving  live  stock  by  a  railroad  com- 
pany from  a  connecting  line,  as  it  is  bound 
to  do  under  the  Texas  statute,  without  any 
arrangement  constituting  a  partnership  or 
other  agreement  for  through  shipments  be- 
tween the  different  companies,  will  not 
render  it  liable  for  injuries  occurring  before 
it  received  the  stock.  Fort  Worth  &»  D.  C. 
R.  Co.  V.  Fuller,  3  Tex.  Civ.  App.  340,  22  S. 
W.  Rep.  1006.— Following  Gulf,  C.  &  S. 
F.  R.  Co.  V.  BaJrd,  75  Tex.  256,  12  S.  W. 
Rep.  530. 

Texas  Rev.  St.  art.  4251,  makes  it  the 
duty  of  railroad  companies  in  the  state  to 
receive  the  passengers  and  merchandise  of 
any  connecting  road.  Where  cattle  are 
shipped  from  a  point  in  another  state  under 
a  contract  limiting  the  initial  carrier's  lia- 
bility to  its  own  road,  the  mere  fact  of  a 
road  in  Texas  receiving  the  stock  from  an 
intermediate  carrier  is  not  sufficient  proof 
of  a  joint  contract,  or  of  a  partnership,  to 
make  it  liable  for  injuries  before  the  stock 
reached  its  line,  as  under  the  above  statute 


it  had  no  choice  about  receiving  the  stock. 
Gulf,  C.  Sf  S.  F.  R.  Co.  v.  Baird,  40 
Am.  6-  Eng.  R.  Cas.  160,  75  Tex.  256, 
12  S.  W.  Rep.  530.— Followed  in  Ft. 
Worth  &  D.  C.  R.  Co.  v.  Williams,  42 
Am.  &  Eng.  R.  Cas.  464,  77  Tex.  121,  13  S. 
W.  Rep.  63  ;  McCarn  v.  International  &  G. 
N.  R.  Co.,  84  Tex.  352 ;  International  &  G. 
N.  R.  Co.  V.  Campbell,  i  Tex.  Civ.  App. 
509;  Missouri  Pac.  R.  Co.  v.  Weisman,  2 
Tex.  Civ.  App.  86;  International  &  G.  N. 
R.  Co.  V.  Thornton,  3  Tex.  Civ.  App.  197. 

It  is  the  duty  of  the  carrier  to  receive  live 
stock  from  a  connecting  line  for  shipment 
whenever  tendered,  unless  it  has  a  legal  ex- 
cuse for  not  doing  so;  and  if  a  wrongful 
refusal  on  its  part  contributes  to  causing 
an  injury,  it  will  be  liable  for  the  whole 
damage,  even  though  the  preceding  con- 
necting carrier  has  been  guilty  of  negli- 
gence which  aided  in  producing  the  dam- 
age, it  being  settled  that  where  two  wrong- 
doers contribute  in  causing  an  injury  both 
are  liable  for  the  whole  damage,  though 
they  have  acted  separately.  Gulf,  C.  &*  S. 
F.  R.  Co.  V.  Godair,  3  Tex.  Civ.  App.  514, 
22  S.  W.  Rep.  777. 

107.  Subsequent  carriers  as  agents 
of  initial  carrier.  —  Where  the  initial 
carrier  contracts  for  the  shipment  of  cattle 
beyond  its  own  line  it  is  its  duty  to  notify 
each  succeeding  carrier  of  the  conditions  of 
the  shipment,  and  each  of  them  becomes 
the  agent  of  the  initial  carrier  for  the  safe 
transportation  and  delivery  of  the  cattle; 
and  this  will  apply  to  the  managers  of  a 
stock-yard  to  whom  the  cattle  are  delivered 
by  the  last  carrier,  making  the  initial  car- 
rier liable  for  their  mismanagement.  Myrick 
V.  Michigan  C.  R.  Co.,  9  Biss.  {U.  S.)  44. 

Where  one  of  two  railways  having  ar- 
rangements respecting  through  traffic  is  the 
agent  of  the  other  to  make  carriage  con- 
tracts, and  makes  a  contract  for  the  carriage 
of  live  stock  under  conditions  which  do  not 
protect  its  associate  company,  an  action  will 
lie  against  the  latter  company  for  the  loss  of 
the  stock.  Gil.  v.  Manchester,  S.  &*  L.  R. 
Co.,  42  L.J.  Q.  B.  89.  L.  R.  8  Q.  B.  186,  21 
W.  R.  525.  28  L.  T.  587. 

108.  liien  of  connecting  carrier 
for  freight  charges. — Though  a  shipper 
has  entered  into  a  contract  with  the  initial 
carrier  for  a  through  freight  rate  on  live 
stock  shipped  he  cannot  demand  the  stock 
from  a  connecting  carrier  at  the  place  of 
destination  upon  tendering  the  amount  of 


788 


CARKIAGli   OF    LIVE   STOCK,   lOB-111. 


^» 


the  agreed  freight,  unless  he  shows  that 
such  initial  carrier  was  authorized  to  enter 
into  the  contract  for  himself  and  the  con- 
necting line.  Lewis  v.  Richmond  &>  D,  li. 
Co.,  25  So.  Car.  249. 

A  shipper  of  horses  who  is  present  and 
permits  a  carrier  to  receive  his  horses  from 
a  prior  carrier  and  pay  advance  charges,  so 
as  to  have  a  lien  therefor  on  the  horses, 
cannot  set  off  damages  done  to  the  horses 
by  the  prior  carrier  against  such  lien, 
tliough  the  connecting  carrier  knew  of  the 
damages,  and  that  tlic  shipper  intended  to 
demand  compensation  from  tiie  prior  car- 
rier. St.  Louis,  /.  M.  &*  S.  R.  Co.  v.  I^^ar, 
55  Ami.  (5^  JC»g.  R.  Cas,  414,  li^Ark.  399,  15 
.S-,  IV.  Rep.  330. 

yil.  TBAKSFORTATION  OF  DISEASED  LIVE 
STOCK. 

100.  CoiiHtitiitionality  of  HtatiitCM. 

— A  statute  of  a  state  wiiich  prohibits  driv- 
ing or  conveying  any  Texas,  Mexican,  or 
Indian  cattle  into  the  state  between  the 
first  day  of  March  and  the  first  day  of  No- 
vember in  each  year,  is  in  conflict  with  the 
clause  of  the  constitution  which  ordains : 
"  Congress  shall  have  power  to  regtdate 
commerce  with  foreign  nations,  and  among 
the  sevrral  states,  and  with  the  Indian 
tribes."  Hannibal  &^  S/.  J.  R.  Co.  v. 
Husen,  95  U.  S.  465,  15  Am.  Ry.  Rep. 
325. — Approved  in  Gilmore  v.  Hannibal 
&  St.  J.  R.  Co.,  67  Mo.  323.  Followed 
IN  Adams  Exp.  Co.  v.  IBoard  of  Police, 
65  How.  Pr.  (N.  Y.)  72  ;  Chicago  &  A. 
R.  Co.  V.  Erickson,  91  111.  613.  Quoted 
IN  State  7'.  Baltimore  &  O.  R.  Co.,  18  Am. 
&  Eng.  R.Cas.  466.  24  W.  Va.  783;  Hardy 
V.  Atchison,  T.  &  S.  F.  R.  Co.,  18  Am.  & 
Eng.  R.  Cas.  432,  32  Kan.  698  ;  Fryt/.  State, 
63  Ind.  552  ;  Commonwealth  v.  Wilson,  14 
Phila.  (Pa.)  384;  Norfolk  &  W.  R.  Co.  v. 
Commonwealth,  88  Va.  95.  Reviewed  in 
Baggz/.  Wilmington,  C.  &  A.  R.  Co.,  109  N. 
Car.  279. 

The  act  in  relation  to  Texas  and  Chero- 
kee cattle  (Illinois  Rev.  St.  1874,  p.  141)  is 
void,  as  being  repugnant  to  the  constitu- 
tion of  the  United  States,  art.  i,  §  8,  which 
provides  that  "  Congress  shall  have  power 
to  regulate  commerce  with  foreign  nations, 
and  among  the  several  states,  and  with  the 
Indian  tribes."  Chicago  &>  A.  R.  Co.  v. 
Erickson,  91  ///.  613.— FOLLOWING  Hanni- 
bal &  St.  ].  R.  Co.  V.  Husen,  95  U.  S.  465. 
Overruling  Yeazel  v.  Alexander,  58  111. 


254;  Stevens?'.  Brown,  58  111.  289;  Somer- 
ville  V.  Marks,  58  III.  371  ;  Chicago  &  A. 
R".  Co.  V.  Ga.saway,  71  111.  570. 

The  Missouri  statute,  Wagn.  Mo.  St.  p. 
251,  i!  I,  known  as  the  Texas  cattle  act, 
prohibiting  the  introduction  of  Texas,  Mexi- 
can, or  Indian  cattle  into  tiie  state  between 
March  i  and  November  1,  unless  tluy  had 
been  kept  the  entire  previous  winter  in  the 
state,  is  in  conflict  with  that  provision  of 
the  constitution  of  the  United  States  con- 
ferring upon  congress  the  power  to  regulate 
commerce  among  the  states.  Gilmore  v. 
Hannibal Sf^  St.  J.  R.  Co.,  67  Mo.  323.— Foi,- 
LowiNc;  Hannibal  &  St.  J.  R.  Co.  v.  Husen, 
95  U.  S.  465.  OvF.KRUl.iNf;  Wilson  v.  Kan- 
sas City,  St.  J.  &  C.  B.  R.  Co.,  60  Mo.  184 ; 
Diniond  %>.  Kansas  City,  St.  J.  &  C.  B.  R. 
Co.,  60  Mo.  393 ;  Meicer  v.  Kansas  City,  St. 
J.  &  C.  B.  R.  Co.,  60  Mo.  397  ;  Kenney  v. 
Hannibal  and  St.  J.  R.  Co.,  62  Mo.  476. 

110.  Illinois.— A  railroad  is  not  bound, 
as  a  common  carrier,  to  receive  for  trans- 
portation that  which  the  law  prohibits  it 
from  carrying,  and  it  is  liable  for  any  injury 
occasioned  by  its  bringing  Texas  or  Chero- 
kee cattle  into  this  state,  the  sanie  as  an 
individual  is.  Chicago  6-  A.  R.  Co.  v.  Gas- 
away,  71  ///.  570. 

An  unconstitutional  law,  prohibiting  rail- 
ways from  carrying  Texas  or  Cherokee  cat- 
tle into  or  through  the  state,  being  void, 
will  afford  no  excuse  for  a  refusal  or  delay 
in  receiving  and  shipping  such  cattle  when 
offered.  Chicago  &>  A.  R.  Co.  v.  Erickson, 
9!  ///.  613. 

In  an  action  for  bringing  Texas  and 
Cherokee  cattle  into  this  state  by  one  who 
purchased  the  same,  to  recover  for  a  fatal 
disease  communicated  to  his  native  cattle, 
the  declaration  will  be  fatally  defective  if  it 
fails  to  aver  that  the  cattle  were  not  brought 
into  the  state  between  October  i  and  the 
1st  of  the  following  March,  as  without  this 
his  purchase  and  ownership  is  illegal,  and, 
being  a  violation  of  the  law,  he  can  main- 
tain no  action  for  an  injury  growing  out  of 
his  wrongful  act.  Frye  v.  Chicago,  B.  6- 
Q.  R.  Co.,  73  Lll.  399. 

111.  Iowa.— The  Iowa  St.  (c.  126,  Acts 
2ist  Gen.  Assem.)  prohibiting  any  person 
or  corporation  from  bringing  into  the  state 
cattle  in  such  condition  as  to  infect  other 
cattle  with  pleuro-pneumonia  or  Texas 
fever,  and  giving  any  person  damaged  by 
violation  of  the  act  a  right  of  action  to  re- 
cover the  damage  suffered  from  the  person 


9;  Somer- 
;ago  &  A. 

Mo.  St.  p. 

ciiltle  act. 

!xas,  Mexi- 
e  bftweeii 
llu-y  liad 

Iter  ill  tlu! 

ovisioii  of 
latcs  coii- 
)  rcfjulatc 
iliiiore  V. 

23.— Foi,- 
V.  Huscn, 
11  V.  Kan- 
Mo.  184; 
C.  B.  R. 

IS  City,  St. 

Kenncy  v. 

X  476. 

lot  bound, 

for  trans- 

oliibits   it 
any  injury 

f)r  Chcro- 

nie  as  an 
"i».  V.  Gas- 

t)iting  rail- 
rol<ee  ciit- 
cing  void, 
1  or  delay 
mie  when 
Erickson, 

exas  and 
1  one  who 
or  a  fatal 
ve  cattle, 
ctive  if  it 
i  brought 
I  and  the 
hout  this 
egal,  and, 
an  niain- 
igout  of 
TO,  B.  <S- 

1 26,  Acts 
y  person 
the  state 
;ct  otiicr 
r  Texas 
aged  by 
>n  to  re- 
e  person 


CARRIAGE    Ol'    LIVIi    STOCK,   llti.  Il.'l. 


780 


or  corporation  violating  tiie  statute,  docs 
not  impose  upon  a  railroad  company  an  ab- 
solute liability  to  pay  all  damages  arising  by 
reason  of  the  carrying  of  infected  animals 
into  the  siate.  Such  a  statute  only  makes 
the  fact  of  an  injury  so  occurring  prima- 
facie  evidence  of  negligence,  which  may  be 
rei)utted  by  the  railroad  company  showing 
that  it  had  no  notice,  and  could  not,  by  the 
use  of  reasonable  care,  have  ascertained 
that  the  animal  was  diseased.  Furley  v. 
Chicago,  M.  &^  S/.  P.  A'.  Co..  57  Am.&*Eng. 
K.  Cas.  26,  {Iowa)  57  A^.  W.  Rep.  719. 

112.  KaiiMnH.— Under  the  Kansas  Act 
of  1881,  ch.  161,  as  amended  in  1883,  ch. 
145,  and  1884,  ch.  3,  for  the  protection  of 
cattle  against  contiigious  diseases,  a  railroad 
company  is  not  liable  for  transporting  cat- 
tle into  the  state  where  it  acts  in  good 
faith  and  without  knowledge,  or  upon  such 
facts  as  to  charge  it  with  knowledge,  that 
the  cattle  are  of  a  kind  liable  to  communi- 
cate disease  to  the  domestic  cattle  of  the 
state.  Missouri  Pac.  P.  Co.  v.  Finley,  38 
A'(i«.  550,  16  Pac.  Rep.  951. 

Where  a  railway  company,  transporting 
through  Kansas  cattle  diseased  with  the 
Texas  splenic  or  Spanish  fever,  has  its  train 
wrecked  within  the  state,  so  as  to  make  it 
necessary  to  unload  the  cattle,  and  there- 
upon is  notified  that  the  cattle  are  from 
Texas,  and  will  spread  disease  if  permitted 
to  run  at  large  or  driven  on  the  high- 
way, it  should  corral  the  cattle  at  or  near 
the  wreck,  or  otherwise  prevent  them  from 
running  at  large  or  getting  upon  the  public 
highway;  and  if  it  drives  the  cattle  upon 
the  highway  or  allows  them  to  run  at  large 
after  receiving  such  notice,  it  is  liable  for 
diseases  communicated,  unless  the  owners 
of  the  domestic  cattle  are  guilty  of  contrib- 
utory negligence.  Missouri  Pac.  R.  Co.  v. 
Finley,  38  Kan.  550,  16  Pac.  Rep.  951. 

113.  Missouri.— Under  Wagn.  Mo.  St. 
p.  251,  §  I,  prohibiting  the  importation  of 
Texas,  Mexican,  or  Indian  cattle  between 
March  i  and  November  i,  unless  they  had 
been  kept  in  the  state  the  previous  winter, 
it  makes  no  difference  where  the  cattle 
started  from,  whether  in  or  out  of  the  state. 
If  the  cattle  have  not  been  kept  in  the 
state  for  an  entire  previous  winter,  the 
driving  or  conveying  of  them  into  another 
county  of  the  state  is  prohibited,  and  the 
statute  makes  the  persons  wrongfully  bring- 
ing in  such  cattle  liable  for  all  damages,  di- 
rect or  remote,  due  to  his  wrongful  act ;  and 


this  will  apply  to  diseases  communicated 
while  they  arc  in  his  control  or  caused  by 
want  of  proper  care,  without  regard  to  the 
question  of  negliyence.  Wilson  v.  Kansas 
City,  St.  J.  A^  C.  B.  R.  Co.,  60  Mo,  184.— 
FoiLOWKU  IN  Husen  v.  Hannibal  &  St.  J. 
K.  Co.,  60  Mo.  226;  Dimond  v.  Kansas 
City,  St.  J.  &  C.  B.  R.  Co..  60  Mo.  393; 
Mercer  v.  Kansas  City,  St.  J.  &  C.  B.  R. 
Co.,  60  Mo.  397  ;  Kenncy  v.  Hannibal  &  St. 
I.  R.  Co..  62  Mo.  476. 

The  liability  of  railroad  companies  for 
violating  Missouri  Rev.  St,  §  4358,  prohibit- 
ing the  bringing  or  moving  through  the 
state,  or  from  one  part  of  the  state  to 
another,  of  diseased  cattle  is  not  an  un- 
qualified one;  but  the  liability  is  limited  to 
the  diseases  communicated  to  any  other 
animal  or  cattle  in  the  neighborhood  or 
along  the  line  of  such  transportation  or  re- 
moval. Coyle  V.  Chicago  &^  A.  R.  Co.,  27 
A/o.  App.  584. 

The  meaning  of  the  "  line  "  of  the  rail- 
road, as  used  in  this  statute,  is  its  right  of 
way,  usually  one  hundred  feet  in  width ;  and 
the  expression,  "  along  the  line  "  of  the  road, 
means  in  a  line  with  it — by  the  side  of  it, 
near  to  it.  The  meaning  of  the  term, 
"  neighborhood,"  is  a  place  near — vicinity, 
adjoining  district,  etc.  Coyle  v.  Chicago  Sf 
A.  R.  Co.,  27  Mo.  App.  584. 

If  a  railway  furnishes  cattle-cars  in  order 
that  ties  should  be  loaded  thereon,  and 
these  cars  contain  sucli  an  accumulation  of 
refuse  matter,  resulting  from  the  carriage  of 
cattle,  that  the  loading  of  the  ties  on  them 
necessarily  involves  t  ir^  ejection  of  some  of 
this  refuse  matter,  such  ejection  constitutes 
an  unloading  of  the  matter  by  the  railway 
company  within  the  purview  of  the  statutory 
inhibition  (Mo.  Rev.  St.  §  2669),  though  the 
ties  are  loaded  on  the  cars  by  the  servants 
of  an  independent  contractor.  Pike  v.  Eddy, 
S3  Mo.  App.  505. 

The  fact  that  the  loading  of  the  ties  by 
these  servants  reasonably  and  properly  in- 
volved the  ejection  of  this  matter,  is  not 
sufficient  to  render  the  ejection  an  '  nload- 
ing  of  the  matter  by  the  railway  company, 
so  as  to  subject  it  to  liability  under  the 
statute.    Pike  v.  Eddy,  53  Mo.  App.  505. 

Though  a  company  may  have  violated  the 
statute  by  bringing  in  Texas  cattle,  it  is  not 
liable  for  the  spread  of  disease  after  it  has 
parted  with  them  and  they  have  been 
driven  by  the  owner  into  another  county,  as 
each  transportation  is  an  independent  of- 


790 


CARRIAGE    OF    LIVIi   STOCK,  114-116. 


■!.:  » 


I' 


3  ) 


fensc.  Surface  v.  ilannihal  &*  S/.  J.  R.  Co., 
6o  Mo.  3iC.  Surjacc  v.  Hannibal  &*  S/.  /• 
A'.  Co.,6i  Mo.  452.— Following  Wilson  t-. 
Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  60  Mo. 

«95 

1 14.  TexuH.— A  shipper  of  cattle  is  not 
required  to  have  his  entire  herd  inspected, 
as  required  by  the  Texas  statute,  before  de- 
livery to  a  carrier  for  shipment ;  neither 
would  the  agent  of  the  currier  violate  the 
statute  by  receiving  the  entire  herd  for  ship- 
ment before  full  compliance  with  the  law. 
So,  where  part  of  the  cattle  have  been  in- 
spected, the  loading  may  begin  while  the  re- 
mainder are  being  inspected,  so  as  not  tu 
cause  a  delay.  International  &*  G.  N.  A'.  Co, 
v.  Wright,  2  Tex.  Civ.  A  pp.  198,  21  S.  IV. 
Rip.  56. 

Plaintifl  applied  for  cars,  which  were  fur- 
nished (ind  pointed  out  to  him,  but  before 
his  cattle  were  all  inspected,  as  required  by 
statute,  other  cuttle  were  offered  for  ship- 
ment and  were  placed  in  the  cars,  causing 
a  delay  in  the  shipment  of  plaintiff's.  At 
the  time  the  second  herd  were  otiered  the 
inspection  of  plaintiff's  cattle  had  so  far 
pn\gressed  that  the  loading  might  have 
commenced  at  once  without  any  delay. 
Held,  that  the  company  was  liable  for  the 
delay  caused  by  giving  the  other  herd  the 
preference.  International  &*  G.  N.  A'.  Co. 
V.  IVr^ht,  2  Tex.  Civ.  App.  198,  21  S.  W. 
Rep.  56. 

115.  English  decisionH.— A  railway 
company  commits  no  breach  of  duty  in  re- 
fusing to  carry  cattle  witliout  a  declaration 
from  the  owner  or  person  in  charge  under 
the  Contagious  Diseases  (Animals)  Act  1878, 
where  a  local  authority  of  the  county  makes 
a  regulation  requiring  such  declaration  be- 
fore bringing  cattle  into  the  county.  Will- 
iams V.  Great  Western  R.  Co.,  52  L.  T.  250, 

49/-  -''•  439  D. 

Where  cattle  are  carried  over  a  series  of 
connecting  lines,  a  railway  company  carry- 
ing them  over  a  portion  of  the  route  termi- 
nating in  the  county  of  D.,  although  not 
into  such  county,  which  had  prohibited  the 
movement  of  animals  into  that  district,  is 
liable  to  be  convicted  of  an  offense  against 
the  Contagious  Diseases  (Animals)  Act  1878, 
as  persons  "  causing,  directing,  or  permitting 
the  movement  of  the  animals  in  contraven- 
tion of  the  regulations  of  the  local  author- 
ity." Midland  R.  Co',  v.  Freeman,  L.  R.  12 
Q.  B.  D.  629,  53  L.  J.  M.  C.  79. 3*  Vl^'  R-  830, 
48/. /».66o. 


VIII.  TRAHSFOBTATION  OV  DOQI. 

110.  Liability  I'ur  Ionn  or  Injury.*— 

(I)  Generally.— k  railroad  company  is  liiihic 
for  the  loss  of  a  dog  where  it  is  carricfl 
under  a  regulation  of  the  company  us  "  luij,'- 
gage-men's  perquisites,"  and  a  sum  is  paid 
for  the  transportation.  Cantling  v.  /lumii- 
bal  a-  St.  J.  R.  Co.,  54  Mo.  385,  12  /////.  Ay. 
Rep.  387.--Rf.viewin(;  Mintcr?'.  I'acilic  K. 
Co.,  41  Mo.  503. 

A  passenger,  taking  his  dog  with  him  on 
a  hunt,  and  being  required  by  the  conduc- 
tor to  put  him  in  the  baggage-car,  mav 
maintain  an  action  against  the  company  for 
the  loss  of  the  dog,  which  the  baguage-masler 
refused  to  deliver  at  his  destination  with- 
out the  payment  of  a  small  fee,  and  which 
WHS  then  carried  on  and  lo.si ;  and  a  rule  of 
the  company  in  reference  to  the  curry in>,'  of 
dogs,  requiring  that  they  be  placed  in  the  bag- 
gage-car, and  allowing  the  liagfjagc-master 
a  small  charge  for  his  care,  is  no  defense  to 
the  action,  when  it  is  not  shown  that  tlic 
passenger  had  knowledge  or  notice  of  it. 
Kansas  City,  M.  &*  li.  R.  Co.  v.  Higdon,  52 
Am.  «S-  Eng.  R.  Cas.  495,  94  Ala,  286,  10  So. 
Rep.  282. 

(2)  In  England. — A  dog  is  within  §7  of  the 
Railway  and  Canal  TrufTic  Act,  1854.  Har- 
rison V.  London,  B.  6>*  S.  C.  R.  Co.,  6  Jur. 
N.  S.  954,  29  L.J.  Q.  B,  209.  2  B.Qr^S.  122,  8 
W.  R.  524,  2  L.  T.  423 ;  reversed  in  8  Jur. 
N.S.  740,31  L.J.Q.  B.iiy 

Section  7  of  the  Railway  and  Canal  Traffic 
Act,  1854,  applies  solely  to  cases  where  the 
loss  or  injury  is  occasioned  by  the  neglect  or 
default  of  the  company.  The  loss  of  the 
dog  in  this  case  was  purely  accidental,  and 
the  company  is  exempt  from  liability  by  the 
terms  of  its  contract.    Harrison  v.  London, 

B.  &-  S.  C.  R.  Co.,  2  B.&'  S.  122,  8/ur.  N. 
S.  740,  31  L./.  Q.  B.  113,  6  L.  T.  466.— 
Overruled  in  Ashenden  v.  London,  B.  & 
S.  C.  R.  Co..  5  Ex.  D.  190,  42  L.  T.  586,  28 
W,  R.  511.  44  J.  P.  203. 

If  a  carrier  gives  a  receipt  for  a  dog  which 
is  afterwards  lost,  it  cannot,  when  sued,  set 
up  as  a  defense  that  the  dog  was  not  prop- 
erly secured  when  delivered  to  it.  Stuart  v. 
Crawley,  2  Stark,  323.— Distinguished  in 
Richardson  v.  North  Eastern  R.  Co.,  L.  R.  7 

C.  P.  75,  41  L.  J.  C.  P.  60,  26  L.  T.  131,  20 
W.  R.  461. 


*  Carrier  not  liable  at  common  law  for  refus- 
ing to  carry  dogs,  see  note,  57  Am.  Rep.  24. 


CAHklAOb;   OF   LIVE   STOCK,  117-119. 


791 


DOGS. 

iiij'iry.*— 

any  is  liiihlc 
is  carricfi 
ny  as  "Iiuk- 
■fiitn  is  piiirj 
'f;  V.  H,xntti' 
12  Am.  Ky, 
Pacific  K. 

I'itli  him  on 
the  condiic- 
fc-car,   niav 
nipany  for 
affe-niaster 
union  witii- 
,  anrl  wiiicli 
id  a  rule  of 
carrying'  of 
dinthebaj,'- 
jiiKC-master 
I  defense  to 
vn  that  the 
otice  of  it. 
Higdon,  52 
1.286.  lo.V,;. 

in  §7  of  the 
854.  Har- 
Co.,  6  /iir. 
J^i'.  122.  8 
/  in  8  /ur. 

anal  Traffic 
i  where  the 
!  neRlfct  or 
OSS  of  the 
Jenial,  and 
ility  by  the 
V.  London, 
,&Jur.  A'. 
T.  466.— 
idon,  B.  & 
T.  586,  28 

dog  which 
I  sued,  set 
not  prop- 
Stuart  V. 
MSHED  IN 
o..  L.  R.  7 
T.  131,  20 


>  for  refus- 

EH.  24. 


If  a  railway  company  fastens  a  dog  de- 
livered to  it  for  carriage  by  the  means  fur- 
nished by  the  owner  himself,  which  at  the 
time  appeared  sufficient,  it  is  not  liable  if 
the  dog  yets  lost  and  is  killed.  Richardson 
V.  North  Eastern  R.  Co.  L.  R.  7  C.  l\  75,  41 
/,  /.  C.  P.  60.  26  L.  T,  131,  21;  ft'.  R, 
461. 

117.  Liniitiiig  the  llublllty.  — A 
re({uiation  of  a  railway  company  that  it  will 
only  be  liable  for  loss  of  dogs  transported, 
or  for  injury  thereto,  in  the  sum  of  1^2, 
unless  a  higher  valuation  be  placed  upon 
the  animal,  and  a  charge  of  5  per  cent 
thereon  be  paid  additional,  is  unreasonable, 
and  will  not  protect  the  company  where  a 
loss,  resulting  from  its  negligence,  exceeds 
/2.  Dickson  v.  Great  Northern  R.  Co., 
28  Am.  <S-  Eng.  R.  Cas.  92,  xZ  Q.  B.  D.  176. 
—Applying  Oxlade  v.  North  Eastern  R. 
Co.,  I  C.  B.  N.  S.  454;  Peek  v.  North 
Statlordsliire  R.  Co.,  10  H.  L.  Cas.  473  ; 
Ashendcn  v.  London,  B.  &  S.  C.  R.  Co., 
5  Ex.  D.  190;  Harrison  z/.  London  R.  Co., 
2  B.  &  S.  122.— Reviewed  in  Winsford 
Local  Board  v.  Cheshire  L.  Committee,  24 

g.B.  D.  456- 

A  condition,  contained  in  a  ticket  signed 
by  a  person  delivering  to  a  railway  compa- 
ny a  dog  for  carriage,  stated  that  "  the  com- 
pany are  not  and  will  not  be  common  car- 
riers of  dogs,  nor  will  they  receive  clogs  for 
conveyance  except  on  the  terms  that  they 
shall  not  be  responsible  for  any  amount  of 
damages  for  the  loss  thereof,  or  for  injury 
thereto  beyond  the  sum  of  {^2,  unless  a 
higher  value  be  declared  at  the  time  of  de- 
livery to  the  company,  and  a  percentage  of 
5  per  cent  paid  upon  the  excess  of  value 
beyond  the  £p.  so  declared.  Held  that,  al- 
though the  railway  company  were  not  bound 
to  be  common  carriers  of  dogs,  yet,  being 
bound  by  the  R.  &  C.  Tr.  Act  1854,  to  af- 
ford reasonable  facilities  for  the  carriage  of 
dogs,  they  could  only  limit  their  liability  in 
respect  thereof  by  reasonable  conditions ; 
and  that  the  above-mentioned  condition  was 
not  just  and  reasonable  within  the  meaning 
of  the  7th  section  of  the  act,  and  therefore 
did  not  protect  the  railway  company  from 
liability  to  an  amount  exceeding  /2  in 
respect  of  damage  done  to  the  dog  through 
the  negligence  of  their  servants.  Dickson  v. 
Great  Northern  R.  Co.,  i8  Q.  B.  D.  176,  56 
L.  /.  Q.B.  II  I.  55  L.  T.  868.  5  By.  6-  C.  T. 
Cas.  X. 


IX.  OVSTODIAMS  TRAYELLIMO  OX  CATTLE- 
TRAIHB ;  DROYERB'  PASSES. 

I .  Rights  of.  Generally. 
118.  ItiKlitH  coiit'i'rrvd  by  ticket 
or  pusM. — A  provision  in  a  contract  for  the 
transportation  of  live  stotk,  that  the  ship- 
per may  accomjjany  the  stock  free  of  charge, 
applies  to  the  shipper  only,  and  another  per- 
son cannot  claim  the  rights  of  a  passtiiger 
who  boards  the  train,  for  the  purpose  of  as- 
sisting in  caring  for  it, claiming  to  have  an 
interest  in  the  stock.  Richmond  6-  D. 
R.  Co.  V.  Burnsed,  jo  Miss.  437,  \2So.  Rep. 

958. 

Plaintiff  received  a  stock-ticket  from  a 
connecting  road  between  two  points,  issued 
to  I  in  in  consideration  of  shipping  certain 
stock  between  those  points.  Upon  the  back 
were  certain  printed  conditions,  which  the 
plaintilT  signed,  specifying  that  the  ticket 
was  good  only  upon  the  freight  train  upon 
which  his  stock  were  transported.  Held,  that 
such  ticket  was  not  good  upon  a  passenger 
train.  Thorp  v.  Concord  R.  Co.,  61  Vt.  378, 
17  At  I.  Rep.  791. 

The  fact  that  similar  tickets  have  been 
previously  received  by  defendant  for  passage 
upon  its  passenger  trains  does  not  alter  the 
case.  Thorp  v.  Concord  R.  Co.,  61  Vt.  378, 
17  All.  Rep.  791. 

The  shipper  of  cattle  will  not  be  deemed 
a  gratuitous  passenger  simply  because  he 
travels  on  what  is  termed  a  drover's  pass, 
and  because  the  shipping-contract  refers  to 
him  as  riding  free,  where  there  is  but  a 
single  consideration  paid.  The  service  of 
carrying  either  him  or  the  stock  cannot  be 
said  to  be  one  more  gratuitous  than  the 
other;  and  such  provisions  in  the  ticket  and 
contract  (which  must  be  construed  together 
as  one  undertaking)  only  mean  that  the 
holder  is  not  to  be  subject  to  any  additional 
dharge.  Cleveland,  P.&'  A.  R.  Co.  v.  Cur- 
ran,  19  Ohio  St.  I.— Reviewing  Collett  v. 
London  &  N.  W.  R.  Co..  16  Q.  B.  984. 
-—Followed  in  Baltimore  &  O.  R.  Co.  v. 
Campbell,  36  Ohio  St.  647. 

119.  Issuing  pass  <1««8  "<>*  relieve 
company  from  duty  to  care  for  stock. 
—'sFuing  a  pass  to  the  owner  of  live  stock 
shipped,  or  to  his  servant,  so  that  he  may 
accompany  them,  does  not  relieve  the  car- 
rier from  the  duty  of  properly  caring  for 
them.  Feinherg  v.  Delaware,  L.  <S-  W.  R. 
Co.,  45  Am.  6-  Eng.  R.  Cas.  348.  52  N.J.  L. 
451,  20  Atl.  Rep.  33. 


•'■' : ;  t 


792 


CARRIAGE   OF   LIVE   STOCK,  120-125. 


I 


120.  Bights  as  respects  loading 
and  unloading  of  cattle.*— Where  a 

shipper  of  live  stock  applies  for  cars  and 
they  are  furnished  in  the  yards  for  him  to 
load  himself,  the  company  is  liable  to  an 
employe  of  his  who  is  injured,  while  loading, 
by  another  car  striking  him  which  was  left 
on  the  tract  without  being  secured  by 
brakes  or  otherwise,  and  was  moved  by  a 
strong  wind.  Union  Pac.  R.  Co.  v.  Harwood, 
15  Am.  6f  Eng.  R.  Cas.  494,  31  Kan.  388,  2 
Pac.  Rep.  605. 

A  provision  in  a  contract  for  the  trans- 
portation of  cattle  that  the  owner  should  be 
entitled  to  transportation  free,  and  should 
take  care  of  the  cattle,  and  should  feed, 
water,  load,  and  unload  them,  does  not  con- 
fer on  him  the  right  to  decide  when,  where, 
and  under  what  circumstances  the  loading 
and  unloading  should  take  place  for  the 
purpose  of  feeding  and  watering,  but  im- 
poses upon  him  the  duty  of  loading  and 
unloading  whenever  and  wherever  the  exi- 
gencies of  the  transportation  may  render  the 
same  necessary  and  proper,  but  leaves  it  to 
tlie  discretion  of  the  company  when  tl'.e 
exigencies  of  transportation  may  require  the 
same  to  be  done.  McAlister  v.  Chicago,  R. 
I.  &»  P.  R.  Co.,  7  Am.  &'  Eng.  R.  Cas.  373, 
7^  Mo.  351. 

121.  Remedy  for  breach  of  con- 
tract to  carry. — Where  it  is  customary 
for  freight  trains  to  start  from  the  yards 
wherever  they  might  be  when  made  up,  and 
not  from  stations,  a  shipper  of  live  stock, 
under  a  contract  providing  for  his  free 
transportation  on  the  same  train,  cannot 
recover  damages  for  failing  to  get  on  the 
train  by  reason  of  its  starting  from  the 
yards  instead  of  from  the  station.  OAio  &» 
M.  R.  Co.  V.  Brown,  46  ///.  App.  137. 

Where  the  rules  of  a  railway  company  re- 
quire a  shipper  of  live  stock  to  sign  a  writ- 
ten contract  before  taking  passage  on  the 
train  with  his  stock,  the  company  is  bound 
to  give  a  reasonable  time  to  allow  the  ship- 
per to  comply  with  the  rule,  and  in  an  action 
for  damages  by  reason  of  being  left,  it  is 
not  necessary  to  offer  the  contract  in  evi- 
dence. Ohio  &»  M.  R.  Co.  v.  Brown,  49  ///. 
App.  40. 

Where  a  shipper  of  live  stock  is  entitled 
to  travel  on  a  drover's  ticket,  under  con- 
ditions  that    make  him  a    passenger,  re- 

*  Liability  of  carrier  for  injury  to  animals  ac- 
companied by  owner,  see  note,  27  Am.  &  Eng. 
R.  Cas.  63  ;  see  also  antt,  17-20* 


fusal  to  allow  him  to  travel  without  paying 
fare  is  a  breach  of  contract ;  but  he  is  en- 
titled to  recover,  as  damages,  only  such  sum 
as  will  compensate  him  (or  moneys  neces- 
sarily paid  out  for  railroad  fare  and  hotel 
bills,  and  for  loss  of  time.  International  &^ 
G.  N.  R.  Co.  v.  Campbell,  i  Tex.  Civ.  App. 
509,  20  S.  W.  Rep.  845. 

122.  Remedy  for  failure  to  furnish 
cars. — A  drover's  pass  contained,  among 
others,  a  provision  that  the  company  should 
not  be  liable  under  any  circumstances  for  any 
personal  injury  for  loss  or  damage  to  proi>- 
erty  or  for  any  delay  that  the  owner  migh: 
sustain  during  transportation.  Held,  that 
these  conditions  only  referred  to  any  in- 
juries that  might  occur  during  transpor- 
tation, and  did  not  apply  to  damages  result- 
ing from  a  failure  to  furnish  cars.  Hast- 
ings V.  New  York,  O.  &>  VV.  R.  Co.,  25  N. 
V.  S.  R.  249,  53  Hun  638,  3  Silv.  Sup.  422,6 
iV.  Y.  Supp.  836. 

123.  Right  to  stop  at  intermediate 
point. — The  right  of  a  person  to  travel  on 
a  drover's  pass  is  not  affected  by  his  in't-n- 
tion  to  stop  at  an  intermediate  point.  He 
is  entitled  to  travel  to  that  point  on  his 
pass.     Graham  v.  Pacific  R.  Co.,  66  Mo.  536. 

124.  Damages  for  ejection  of 
drover  on  return  trip.— One  who  has 
shipped  live  stock  and  is  entitled  to  return 
on  a  drover's  pass  may  recover  damages 
for  being  wrongfully  ejected  from  the  train, 
although  the  conductor  used  no  physical 
force,  and  acted  under  an  honest  misunder- 
standing as  to  plaintiff's  right  to  travel  on 
the  pass.  Graham  v.  Pacific  R.  Co.,  66  Mo. 
536. 

2.    Personal  Injuries.* 

125.  Persons  so  travelling  are  pas- 
sengers.— A  person  travelling  in  a  railroad 
train  on  a  drover's  pass  is  a  passenger,  and 
is  under  the  same  obligations  to  conform  to 
the  general  rules  and  regulations  of  the 
company  as  if  he  had  bought  a  ticket. 
Little  Rock  6-  Ft.  S.  R.  Co.  v.  Miles,  13  Am. 
&*  Eng.  R.  Cas.  10,  40  Ark.  298,  48  Am. 
Rep.  10. 

Where  a  person  is  travelling  in  a  caboose 
car  in  charge  of  stock  and  furniture,  and  an 
entry  in  reference  to  him  is  made  on  the 

ay-bill  by  the  assistant  superintendent 
"  as  a  man  in  charge,"  he  is  a  passenger  and 
is  entitled  to  all  the  rights  and  remedies  of 

*  Liability  of  company  to  freight-shipper  who 
is  riding  free,  see  note,  2  L,  R.  A.  166. 


iti 


CARRIAGE    OF   LlVli   STOCK,  126. 


793 


thout  paying 
but  he  is  en- 
nlysuch  sum 
oneys  neces- 
re  and  hotel 
irnational  &^ 
r.  Civ.  App. 

to  furnish 

ned,  among 

pany  should 

incesforany 

ige  to  proji- 

•wner  mighi 

Held,   that 

to  any  in- 

g  transpor- 

lages  result- 

ars.     Hast- 

Co.,  25  .V. 

Sup.  422,6 

rmediute 

0  travel  on 
his  intr.n- 

poinc.  He 
Jnt  on  his 
(>6Mo.  536. 
ction  of 
e  who  has 

1  to  return 
r  damages 
1  the  train, 
3  physical 
misunder- 
travel  on 

To.,  66  Mo. 


are  pas- 

a  railroad 
;nger,  and 
onform  to 
IS  of  the 
a  ticket, 
w,  13  Am. 
3,  48  Am. 

i.  caboose 
e,  and  an 
e  on  the 
ntendent 
nger  and 
tiedies  of 

ipper  who 


a  passenger  on  a  freight  train,  and  he  may 
recover  for  injuries.  Indianapolis,  B.  &* 
W.  R.  Co.  V.  Beaver,  41  Ind.  493.— Distin- 
guished IN  Ohio  &  M.  R.  Co.  V.  Dickerson, 
59  Ind.  317. 

A  drover  transported  over  a  railroad  on 
a  pass,  for  the  purpose  of  taking  care  of  his 
stock  on  the  train,  is  a  passenger,  not  a 
fellow-servant  with  the  servants  of  the  com- 
pany, and  the  company  cannot  stipulate  for 
exemption  from  liability  for  injuries  to  him 
caused  by  its  negligence.  Carroll  v.  Mis- 
souri Pac.  R.  Co.,  26  Am.  <S-  Eng.  R.  Cas. 
268,  88  Mo.  239.— Approving  New  York 
C.  R.  Co.  V.  Lockwood,  17  Wall.  (U.  S.) 
357.  Disapproving  Bissell  v.  New  York 
C.  R.  Co.,  25  N.  Y.  442.  Following  Stur- 
geon V.  St.  Louis,  K.  C.  &  N.  R.  Co.,  65 
Mo.  569;  Rice  V.  Kansas  Pac.  R.  Co.,  63 
Mo.  314. — New  York  C.  R.  Co.  v.  Lockwood, 
17  Wall.  {U.  S.)  357,  3  Am.  Ry.  Rep.  495-— 
Approved  in  Lemon  v.  Chanslor,  68  Mo. 
340;  Carroll  v.  Missour  Pac.  R.  Co.,  88  Mo. 
239.  Followed  in  Ohio  &  M.  R.  Co.  v. 
Selby,  47  Ind.  471.  Quoted  in  Griswoldz/. 
New  York  &  N.  E.  R.  Co.,  26  Am.  &  Eng. 
R.  Cas.  280,  53  Conn.  371,  55  Am.  Rep.  115. 
Reviewed  in  Quimby  v.  Boston  &  M.  R. 
Co.,  40  Am.  &  Eng.  R.  Cas.  093,  150  Mass. 
365,  5  L.  R.  A.  846,  23  N.  E.  Rep.  205. 

A  shipper  of  live  stock  travelling  on  the 
train  for  the  purpose  of  caring  for  them  is 
a  passenger  for  hire,  the  consideration  for 
the  passage  being  either  in  the  one  charge 
paid  for  the  transportation  of  himself  and 
slock,  or  in  the  services  rendered  in  caring 
for  the  animals ;  and  the  company  will  be 
liable  to  him  for  injuries  as  to  a  passenger 
for  hire.  Missouri  Pac.  R.  Co.  v.  Ivy,  yj 
Am.  &•  Eng.  R.  Cas.  46,  71  Tex.  409,  1  L. 
R.  A.  500,  9  .S'.   IV.  Rep.  346. 

Where  by  contract  with  the  shipper  of 
live  stock  one  is  allowed  to  ride  free  to  take 
care  of  such  stock,  the  person  so  riding  can- 
not be  considered  as  a  trespasser  or  in- 
truder, altiiough  not  strictly  speaking  a 
passenger ;  and  with  respect  to  him  the 
company  owes  the  duty  of  exercising  due 
care  to  carry  him  safely.  Lawson  v.  Chi- 
cago, St.  P.,  M.  &^  O.  R.  Co.,  21  Am.  <S-  Eng. 
R.  Cas.  249,  64  IVis.  447,  54  Am.  Rep.  634, 
24  A^.  \V.Rep.6\%. 

If  a  company  gave  a  shipper  of  live  stock 
a  pass  to  stock-yards  at  a  distance  from  its 
line  of  road,  to  which  place  the  stock  were 
shipped,  or  engaged  to  transport  the  ship- 
per to  such  stock-yards,  and   its  servants. 


clothed  with  apparent  authority  to  act  for 
the  company,  directed  him  to  take  passage 
on  the  engine  after  leaving  its  road,  and  un- 
dertook to  carry  him  on  the  same,  these 
are  facts  proper  to  be  considered  by  the 
jury  in  determining  whether  such  shipper 
was  a  passenger  while  on  the  engine.  Lake 
Shore  <&-  M.  S.  R.  Co.  v.  Brown,  31  Am,  &> 
Eng.  R.  Cas.  61,  123  ///.  162,  14  M.  E.  Rep. 
197. 

By  contract  it  was  stipulated  that  the 
shipper  of  stock  "  or  his  agent  or  agents  in 
charge  of  the  stock  should  ride  upon  the 
freight  train  upon  which  the  stock  was  be- 
ing shipped."  The  shipper  and  one  servant 
entered  the  car,  and  upon  an  objection 
being  made  that  both  could  not  ride  free, 
the  shipper  informed  the  conductor  that 
the  employe  could  be  put  off,  but  no 
further  objection  was  made.  The  shipper 
was  injured.  Held,  that  he  was  a  passenger, 
and  not  a  trespasser,  by  reason  of  having 
the  employe  on  the  train.  Missouri  Pac.  R. 
Co.  V.  Aiken,  71  Tex.  373,  9  S.  W.  Rep.  437. 

126.  Care  and  (!uty  required  from 
the  company.* — (i)  General  ride  stated.  — 
A  company  whicii  charges  for  the  transpor- 
tation of  cattle,  but  permits  the  shipper  to 
travel  on  a  free  pass  upon  the  cars  to  take 
care  of  the  cattle,  is  a  common  carrier  for 
hire,  as  to  both  passenger  and  cattle. 
Maslin  v.  Baltimore S^CR.  Co.,  14  IV.  Va. 
180. 

Where  a  person  is  travelling  on  a  freight 
car  in  charge  of  stock,  under  such  condi- 
tions as  to  make  him  a  passenger  for  hire, 
he  is  entitled  to  the  same  care  as  any  other 
passenger  on  a  freight  train.  He  only  as- 
sumes the  risks  incident  to  such  a  mode  of 
travel,  and  the  company  will  be  liable  to 
him  for  its  own  negligence  or  the  negligence 
of  its  servants  resulting  in  personal  injuries, 
or  will  be  liable  to  his  next  of  kin  if  death 
results.  ^Missouri  Pac.  R.  Co.  v.  Ivy,  yj  Am. 
<S-  Eng.  R.  Cas.  46, 71  Tex.  409,  9  S.  IV.  Rep. 
346,  I  L.  R.  A.  500. 

Where  a  company  undertakes  to  convey 
a  stock-drover  as  a  passenger  on  a  freight 
car,  its  duty  is  to  so  run  and  manage  the 
train  that  he  shall  not  be  injured  by  its 
carelessness.  Oltio  &*  M.  R.  Co.  v.  Selby,  an 
Ind.  471,  8  Am.  Ry.  Rep.  177. 

Where  a  cattle-man  sues  to  recover  for 
injuries  received  while  travelling  on  a  freight 

*  Drover's  pass ;  liability  of  company  to 
person  travelling  on.  See  note,  37  Am.  &  Eng. 
R.  Cas.  53,  18  /•/  176. 


794 


CARRIAGE   OF   LIVE   STOCK,  126. 


■m 


•i    • 


'■?'•■ 
1' 


:  < 


train  with  the  cattle,  the  company  cannot 
complain  of  an  instruction  to  the  effect  that 
plaintiff  was  a  passenger  entitled  to  the 
highest  degree  of  care  from  the  company, 
where  the  court  adds  that  that  was  but 
the  general  rule,  and  that  it  should  not  be 
applied  to  persons  who  ride  as  passengers 
on  freight  cars  to  look  after  stock.  CAi- 
cago,  ?f.  <S>»  St.  P.  R.  Co,  V.  Carpenter,  56 
Fed.  Rep.  451. 

(2)  Its  Extent  and  Limits.  —  Notwith- 
standing a  stipulation  in  a  drover's  ticket 
that  he  assumed  certain  risks  of  per- 
sonal injury,  still  the  company  owed  him, 
as  a  passenger,  due  diligence  in  protecting 
him  from  harm.  Pitcher  v.  Lake  Shore  &• 
M.  S.  R.  Co.,  40  N.  V.  S.  R.  896,  61  Hun 
623,  16  A^.  Y.  Supp.  62 ;  affirmed  in  137  A'.  Y. 
568,  mem.,  50  N.  Y.  S.  R.  943,  33  A'^.  E.  Rep. 

339- 

If  a  conductor  of  a  railway  train  receives 
on  his  train  minors,  knowing  that  they  are 
travelling,  under  a  "  drover's  pass,"  as  as- 
sistant to  a  drover,  under  a  pass  which 
contained  a  provision  that  minors  should 
not  be  permitted  to  travel  as  assistants 
under  such  a  pass,  the  minors  are  entitled 
to  all  the  rights,  as  against  the  company, 
for  injuries  received  through  the  negligence 
of  its  servants,  that  any  other  passenger 
would  have.  Texas  &*  P.  R.  Co.  v.  Garcia, 
21  Atn.  &*  Eng.  R.  Cas.  384,  62  Tex.  285. 

A  contract  for  the  shipment  of  cattle 
provided  that  the  owner  should  send  a  hand 
upc  .1  the  train  to  look  after  the  cattle  and 
that  such  hand  should  be  regarded  as  an  em- 
ploy6  of  the  carrier,  and  should  assume  all 
the  risks  of  one.  During  the  transportation 
the  hand  was  killed  by  a  collision.  Jle/d,  in 
an  action  by  uis  next  of  kin,  that  such  em- 
ploye was  a  passenger  for  hire,  and  was  en- 
titled to  the  care  due  to  any  other  passenger 
upon  a  freight  train  ;  and  that  the  company 
was  liable  for  negligence  resulting  in  his 
death.  Missouri  Pac.  R.  Co.  v.  Ivy,  37  Am. 
&*  Eng.  R.  Cas.  46,  7 1  Tex.  409,  i  L.  R.  A. 
500,  95.  W.  Rep.  346. 

The  owner  of  a  horse  shipped  in  a  box- 
car, the  doors  of  which  could  only  be  fastened 
from  the  outside,  and  who  is  inside  the  car 
with  the  horse,  has  a  right  to  expect  that 
the  conductor  of  the  train  will  see  that  the 
door  of  the  car  is  closed  and  properly  fast- 
ened before  the  train  is  started.  Lavoie 
V.  Queen,  3  Can.  Exch.  96. 

Where  a  carrier  sends  a  person  with  a 
train  manned  by  its  employes,  which  will 


pass  over  other  lines,  to  attend  to  unloading 
and  returning  the  cars,  such  person  is  an 
employ^  of  the  first  company,  and  the  only 
obligation  a  latter  company  is  under  is  to 
furnish  him  a  safe  track,  and  if  it  fails  to  do 
this  and  he  is  killed  by  reason  of  a  defective 
track,  it  is  liable.  Killian  v.  Augusta  &* 
K.  R.  Co.,  79  Ga.  234,  45.  E.  Rep.  165. 

The  shipper  of  live  stock  travelling  on  a 
freight  train  with  his  stock,  though  not  pay- 
ing directly  for  his  fare,  is  a  passenger  to 
whom  there  is  due  all  the  diligence  of  the 
railroad  to  protect  him  from  harm ;  but  he 
is  not  entitled  to  the  same  facilities  for  get- 
ting on  and  off  as  are  persons  travelling  on 
passenger  trains ;  and  no  negligence  can  be 
imputed  to  the  company  for  omission  to 
erect  stations  or  platforms  at  the  places  of 
departure  or  arrival  of  such  trains.  Pitcher 
v.  Lake  Shore  6-  M.  S.  R.  Co.,  28  A^.  Y.  S.  R. 
647,  8  A^.  Y.  Supp.  389. 

(3)  Illustrations. — Plaintiff  had  a  horse 
shipped  with  others  belonging  to  a  third 
party,  but  all  were  shipped  in  the  name 
of  such  third  party.  A  printed  rule  of 
the  company  provided  that  only  one 
person  should  go  free  with  stock,  and 
the  agent,  being  applied  to,  told  such 
third  party  that  if  plaintiff  went  he  would 
have  to  pay  fare.  Being  hurried  after  com- 
pleting the  loading  of  the  stock,  plaintiff 
had  not  time  to  procure  a  ticket,  but  entered 
the  car,  intending  to  pay  his  fare,  but  be- 
fore he  had  paid  the  train  was  negligently 
run  into  and  he  was  injured.  Held,  that 
the  company  was  not  liable.  The  intention 
of  plaintiff  to  pay  his  fare  and  his  good 
faith  in  the  matter  were  immaterial.  No 
contract  relation  existed  between  him  and 
the  company.  Gardner  v.  New  Haven  &• 
N.  Co.,  18  Am.  &*  Eng.  R.  Cas.  170,  51  Conn. 
143,  50 /^w  Rep.  12. 

At  M.  plaintiff  delivered  to  defendant  a 
car  in  which  was  his  horse,  some  furniture, 
and  other  proptrty,  to  be  transported  over 
its  line  to  S.,  under  a  contract  by  which  he 
agreed  to  load,  unload,  and  reload,  and  to 
feed,  water,  and  attend  the  stock  at  his  own 
expense  and  risk  while  at  the  company's 
stock-yards  or  on  the  cars ;  and  he  assumed 
the  duty  of  securely  placing  the  stock  in 
the  cars,  and  keeping  the.  same  securely 
locked  and  fastened,  so  as  to  prevent  the 
escape  of  stock.  The  car  arrived  at  S.  in 
the  night.  The  plaintiff  left  the  car  for  a 
few  minutes,  and,  on  its  being  placed  on  a 
side-track,  returned  to  it,  and  lay  down. 


I' 


CARRIAGli    OF    LIVE   STOCK,  127,  138. 


796 


to  unloading 
)erson  is  an 
ind  the  only 

under  is  to 
it  fails  to  do 
if  a  defective 

Augusta  &* 
'P.  i6s. 
irelling  on  a 
igh  not  pay- 
>assenger  to 
ence  of  the 
arm ;  but  he 
ties  for  get- 
ravelling  on 
;ence  can  be 
omission  to 
he  places  of 
ns.  P'tcher 
\  N.  Y.  S.  R. 

ad  a  horse 
to  a  third 
the  name 
ted   rule  of 
only     one 
stock,  and 
told    such 
k  he  would 
d  after  com- 
)ck,  plaintiff 
,  but  entered 
fare,  but  be- 
negligently 
Held,  that 
ie  intention 
id  his  good 
iterial.     No 
;n  him  and 
'  Haven  &<• 
70,  51  Conn. 

lefendant  a 
i  furniture, 
)orted  over 
y  which  he 
sad,  and  to 
at  his  own 
company's 
lie  assumed 
e  stock  in 
le  securely 
»revent  the 
:d  at  S.  in 
s  car  for  a 
ilaced  on  a 
lay  down. 


Soon  after  he  was  injured  by  an  engine  run- 
ning against  the  car.  Held,  that,  although 
not  then  a  passenger,  yet,  if  prudent  atten- 
tion to  his  horse  rendered  it  proper  for  him 
to  be  in  the  car  (and  of  that  the  jury  is  to 
judge),  he  was  rightfully  there,  and  that  de- 
fendant owed  him  a  duty  of  care  to  avoid  in- 
juring him.  Orcutt  v.  Northern  Pac.  R.  Co., 
45  Minn.  368,  47  A^  W.  Rep.  1068. 

Certain  horses  and  goods  were  shipped  in 
a  box-car,  and  plaintiff  was  employed  by 
the  owner  to  accompany  them  to  take  care 
of  the  property.  While  the  train  was  lying 
at  the  end  of  a  division  where  the  conductor 
had  left  the  train,  after  having,  without  au- 
thority, collected  fare  for  the  whole  distance, 
plaintiff  entered  the  car  without  the  knowl- 
edge of  the  employ6s  who  would  have 
charge  of  the  train  from  that  point  on,  and 
who  had  no  knowledge  that  he  was  in  it,  and 
about  the  time  of  starting  locked  it  up,  and 
after  it  was  started  plaintiff  was  injured  by  fire 
before  he  could  escape  from  the  car.  Held, 
that  the  mere  fact  that  the  first  conductor 
collected  a  through  fare  would  not  charge 
the  employds  of  the  train  at  the  time  of  the 
injury  with  knowledge  that  plaintiff  was  in 
the  car.  Jenkins  v.  Chicago,  M,  &»  St.  P.  R. 
Co.,  41  IVis.  112.— Following  Betts  v. 
Farmers'  L.  &  T.  Co..  21  Wis.  81. 

127.  Validity  of  contract  to  as- 
sume all  risks."' — It  is  competent  for  a 
common  carrier  of  live  stock  to  restrict  its 
liability  for  injuries  to  the  owner  who 
travels  on  a  drover's  pass  to  such  as  result 
from  recklessness,  wilfulness,  or  gross  neg- 
ligence. Boswell  V.  Hudson  River  R.  Co., 
10  Abb.  Pr.  {N.  V.)  442,  5  Bosw.  699.— Re- 
viewing Weed  V.  Panama  R.  Co.,  5  Duer 
193.  17  N.  Y.  362. 

A  contract  by  a  shipper  of  live  stock  that, 
in  consideration  of  a  free  pass  for  himself 
over  the  road  he  v/ould  assume  all  risks  of 
loss  or  damage  to  the  stock,  except  such  as 
might  be  caused  by  collision  or  running  off 
the  track,  was  neither  unreasonable  nor 
contrary  to  public  policy.  Georgia  R.  Co. 
V.  Spears,  66  Ga.  485.— Quoted  in  Georgia 
R.  Co.  V.  Beatie,  66  Ga.  438,42  Am.  Rep.  75. 
Where  a  cattle-dealer  accompanies  his 
cattle,  under  a  contract  providing  that  they 
are  shipped  at  reduced  rate"!,  and  there  is 
no  independent  consideration  for  the  con- 
veyance of  himself,  he  is  bound  by  a  pro- 
vision that  he  shall  travel  at  his  "  own  risk 

*  See  also  ante,  70,  7 1. 


of  personal  injury  from  whatever  cause." 
Bissell  V.  Nexv  York  C.  R.  Co..  25  A^.  Y.  442 ; 
rei'ersing  29  Barb.  602. 

It  seems,  if  a  shipper  of  cattle  who  travels 
on  the  train  with  them  pays  the  full  rates,  a 
provision  in  the  contract  that  he  shall  travel 
at  his  own  risk  of  personal  injury  is  with- 
out consideration,  and  therefore  not  bind- 
ing. Bissell  V.  New  York  C.  R.  Co.,  25  N.  Y. 
442 ;  reversing  29  Barb.  602. 

A  stipulation  in  a  contract  for  the  car- 
riage of  live  stock  in  providing  for  the 
transportation  also  of  the  owner,  but  ex- 
empting the  company  from  all  liability  for 
negligence,  is  against  the  policy  of  the  law, 
and  constitutes  no  defense  to  an  action  to 
recover  for  personal  injuries  to  the  shipper. 
Cleveland,  P.  &*  A.  R.  Co.  v.  Curran,  19 
Ohio  St.  I.— Approving  Pennsylvania  R. 
Co.  V.  Henderson.  51  Pa.  St.  315.  Disap- 
proving Bissell  V.  New  York  C.  R.  Co.,  25 
N.  Y.  442.  Quoting  Philadelphia  &  R.  R. 
Co.  V.  Derby,  14  How.  ,U.  S.)  486.— Ap- 
proved IN  Atchison  &  N.  R.  Co.  v.  Wash- 
burn, 5  Neb.  117.  Not  followed  in  Gris- 
wold  V.  New  York  &  N.  E.  R.  Co.,  26  Am.  & 
Eng.  R.  Cas.  280,  53  Conn.  371,  55  Am.  Rep. 
115. 

A  drover  travelling  on  a  freight  train  for 
the  pupose  of  taking  care  of  his  stock  on 
the  train,  for  which  stock  he  paid  freight, 
received  from  the  railroad  company  a  ticket 
called  a  "  stock  pass,"  with  an  indorsement 
signed  by  him  as  follows :  "  In  consideration 
of  receiving  this  ticket  I  voluntarily  as- 
sume all  risk  of  accidents,  and  expressly 
agree  that  the  company  shall  not  be  liable, 
under  any  circumstances,  whether  by  negli- 
gence of  their  agents  or  otherwise,  for  any 
injury  to  my  person  or  for  any  loss  or  injury 
to  my  property ;  and  I  agree  that,  as  for  me, 
in  the  use  of  this  ticket,  I  will  not  consider 
the  company  as  common  carriers,  or  liable 
to  me  as  such."  In  an  action  for  damages 
for  injury  to  the  person  of  the  drover,  caused 
by  the  negligent  act  of  the  railroad  com- 
pany— held,  (!)  that  the  agreement  was  in- 
valid as  a  defense  to  said  action ;  (2)  that 
the  stock-drover  was  a  passenger  for  hire, 
and  was  not  a  gratuitous  passenger.  Ohio 
&*  M.  R.  Co.  V.  Selby,  47  Ind.  471,  8  Am. 
Ry.  Rep.  177.— Approving  Louisville,  C.  & 
L  R.  Co.  V.  Hedger,  9  Bush  (Ky.)  645. 
Following  New  York  C.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357. 

128.  Effect  of  condition  that  drover 
travels  at  his  own  risk.— (i)  In  Etig- 


WT 
I 


796 


CARRIAGE   OF   LIVE   STOCK,  128. 


l^'-^ 


.'■'i'i 


land. — A  condition  in  a  ticket  that  persons 
in  charge  of  cattle  who  travel  free  shall 
travel  at  their  own  risk  applies  to  the  whole 
of  a  through  journey  over  connecting  lines. 
//.://  v.  Norih  Eastern  A'.  Co.,  33  L.  T.  306, 
23  W.  R.  860,  L.  R.  10  Q.  B.  437,  44  /,.  /. 
Q.  B.  164. 

Injury  to  a  passenger  after  leaving  a  train 
in  the  course  of  his  departure  from  the  com- 
pany's premises  is  included  within  the  con- 
dition of  a  free  drover's  ticket,  by  the  terms 
of  which  he  travels  at  his  own  risk.  Gallin 
v.  Lotidon  Sf  N.  IV.  R.  Co.,  23  IV.  R.  308,  32 
L.  T.  550,  44  L.y.  Q.  B.  89,  L.  R.  10  Q.  B. 
212. 

A  condition  in  a  contract  for  the  ship- 
ment of  cattle  allowing  the  drover  in  charge 
to  travel  free,  providing  he  does  so  at  his 
own  risk,  printed  on  the  back  of  the  invoice, 
with  a  direction  on  the  face  referring  to  the 
back  for  conditions  of  carriage,  is  a  part  of 
the  written  contract,  and  if  a  drover  elects 
to  travel  free  he  is  bound  by  the  conditions 
and  cannot  recover  for  injuries.  Duff  v. 
Great  Northern  R.  Co.,  L.  R.  4  Ir.  178. 

A  drover  in  charge  of  his  cattle  signed  a 
contract  with  a  railway  company  which 
stated  that  the  cattle  were  to  be  conveyed 
upon  the  conditions  mentioned  upon  the 
back  of  the  invoice  handed  to  him,  and  on 
the  back  of  the  invoice  there  was  printed, 
amongst  other  conditions,  the  following: 
"That,  as  a  drover  is  allowed  to  attend  the 
cattle  during  transit,  they  will  allow  such 
drover  to  travel  free  of  charge,  upon  condi- 
tion that  he  so  travel  at  his  own  risk."  On 
the  face  of  the  invoice  there  was  nothing 
referring  to  passengers  except  the  words 
"  Drover  in  charge  free,"  and  at  the  foot  of 
it  were  the  words,  "  For  conditions  of  car- 
riage, see  back  hereof."  The  drover  did 
travel  Iree,  and  in  consequence  of  a  collision 
occurring  on  the  journey  he  received  per- 
sonal injuries,  for  which  he  brought  an  ac- 
tion against  the  railway  company.  Held, 
that  the  condition  allowing  a  drover  in 
charge  of  his  cattle  to  travel  free,  provided 
he  did  so  at  his  own  risk,  was  part  of  the 
written  contract  signed  by  the  drover,  and 
that  as  he  had  elected  to  travel  free  he 
was  bound  by  the  conditions  and  could  not 
recover  damages  for  the  personal  injuries 
sustained.  Duff  v.  Great  Northern  R.  Co., 
L.  R.  4  /r.  178,  3  ^y.  &*  C.  T.  Cas.  xiv. 

(2)  In  Ne^v  York. — Defendant  received  of 
plaintifl  at  Newark  a  car-load  of  sheep  to 
be  transported  to  Albany  under  a  contract 


which  contained  a  clause  by  which  plaintiff 
agreed  to  go  or  send  some  one  with  the 
sheep,  "  who  should  take  all  the  risks  of 
personal  injury  from  whatever  cause,  whether 
of  negligence  of  defendants,  its  agents,  or 
otherwise."  After  the  sheep  were  loaded, 
plaintiff,  who  was  intending  to  accompany 
them,  afid  had  a  drover's  pass,  in  passing  by 
the  tender  to  the  engine,  was  injured  by  a 
stick  of  wood  negligently  thrown  therefrom. 
Held,  that,  under  the  contract,  defendant 
was  exempted  from  liability.  Poucher  v. 
New  York  C.  R.  Co.,  49  A^.  Y.  263.— DIS- 
TINGUISHING Stinson  v.  New  York  C.  R. 
Co.,  32  N.  Y.  333.— Reviewed  in  Blair  v. 
Erie  R.  Co.,  66  N.  Y.  313. 

In  an  action  for  personal  injuries  the  fact 
that  plaintifl  was  riding  on  a  drover's  ticket 
containing  a  provision  that  he  should  ride 
in  charge  of  the  stock,  but  that  if  he  should 
leave  the  caboose  and  pass  along  the  train 
or  track  it  should  be  at  his  own  risk  of  per- 
sonal injury,  does  not  relieve  the  company 
from  liability,  where  he  is  told  that  the  train 
will  wait  forty-five  minutes  at  a  station  and 
he  leaves  it  to  get  supper,  and,  returning  be- 
fore the  time  is  up,  is  injured  while  attempt- 
ing to  get  on  the  cars  by  a  sudden  movement 
of  the  train.  Pitcher  v.  Lake  Shore  &•  M. 
S,  R.  Co.,  1 6  A^.  Y.  Supp.  62  ;  affirmed  in  137 
A^.  Y.  568,  33  N.  E.  Rep.  339. 

(3)  In  Pennsylvania. — A  drover  transport- 
ing live  stock  in  the  cars  of  a  railroad  com- 
pany, for  which  he  paid  freight,  received  a 
ticket  to  "  pass  the  bearer  in  charge  of  his 
stock,"  on  which  was  indorsed  :  "The  person 
accepting  this  free  ticket  assumes  all  risks 
of  accidents,  and  expressly  agrees  that  the 
company  shall  not  be  liable  under  any  cir- 
cumstances, whether  by  the  negligence  of 
their  agents  or  otherwise,  for  au  injury  to  the 
person  or  for  any  loss  or  injury  to  the  per- 
sonal property  of  the  person  using  this 
ticket."  Held,  that  the  drover  was  not  a 
gratuitous  but  a  paying  passenger,  and  that 
the  indorsement  was  no  excuse  for  negli- 
gence. Pennsylvania  R.  Co.  v.  Henderson, 
51  Pa.  St.  315.— Disapproving  Wells  v. 
New  York  C.  R.  Co..  24  N.  Y.  181 ;  Perkins 
V.  New  York  C.  R.  Co.,  24  N.  Y.  197  ;  Smith 
V.  New  York  C.  R.  Co.,  24  N.  Y.  222 ;  Bissell 
V.  New  York  C.  R.  Co. ,  2  5  N.  Y.  442.  Quot- 
ing Philadelphia  &  R.  R.  Co.  v.  Derby,  14 
How.  (U.  S.)  468.— Approved  in  Rose  v. 
Des  Moines  Valley  R.  Co.,  39  Iowa  246; 
Cleveland,  P.  &  A.  R.  Co.  v.  Curran,  19 
Ohio  St.  I.    Distinguished  IN  Kinney  V. 


CARRIAGE   OF   LIVE   STOCK,  129. 


797 


cliich  plaintiff 
one  with  the 

the  risics  of 
:ause,  whether 
its  agents,  or 

were  loaded, 
:o  accompany 
,  in  passing  by 

injured  by  a 
wn  therefrom, 
ct,  defendant 
Poucher  v. 
v.   263.— Dis- 

York  C.  R. 
)  IN  Blair  v. 

uries  tht  fact 
rover's  ticicet 
e  should  ride 
;  if  he  should 
)ng  the  train 
I  risk  of  per- 
;he  company 
hat  the  train 
\  station  and 
eturning  be- 
hile  attempt- 
in  movement 
Shore  &»  M. 
Hrmed  in  137 

er  transport- 
ail  road  com- 
t,  received  a 
liarge  of  his 
"The  person 
nes  all  risks 
!es  that  the 
der  any  c'lr- 
giigence  of 
njuryto  the 
to  the  per- 
using  this 
was  not  a 
er,  and  that 
e  for  negli- 
Henderson, 
3  Wells  V. 
I ;  Perkins 
197;  Smith 
22;  Bissell 
12.     QUOT- 
Derby,  14 
IN  Rose  V. 
Iowa  246; 
Curran,  19 
Kinney  v. 


Central  R.  Co.,  34  N.  J.  L.  513  ;  affirming  32 
N.  J.  L.  407.  Not  followed  in  Griswold 
V.  New  York  &  N.  E.  R.  Co.,  26  Am.  &  Eng. 
R.  Cas.  280,  53  Conn.  371,  55  Am.  Rep.  1 11;. 

129.  Bight  to  recover  for  personal 
injuries,  generally. *—(i)  When  may  re- 
cmer. — A  shipper  of  cattle  who  travels  as 
a  passenger  on  the  freight  train  with  tiie 
cattle  may  recover  from  the  carrier  for  per- 
sonal .iijuries  caused  by  its  negligence ;  and 
the  fact  that  the  accident  was  due  to  a  delay 
which  was  at  his  request  to  enable  him  to 
get  his  stock  loaded  will  not  prevent  such 
recovery.  Flinn  v.  Philadelphia,  IV.  &*  B. 
R.  Co.,  I  Houst.  (Z?^/.) 469.— Not  followed 
IN  Griswold  v.  New  York  &  N.  E.  R.  Co.,  26 
Am.  &  Eng.  R.  Cas.  280,  53  Conn.  371.  55 
Am.  Rep.  115. 

Where  a  party  having  the  care  of  stock  in  a 
freight  -car,  requ  I  ring  his  aUention,attempted 
to  enter  the  car  with  the  sanction  of  the 
conductor,  and  under  his  assurance  that  it 
would  be  safe,  and  that  he  would  have 
ample  time  to  do  so  before  the  train  moved, 
and  was  injured  by  the  sudden  and  unex- 
pected movement  of  the  train  while  in  the 
act  of  entering  the  cas— held,  that  the  com- 
pany was  liable.  Olson  v.  St.  Paul  &*  D.  R. 
Co.,  47  Am.  «S-  Eng.  R.  Cas.  S73.  4S  Minn. 
536,  48  JV.  W.  Rep.  445. 

The  action  of  a  conductor  who,  on  a  dark 
night,  promised  to  transfer  a  shipper  of 
stock  from  his  freight  train  going  east  to  . 
one  going  west,  at  a  regular  station  which 
was  presumably  a  safe  place,  but  instead 
transferred  him  at  a  different  and  danger- 
ous place,  without  notifying  him  of  the 
change  or  warning  him  of  the  danger,  the 
shipper  being  injured  while  passing  hur- 
riedly from  one  train  to  the  other  by  falling 
into  a  deep  water-way,  constitutes  gross 
negligence,  and  the  railroad  company  is 
liable  for  the  injury.  Griffith  v.  Missouri 
Pac.  R.  Co.,  98  Mo.  168, 1 1  5.  W.  Rep.  559.— 
Following  McGee  v.  Missouri  Pac.  R.  Co., 
92  Mo.  208. 

A  shipper  of  hogs  entered  into  a  contract 

*  Liability  of  company  for  injuries  to  drovers 
riding  on  trains  with  stock,  see  note,  48  Am. 
Rep.  15. 

Liability  of  company  for  injuries  to  persons 
riding  on  complimentary  passes  to  stock-drov- 
ers, express  agents,  newsboys,  and  the  like,  see 
note,  2i  L.  R.  A.  794. 

Liability  of  company  for  injury  to  stock- 
shipper  injured  by  falling  into  water-way  while 
passing  from  one  train  to  another  in  the  dark, 
see  39  Am.  &  Eng.  R.  Cas.  479,  absir. 


reciting  that,  in  consideration  of  reduced 
rates  he  should  accompany  the  animals  and 
take  charge  of  them,  but  should  do  so  at 
his  own  risk  of  personal  injury  from  what- 
ever cause.  One  sum  was  paid,  which 
seemed  to  be  intended  as  compensation 
both  for  Ills  transportation  and  for  that  of  the 
hogs.  While  en  route  the  owner  was  killed 
by  reason  of  using  an  unsafe  car.  Held, 
that  the  company  was  liable  in  damages. 
Smith  V.  New  York  C.  R.  Co.,  24  A'.  V. 
222;  affirming  29  Barb.  132. — APPLYING 
Wells  V.  Steam  Nav.  Co.,  8  N.  Y.  375.  Re- 
viewing Sager  v.  Portsmouth  R.  Co.,  31 
Me.  228;  New  Jersey  Sieam  Nav.  Co.  v. 
Merchants'  Bank,  6  How.  (U.  S.)  383. — Ap- 
proved in  New  York  C.  R.  Co.  w.  Lock  wood, 
17  Wall.  (U.  S.)  357.  Disapproved  in  Penn- 
sylvania R.  Co.  V.  Henderson,  51  Pa.  St. 
315.  Followed  in  Stinson  v.  New  York 
C.  R.  Co.,  32  N.  Y.  333.  Reviewed  in 
Blair  v.  Erie  R.  Co.,  66  N.  Y.  313. 

(2)  Who  may  not  recover. — Where  there 
is  no  evidence  to  show  a  defect  in  the 
construction  or  condition  of  a  sliding- 
door  in  a  stock-car,  the  company  is  not 
liable  for  an  injury  to  a  shipper  of  stock 
who  has  a  right  to  open  the  door,  in  ac- 
companying and  caring  for  the  stock,  but 
who  is  injured  by  its  becoming  detached 
and  falling  on  him.  Kleimenhagen  v.  Chi- 
cago, M.  <S-  St.  P.  R.  Co.,  26  Am\  6-  Em;.  R. 
Cas.  179,  65  Wis.  66,  26  N.  W.  Rep.  264. 

Plaintiff,  who  was  in  charge  of  stock  on  a 
freight  train,  was  told  by  the  conductor  that 
the  caboose  would  not  be  changed  at  the 
next  station,  and  that  as  the  train  would 
only  stop  five  minutes  he  would  not  have 
time  to  look  over  his  stock.  Plaintiff  knew 
that  the  conductor  was  running  the  train 
under  orders  from  his  superior  officers, 
which  orders  were  liable  to  be  changed  at 
any  time.  On  arriving  at  the  next  station 
plaintiff  left  the  train  to  examine  his  stock. 
When  the  train  began  to  move  back,  plain- 
tiff, being  seven  cars  from  the  rear,  and  be- 
lieving the  train  was  moving  too  rapidly  to 
allow  him  to  board  the  caboose,  climbed  on 
the  stock-car  and  started  to  walk  back  to 
the  caboose,  and  when  just  in  the  act  of 
stepping  thereon  the  caboose  was  kicked 
off  from  the  train,  and  plaintiff  was  thrown 
to  the  ground  and  received  the  injuries 
complained  of.  Held,  that  tht  •■nilroad 
company  was  not  liable,  for  the  reason  that 
the  acts  of  the  plaintiff,  in  failing  to  return 
to  the  caboose  at  the  end  of  the  five  minutes 


1 


798 


CARRIAGE   OF   LIVE   STOCK,  130,  131. 


which  he  was  told  the  train  would  remain, 
in  climbing  up  on  the  cars  and  walking  back 
on  their  tops  to  the  rear  of  the  last  stock- 
car,  so  tiiat  he  arrived  there  at  the  very 
instant  when  the  caboose  was  to  be  changed, 
were  independent  intervening  causes  that 
prevented  the  natural  and  probable  conse- 
quences of  the  conductor's  assurances  and 
of  the  movement  of  the  train,  and  brought 
about  an  unnatural  and  improbable  result 
that  no  human  foresigiit  could  have  antici- 
pated. Chicago,  St.  P.,  M.  &>  O.  R.  Co.  v. 
Elliott,  58  Am.  <S-  Eng.  R.  Cas.  161.  55  Fed. 
Rep.  949.— Distinguishing  New  York,  L. 
E.  &  W.  R.  Co.  V.  Winter,  143  U.  S.  60,  52 
Am.  &  Eng.  R.  Cas.  328 ;  Pitcher  v.  Lake 
Shore  &  M.  S.  R.  Co.,  16  N.  Y.  Supp.  62 ; 
Olson  V.  St.  Paul  &  D.  R.  Co.,  47  Am.  & 
Eng.  R.  Cas.  573,  45  Minn.  536.  Quoting 
Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94 
U.  S.  469  ;  Hoag  v.  Lake  Shore  &  M.  S.  R. 
Co.,  85  Pa.  St.  293. 

130.  Recovery  for  personal  iiijiiry 
not  prevented  by  provisions  ex- 
empting: liability  for  injuries  to 
stock.— One  employed  by  a  shipper  of*live 
stock  to  accompany  them,  is  not  prevented 
from  recovering  from  the  carrier  for  injuries 
received  while  in  charge  of  the  stock,  by  a 
provision  in  the  contract  for  the  shipment 
of  the  stock,  exempting  the  company  from 
liability,  except  such  as  might  result  from 
fraud  cr  wilful  misconduct,  or  by  being 
designated  in  the  contract  and  in  a  way  bill 
as  travelling  free.  Porter  v.  New  York,  L. 
E.  <S-  W.  R.  Co.,  II  N.  Y.  Supp.  491. 

Live  stock  were  shipped  with  a  provision 
in  the  bill  of  lading  that  the  owner  was  "  to 
load,  tranship,  and  unload  said  stock  at  his 
own  risk."  HelH,  that  this  only  referred  to 
risks  which  the  property  might  be  exposed 
to,  and  did  not  include  personal  injuries 
which  the  owner  might  sustain  by  the  neg- 
ligent running  of  cars  upon  him  while  he 
was  carefully  performing  the  labor  he  was 
authorized  to  do.  Stinson  v.  New  York  C. 
R.  Co.,  32  A^.  Y.  333.— Following  Bissell  v. 
New  York  C.  R.  Co.,  25  N.  Y.  442;  Smith 
V.  New  York  C.  R.  Co.,  24  N.  Y.  222.— Dis- 
tinguished in  Poucher  v.  New  York  C. 
R.  Co.,  49  N.  Y.  263 ;  Murphy  v.  New  York, 
L  E.  &  W.  R.  Co.,  42  N.  Y.  S.  R.  580. 

131.  Contributory  negligence, 
when  defeats  recovery.*— (1)  Generally. 

*  Contributory  negligence  of  person  in  charge 
of  live  stock,  see  note,  47  Am.  &  Eng.  R.  Cas. 
597- 


— Where  plaintiff,  having  cattle  upon  defend- 
ant's train,  was  entitled  to  ride  in  the 
caboose,  but,  being  some  distance  in  front 
of  the  caboose  when  the  train  started, 
and  when  it  had  attained  such  a  rate  of 
speed  that  he  thought  he  would  not  be  able 
to  mount  the  caboose  when  ii  came  iilong, 
he  attempted,  in  the  night  time,  with  his 
right  hand  incumbered  with  a  lantern  and 
a  prod-pole,  to  climb  upon  one  of  the  freight 
cars  of  the  train — /leltl,  that  lie  was,  as  a 
matter  of  law,  guilty  of  contributory  negli- 
gence ;  and  that,  these  facts  appearing  from 
plaintiff's  own  testimony,  the  court  siiould, 
on  defendant's  motion,  have  directed  a 
verdict  in  its  favor.  McCorkle  v.  Chicago, 
R.  I.  &-  P.  R.  Co.,  18  Am.  &^  Eng.  R.  Cas. 
156,  61  Iowa  555,  16  A';  IV.  Rep.  714.— 
Quoted  in  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Lindley,  41  Am.  &  Eng.  R.  Cas.  72,  42  Kan. 
714,6  L.  R.  A.  646,  22  Pac.  Rep.  703. 

Plaintiff,  with  a  drover's  pass  from  Char- 
lotte to  Richmond,  was  told  by  the  conduc- 
tor before  reaching  Danville  that  there  the 
caboose  would  be  detaciied  and  that  he  would 
have  to  walk  or  ride  atop  of  a  stock-car 
over  a  bridge.  Reaching  Danville  about 
9.30  P.M.,  the  train  stopped  some  moments, 
during  which  plaintiff  agreed  with  a  brake- 
man  to  stay  and  guard  wood  on  the  caboose 
platform,  the  latter  to  notify  him  when  to  get 
atop  of  the  stock-car.  Plaintiff  didso.  Shortly 
afterward  trains  moved  up  slowly.  When  he 
was  about  to  get  atop  from  the  platform  of 
the  caboose,  it  was  cut  loose,  and  some  one 
said,  "Jump  down."  This  plaintiff  did, and 
overtook  the  rear  of  the  train  fifteen  or 
twenty  feet  from  the  caboose.  Reaching 
the  car,  he  attempted  to  ascend  a  ladder  to 
the  top,  the  train  being  then  in  motion. 
Climbing  up,  just  as  he  threw  his  valise 
over  the  hand-hold  on  the  top  of  the  car, 
he  fell  some  twenty  feet  to  the  ground  and 
was  injured,  //elil,  that  plaintiff  was  not 
entitled  to  recover,  his  contributory  negli- 
gence operating  as  the  proximate  cause  of 
the  injuries  complained  of,  without  which 
they  could  not  have  happened.  Richmond 
<?•*  D.  R.  Co.  V.  Pickleseimer,  85  Va.  798, 
10  5".  E.  Rep.  44.— Following  Richmond 
&  D.  R.  Co.  V.  Morris.  31  Gratt.  200. 
Quoting  Pennsylvania  R.  Co.  v.  Aspell, 
23  Pa.  St.  147 ;  Dunn  v.  Seaboard  &  R.  R. 
Co.,  78  Va.  645 ;  Richmond  &  D.  R.  Co.  v. 
Anderson,  31  Gratt.  812. 

Plaintiff,  riding  in  a  caboose  in  charge  of 
stock,  asked  the  conductor  if  the  caboose 


CARRIAGE   OF   LIVE   STOCK,  131. 


roo 


e  upon  defend- 
ride   in   the 
tance  in  front 
train    started, 
ich  a  rate  of 
Id  not  be  able 
came  along, 
'"le,  with    his 
a  hintern  and 
!  of  the  freight 
lie  was,  as  a 
ibutory  negli- 
apearing  from 
court  should, 
e    directed    a 
f<^  V.  Chicago, 
Eng.  R.  Cas. 
Rep.    714.-- 
F.  R.  Co.  V. 
s.  72,  42  Kan. 
ep.  703. 
>s  from  Char- 
^  the  conduc- 
lat  there  the 
that  he  would 
f  a  stock-car 
inville  about 
ne  moments, 
vith  a  brake- 
1  the  caboose 
n  when  to  get 
idso.  Shortly 
ly.    When  he 
!  platform  of 
id  some  one 
ntifldid.and 
n   fifteen  or 
Reaching 
I  "  ladder  to 
in  motion. 
^  his   valise 
F>  of  the  car, 
ground  and 
tiff  was  not 
utory  negli- 
<te  cause  of 
hout  which 
Richmond 
!5    Va.  798. 
Richmond 
'ratt.    200. 
v.  Aspell, 
■d  4  R.  R. 
■  R.  Co.  V. 

I  charge  of 
le  caboose 


would  be  changed  at  a  certain  station,  and 
was  told  no,  and  was  advised  not  to  leave  the 
car,  as  there  would  not  be  time  to  examine 
the  stock;  but  he  did  get  ofl,  examined 
several  car-loads  of  stock,  and,  turning  back, 
the  train  having  started,  he  climbed  upon  a 
stock-car  and  attempted  to  walk  back  to 
the  caboose.  Just  as  he  reached  the  caboose 
and  was  trying  to  step  upon  it,  the  caboose 
was  kicked  oiT  and  plaintiff  fell  and  was 
injured.  Held,  that  the  conductor's  assur- 
ance to  plaintiiT  that  the  caboose  would  not 
be  changed  was  not  the  proximate  cause  of 
the  injury,  and  that  evidence  of  it  was  errone- 
ously permitted  to  go  to  the  jury.  Chicago, 
St.  P.,  M.  &*  O.  R.  Co.  V.  Elliott,  55  Fed. 
Rep.  949. 

(2)  Dangerous  place  or  position. — Where 
one,  having  cattle  on  the  train,  has  time  to 
get  aboard  the  caboose  but  fails  to  do  so, 
and  boards  a  freight  car  and  rides  therein, 
by  reason  of  which  fact  he  is  injured,  he  is 
guilty  of  such  contributory  negligence  as 
will  defeat  his  recovery  for  such  injury,  not- 
withstanding the  railway  employes  may 
have  been  negligent  in  not  bringing  the 
caboose  within  a  reasonable  distance  of 
the  depot.  Player  v.  Burlington,  C.  R.  &* 
N.  R.  Co.,  12  Am.  &*  Eng.  R.  Cas.  112,  62 
Iowa  723.  16  A';  IV,  Rep.  347.  —  Distin- 
guished IN  Conners  v.  Burlington,  C.  R.  & 
N.  R.  Co.,  71  Iowa  490,  32  N.  W.  Rep.  465  ; 
Meloy  V.  Chicago  &  N.  W,  R.  Co.,  38  Am. 
&  Eng.  R.  Cas.  130,  77  Iowa  743,  42  N.  W. 
Rep.  563. 

At  an  intermediate  station  a  train,  carry- 
ing plaintiff's  cattle,  and  him  in  charge 
thereof,  stopped  to  take  on  additional  cars, 
and  plaintiff,  w'thout  any  information  or 
notice  to  the  company's  agents,  went  in  a 
caboose  at  the  rear  of  the  cars  which  were 
to  be  added,  and  was  standing  up,  when  he 
was  injured  by  a  shock  caused  by  the  cars 
striking  in  making  up  the  train.  Neld,  that 
there  was  no  negligence  on  the  part  of  the 
company,  but  there  was  contributory  negli- 
gence on  the  part  of  plaintiff,  and  he  could 
not  recover  for  the  injuries.  Hutchinson  v. 
Canadian  Pac.  R.  Co.,  17  Ont.  347. 

(3)  Riding  on  top  of  car. — If  one  travel- 
ling on  a  drover's  pass  be  regarded  as  a 
passenger  for  hire,  still  he  cannot  recover 
for  injuries  received  through  the  company's 
negligence  while  riding  on  top  of  a  cattle- 
car,  without  the  knowledge  of  the  persons 
in  control  of  the  train,  though  an  inferior 
agent  of  the  company  had  told  him,  but 


without  authority,  that  he  might  ride  there. 
Little  Rock  6-  Ft.  S.  R.  Co.  v.  Milss,  13  Am. 
&*  Eng.  R,  Cas.  10,  40  Arh.  298,  48  Am. 
Rep.  10. 

A  shipper  of  live  stock,  who  is  riding  on 
a  freight  train  to  care  for  his  stock,  assumes 
the  risk  of  danger  in  going  upon  the  lop  of 
the  car  at  the  suggestion  of  the  conductor, 
to  help  signal,  and  he  cannot  recover  for  in- 
juries received  while  there  by  a  sudden  jerk 
of  the  train,  he  not  being  engaged  in  looking 
after  his  stock  when  on  top  of  the  car. 
Atchison,  T.  &*  S.  F.  R.  Co.  v.  Lindley,  41 
Am.  &•  Eng.  R.  Cas.  72,  42  Kan.  714,  6  L.  R. 
A.  646,  22  Pac.  Rep.  703. 

Where  a  shipper  of  stock  was  on  a  freight 
train  accompanying  two  loads  of  his  stock, 
which  were  being  transported  to  market, 
and  the  train  had  attached  to  it  a  caboose 
for  the  shippers  on  the  train  to  ride  in,  and, 
while  the  train  was  stopping  at  a  station, 
the  conductor  addressed  the  shipper  as  fol- 
lows: "You  get  on  top  and  help  signal 
until  the  last  load  of  hogs  comes  up,  and  we 
will  water  them,"  and  the  shipper  volunta- 
rily obeyed  the  order  or  direction,  and  got 
upon  the  train  moving  backward,  and  while 
on  the  top  of  the  train,  near  to  the  end  of 
a  car,  watching  a  brakeman  trying  to  make 
a  coupling,  was  severely  injured  by  a  sudden 
forward  motion  or  jerk  of  the  train,  without 
any  signal  thereof — held,  that  as  the  ship- 
per voluntarily  placed  himself  in  a  position 
of  known  danger,  and  as  he  was  not  upon 
the  top  of  the  train  to  look  after  or  care  for 
his  stock,  the  railroad  company  was  not  liable 
in  damages  for  his  injuries.  Atchison,  T.&'S. 
F.  R.  Co.  V.  Lindley,  41  Am.  &^  Eng.  R.  Cas. 
72,  42  Kan.  714,  6  L.  R.  A.  646,  22  Pac.  Rep. 
703. — Distinguishing  Indianapolis  &  St. 
L.  R.  Co.  V.  Horst,  93  U.  S.  291.  Quoting 
McCorkle  v.  Chicago.  R.  I.  &  P.  R.  So.,  18 
Am.  &  Eng.  R.  Cas.  156,  6i  Iowa  555,  16  N. 
W.  Rep.  714;  Pennsylvania  R.  Co.  v.  Lang- 
don,  92  Pa.  St.  2! ;  Lehigh  Valley  R.  Co.  v. 
Greiner,  113  Pa.  St.  600;  Little  Rock  &  Ft. 
S.  R.  Co.  V.  Miles,  13  Am.  &  Eng.  R.  Cas. 
10 ;  40  Ark.  298 ;  Flower  v.  Pennsylvania  R. 
Co.,  69  Pa.  St.  210;  Atchison,  T.  &  S.  F.  R. 
Co.  V.  Plunkett,  25  Kan.  188  ;  Baltimore  &  P. 
R.  Co.  V.  Jones,  95  U.  S.  439 ;  Georgia  Pac. 
R.  Co.  V.  Propst,  83  Ala.  518;  Georgia  Pac. 
R.  Co.  V.  Propst,  85  Ala.  203. 

A  passenger  on  a  freight  train  in  charge 
of  live  stock,  who,  in  violation  of  a  rule  of 
the  company,  is  riding  on  a  projection  or 
cupola  several  feet  above  the  roof  of  the 


800 


CARRIAGE   OF   LIVE   STOCK,  132. 


ae ; 


.  S      J 


ul 


caboose,  where  there  are  no  guards  of  any 
sort,  and  is  thrown  therefrom  by  a  jar  caused 
by  the  coupling  of  a  switch-engine  to  the 
train,  cannot  recover  upon  mere  proof  that 
the  injury  was  caused  by  such  jar.  Tu/ey  v. 
Chicago,  B.  Sf  Q.  R.  Co.,  41  Mo.  App.  \yi. 

1U2.  Coutributury  u«Kliy;<!"«et 
when  does  not  defeut  recovery.*— 
(i)  Generally.— ^^^t^  one  in  charge  of  live 
stock  is  killed  by  a  collision  near  stock-yards, 
wlicre  there  are  numerous  tracks  and  many 
trains  moving,  while  riding  on  the  tender  by 
direction  of  the  train  employes,  the  company 
is  liable.  Union  R.  &*  T.  Co.  v.  Shacklett, 
\g  III.  App.  145.— Distinguished  in  Oliio 
&  M.  R.  Co.  V.  Allender,  47  111.  App.  484. 

A  person  travelling  on  a  train  which  has 
with  it  a  stock-car  carrying  horses  for  him, 
his  duty  under  his  contract  being  "  to  feed, 
water,  and  take  care  of  the  horses,"  is  not 
guilty  of  contributory  negligence  because 
he  was  on  said  car  when  he  was  injured,  if 
he  was  on  the  car,  while  it  stopped  at  a  sta- 
tion, in  the  performance  of  his  duty,  and 
had  not  finished  when  the  train  started  off, 
after  a  stoppage  of  fifteen  or  twenty  min- 
utes instead  of  forty-five — the  usual  time — 
and  if  it  is  not  shown  that  he  had  oppor- 
tunity, before  the  accident,  to  go  to  any 
other  car.  Florida  R.  <S-  A''.  Co.  v.  Webster, 
25  Fla.  394,  5  So.  Rep.  714. 

If  a  company  agrees  to  furnish  a  shipper 
of  live  stock  passage  from  its  road  to  stock- 
yards, not  far  distant,  he  will  be  under  no 
obligation  at  his  own  expense  to  pursue  a 
different  route  and  mode  of  travel  from 
that  provided  by  the  company ;  and  if  the 
company  furnishes  a  dangerous  mode,  and 
its  servants,  in  the  apparent  line  of  their  au- 
thority, direct  the  shipper  to  take  passage 
on  an  engine  attached  to  the  car  of  stock, 
the  company  cannot  escape  liability  for  an 
injury  to  him  through  the  negligence  of  its 
servants,  by  showing  that  he  might  have 
procured  passage  by  some  other  line  of 
travel.  Lake  Shore  <S-  M.  S.  R.  Co.  v. 
Brawn,  31  Am.  &•  Eng.  R.  Cas.  61,  123  ///. 
162,  14  A'^.  E.  Rep.  197. 

The  failure  of  the  shipper  to  see  a 
water-way  between  the  tracks,  to  which  his 
attention  had  not  been  called,  and  where  he 
had  a  right  to  presume  that  he  was  safe  while 
attempting  to  reach  a  west-bound  train, 
which  had  begun  to  move,  did  not  consti- 
tute contributory  negligence  on   his  part. 

*  See  also /0x/,  143. 


Griffith  V.  Missouri  Fac.  R.  Co.,  98  Mo.  168, 
II  S.  W.  Rep.  559. 

Plaintitf,  who  was  riding  on  a  drover's 
ticket,  was  informed  by  the  conductor  that 
he  must  leave  the  caboose  at  a  certain  sta- 
tion, and  thereafter  ride  with  his  stock. 
Held,  that  he  had  a  right  to  assume  that  it 
would  be  safe  for  hun  to  board  the  stock- 
car  at  any  time  within  the  time  named  by 
the  conductor.  Pitcher  v.  Lake  Shore  &* 
M.  S.  R.  Co.,  40  A^.  Y.  S.  R.  896,  61  Hun 
623,  16  A^.  Y.  Supp.  62;  affirmed  in  137 
A'.  Y.  568,  mem.,  50  A^.  Y.  S.  R.  943. 

A  provision  in  a  contract  for  the  trans- 
portation of  live  stock  allowing  the  owner 
to  accompany  them,  but  requiring  him  to 
remain  in  the  cars  which  contain  the  stock, 
is  not  violated  by  his  being  in  another  part  of 
the  train  when  it  is  not  in  motion,  so  as  to 
make  him  guilty  of  contributory  negligence 
where  he  is  injured  by  the  train  being  run 
into  by  another.  Pennsylvania  R.  Co.  v. 
McCloskey,  23  Pa.  St.  526.— DISTINGUISHED 
IN  Lackawanna  &  B.  R.  Co.  v.  Chenewith, 
52  Pa.  St.  382. 

(2)  Riding  on  top  of  car. — Where  the  evi- 
dence shows  that  a  person  in  charge  of 
cattle  attempted  to  enter  the  caboose  from 
the  top  at  the  place  fixed  for  employes  to 
enter,  and  there  was  no  evidence  tending  to 
show  that  it  was  obviously  dangerous  so  to 
enter,  nor  that  plaintiff  was  negligent  in  the 
manner  of  his  attempt  to  enter,  a  verdict  in 
his  favor  is  sufficiently  supported  by  the 
evidence.  Missouri  Pac.  R.  Co.  v.  Calla- 
han, {Tex)  41  Am.  &-  Eng.  R.  Cas.  85,  12 
S.  W.  Rep.  833. 

Where  plaintiff's  husband,  a  stockman, 
was  thrown  from  the  top  of  a  stock-train 
through  the  negligence  of  the  defendant's 
servants,  and  killed,  evidence  of  a  usage  of 
the  company  requiring  its  stock-passen- 
gers to  ride  on  the  top  of  the  train  along  the 
place  of  the  accident  is  admissible,  in  order 
to  overcome  any  inference  of  the  contribu- 
tory negligence  of  the  deceased.  Tibby  v. 
Missouri  Pac.  R.  Co.,  82  Mo.  292. 

While  a  train  was  lying  at  a  station,  plain- 
tiff, who  was  travelling  in  charge  of  stock, 
got  off  and  went  forward  to  examine  the 
stock,  and  while  so  off  the  train  started,  and 
plaintiff,  believing  that  the  speed  of  the 
train  would  be  too  great  to  allow  him  to  get 
on  the  caboose  if  he  walked  to  the  rear  of 
the  train,  climbed  up  a  car  where  he  stood, 
and  undertook  to  pass  to  the  rear  on  top 
of  the  cars,  which  seemed  to  be  customary 


'o.,  98  Mo.  168, 

m  a  drover's 
onductor  that 

a  certain  sta- 
th  his  stocit. 
ssume  tliat  it 
ird  the  stock- 
ne  named  by 
aAe  Shore  &* 

896,  61  Hun 
^rmed  in  137 
?■  943. 

or  the  trans- 
ig  the  owner 
iring  iiim  to 
lin  the  stock, 
lother  part  of 
tion,  so  as  to 
ry  neghgence 
in  being  run 
'a  li.  Co.  V. 
iTINGUISHED 
.  Chenewith, 

lere  the  evi- 
n  charge  of 
aboose  from 
employes  to 
e  tending  to 
gerous  so  to 
ligent  in  the 
a  verdict  in 
rted  by  the 
"<»•  V.  Calla- 
'.  Cas.  85,  12 

I  stockman, 
stock-train 
defendant's 
f  a  usage  of 
ock-passen- 
in  along  the 
)le.  in  order 
e  contribu- 
I.     Ttbby  V. 

ition,  plain- 
fe  of  stock, 
(amine  the 
itarted,  and 
:ed  of  the 

him  to  get 
the  rear  of 

he  stood, 
:ar  on  top 
customary 


CARRIAGli    OK    LIVK    STOCK,   1.'{:M34. 


801 


for  cattle-men  to  do,  but  while  so  passing 
back  came  in  contact  witli  an  overhead 
bridge  and  was  injured,  ffeld,  that  his  con- 
duct was  not  contributory  negligence /^rj<r. 
Chicago,  M.  &»  St.  P.  X.  Co.  v.  Carpenter, 
56  Fed.  Rep.  451. 

133.  When  questions  of  negligence 
nnd  contributory  negligence  are  for 
the  jury. — In  a  case  where  the  pleadings 
I)ut  the  question  of  contributory  negligence 
in  issue,  the  evidence  on  the  trial  showed 
that  the  decedent,  a  stock-drover,  was 
riding,  in  company  with  five  or  six  others, 
upon  an  engine,  which  was  moving  slow- 
ly along  an  approach  to  a  stock-yard. 
Suddenly  another  engine  of  another  com- 
pany was  seen  to  approach  around  a  curve, 
whereupon  all  the  fellow-passengers  of  de- 
cedent jumped  off.  He,  however,  remained, 
and  was  killed  in  the  collision  which  ensued. 
An  action  having  been  brought  by  his  ad- 
ministratrix against  the  railroad  company 
running  the  engine  which  collided  with  that 
on  which  decedent  was  riding,  the  court 
charged  the  jury  that  if  defendant's  servants 
were  negligent,  and  decedent  was  rightfully 
riding  on  the  engine,  plaintiflf  could  recover. 
Held,  under  the  pleddings,  that  the  instruc- 
tion was  error,  as  it  disregarded  the  ques- 
tion of  the  contributory  negligence  of  dece- 
dent. WabaaH,  St.  L.  &*  P.  R.  Co.  v. 
Shacklet,  12  Am.  &*  Eng.  R.  Cas.  166,  105 

///.  364. 

Whether  a  passenger  on  a  freight  train  in 
charge  of  stock  shipped  by  him  is  guilty  of 
gross  negligence  in  getting  upon  the  foot- 
board of  a  transfer-engine  and  riding  there, 
by  the  direction  or  invitation  of  those  in 
charge  of  his  stock  and  of  such  engine,  is  a 
question  of  fact  for  the  jury,  to  be  found 
from  all  the  facts  and  circumstances  shown 
by  the  evidence.  Lake  Shore  &•  M.  S.  R. 
Co.  V.  Brown,  31  Am.  &*  Eng.  R.  Cas.  61, 
123  ///.  162,  14  JV.  E.Rep.  197.— Quoted  in 
Chicago  &  N.  W.  R.  Co.  v.  Trayes,  33  111. 
App.307. 

Plaintiff,  a  shipper  of  live  stock,  being  en- 
titled to  ride  on  the  freight  train  to  care  for 
his  stock,  was  told  by  the  conductor  that 
the  train  would  lie  at  a  certain  station  45 
minutes,  and  he  would  have  plenty  of  time 
to  get  supper.  Before  the  lapse  of  that 
time  he  returned,  found  that  his  train  had 
been  moved  to  other  tracks,  and,  seeing  the 
engine  attached,  supposed  it  was  about  to 
move,  and,  without  any  knowledge  that  the 
train  was  lying  near  the  cattle-chutes,  and  it 
I  D.  R.  D.-sr. 


being  too  dark  to  sec  them  when  in  the  act 
of  climbing  into  the  car,  the  train  was  started 
without  warning  or  signal,  and  he  was  in- 
jured by  coming  in  contact  with  the  cattle- 
chutes.  Held,  that  the  question  of  his  con- 
tributory negligence  was  for  the  jury. 
Pitcher  v.  Lake  Shore  6-  M.  S.  R.  Co  ,2^ 
N.  Y.  S.R.  647,  8  A'.  Y.  Supp.  389  ;  further 
appeal,  16  N.  Y.  Supp.  62  ;  affirmed  in  137 
N.  Y.  568,  50  N.  Y.  S.  R.  943,  33  A^.  E.  Rep. 

339- 

A  shipper  of  cattle  and  his  servant  were 
travelling  on  a  freight  train  to  look  after 
the  cattle,  as  required  by  the  company.  At 
night,  when  the  train  had  stopped  at  a  water- 
station,  they  learned  that  an  animal  was 
down,  and  were  told  by  the  conductor  that 
they  would  have  time  to  look  after  it  if  they 
would  hurry.  They  both  left  the  train,  and 
in  going  forward  to  where  the  stock  were, 
found  part  of  the  train  on  a  bridge,  and  had 
to  enter  the  train  at  a  place  where  there 
was  but  one  board  as  a  footway  outside  of 
the  track.  The  station  and  water-tank  were 
so  constructed  that  it  was  necessary  for  trains 
going  in  one  direction  to  be  partly  on  the 
bridge  when  stopping  for  water.  The  owner 
of  the  stock  fell  from  the  bridge  and  was 
killed.  Held,  that  a  peremptory  verdict  for 
the  company  was  properly  refused ;  and  that 
the  question  whether  the  bridge  was  such 
part  of  the  depot-grounds  as  the  shipper  was 
entitled  to  use,  and  as  made  it  the  duty  of 
the  company  to  provide  proper  planking  and 
guard-rails,  was  properly  submitted  to  the 
jury.  Illinois  C.  R.  Co.  v.  Foley,  53  Fed. 
Rep.  4S9.  'o  U.  S.  App.  537.  3  C.  C.  A.  589. 
— Quoting  Grand  Trunk  R.  Co.  v.  Ives, 
144  U.  S.  408,  12  Sup.  Ct.  Rep.  679;  Sioux 
City  &  P.  R.  Co.  V.  Stout,  17  Wall.  (U.  S.) 
657. 

Z.  FBOCEDUBE  IN  ACTIONS. 

134.  Jurisdiction.— The  courts  of  Ala- 
bama have  jurisdiction  of  an  action  against 
a  foreign  corporation  for  breach  of  a  con- 
tract made  with  the  defendant's  agents  in 
the  state  of  Alabama  for  the  transportation 
of  live  stock  from  a  point  within  the  state  to 
a  point  without,  where  the  defendant  com- 
pany operated  a  railroad  between  the  points 
of  shipment  and  destination.  Richmond  &* 
D.  R.  Co.  V.  Trousdale,  (Ala.)  55  Am.  &* 
Eng.  R.  Cas.  400,  13  So.  Rep.  23. 

A  railroad  company  chartered  in  New 
York,  and  carrying  live  stock  from  Massa- 
chusetts to  Missouri,  may  be  sued  in  the 


80i2 


CARRIAGE   OF    LIVE   STOCK,  135,  136. 


i 


m 


IK:! 


¥i 


latier  state  for  damage  to  the  stock  while  in 
transit  in  Ohio  ;  and  service  of  process  may 
be  made  on  the  company's  city  passenger 
agent  in  a  county  other  than  that  in  which 
the  suit  is  brought,  under  Mo.  Rev.  St.  §  3489, 
providing  that  where  ti.e  defendant  is  a  cor- 
poration, organized  underthe  laws  of  another 
state  or  county,  process  may  be  served  on 
any  one  having  charge  of  an  office  or  place 
of  business  of  the  corporation  in  the  state ; 
or  if  there  be  no  such  office  or  place  of  busi- 
ness, then  upon  any  officer,  agent,  or  em- 
ploye in  any  county  where  such  service  may 
be  obtained.  New  York,  L.  E.  <S-  W.  A'.  Co. 
V.Estill,  147  U.  S.  591,  13  Sup.  a.  Rep.  444. 
— Approving  McNichol  v.  United  States 
M.  R.  Agency,  74  Mo-  457- 

A  shipper  of  cattle  sued  a  railroad  com- 
pany for  $960  loss  to  his  cattle  while  en 
route,  and  $15  for  an  over-freight  charge. 
It  was  adjudged  that  he  was  not  entitled  to 
recover  as  to  the  $960,  by  reuson  of  not  hav- 
ing given  written  notice  to  the  company,  as 
required  in  the  bill  of  lading;  but  it  ap- 
peared that  he  had  prosecuted  his  suit  in 
good  faith.  Held,  that  though  the  item  of 
$15  would  not  give  the  county  court  juris- 
diction, yet  he  was  entitled  to  recover  on 
appeal  a  judgment  for  that  amount.  Texas 
6-  P.  R.  Co.  V.  Jackson,  3  Tex.  App.  {Civ. 
Cas.)  65. 

135.  The  right  of  action.— Where 
there  is  a  special  contract  varying  the  lia- 
bility of  the  carrier,  the  action  is  properly 
brought  on  the  special  contract  and  not  on 
the  general  liability.  Boaz  v.  Central R,  Co., 
87  Ga.  463.  13  S.  E.  Rep.  711.— RECONCILED 
IN  Nicoll  V.  East  Tenn.,  V.  &  G.  R.  Co.,  89 
Ga.  260. 

Where  stock  are  shipped  under  a  special 
contract  and  damage  is  sustained,  an  action 
may  be  brought  on  the  special  contract ;  yet 
independent  of  the  contract  the  shipper  may 
have  his  action  on  the  case  for  damages 
for  negligence  of  the  carrier  in  the  non-per- 
formance of  a  duty  as  such  carrier.  Coles  v. 
Louisville,  E.  &-  St.  L.  R.  Co.,  41  ///.  App. 

The  owner  of  a  horse  received  him  from 
the  carrier  without  knowledge  at  the  time 
that  the  horse  was  injured,  and  kept  him  in 
his  possession  until  be  died  from  the  in- 
juries. Held,  that  notice  to  the  carrier  of 
the  injuries,  or  an  offer  to  return  him,  was 
not  necessary  in  order  to  recover  from  the 
carrier.    Evans  v.  Dunbar,  117  Mass,  546. 

The  fact  that  a  common  carrier  has  en- 


tered into  a  contract  for  the  transportation 
of  stock  does  not  prevent  an  action  in  tort 
for  a  failure  to  safely  carry  and  deliver,  as  in 
such  case  the  action  is  not  based  upon  the 
contract.  Clark  v.  St.  Louis,  K.  C.  &*  N.  R. 
Co.,  64  Mo.  440,  17  Am.  Ry.  Rip.  284.— Re- 
viewed IN  Heil  V.  St.  Louis,  I.  M.  &  S.  R. 
Co.,  16  Mo.  App.  363. 

Upon  cattle  being  tendered  to  a  railroad 
company  for  shipment,  it  offered,  for  a  cer- 
tain amount,  to  become  a  common  carrier, 
or  for  a  less  sum  to  furnish  cars  and  motive- 
power,  and  allow  the  owner  to  become  his 
own  carrier.  The  owner  of  the  stock  elect- 
ed to  ship  under  the  lower  rate,  assuming 
the  risks  of  transportation.  Held,  that  the 
company  could  not  be  bound  as  a  common 
carrier,  and  that  the  owner  could  not  recov- 
er for  injuries  to  the  stock.  Kimball  v.  Rut- 
land &•  B.  R.  Co.,  26  Vt.  247. 

Where  a  carrier  realizes  a  sum  of  money 
by  the  sale  of  the  carcasses  of  animals  dying 
in  transit,  it  is  liable  for  the  same  in  an  ac- 
tion for  money  had  and  received.  Hayes  v. 
South  Wales  R.  Co.,  L.  R.  9  Ir.  474. 

136.  Who  muy  sue  —  Parties.  — 
Where  stock  belonging  to  different  persons 
were  shipped  under  one  contract,  a  joint 
action  might  be  maintained  by  the  shippers 
for  an  injury  to  the  stock,  but  where  each 
individual  brings  a  separate  action  they 
cannot  afterward  be  consolidated.  Raugh- 
tnan  v.  Louisville,  E.  &•  St.  L.  R.  Co.,  (Ky.) 
21  S.  W.  Rep.  757. 

When  the  owner  of  a  horse  bailed  him  to 
another  for  a  year,  the  bailee  to  have  the 
exclusive  management  and  control  of  him 
for  that  time,  and  he  was  injured  in  a  rail- 
road accident,  having  been  shipped  under  a 
contract  between  the  bailee  and  the  carrier, 
the  bailee  and  not  the  owner  must  sue  for 
the  injury.  Harvey  v.  Terre  Haute  &*  /.  R. 
Co.,  6  Am.  &*  Eng.  R.  Cas.  293,  74  Mo.  538. 

Plaintiff  shipped  his  cattle  in  a  car  with 
others  belonging  to  a  third  party,  and  in  an 
action  for  injuries  to  his  stock  declared  on 
a  contract  to  carry  made  with  him.  There 
was  a  dispute  between  him  and  tlie  com- 
pany as  to  whether  the  contract  was  with 
plaintiff  alone  or  with  him  and  the  third 
party.  Held,  that  if  it  was  made  with  the 
two  jointly  it  would  be  variant  from  the  one 
declared  on ;  but  that  if  it  was  made  with  him 
alone,  at  a  fixed  rate  for  the  car,  and  the 
ownership  of  the  cattle  was  several  as  be- 
tween the  two  shippers,  and  plaintiff's  cattle 
alone  were  injured,  the  right  of  action  would 


CARKIAGE    OF   LIVE   STOCK,  IJI7,  138. 


8u:i 


insportation 
ctioM  in  tort 
deliver,  as  in 
ed  upon  the 

C.  <^  A'.  A\ 
284.-RE- 

M.  &  S.  R. 

a  railroad 

d,  for  a  cer- 
non  carrier, 
and  motive- 
become  his 
stock  elect- 

e,  assuming 
M,  that  the 
a  common 

i  not  recov- 
nballv.Rut- 

1  of  money 
imals  dying 
le  in  an  ac- 

I.  Hayes  v. 

474- 
Parties.  — 

ent  persons 
ict,  a  joint 
he  shippers 
where  each 
iction  they 
d.  Raugh- 
i.  Co.,  (fCy.) 

tied  him  to 
>  have  the 
trol  of  him 
d  in  a  rail- 
ed under  a 
the  carrier, 
ust  sue  for 
*te  <S-  /.  R. 
\  Mo.  538. 
a  car  with 
and  in  an 
eclared  on 

II.  There 
the  corn- 
was  with 

the  third 
!  with  the 
m  the  one 
;  with  him 
'.  and  the 
ral  as  be- 
iflf's  cattle 
ion  would 


he  in  liim.    Jacksonville,  N.  W,  &*  S.  E.  R. 
Co.  v.  //all,  2  ///.  ////.  618. 

The  nonjoinder  of  the  other  company  as 
a  party  defendant  was  no  ground  for  a  non- 
suit, as  the  action  was  brought,  not  upon 
the  contract,  but  for  negligence,  for  which 
the  party  guilty  thereof  was  separately 
liable,  //olsapple  v.  Rome,  W.  &*  0.  R. 
Co.,  3  Am.  &*  ling.  R.  Cas.  487,  86  N.  V. 
275. 

1:17.  Declaration. — Under  a  declara- 
tion in  case  which  avers  that  the  defendant 
was  a  carrier  of  goods  and  chattels  for  hire, 
etc.,  and  alleges  as  a  cause  of  action  the 
violation  by  it  of  the  duty  of  such  carrier 
in  the  transportation  of  live  stock  for  the 
plaintiff,  proof  that  the  company  possesses 
the  character  of  carrier  of  live  stock  is 
essential.  Lake  Shore  &*  M.  S.  R.  Co.  v. 
Perkins,  25  Midi.  329,  5  Am.  Ry.  Rep.  249. 
—Disapproved  in  Bamberg  v.  South  Caro- 
lina R.  Co.,  9  So.  Car.  61.  Nor  followed 
IN  Maslin  v.  Baltimore  &  O.  R.  Co.,  14  W. 
Va.  180. 

Under  the  practice  as  prevailing  in  Mich- 
igan, where  a  railroad  company  is  sued  to 
recover  for  injuries  to  horses  resulting  from 
defects  in  the  cars  in  which  they  were 
placed,  the  wrong  or  negligence  may  prop- 
erly be  alleged  as  a  breach  of  the  duty  to 
carry  safely.  Great  Western  R.  Co.  v. 
//awkins,  18  Mich.  427.— DISTINGUISHED 
IN  Michigan  S.  &N.  I.  R.Co.  z/.  McDonough, 
21  Mich.  165. 

Where  it  appears  that  a  railroad  company 
only  furnished  cars  and  motive-power  for 
the  transportation  of  live  stock  under  a 
special  contract,  making  it  only  a  private 
carrier,  the  company  cannot  be  sued  as 
a  common  carrier,  but  must  be  declared ' 
against  as  a  private  carrier  for  a  breach  of 
duty  arising  out  of  the  special  contract. 
Kimball  v.  Rutland  (S-  B.  R.  Co.,  26  Vt.  247. 
— Quoting  Austin  v.  Manchester,  S.  &  L. 
R.  Co.,  5  Eng.  L.  &  Eq.  329.  Reviewing 
Newcastle  &  B.  R.  Co.  v.  Crisp,  23  L.  J.  C. 
P.  125. 

Plaintiff  sued  the  carrier  for  violation  of 
a  special  contract  to  furnish  cars  and  carry 
live  stock,  alleging  that  "  for  a  certain  rea- 
sonable hire  or  reward,  to  be  thereupon 
paid  by  the  plaintiff  to  the  defendant,"  the 
defendant  agreed  to  carry  said  stock.  A 
reasonable  construction  of  the  contract  was 
that  the  freight  was  to  be  paid  at  the  end 
of  the  carriage.  Held,  that  a  verdict  for 
plaintifl   should  not  be  arrested    because 


the  declaration  did  not  aver  a  readiness  to 
pay  the  charges  at  the  time  of  contracting 
for  the  cars.  Waterman  v.  Vermont  C.  R. 
Co.,  25  Vt.  707. 

Under  counts  against  a  defendant  merely 
as  carrier  or  bailee  of  cattle,  the  shipper 
cannot  recover  for  losses  resulting  from  the 
misrepresentation  of  the  defendant's  agent, 
whereby  the  plaintiff  was  induced  to  ship 
on  a  slow  instead  of  a  fast  train.  Maslin  v. 
Baltimore  Or'  O.  R.  Co.,  14  W.  Va.  180. 

138.  Complaint.— (I)  /«  /ndiana.— 
In  a  complaint  for  a  breach  of  contract  to 
furnish,  at  a  certain  time  and  place,  the 
necessary  cars,  and  to  transport  a  certain 
number  of  hogs,  it  is  not  necessary  to  allege 
that  the  defendant,  at  the  time  complained 
of,  had  the  ability  to  transport  or  to  furnish 
the  means  to  transport  said  hogs.  Pitts- 
burgh, C.  6-  St.  L.  R.  Co.  V.  Hays,  49  Ind. 
207. 

In  an  action  for  failing  to  furnish  cars  for 
the  transportation  of  plaintiff's  live  stock 
on  a  certain  day,  the  complaint  need  not 
allege  that  the  defendant  had  room  and 
means  of  transportation  when  it  was  de- 
manded, or  that  it  had  a  regular  train  which 
carried  live  stock  and  which  passed  the 
station  on  said  day  after  the  stock  were  ten- 
dered for  transportation.  The  burden  of 
proof  upon  these  matters  is  upon  the  de- 
fendant, as  they  are  peculiarly  within  the 
knowledge  of  the  carrier.  Pittsburgh,  C,  C. 
&»  St.  L.  R.  Co.  V.  Racer,  5  /nd.  App.  209, 
31  A^.  E.  Rep.  853.— Applying  Chicago  & 
A.  R.  Co.  V.  Thrapp,  5  111.  App.  502. 

Although  the  contract  for  carriage  of 
cattle  was  made  in  the  name  of  the  con- 
signee, the  complaint  in  an  action  by  the 
consignor  to  recover  damages  for  delay  in 
shipment,  which  alleges  that  the  consignor 
delivered  the  cattle  to  the  defendant  for 
transportation  to  the  consignee,  who  was  a 
commission  merchant,  and  was  to  sell  them 
for  the  plaintiff,  and  that  the  contract  in 
suit  was  signed,  not  by  the  consignee,  but 
by  the  consignor,  is  sufficient  to  show  that 
the  consignee  had  no  interest  in  the  prop- 
erty except  as  the  agent  of  the  consignor, 
and  sufficiently  states  a  cause  of  action. 
Cincinnati,  I.,  St.  L.  <S«»  C.  R.  Co.  v.  Case,  42 
Am.  &»  Eng.  R.  Cas.  537,  122  /nd.  310,  23 
N.  E.  Rip.  797- 

Although  the  contract  of  carriage  does 
not  specify  a  time  for  the  shipment  of  cattle, 
a  complaint  which  alleges  that  they  might 
have  been  shipped  by  the  company  when 


804 


CARRIAGE    OF   LIVE   STOCK,   138. 


m 


^Ul 


■,'\ 


delivered  to  it,  and  that  in  consequence  of 
a  delay  of  22  hours  in  shipping  them  the 
cattle  did  not  arrive  at  their  destination  un- 
til after  business  hours  on  Saturday  and  too 
late  for  the  market,  sufficiently  shows  that 
the  defendant  did  not  comply  with  its  obli- 
gation to  ship  the  cattle  within  a  reason- 
able time.  Cincinnali,  /.,  SI.  L,  &■•  C.  A'. 
Co.  V.  Case,  42  Am.  &*  Etig.  A'.  Cus,  537,  122 
//!</.  310,  23  N.  E.  Rep.  797. 

In  an  action  fo.  an  alleged  breach  of 
special  contract  for  the  shipment  of  cattle, 
where  it  appears  from  the  complaint  as  a 
whole  that  the  plaintiffs  were  the  cnvners  of 
the  stock,  and  no  consignee  is  named  in  the 
contracts,  it  will  be  presumed  that  the 
shipment  was  to  be  made  to  them.  Penn- 
sylvania Co.  V.  Clark,  2  Ind.  App,  146,  27 
'n.  E.  Rep.  586. 

(2)  In  Texas. — An  averment  in  a  com- 
plaint for  damage  to  sheep  is  net  sufficient 
where  it  merely  alleges  that  all  the  sheep  were 
of  great  value,  and  that  plaintiff's  damage 
was  $850,  without  anything  to  show  the 
value  of  those  which  were  lost  and  how 
much  the  others  not  lost  were  depreciated 
in  value.  These  were  material,  issuable 
matters  which  could  not  be  proved  unless 
alleged,  and  which  had  to  be  alleged  and 
proved  to  entitle  the  plaintiff  to  a  recovery. 
Gulf,  C.  &*  S.  F.  R.  Co.  V.  Wilhelm,  3  Tex. 
App.  {Civ.  Cas.)  558. 

A  complaint  seeking  to  recover  damages 
for  the  loss  of  and  injury  to  livestock  while 
being  carried  is  sufficient  which  states  gen- 
erally that,  by  reason  of  not  properly  feed- 
ing and  watering,  a  certain  number  of  a 
certain  value  died  ;  and  that  a  certain  other 
number  of  a  certain  value  became  sick  and 
were  damaged  a  certain  sum,  the  total  sum 
being  stated,  is  sufficient  without  alleging 
the  exact  place  on  the  road  where  the  com- 
pany failed  to  feed  and  water.  Gulf,  C.  &» 
S.  F.  R.  Co.  V.  Wilhelm,  4  Tex.  App.  (Civ. 
Cas.)  413,  16  S.  W.  Rep.  109. 

In  a  complaint  against  a  carrier  of  live 
stock  for  damages  caused  by  delay,  an  alle- 
gation that  the  delay  was  caused  by  the 
negligence  of  the  defendant  railway  com- 
pany is  sufficient  to  admit  proof  of  the  bad 
condition  of  the  track  at  the  place  where 
ilie  delay  occurred.  St.  Louis,  A.  &*  T.  R. 
Co.  V.  Turner,  i  Tex.  Civ.  App.  625,  20 
S.  W.  Rep.  1008. 

An  allegation  in  a  complaint  to  recover 
damages  for  live  stock  shipped,  that  500 
head  were  killed  worth  $16  each,  and  that 


620  others  were  injured  "  to  the  extent  of  $6 
or  $7  each,"  is  specific  enough,  and  is  suffi- 
cient; and  where  there  is  evidence  to  show 
the  number  of  killed  and  injured,  and  the 
average  value  of  each,  an  instruction  that, 
"if  the  proof  failed  to  show  the  number  of 
dead  and  injured  among  the  yearlings, 
2-ycar-olds,  and  bulls,  then  as  to  such  deatli 
and  injury  "  the  jury  should  find  for  the 
defendant  is  properly  refused.  Missouri 
Pac.  R.  Co.  V.  Edwards,  78  Tex.  307,  14 
S.  W.  Rep.  boi. 

Where  plaintiff  sues  to  recover  dama(,'es 
for  injuries  sustained  by  him  while  travel- 
ling in  charge  of  cattle,  and  the  complaint 
alleges  that,  having  left  the  caboose  for  the 
purpose  of  attending  to  his  cattle,  the  train 
started  without  notice  to  him  and  he  was 
compelled  to  get  upon  the  top  of  a  car ; 
that  he  sat  down  upon  the  car;  and  that 
upon  the  invitation  of  the  conductor  he 
started  towards  the  caboose,  and  in  at- 
tempting to  enter  the  caboose  from  the  top 
was  struck  by  a  water-pipe,  the  averments 
in  the  petition  as  to  the  reas(^n  why  he 
went  on  the  top  of  the  train  and  as  to  his 
entering  the  caboose  at  the  request  of 
the  conductor  are  not  open  to  exception. 
Missouri  Pac.  R.  Co.  v.  Callahan,  (Tex.)  41 
Am.  *-  Eng.  R.  Cas.  85,  12  .V.  IV.  Rep.  833. 

Where  plaintiff,  who  sues  to  recover  for 
injuries  to  live  stock  during  transporta- 
tion, wishes  to  avoid  a  defense  set  up  under 
a  provision  in  the  written. contract  of  ship- 
ment to  relieve  the  carrier  from  liability  for 
the  acts  complained  of,  on  the  gron  •'' 
such  contract  was  entered  into  wi  .1- 

sideration  on  plaintiff's  part,  sue  at  of 

consideration  must  be  set  up  by  idavit, 
as  required  by  Tex.  Rev.  St.  art.  1265.  i>ulf, 
C.  6-  S.  F.  R.  Co.  V.  Wright,  i  Tex.  Civ. 
App.  402,  21  5.  W.  Rep.  80.— Reviewing 
Gulf,  C.  &  S.  F.  R.  Co.  V.  McCarty,  82  Tex. 
608. 

(3)  In  Wisconsin.— In  an  action  to  re- 
cover damages  occasioned  by  the  defend- 
ant's failure  to  furnish  cars  for  the  shipment 
of  stock  at  the  time  agreed,  and  by  a  failure 
to  transport  such  stock  with  reasonable 
diligence,  the  complaint  should  show  what 
part  of  the  total  delay  was  occasioned  by 
the  failure  to  furnish  cars,  and  what  part 
occurred  «?«  route.  Richardson  v.  Chicago 
&»  N.W  R.  Co.,  16  Am.  &»  Eng.  R.  Cas. 
172,  58  Wis.  534.  17  A^.  W.  Rep.  399. 

But  where  the  complaint  shows  that  the 
delay  in  furnishing  cars  was  "about  four 


extent  of  |6 
and  is  sutii- 
icc  to  show 

(I,  and  I  he 
iction  that. 

lumber  of 

yearlings, 
such  (leaiii 
"<1  for  the 

Missouri 
«'-»■■  J07.  14 

r  (htmages 
liilc  travel- 
complaint 
ose  for  the 
e,  the  train 
ind  he  was 
of  a  car ; 
and  that 
ductor  he 
nd    in   at- 
)rn  the  top 
averments 
n  why  lie 
d  as  to  his 
request  of 
exception, 
{Tex.)  41 

'■  i^v/.  833- 

ecover  for 
ransporla- 
t  up  under 
:t  of  shi|)- 

ability  for 


..ii.  of 

..  (fidavit, 

65.     liulf. 

Tex.   Civ. 

SVIEWING 

^,  82  Tex. 

Jn  to  re- 
5  defend- 
shipment 
ra  failure 
:asonable 
low  what 
ioned  by 
fhat  part 
Chicago 
R.  Cas. 
9- 

that  the 
lout  four 


CARRIAGE   OF   I.IVH   STOCK,   i;»0-141. 


805 


days,"  and  that  the  total  delay  was  "about 
fourdays,"  the  complaint  is  sufficiently  defi- 
nite and  certain,  kic/iariison  v.  Chicago  &* 
N.  W.  H.  Co.,  16  Am.  &*  Eug.  li.  Cas.  172. 
58  Wis.  534,  17  N.  IV.  Rep.  399. 

Where  several  acts  of  negligence  are 
charged,  it  is  proper  that  the  defendant 
should  be  informed  what  damages  result 
from  each  act.  So  where  a  company  is 
sued  for  damages  to  live  stock,  and  dam- 
ages are  claimed  both  for  a  failure  to  furnish 
cars  and  for  the  negligent  manner  of  run- 
ning the  train,  the  complaint  should  set  out 
the  damages  resulting  from  each  of  said  acts. 
Ayrts  V.  Chicago  &*  N.  W.  R.  Co.,  16  Am. 
<S*  Eng.  R.  Cas.  171,  58  IVis.  537,  ly  N.  IV. 
Rep.  400. 

The  complaint  averred  that  the  defendant 
neglected  for  several  days  to  provide  cars 
at  its  station  to  transport  cattle,  and  that 
when  said  cars  were  furnished  it  neglected 
and  refused  to  transport  said  cattle  to  their 
destination  with  reasonable  diligence,  so 
that  they  arrived  four  days  later  tlian  they 
should  have  done.  HeU,  that  it  did  not 
appear  what  part  of  the  delay  was  qaused 
by  the  failure  to  furnish  cars,  and  what  part 
by  the  delays  en  route,  and  that  the  com- 
plaint should  be  amended  in  this  respect. 
Ayres  V.  Chicago  &»  N.  W.  R.  Co.,  16  Am. 
&*  Eng.  R.  Cas.  171,  58  tVis.  537,  17  A'^,  IV. 
Rep.  400. 

A  complaint,  setting  out  a  contract  for 
the  carris  ^'e  of  horses  and  payment  of  the 
freight  thereon,  and  alleging  that  the  de- 
fendant so  negligently  and  carelessly  car- 
ried said  horses  that  one  of  them  was  killed, 
states  a  caiiso  of  action  ex  delicto,  although 
the  amount  paid  for  freight  is  included  in 
the  sum  for  which  judgment  is  demanded. 
Ritleout  V.  Milwaukee,  L.  S.  6-  W.  R.  Co.,  81 
Wis.  2yi,i\  N.  W.  Rep.  439. 

130.  Petition.— In  an  action  for  loss 
of  hogs,  an  allegation  to  tlie  effect  that  de- 
fendant did  not  use  proper  care  in  their  car- 
riage, but  that  defendant,  its  officers,  and 
servants  improperly  and  carelessly  managed 
the  boat  upon  which  the  hogs  were  carried, 
by  reason  of  which  careless  management 
they  were  lost  by  fire,  states  a  sufficient 
cause  of  action.  Carlisle  v.  Keokuk  N.  L. 
Packet  Co.,  82  Mo.  40.— Distinguishing 
Waldhier  v.  Hannibal  &  St.  J.  R.  Co.,  71 
Mo.  514. 

Where  a  contract  of  shipment  contained  a 
stipulation  that  the  shipper  "agrees  as  a 
condition  precedent  to  his  right  to  recover 


any  damages  for  loss  or  injury  to  the  stock, 
he  will  give  notice  in  writing  of  his  claim, 
etc.,  before  such  is  removed  from  place  of 
destination,  etc.,"  and  it  is  alleged  as  a 
reason  for  not  making  such  claim  for  dam- 
ages "  that  defendant  by  his  own  wilful  act 
rendered  it  impossible  by  refusing  to  deliver 
to  him  the  stock  at  the  point  of  destination, 
but  sent  them  on  another  railway  line, 
against  plaintitT's  protest,  to  a  station  one 
hundred  miles  distant  from  any  office  of  de- 
fendant ;  that  he  first  discovered  the  dam- 
age done  after  the  delivery  to  him  at  the 
original  place  of  destination,  and  did  not 
discover  it  sooner  by  reason  of  defendant's 
wrongful  conduct."  Held,  that  petition  con- 
tains a  clear  cause  of  action,  and  that  the 
holding  of  the  trial  court  to  the  contrary 
was  error.  Held,  further,  that  the  "  removal " 
in  this  case  was  by  defendant,  and  not  by 
plaintiff,  but  against  his  protest.  Baker  v. 
Missouri  Pac.  R.  Co.,  19  Mo.  App.  321. 

A  petition  to  recover  the  penalty  for 
violation  of  a  statutory  provision  requiring 
double-decked  cars  for  the  carriage  of  sheep 
need  not  state  that  the  point  to  which  plain- 
tiff's sheep  were  to  be  shipped  wns  a  station 
on  the  defendant's  road,  where  it  alleges  that 
"  defendant  was  conducting  a  general  pas- 
senger and  freight  business  over  the  line  of 
its  railroad  "  between  the  point  of  shipment 
and  the  point  of  destination.  Emerson  v. 
St.  Louis  6f  H.  R.  Co.,  1 1 1  Mo.  161,  19  S.  W. 
Rep.  1113. 

140.  Account  in  Justice's  court.— 
Plaintiff  filed  an  account,  in  an  action  be- 
fore a  justice,  against  a  company  to  re- 
cover for  damages  for  horses  shipped  :  "  To 
damages  to  two  mares  in  the  loss  each  of  a 
colt,  caused  by  the  negligence  of  the  defend- 
ant ;"  and,  after  the  case  had  been  appealed 
to  court,  was  allowed  to  amend  by 
striking  out  the  words  "  to  damages  "  and 
inserting  in  lieu  thereof  "  to  deterioration  in 
value."  Held,  that  this  did  not  set  up  a  new 
cause  of  action.  Missouri  Pac.  R.  Co.  v. 
/vy,  79  Tex.  444,  155.  W.  Rep.  692. 

141.  Plea  or  answer.— To  the  extent 
that  a  company  may  make  a  valid  contract 
in  limitation  of  its  liability  in  the  carriage  of 
live  stock,  such  contract  will  be  a  matter  of 
defense;  and  that  defense  may,  in  an  action 
on  the  case,  be  given  in  evidence  under  the 
general  issue,  and  need  not  be  specially 
pleaded.  Coles  v.  Louisville,  E.  &•  St.  L. 
R.  Co.,  41  ///•  -4//.  607. 

When  sued  in  case  for  failing  to  properly 


800 


CARRIAGE   OF   LIVE   STOCK,  143,  143. 


l'\ 


Ui 


care  for  live  stock  shipped,  the  company 
pleaded  the  general  issue  and  two  special 
pleas,  setting  up  4  written  contract,  and 
averring  a  breach  thereof  by  the  plaintiff. 
J/M,  that  sustaining  a  demurrer  to  one  of 
such  special  pleas  was  no  ground  for  com- 
plaint, where  it  appeared  that  the  same  mat- 
ter was  admissible  in  evidence  under  the 
general  issue.  IVabas/i,  St.  L.  &^  P.  A'.  Co. 
V.  Pratt,  15  ///.  App.  177. 

Where  a  paragraph  of  answer  was  filed, 
alleging,  in  substance,  that  the  defendant 
had  cars  sufficient  to  transport  all  live  stock 
ordinarily  offered  for  transportation,  but 
that  at  the  time  complained  of  there  was  an 
unusual  demand  for  cars,  and  all  its  cars 
wcrt;  in  use,  and  on  that  account  the  de- 
fendant was  unable  to  furnish  plaintiff  the 
cars  on  the  day  desired,  but  that  it  did  so  as 
soon  thereafter  as  it  could,  having  due  re- 
gard to  the  rights  of  other  shippers,  who  had 
demanded  transportation  at  or  before  that 
time,  it  was  error  to  sustain  a  demurrer 
thereto,  as  the  answer  stated  a  good  defense, 
and  the  averments  therein  could  not  be 
proved  under  the  general  denial,  notwith- 
standing the  allegation  in  the  complaint  of 
ability  of  the  defendant  to  furnish  cars,  as 
the  shipper  was  not  bound  to  prove  such 
allegation.  Pittsburgh,  C,  C.  &>  St.  L.  R. 
Co.  V,  Racer,  5  Ind.  App.  209,  31  N.  E.  Rep. 

853. 

When  sued  for  the  loss  of  live  stock,  it  is 
competent  for  the  carrier  to  plead  by  way 
of  special  defense,  in  connection  with  the 
general  issue,  a  special  contract  with  the 
shipper,  whereby  he  was  to  accompany  the 
stock  and  care  for  it,  and  that  he  did  so,  but 
failed  to  take  proper  care,  and  the  stock  was 
lost  in  consequence  thereof;  and  the  fact  that 
the  action  is  in  tort  does  not  prevent  such 
defense  being  pleaded.  Oxley  v.  St.  Louis, 
K.  C.  &'  N.  R.  Co.,  65  Mo.  629.— Distin- 
guishing Rice  V.  Kansar,  Pac.  R.  Co.,  63 
Mo.  314.  Reviewing  Reade  v.  St.  Louis, 
K.  C.  &  N.  R.  Co.,  60  Mo.  199. 

in  an  action  by  a  shipper  of  live  stock  tt 
recover  damages  thereto,  the  company 
pleaded  specially  a  stipulation  in  the  con- 
tract of  shipment,  to  the  effect  that  the 
shipper  should  give  notice  in  writing  of  his 
claim  for  damages  to  some  agent  of  the 
company  as  a  condition  precedent  to  his 
right  to  recover  damages,  and  that  the  com- 
pany had  an  agent  at  the  place  of  destina- 
tion to  which  notice  could  have  been  given ; 
Out  the  plea  did  not  name  the  agent  or 


where  he  could  be  found,  nor  allege  thai  the 
shipper  knew  the  fact  thai  the  company  had 
such  agent.  Held,  that  the  plea  was  insuffi- 
cient. Gulf,  C.  &>  S.  r.  R.  Co.  V.  Wilhelm, 
3  Tex.  App.  (Civ.  Cas.)  558.— Following 
Missouri  Pac.  R.  Co.  v.  Harris,  67  Tex.  166. 

142.  Iteplicatiuii.— Where  a  company 
is  sued  for  injuries  to  live  stock  during 
transportation,  and  sets  up  a  special  agree- 
ment, to  the  effect  that  the  owner  was  to 
give  notice  within  forty  days  of  his  chiim 
for  injuries  as  a  condition  precedent  to  the 
right  to  sue,  the  effect  of  such  defense  is 
avoided  by  a  replication  showing  that  with- 
in three  days  after  the  injury  the  defend- 
ant's agent  pi  omised  to  pay  the  damages,  if 
plaintiff  would  put  them  in  a  reasonable 
sum;  that  he  was  misled  by  various  promises 
to  pay  until  after  the  lapse  of  the  forty  days ; 
and  that  during  that  time  lie  acted  under 
the  belief  that  defendant  meant  to  pay  with- 
out suit.  Gulf,  C.  <S-  S.  F.  R.  Co.  v.  Tra- 
wick,  80  Tex.  270,  155.   W.  Rep.  568,  18  S. 

W.  Rep.  948.— Approving  and  quoting 
Ripley  v.  IBxaz.  Ins.  Co.,  29  Barb.  (N.  Y.) 
557-  Quoting  Martin  v.  Jersey  City  Ins. 
Co.,  44'N.  J.  L.  273;  St.  Paul  F.  &  M.  I. 
Co.  V,  McGregor,  63  Tex.  404. 

143.  Mattersof  deteuse.-*— (I)  Valid 
defense. — When  a  contract  for  the  trans- 
portation of  live  stock  by  railroad  contains 
an  e..,  :ss  stipulation  by  the  shipper,  in 
consideration  of  reduced  rates,  that  he  will 
accompany  and  ca'c  for  them,  and  his  fail- 
ure to  do  so  proximately  contributes  to  an 
injury  to  them,  the  carrier  is  not  respon- 
sible. Western^ R.  Co.  v.  Harwell,  45  Am.  &* 
Eng.  R.  Cas.  358, 91  Aia.  340,  8  So.  Rep.  649. 

The  carrier  of  live  stock  is  relieved  from 
liability  for  injuries  thereto  if  he  shows 
that  he  provided  all  suitable  means  of  trans- 
portation, and  exercised  that  degree  of  care 
which  the  nature  of  the  property  required. 
It  is  not  sufficient  to  make  the  carrier  liable 
to  show  that  the  animals  shipped  were  in- 
jured. Heyman  v.  Philadelphia  &•  R.  R. 
Co.,  22  J.  &-  S.  (AT.  v.)  158,  8  N.  Y.  S.  R. 
86.— Quoting  Cragin  v.  New  York  C.  R. 
Co.,  51  N.  Y.  63. 

Where  cattle  are  shipped  for  a  certain 
market  day,  the  carrier  is  not  liable  for  a 
delay  where  it  appears  that  they  would  not 
have  arrived  in  time  for  the  market  of  that 
day  if  the  trains  had  been  on  time,  and 
where  they  were  delivered  in  time  for  the 

•  See  also  amte,  23-27  ;    131 ,  ISf 


CARRIAGE    OF    LIVE   STOCK,  144. 


so-j 


ege  tliat  tiie 
Jmpany  had 
was  insuffi. 
V.  IVilhehn, 
FOLLOWiNG 
67  Tex.  )66. 
a  compaii)' 
ock   during 
>ecial  agrt-e- 
^ner  was  to 
f  his  claim 
dent  to  ilie 
defense  is 
that  wiiii- 
he  defend- 
damages,  if 
reasonable 
JS  promises 
forty  days; 
cted  under 
>  pay  with- 
Co.  V.  Tra- 
S68,  18  S. 
QUOTING 
rb.  (N.  Y.) 
'  City  Ins. 
=".  &  M.  I. 

-(I)  Valid 
the  traiis- 
d  contains 
shipper,  in 
■at  tie  will 
d  his  fail- 
Jtes  to  an 
)t  respon- 

Rep.  649. 
ved  from 
lie  shows 
5  of  trans- 
Be  of  care 
required, 
ier  liable 
were  in- 
S-  R.  R. 
y.  S.  R. 
ric  C.  R. 

certain 
>Ie  for  a 
mid  not 

of  that 
lie,  and 

for  the 

3f 


market  of  the  next  day.  Missouri  Pac.  R. 
Co.  V.  Paine,  i  Tex.  Civ,  App.  621,  21  S.  W. 
Rep.  78. 

In  an  action  for  damages  for  keeping 
horses  for  a  number  of  days  upon  a  plank 
floor  after  their  arrival  at  the  destination  to 
which  they  had  been  shipped,  evidence  is 
admissible  of  a  custom  to  keep  horses  upon 
plank  floors  in  that  locality,  and  that  it 
is  impracticable  to  keep  them  upon  earth 
floors.  Moses  v.  Port  Townsend  S.  R.  Co.,  S 
IVasA.  595.  32  Pac.  Rep.  488. 

(2)  Invalid  defense. — Where  a  company  is 
sued  for  injuries  to  cattle  by  reason  of  de- 
fects in  the  cars,  it  cannot  defend  on  the 
ground  that  the  cars  furnished  were  such  as 
had  always  been  used  by  it  in  carrying  cat- 
tle. In  such  cases  it  is  competent  to  show 
tlie  kind  of  cars  in  general  use  by  railroads, 
but  not  the  usage  of  the  defendant  road  in 
furnishing  cars.  Leonard  v.  Fitchburg  R. 
Co.,  28  Am.  &*  Eng.  R.  Cas.  105,  143  Mass. 
307,  9  A^.  E.  Rep.  667. 

A  railroad  company  cannot  excuse  a  fail- 
ure to  forward  stock  promptly  on  the  ground 
that  it  had  not  the  proper  appliances  for 
doing  so.  Tucker  v.  Pacific  R.  Co.,  50  Mo. 
385,  3  Am.  Ry.  Rep.  291.— FOLLOWED  IN 
Faulkner  v.  South.  Pac.  R.  Co.,  51  Mo.  31 1. 

A  written  statement  given  by  the  shipper  of 
live  stock  to  the  carrier,  admitting  the  stock 
to  be  in  good  condition,  will  not  estop  him 
from  claiming  damages  fen*  injuries  thereto, 
on  the  ground  that  the  giving  of  such  state- 
ment induced  the  carrier  to  forego  an  ex- 
amination at  the  point  of  destination,  where 
there  is  no  evidence  that  it  had  that  effect 
and  that  by  reason  of  it  no  examination  was 
made.  St.  Louis,  A.  &'  T.  R.  Co.  v.  Turner, 
I  Tex.  Civ.  App.  625,  20  S.  W.  Rep.  1008. 

A  company  cannot  plead  ignorance  of  the 
existence  of  a  contract  of  shipment  made 
by  letters  and  recognized  as  such  by  it,  ow 
the  ground  that  it  was  misled  by  the  prom- 
ise of  the  shipper  to  make  out  a  contract 
at  a  specified  time,  where,  after  notice  by 
the  latter  to  obtain  the  cars  which  he 
was  to  furnish,  it  fails  unreasonably  so  to 
do,  so  as  to  relieve  it  from  liability  in  dam- 
ages for  the  consequences  of  its  delay. 
Lawrence  v.  Milwaukee,  L.  S.  &•  W.  R.  Co., 
84  Wis.  ^rj,  54  N.  IV.  Rep.  797. 

144.  What  evidence  is  admissible. 
— (i)  Generally. — Where  the  special  con- 
tract for  the  shipment  of  a  car-load  of  stock 
provided  that  the  plaintiff  could  not  recover 
exceeding  a  certnin  amount  for  each  mule. 


evidence  of  the  real  value  (whatever  it 
might  be)  of  one  of  them  which  was  injured 
was  admissible  for  the  purpose  of  showing 
that  this  value  was  at  least  equal  to  the 
amount  specifled  in  the  contract.  Georgia 
R.  <S-  B.  Co.  v.  Reid,  55  Am.  5-  Eng.  R.  Cas. 
363,  91  Ga.  377.  17  -S^-  ^-  Rep-  934- 

In  a  suit  for  unreasonable  delay  in  trans- 
porting stock  to  the  place  of  delivery,  if  the 
shipper  had  shipped  with  a  view  to  have 
the  stock  reach  its  destination  on  a  particu- 
lar day  of  the  week,  and  it  would  have  done 
so  had  there  be  :.  no  unreasonable  delay,  it 
is  competent  fo.  ihe  plaintifl  to  prove  that 
that  particular  day  was  the  market  day  at 
the  place  of  delivery,  and  that,  in  conse- 
quence of  the  delay,  he  was  compelled  to 
hold  his  stock,  at  an  expense,  until  the  re- 
turn of  the  market  day  of  the  next  week. 
ToUao,  W.  &»  W.R.  Co.  v.  Lockhart,  71  ///. 
627. 

At  a  junction  where  live  stock  would  be 
transferred  from  defendants'  road  to  an- 
other, the  consignee  went  to  the  telegraph 
office  of  the  company  and  inquired  for  the 
stock,  but  was  told  that  they  did  not  have 
it.  Some  hours  later  he  inquired  at  the 
same  office  again  by  telephone  and  got  an 
answer  from  some  one  that  they  did  not 
have  the  stock.  It  seemed  that  the  stock 
were  lying  in  the  yards  during  the  time. 
Held,  in  an  action  for  failing  to  transfer  the 
stock  in  proper  time,  that  the  telephoning 
an  answer,  though  objected  to,  was  at  least 
prima-facie  evidence  that  the  answer  came 
from  the  company's  agent.  Rock  Island  &» 
P.  R.  Co.  V.  Potter.  36  ///.  App.  590. 

Remonstrances  made  to  the  carrier's  em- 
ployes during  transportation  that  cattle  are 
improperly  loaded  are  admissible,  in  an 
action  against  the  carrier,  to  show  that  the 
attention  of  those  in  charge  was  called  to 
the  difficulty,  but  what  weight  is  to  be  at- 
tached to  such  evidence  is  for  the  jury. 
Black  v.  Camden  &*  A.  R.  &*  T.  Co.,  45 
Barb.  {N.  K)  40. 

Where  it  is  claimed  by  a  "Shipper  of  cat- 
tle that  they  were  damaged  while  in  transit, 
and  it  is  shown  that  during  the  trip  certain 
of  the  cars  became  uncoupled,  and  were  run 
together  to  recouple  in  such  a  violent  man- 
ner as  to  injure  the  cattle,  it  is  competent 
to  show  that  one  of  the  brakemen  was  unfit 
for  duty  on  account  of  an  injury  he  had  re- 
ceived the  night  before.  Galveston,  H.  &- 
S.  A.  R.  Co.  \.  Johnson,  (Tex.)  19  S.  W.  Rep. 
867. 


806 


CARRIAGE   OF   LIVH   STOCK,  144. 


!«  < 


liy 


(2)  To  show  delay. — Where  the  defend- 
ant, in  a  suit  for  unreasonable  delay  in 
transporting  stock  from  the  west  to  the  east, 
set  up,  as  an  excuse,  that  the  delay  was 
occasioned  by  the  want  of  empty  cars  at 
a  particular  point  on  the  route  —  held,  that 
it  was  competent  for  the  plaintiiT,  for  the 
purpose  of  meeting  such  excuse,  to  prove 
that  empty  cars  passed  that  point,  going 
west,  whilst  the  stock  was  there  awaiting 
transportation.  Toledo,  W.  &»  W.  R.  Co.  v. 
Lockhart,  71  ///.  627. 

Where  a  carrier  attempts  to  excuse  a  ue- 
lay  in  shipping  cattle,  on  the  ground  thut  it 
could  not  furnish  cars  sooner  on  account  of 
the  press  of  business,  it  is  competent  for  the 
owner  to  show  that  empty  cars  stood  on 
the  side-track  at  the  place  of  shipment  dur- 
ing the  time  of  the  delay,  and  that  the  cat- 
tle were  eventually  shipped  in  some  of  the 
same  cars.  Gulf,  C.  <5-  5.  F.  R.  Co.  v.  Mc- 
Corquodale,  35  Am.  &*  Eng.  R.  Cas.  653,  71 
Tex.  41,  9  5".  IV.  Rep.  80. 

(3)  Death  after  arrival  at  destination. — 
In  a  suit  against  an  intermediate  carrier 
of  live  stock  to  recover  damages  caused  by 
a  collision,  it  is  competent  to  prove  that, 
as  a  result  of  the  collision,  certain  animals 
died  and  other  cows  lost  their  calves  after 
arrival  at  their  final  place  of  destination. 
New  York,  L.  E.  &-  W.  R.  Co.  v.  Estill, 
147  i/.  .S.  591,  13  Sup.  Ct.  Rep.  444. 

Where  a  company  is  sued  for  damages 
resulting  from  the  death  of  certain  cattle 
shipped  and  from  injury  to  others,  it  is  com- 
petent to  prove  that  certain  cattle  died  after 
delivery  to  the  consignee  by  reason  of  in- 
juries negligently  received  during  transpor- 
tation. Missouri  Pac.  R.  Co.  v.  Edwards,  78 
Tex.  307,  145.  W.  Rep.  607. 

(4)  Custom  or  usage. — Where  the  contract 
is  silent  on  the  point,  evidence  of  custom  or 
usage  among  shippers  is  competent  to  show 
that  cattle-cars  were  bedded  by  shippers 
and  not  by  the  railroad  company.  East 
Tenn.,  V.  &•  G.  R.  Co.  v.  Johnston,  22  Am. 
&*  Eng.  R.  Cas.  437,  75  Ala.  596,  51  Am. 
Rep.  489. 

Where  plaintiff,  who  was  travelling  on  a 
freight  train  in  charge  of  cattle,  was  injured 
while  on  top  of  the  cars  by  striking  an  over- 
head bridge,  evidence  of  a  custom  of  stock- 
men to  walk  on  top  of  the  cars,  which  was 
known  to  and  acquiesced  in  by  the  com- 
pany, is  admissible.  Chicago,  At.  &*  St.  P. 
R.  Co.  v.  Carpenter,  56  Fed.  Rep.  451.— AP- 
PLYING Doyle  V.   St.  Paul,   M.   &  M.   R. 


Co.,  42  Minn.  79,  43  N.  W.  Rep.  787  ;  Kolsti 
V.  Minneapolis  &  St.  L.  R.  Co.,  32  Minn. 
133,  19  N.  W.  Rep.  65s ;  Flanders  v.  Chi- 
cago, St.  P.,  M.  &  O.  R.  Co.,  51  Minn.  193, 
S3  N.  W.  Rep.  544. 

(5)  Opinion  evidence. — It  is  competent  to 
prove  damage  to  cattle  during  transporta- 
tion by  the  opinion  of  witnesses  based  on 
the  appearance  of  the  cattle  when  delivered, 
and  upon  their  treatment  while  on  the  cars, 
considering  the  state  of  the  weather  and  the 
time  they  were  allowed  to  stand  on  the  cars 
without  food  or  water ;  and  a  verdict  of  a 
jury  will  not  be  disturbed  if  found  in  ac- 
cordance with  such  opinions.  Illinois  C.  R. 
Co.  v.  Waters,  41  ///.  73. 

Two  hundred  and  fifty  mules  were 
shipped,  and  the  carrier  was  sued  for  dam- 
ages in  allowing  some  of  them  to  escape 
while  driving  them  to  water,  the  alleged 
negligence  being  in  not  providing  hands 
enough  for  the  purpose.  Held,  that  it  was 
competent  to  inquire  of  a  witness,  who  was 
shown  to  have  sufficient  knowledge  of  the 
subject-matter  of  inquiry,  as  to  how  many 
hands  would  be  necessary  to  drive  250 
mules,  under  the  same  circumstances. 
North  Mo.  R.  Co.  v.  Akers,  4  Kan.  453. 

Where  suit  is  brought  to  recover  damages 
to  a  valuable  trotting  mare  during  trans- 
portation, it  is  competent  to  prove,  in  the 
opinion  of  witnesses,  the  speed  of  the  mare 
both  before  and  after  injury,  and,  assuming 
that  the  speed  thus  fixed  is  correct,  to  prove 
also  her  value.  Reed  v.  Rome,  W.  &•  O.  R. 
Co.,  16  N.  y.S.  ^.58. 

(6)  Documentary  evidence. — Where  there 
is  a  dispute  between  the  shipper  and  the 
carrier  as  to  the  terms  upon  which  live  stock 
were  shipped,  the  company's  freight-book 
at  the  point  of  shipment,  containing  a  state- 
ment of  the  contract,  and  the  way-bill,  are 
competent  evidence  as  tending  to  prove  the 
contract.  Jacksonville,  N.  IV.  &»  S.  E.  R. 
Co.  V.  Hall,  2  rU.  App.  618. 

Where  a  company  contracts  to  carry  live 
stock  to  a  point  beyond  its  own  line,  in  an 
action  against  it  for  unreasonable  delay,  a 
letter  from  an  agent  of  the  connecting  line 
to  the  shipper,  reading  as  follows :  "  Mr.  S. 
(the  defendant's  traffic  manager)  writes  that 
the  pigs  arrived  at  Dublin  on  the  29th  of 
October,  but  as  the  company  [the  defend- 
ant] only  advised  us  about  half  an  hour 
before  they  arrived,  and  having  more  on 
hand  than  could  be  shipped  that  day,  they 
were  not  sent  forward  until  the  3cth  of  Oc- 


Kill  r".  '■ 
'A 


CARRIAGE   OF   LIVK   STOCK,  145. 


809 


.787;  Kolsti 

>•!  32  Minn. 

ders  V,  Chi- 

Minn.  193, 

)mpetent  to 
transporta- 
es  based  on 
n  delivered, 
on  the  cars, 
her  and  the 
on  the  cars 
'erdict  of  a 
'und  in  ac- 
llinois  C.  R. 

ules    were 
1  for  dam- 
to  escape 
he  alleged 
ing  hands 
that  it  was 
s,  who  was 
dge  of  the 
how  many 
drive    250 
iimstances. 
'•  453- 
r  damages 
ing  trans- 
Jve,  in  the 
^  the  tnare 
assuming 
t,  to  prove 
'.  «**  O.  Ji. 

lere  there 
r  and  the 
live  stock 
ight-book 
ig  a  state- 
y-bilJ,  are 
prove  the 
S.  E.  R, 

:arry  live 
ne,  in  an 

delay,  a 
:ting  line 

"  Mr.  S. 
rites  that 
:  29th  of 
:  defend- 
an  hour 
more  on 
lay,  they 
fiof  Oc- 


tober," is  admissible  as  evidence  of  unrea- 
sonable delay.  Ruddy  v.  Midland  G.  W. 
R.  Co.,  L.  R.  8  Tr.  224. 

145.  What  evidence  is  inadmis- 
sible.— (i)  Generally. — The  company  in- 
troduced a  witness  to  prove  that  the  plain- 
tiff had  used  the  stock-passes  of  the 
company,  and  then  offered  in  evidence  one 
of  those  blank  passes,  on  the  back  of  which 
was  a  statement  that  the  owner  of  stock 
should  feed  and  take  care  of  them  at  his  own 
expense  and  risk,  and  that  he  assumed  all 
risk  of  injury  that  the  animals  might  do 
themselves,  or  that  might  arise  from  the 
delay  of  trains  or  otherwise.  Held,  that 
the  evidence  did  not  tend  to  prove  the  ex- 
istence of  a  pleaded  usage  to  carry  poultry 
only  when  owner  went  with  it  *o  see  that 
the  coops  were  kept  properly  righted,  and 
that  it  was  properly  rejected.  Evansville  &* 
C.  R.  Co.  V.  Young',  28  /nd.  516. 

A  shipper  of  live  stock  sued  a  company 
for  damages,  alleging  as  negligence  that  the 
company  flrst  loaded  the  stock  in  unsafe 
cars,  which  necessitated  their  reloading, 
which  was  done  in  a  negligent  manner. 
Under  the  terms  of  the  contract  of  ship- 
ment the  owner  was  to  load  and  unload  at 
his  own  risk.  He  introduced  evidence  to 
show  that  the  car  to  which  the  stock  were 
transferred  was  not  properly  provided  with 
bedding,  //eld,  that  plain /ff  had  assumed 
the  risk,  if  bedding  the  ca'ti*  was  included 
in  the  loading;  and  if  not,  then  a  failure  to 
properly  bed  did  not  come  within  the  alle- 
gations of  the  complaint ;  and  that  in  either 
event  the  evidence  was  irrelevant.  Atchison 
V.  Chicago,  R.  /.  &•  P.  R.  Co.,  80  Mo.  213. 

Where  a  company  is  sued  for  damages 
for  a  failure  to  furnish  cars  and  to  re- 
ceive and  transport  cattle,  the  damages 
being  claimed  for  cost  of  keeping  them, 
and  for  loss  of  a  market,  evidence  on  the 
part  of  the  company  that  plaintiff  had  con- 
tracted for  the  sale  of  the  cattle  at  their 
destination,  and  that  they  were  refused  be- 
cause not  such  as  had  been  represented,  is 
irrelevant,  and  therefore  improper.  Gulf, 
C.  &*  S.  F.  R.  Co.,  V.  McCorquodale,  35  Am. 
&*  Ens^.  R.  Cas.  653,  71  Tex.  41,  9  5.  IV. 
Rep.  80. 

Where  a  carrier  is  sued  for  injuries  to 
horses  shipped,  evidence  of  injuries  to 
other  horses  not  sued  for  is  calculated  to 
prejudice  the  jury,  and  its  admission  is  re- 
versible error.  Missouri  Pac.  R.  Co.  v. 
Smith,  84  Ttx.  348,  19  S.  IV.  Rep.  509. 


(2)  Depreciation  in  price — Loss  of  profits. 
— In  an  action  for  injuries  to  a  jack  during 
transportation,  evidence  of  uncertain  prof- 
its to  have  been  made  by  letting  the  jack 
to  mares  is  improperly  admitted.  Chicago, 
B.  Gf  Q.  R.  Co.  V.  Hale,  83  ///.  360. 

Wh^re  plaintiff  seeks  damages  against 
defendant  for  breach  of  a  contract  to  re- 
ceive and  transport  cattle  upon  a  specified 
day,  caused  by  cost  of  keeping  the  cattle 
for  the  additional  period,  and  by  depreci- 
ation in  the  market  price,  it  is  incompetent 
for  defendant  to  show  that  the  depreciation 
in  price  was  caused  by  failure  of  the  cattle 
to  conform  to  the  standard,  and  not  by  the 
delay  in  shipment.  Gulf,  C.  &*  S.  F.  R. 
Co.  V.  McCorquodale,  35  Atn.  &*  Eng.  R. 
Cas.  653,  71  Tex.  41,  9  5.  W.  Rep.  80. 

(3)  Custom. — Evidence  to  prove  a  custom 
among  railroads  not  to  receive  live  stock 
unless  the  shipper  agrees  to  hold  the  rail- 
road harmless  for  all  original  delays  in  tak- 
ing up  freight  is  incompetent,  as  such  a 
custom  would  not  be  necessary  if  the  law 
held  the  railroad  harmless  for  such  delays, 
and  it  could  not  prevail  over  the  law  if  the 
latter  did  not  hold  the  railroad  harmless. 
Missouri  Pac.  R.  Co.  v.  Fagan,  35  Am.  &» 
Eng.  R.  Cas.  666,  72  Tex.  127,  9  S.  W.  Rep. 

749- 

In  an  action  for  injury  to  stock  caused  by 
the  negligence  of  the  defendant  in  delaying 
their  transportation,  defendant's  counsel 
asked  a  witness  of  the  plaintiff  what  was 
the  custom  in  such  cases  as  to  some  one 
going  along  with  the  stock.  It  did  not  ap- 
pear that,  even  if  it  was  the  duty  of  the 
shipper  to  accompany  the  stock,  the  per- 
formance of  such  duty  would  have  avoided 
the  injury,  or  that  the  remission  of  such 
duty  contributed  thereto.  Held,  that  an 
objection  to  the  question  was  properly  sup- 
ported, since  the  fact  sought  to  be  elicited 
was  not  relevant.  Richmond  &*  D.  R.  Co. 
v.  Trousdale,  (Ala.)  55  Am.  &»Eng.  R.  Cas. 
400,  13  So.  Rep.  23. 

(4)  Hearsay  —  Res  gestce.  —  Where,  in  an 
action  against  a  railroad  company  for  the 
loss  of  a  jack  in  transportation,  it  was 
proved  that  a  tramp  was  found  in  the  car 
containing  the  jack,  with  a  stick  in  his  hand, 
and  that  the  jack  was  afterwards  found  dead 
in  the  car,  with  blood  running  from  its  mouth 
and  nose,  it  was  incompetent  to  allow  plain- 
tiff to  prove  a  statement  made  by  the  tramp 
in  the  conductor's  presence,  soon  after  his 
removal  from  the  car:  "If  it  had  not  been 


UlU 


CARRIAGE   OF   LIVE   STOCK,  140. 


m 


.M 


for  lopping  them  mules  over  the  head  I 
would  have  froze,"  as  such  statement  is  not 
a  part  of  the  res  ^esta.  St.  Louis,  I.  M.  &* 
S.  Ji.  Co.  V.  lVtfa4;/y,  35  A//t.  &-  Eug,  R.  Cas. 
<i3S.  50  Ark.  397,  7  Am.  St.  Rep.  104,  8  S.  IV. 
Rep.  134. 

An  account  of  sales  rendered  by  plain- 
titl's  commission  merchant  to  him,  contain- 
ing prices  obtained  and  the  weight  of  cattle 
sold,  is  hearsay,  and  is  incompetent  evidence 
in  an  action  against  the  carrier  for  damages 
caused  by  delay  in  transportation.  /Jess  v. 
Missouri  Pac.  R.  Co.,  40  Mo.  App.  202. 

In  an  action  to  recover  the  value  of  stock 
killed  during  transportation,  the  testimony 
of  a  witness  as  to  statements  made  to  him  by 
persons  at  the  point  of  destination  as  to  the 
value  of  the  stock,  as  he  described  it,  at 
that  place,  is  inadmissible.  Southern  Puc. 
R.  Co.  v.  Maddox,  42  Am.  6-  Eng.  R.  Cas. 
528,  75  Tex.  300,  12  S.  IV.  Rep.  815. 

146.  Sufficiency  of  evidence.  — 
(1)  What  is  sufficient. — In  an  action  for  in- 
jury to  live  stock,  the  injury  was  admitted, 
plaintiffs  claiming  that  it  was  caused  by  a 
collision  which  threw  the  stock  against  the 
cars  and  against  each  other,  while  the  car- 
rier contended  that  the  injury  was  caused 
by  the  natural  restlessness  of  the  stock. 
field,  that  the  weight  to  be  given  to  the 
conflicting  evidence  was  for  the  jury,  and 
ihat  a  verdict  in  favor  of  the  shipper  should 
not  be  disturbed.  Indiana,  B.  &*  IV.  R. 
Co.  W.James,  18  ///.  App.  655. 

There  was  a  conflict  of  evidence  as  to  the 
condition  of  cattle  at  the  time  they  were 
shipped,  but  the  preponderance  was  in  favor 
of  the  conclusion  that  they  were  in  poor 
condition  and  unfit  for  the  journey.  There 
was  undisputed  evidence  that  great  trouble 
was  had  in  loading  on  the  cars,  and  that 
many  got  down  and  were  injured  before 
they  had  been  carried  any  distance,  and 
that  they  were  wild,  and  had  been  driven 
from  a  hundred  to  a  hundred  and  fifty 
miles  before  reaching  the  place  of  ship- 
ment. Held,  sufficient  evidence  to  warrant 
the  conclusion  that  injuries  occurring  to 
the  cattle  while  on  the  cars  grew  out  of 
their  poor  condition  at  the  time  of  ship- 
ment. Missouri  Pac.  R.  Co.  v.  Texas  &*  P. 
R.  Co.,  41  Fed.  Rep.  913. 

There  was  a  collision  with  a  freight  train 
carrying  cattle,  many  of  which  were  cows 
with  calf.  There  was  evidence  showing 
that  five  cows  aborted  on  the  train  or  very 
soon  after  leaving  it,  and  that  103  others 


did  so  in  the  herd  during  the  next  90  days. 
There  was  also  evidence  tending  to  show 
that  ordinary  transportation  of  cows  by  rail 
would  not  produce  such  results.  On  the 
other  hand  there  was  evidence  tending  to 
show  that  such  miscarriages  in  a  herd  of 
pregnant  cows  would  cause  others  to  abort 
that  had  received  no  physical  injury.  A 
jury  found  that  all  the  abortions  were  the 
result  of  the  collision,  //eld,  that  the  evi- 
dence was  sufficient  to  warrant  the  finding. 
Estill  V.  New  York,  L.  E.  6-  W.  R.  Co.,  41 
Fed.  Rep.  849. 

Plaintiff  brought  suit  for  damages  arising 
from  its  delay  in  the  transportation  of 
hogs,  whereby  the  latter  died  from  heat. 
The  evidence  showed  that  the  delay  oc- 
curred ;  that  it  was  apparently  unnecessary ; 
that  the  weather  was  excessively  warm ;  and 
that  the  attention  of  the  trainmen  was  more 
than  once  called  to  the  suffering  condition  of 
the  hogs;  and  the  defendant  failed  at  the  trial 
to  account  for  the  delay,  //eld,  that  the 
supreme  court  could  not  say  there  was  no 
evidence  of  negligence  on  defendant's  part, 
and  that  the  finding  for  plaintiff  thereon 
should  be  affirmed.  Ball  v.  Wabash,  St.  L. 
6-  P.  R.  Co.,  25  Am.  &*  Eng.  R.  Cas.  384. 
83  Mo.  574- 

A  petition  in  an  action  for  damages  to 
live  stock  alleged  that  the  plaintiffs  were 
partners,  and  that  the  cattle  were  shipped 
by  their  partner  and  representative,  P.  A 
witness  testified  that  he  knew  the  plaintiffs, 
that  he  bought  part  of  the  lot  of  cattle 
shipped,  and  that  they  were  in  the  stock- 
pen  at  the  railroad.  P.  testitied  that  the 
cattle  were  the  lot  of  cattle  shipped  by 
him  over  defendant's  railroad,  //eld,  that  the 
evidence  authorized  the  inference  that  the 
cattle  belonged  to  plaintiffs  as  alleged. 
Goodv.  Galveston,  //.&*  S.A.  R.  Co.,  (Tex.) 
40  Am.  <S-  Eng.  R.  Cas.  98, 1 1  5.  W.  Rep.  854. 

Where  the  evidence  shows  that  there  was 
unnecessary  delay  in  the  transportation  of 
live  stock;  that  the  cattle  were  needlessly 
confined  in  the  cars  at  the  different  sta- 
tions; and  that  they  were  bruised  and 
bumped  by  the  stalling  of  the  train  on 
account  of  its  size  and  weight,  a  cause  of 
action  against  the  carriers  for  gross  negli- 
gence and  carelessness  is  sufficiently  estab- 
lished. Good  V.  Galveston,  H.  &*  S.  A.  R. 
Co.,  ( Tex.)  40  Am.  &*  Eng.  R.  Cas.  98,  1 1  5. 
W.  Rep.  854. 

(2)  What  is  not  sufficient. — A  judgment 
against  a  railroad  for  the  value  of  a  car-load 


CARRIAGli    OF    LIVE    STOCK,  147,  148. 


811 


xt  90  days, 
g  to  show 
ows  by  rail 
On  the 
tending  to 

a  herd  of 
!rs  to  abort 
injury,  A 
s  were  the 
at  the  evi- 
:he  finding. 

a.  Co.,  41 

iges  arising 
artation  of 
from    heat. 
;  delay  oc- 
inecessary ; 
warm;  and 
1  was  more 
onditionof 
I  at  the  trial 
i,  that  the 
ere  was  no 
lant's  part, 
iff  thereon 
bas/t,  St.  L. 
P.  Cas.  384, 

lamages  to 
ntiffs  were 
re  shipped 
ive.  P.    A 
:  plaintiffs, 
t  of  cattle 
the  stock- 
1  that  the 
lipped   by 
V/,  that  the 
e  that  the 
5   alleged. 
:«..  (7>A-.) 
.  Rep.  854. 
there  was 
rtation  of 
leedlessly 
:rent  sta- 
ised    and 

train  on 

cause  of 
>ss  negli- 
tly  estab- 
S.  A.  R. 

98.11  S. 

udgment 
car-load 


of  hogs,  claimed  by  the  shipper  to  have 
been  consigned  to  a  third  party  without  his 
permission,  reversed  on  the  weight  of  evi- 
dence. Chicago  &»  A.  R.  Co.  v.  Purvines, 
58  ///.  38,  10  Am.  Ry.  Rep.  369. 

Where  live  stock  are  carried  under  a  special 
contract,  providing  that  the  shipper  shall 
have  the  care  of  the  stock  while  in  trans- 
portation, and  shall  unload,  feed,  and  water 
the  animals  at  his  own  risk  and  expense, 
the  shipper  cannot  recover  for  losses  occa- 
sioned to  said  stock  solely  upon  evidence 
of  a  failure  to  deliver  the  same.  Terre 
Haute  &*  L.  R.  Co.  v.  Sherwood,  55  Am.  &* 
Eng.  R.  Cas.  326,  132  /«</.  129, 31  N,  E,  Rep, 
781. 

The  opinion  of  the  shipper  as  to  what  he 
would  have  made  if  the  contract  of  ship- 
ment had  been  performed  is  no  proof  at  all, 
and  as  there  was  no  evidence  of  the  market 
price  of  stock,  either  at  the  point  of  shipment 
or  of  destination,  there  is  no  sufficient  proof 
of  damages.  Birney  v.  Wabash,  St.  L.  &• 
P.  R.  Co.,  20  Mo.  App.  470. 

The  fact  that  a  hoise  is  found  with  his 
leg  broken  and  otherwise  injured  at  the 
end  of  the  transportation,  and  that  the  cars 
stood  for  one  or  two  hours  on  the  track  at 
the  place  of  destination  before  the  horse 
was  unloaded,  and  that  the  slats  of  the  car- 
door,  which  were  in  good  order  at  the  time 
of  starting,  were  broken  and  repaired  dur- 
ing transportation,  will  not  make  the  carrier 
liable  for  the  injury  where  there  is  no  evi- 
dence to  show  that  either  the  broken  slats 
or  allowing  the  car  to  stand  on  the  track 
without  unloading  was  in  any  wise  con- 
nected with  the  injury,  or  that  the  com- 
pany could  in  any  way  have  prevented  the 
injury.  Hayman  v.  Philadelphia  &•  R.  R. 
Co.,  22  /.  &'  S.  {N.  y.)  158,  8  A'.  V.  S.  R. 
86. 

Receipts  and  written  statements  of  the 
good  condition  of  cattle  given  to  a  railway 
company  by  the  shipper's  agents  in  charge 
of  them  during  the  transit,  while  adding  to 
his  burden  of  proving  their  bad  condition, 
may  yet  be  contradicted  by  him  by  showing 
that  they  were  not  true.  St.  Louis,  A.  &*  T. 
R.  Co.  v.  Turner,  i  Tex.  Civ.  App.  625,  20 
S.  W.  Rep.  1008.  Missouri  Pac.  R.  Co.  v. 
Fennell,  79  Tex.  448.  15  S.  W.  Rep.  693.— 
Following  Missouri  Pac.  R.  Co.  v.  Ivy,  79 
Tex.  444,  1 5  S.  W.  Rep.  692. — Missouri  Pac. 
R.  Co.  V.  Ivy.  79  Tex.  444,  15  ,S".  W.  Rep. 
692. 

Plaintiff  made  a  contract  with  defendant 


company  for  the  through  shipment  of  sheep, 
but  a  connecting  line  refused  to  carry  them, 
and  he  was  compelled  to  reship  over  an- 
other line.  In  a  suit  against  the  company 
first  carrying  he  introduced  in  evidence  a 
written  statement  of  certain  commission 
merchants  at  the  place  of  destination  show- 
ing expenses  and  what  the  sheep  sold  for, 
and  also  the  written  contract  entered  into 
with  the  second  company  and  a  statement 
showing  the  amount  of  freight  paid.  Held, 
that  the  defendant  company  was  not  a  party 
to  any  of  these  transactions,  and  was  not 
bound  by  them ;  and  that,  if  the  facts  con- 
tained in  the  writings' were  pertinent,  they 
should  have  been  proven  by  the  direct 
testimony  of  the  parties  having  knowledge 
of  the  same.  Texas  &*  P.  R.  Co.  v.  Scriv- 
ener, 2  Tex.  App.  {Civ.  Cas.)  284. 

147.  Presumption  of  negligence.* 
— In  an  action  for  damages  to  stock  carried, 
defendant's  evidence  merely  consisted  of  a 
showing  from  the  appearance  of  the  car  in 
which  the  stock  had  been  carried  that  the 
train  had  not  been  derailed.  No  employe 
in  charge  of  the  train  was  produced  to  ac- 
count for  the  injury.  Held,  that  the  statu- 
tory presumption  of  the  company's  negli- 
gence under  the  Code  was  strengthened  by 
the  presumption  of  fact  arising  from  the 
failure  of  the  company  to  produce  material 
witnesses,  and  that  a  refusal  to  set  aside  a 
verdict  against  the  company  was  a  proper 
exercise  of  the  trial  court's  discretion.  Col- 
umbus &"  W.  R.  Co.  v.  Kennedy,  31  Am.  <S- 
Etig.  R.  Cas.  92,  78  Ga.  646,  3  S.  E.  Rep. 
267. 

148.  Burden  of  proof,  when  on 
carrier.f— When  the  plaintiff  has  shown 
injury  to  one  of  his  mules  while  in  the  cus- 
tody of  the  carrier,  the  onus  is  on  the  car- 
rier to  show  that  it  did  not  result  from  any 
negligence  on  the  part  of  his  servants  or 
agents,  or  that  it  was  within  one  of  the 
specified  exceptions  in  the  bill  of  lading. 
Western  R,  Co.  v.  Harwell,  45  Am.  &*  Eng. 
R.  Cas.  358,91  Ala.  340,  8  So.  Rep.  649. 

Where  live  stock  were  shipped  under  a 
contract  relieving  the  company  from  liabil- 
ity as  to  certain  specified  causes,  and  an  in- 
jury occurred,  the  burden  of  proof  is  on  the 
carrier  to  show  not  only  that  the  cause  of 
the  injury  is  within  the  exceptions,  but  that 
the  injury  was  without  negligence  on  the 

*  See  also  ante,  39. 

f  See  also  ante,  39,  100. 


SIZ 


CARKIAGli    OF    LIVE   STOCK,  149,  130. 


part  of  the  defendant.  lias/  Teun.,  V.&*G. 
k.  Co.  V.  Johnston,  z2Ain.&*  Eng.  R.  Cas,  437, 
75  Ala.  596,  51  Am.  Rep.  489. 

Where  a  carrier  of  live  stock  seeks  to  es- 
cape liability  for  loss  and  injury  thereto,  on 
the  ground  that  the  cattle  were  injured  by 
their  inherent  viciousness  and  disposition  to 
hurt  each  other,  the  burden  is  upon  him  to 
prove  these  facts ;  and  if  this  issue  was  not 
raised  by  pleading  and  proof,  an  instruction 
as  to  the  exemption  of  the  carrier  from 
liability  in  such  cases  is  properly  refused. 
Ft.  Worth  a-  D.  C.  R.  Co.  v.  Greathouse,  49 
Am.  &*  Eng.  R.  Cas.  157,  82  Tex.  104,  17  S. 
IV.  Rep.  834. 

149.  Burden  of  proof,  when  on 
shipper.*— Where  live  stock  are  shipped 
under  a  contract  limiting  the  carrier's  liabil- 
ity, and  providing  that  the  shipper  shall 
take  charge  of  the  animals  during  transpor- 
tation, the  burden  of  proof  is  upon  him,  in 
an  action  to  recover  for  loss  or  injury,  to 
show  that  it  resulted  from  the  negligence  or 
default  of  the  carrier.  St.  Lout's,  I.  M.  &» 
S.  R.  Co.  v.  Weakly,  35  Am.  &»  Eng.  R.  Cas. 
635.  so  Ark.  397,  7  Am.  St.  Rep.  104,  8  S.  W. 

Rep.  134- 

Ordinarily  the  burden  of  proof  is  on  the 
carrier  to  account  for  stock  delivered  to  it 
and  lost  during  transit,  but  in  case  of  special 
contract  whereby  the  owner  agrees  to  take 
charge  of  the  stock,  the  burden  of  proving 
negligence  on  the  part  of  the  carrier  is  upon 
him.  McBeath  v.  Wabash,  St.  L.  &*  P.  R. 
Co.,  20  Mo.  App.  445.— Quoted  in  Tcrre 
Haute  &  L.  R.  Co.  v.  Sherwood,  132  Ind. 
129. 

Where  the  owner  of  live  stock  contracts 
to  load  and  unload  and  to  take  care  of  the 
stock  during  transit,  the  burden  of  proving 
negligence  on  the  part  of  the  carrier,  caus- 
ing a  loss  or  injury  to  the  stock,  is  on  the 
owner.  Clark  v.  St.  Louis,  K.  C.  **  N.  R. 
Co.,  64  Mo.  440,  17  Am.  Ry.  Rep.  284. 

Under  a  special  contract  or  the  carriage 
of  cattle  upon  condition  that  the  company  is 
liable  for  negligence  only,  the  burden  of 
proving  negligence  in  an  action  for  injury  to 
the  cattle  is  upon  the  plaintiff.  Harris  v. 
Midland  R.  Co.,  25  W.  R.  63. 

160.  Variance.— (i)  Material. — A  com- 
plaint against  a  carrier  of  live  stock,  claim- 
ing damages  for  a  refusal  to  receive  and 
carry  the  stock,  is  not  supported  by  evidence 
showing  a  failure  on  the  part  of  the  carrier 

*  See  alsoan/r,  45. 


to  construct  and  keep  in  repair  a  fence 
around  its  stock-pens,  and  a  failure  to  keep 
the  cattle-chutes  in  proper  repair,  whereby 
cattle  tendered  for  shipment  escaped  from 
the  pens  and  their  loading  on  the  cars  was 
delayed  until  the  train  which  was  to  carry 
them  had  left  the  station.  Nor  can  a  re- 
fusal to  receive  and  carry  be  predicated 
upon  the  fact  that  the  train  was  not  held 
beyond  its  regular  time  until  the  cattle  could 
be  loaded.  Louisville,  N.  A.  &»  C.  R.  Co.  v. 
Godman,  10^  Ind.  490,  4  N.  E.  Rep.  163. 

A  complaint  in  an  action  against  a  com- 
mon carrier  for  injuries  to  cattle  trans- 
ported charged  that  they  were  shipped  under 
a  written  contract  which  bound  the  carrier 
to  safely  deliver  at  the  terminus  of  its  own 
road  to  the  next  connecting  carrier,  which  it 
failed  to  do.  The  proof  showed  that  the 
cattle  were  safely  carried  to  the  end  of  the 
defendant's  road  and  there  delivered  to  the 
next  connecting  road,  and  were  changed  to 
other  cars  in  violation  of  a  contract  with  the 
defendant's  agent,  and  were  injured  by  reason 
of  defects  in  such  cars.  Held,  that  there  was 
a  fatal  variance  between  the  allegations  and 
the  proofs.  Alabama  G.  S.  R.  Co.  v.  Thomas, 
32  Am.  &*  Eng.  R.  Cas.  464,  83  Ala.  343,  3 
So.  Rep.  802. 

In  order  to  justify  an  instruction  that  the 
jury  should  take  into  consideration  the 
variance  in  the  market  value  of  stock  at  the 
point  of  destination  between  the  time  when 
they  should  have  reached  there,  had  they 
been  shipped  according  to  contract. and  the 
day  of  their  arrival,  it  must  be  averred  in 
the  petition  that  the  shipper  informed  the 
agent,  or  that  he  knew  at  the  time  of  mak- 
ing the  promise  that  the  stock  were  de- 
signed for  sale  in  that  market.  But  the 
knowledge  of  such  fact  on  the  part  of  the 
agent  may  be  inferred  from  all  the  facts  and 
circumstances  in  evidence;  but  ^to  admit 
such  proof  and  make  it  a  basis  of  recovery, 
the  fact  must  be  alleged  in  the  petition. 
Gelvin  v.  /Kansas  City,  St.  J.  &*  C.  B.  R.  Co., 
21  Mo.  App.  273. 

Where  a  railroad  company  is  sued  for 
failing  to  carry  cattle,  and  the  averment  is 
that  the  defendant  company  agreed  to  carry 
over  its  own  line  only,  there  can  be  no  re- 
covery under  proof  of  a  through  bill  of 
lading,  where  it  appears  that  the  injury  was 
done  after  a  delivery  to  a  connecting  line. 
San  Antonio  &»  A.  P.  R.  Co.  v.  Mayfield,  4 
Tex.  App.  (Civ.  Gm.)  223.  15  S.  W.Rep.  503. 

A  verdict  against  a  railroad  for  the  value 


i*f. 


CARRIAGE   OF   LIVE   STOCK,  151. 


818 


>iiir   a  fence 
ilure  to  keep 
)air,  whereby 
:scaped  from 
the  cars  was 
was  to  carry 
or  can  a  re- 
predicated 
vas  not  held 
cattle  could 
•  C.  A\  Co.  V. 
Jiep.  163. 
ainst  a  com- 
cattle  trans- 
lipped  under 
the  carrier 
s  of  its  own 
rier,  which  it 
ed  that  the 
end  of  the 
leered  to  the 
changed  to 
•act  witli  the 
ed  by  reason 
at  there  was 
gations  and 
Lv.  Thomas, 
^^«'  343.3 

on  that  the 
:ration   the 
itock  at  the 
■  time  when 
\  had  they 
ict.and  the 
averred  in 
ormed  the 
le  of  mak- 
;  were  de- 
But  the 
art  of  the 
e  facts  and 
ito  admit 

recovery, 

petition. 
£.  H.  Co., 

sued  for 
:rment  is 
1  to  carry 
»e  no  re- 
\i  bill  of 
jury  was 
ing  line. 
tyfield,  4 
'iefi.  503. 
)ie  value 


of  a  calf  that  had  been  carried  by  the  com- 
pany is  nut  supported  by  the  evidence, 
where  it  is  shown  that  the  calf  did  not  die 
until  10  days  after  its  delivery,  and  there 
was  no  evidence  to  show  any  lack  of  care 
in  feeding  and  watering  or  otherwise  tend- 
ing while  in  the  hands  of  the  company ; 
that  it  was  sick  when  delivered  to  the  com- 
pany, and  that  there  was  nothing  to  show 
directly  that  its  death  was  not  due  to  natural 
causes.  Missouri  Pac.  R.  Co.  v.  Heath, 
(Tex.)  18  5.  W.  Rep.  ^77. 

(2)  Immaterial. — A  request  to  charge  the 
jury  that,  inasmuch  as  the  declaration 
charged  the  defendant  merely  as  a  common 
carrier,  but  the  proof  was  that  the  stock 
was  shipped  under  a  special  contract,  the 
proof  did  not  support  the  declaration,  and 
that  the  verdict  must  be  for  the  defendant, 
was  properly  denied.  Couplandv.  Housa- 
tonic  R.  Co.,  55  Am.  &*  Eng.  R.  Cas.  380,  61 
Conn.  531,  23  Atl.  Rep.  870. 

If  the  live  stock  delivered  to  the  carrier 
consisted  of  both  cattle  and  hogs,  it  is  not 
a  material  variance  that  they  are  described 
in  the  written  contract  as  one  car-load  of 
cattle,  the  action  being  treated  as  one  of 
tort,  and  not  as  founded  upon  the  contract. 
Central  R.  Co.  v.  Pickett,  87  Ca.  734,  13  S. 
E.  Rep.  750. 

The  averment  of  a  declaration  in  a  suit 
for  the  value  of  hogs,  which  were  shipped 
on  defendant's  railroad,  and  died  through 
the  fault  of  defendant,  was,  that  the  train  was 
stopped  and  was  permitted  to  stand  for  a 
long  space  of  time  in  a  piece  of  timber,  where 
the  air  did  not  circulate.  The  evidence 
showed  that  the  train  did  stop  in  a  piece  of 
timber,  but  it  further  showed  that  it  was  in 
Vt  cut  on  the  road  as  well  as  the  timber. 
Held,  that  there  was  no  variance.  Toledo, 
W.  **  W.  R.  Co.  v.  Thompson,  71  ///.  434. 

151.  What  iustriictious  are  proper. 
— An  instruction  to  the  jury  that  "  the  evi- 
dence is  undisputed  that  a  reasonable  time 
for  the  delivery  of  said  animals,  after  the 
delivery  of  the  same  to  the  railroad,  is  ten 
or  twelve  hours,  and  if  their  being  kept  on 
the  car  for  a  longer  time  by  the  defendant 
caused  them  to  be  vicious  and  to  injure  one 
another,  the  defendant  is  liable  to  answer 
in  damage  for  such  injury,"  was  not  incon- 
sistent with  testimony  that  "  usually  stock 
in  shipping  go  through  very  nicely  in  ten, 
fifteen,  or  twenty  hours."  Richmond  &»  D. 
R.  Co.  v.  Trousdale,  {Ala.)  55  Am.  &*  Eng. 
R.  Cas.  400,  13  So.  Rep.  23. 


An  instruction  that  "  if  the  defendant, 
having  undertaken  to  deliver  the  stock, 
failed  to  deliver  it  in  a  safe  condition  with- 
in a  reasonable  time,  the  presumption  of 
negligence  arises,  and  the  burden  of  proof  is 
shifted  to  the  defendant  to  excuse  itself  from 
negligence,"  was  nut  erroneous  as  assuming 
or  declaring  that  the  stock  was  in  a  sound 
condition  when  shipped,  and  thut  sucii  con- 
dition was  not  the  result  of  negligent  trans- 
portation. Richmond  &•  D.  R.  Co.  v.  Trous- 
dale, {Ala.)  55  Aph.  &*  Eng.  R.  Cas.  400,  13 
So.  Rep.  23. 

An  instruction  that  the  responsibility  of 
a  railroad  continued  from  the  time  stock 
were  intrusted  to  it  for  transportation  until 
the  same  reached  their  destination,  in  a  suit 
to  recover  for  a  loss  and  injury  to  the  ani- 
mals, is  not  open  to  the  objection  that  it 
asserts  an  absolute  liability,  without  regard 
to  any  defense  set  up  by  defendant.  McCol- 
lom  v.  Indianapolis  &*  St.  L.  R.  Co.,  94  ///. 

534- 

The  court,  after  instructing  as  to  the  duty 
of  the  carrier  and  his  liability  and  the  bur- 
den of  proof,  charged  that  if  the  shipment 
of  the  stock  was  unable  to  proceed  by 
reason  of  a  storm  and  extreme  cold,  and 
defendant  unloaded  the  cattle  without  the 
consent  of  the  plaintiffs  and  placed  tliem  in 
yaros  insufficient  in  strength  or  size  to 
ordinarily  prevent  cattle  from  escaping 
therefrom,  and  they  escaped  therefrom 
without  any  fault  or  negligence  on  the  part 
of  the  plaintiffs;  and  if,  in  placing  the  stock 
in  insufficient  yards,  the  defendant  did  not 
exercise  reasonable  care  and  prudence,  and 
the  escaping  cattle  were  lost  and  perished 
without  plaintiffs'  contributory  negligence, 
a  verdict  for  the  plaintiffs  must  be  returned ; 
but  that  if  the  cattle  were  in  charge  of  one 
of  the  plaintiffs  and  were  unloaded  at  his 
request,  to  be  sheltered  and  fed,  and  he  took 
charge  of  the  same  and  placed  them  in  the 
yards  from  which  they  escaped  and  per- 
ished, then  the  defendant  would  not  be  lia- 
ble ;  and  that  if  defendant  was  requested  to 
place  the  cars  of  cattle  next  the  coal-sheds 
and  failed  to  comply  with  such  request,  its 
failure  would  not  as  a  matter  of  law  be  neg- 
ligence; and  that  all  the  facts  and  circum- 
stances in  evidence  must  be  considered  in 
determining  the  defendant's  negligence — 
held,  that  the  instruction  was  as  favorable 
to  the  defendant  as  it  had  any  right  to 
claim,  and  that,  although  it  might  be  errone- 
ous, it   formed   no   ground    for   reversal. 


814 


CAKKIACJIi   OF   LIVE   STOCK,  152. 


r% 


|l;-.« 


t//<i//«  V.  Chicago,  M.  Sf  St.  P.  R.  Co,,  42 
.  \m.  &*  Eng.  A\  Cas.  542,  79  Iowa  582,  44  A'; 
IV.  Rep.  820. 

An  instruction  iiypothesizing  an  agree- 
ment for  shipment  of  cattle  and  hogs,  a 
delivery  of  them  at  the  time  and  place  of 
shipment,  and  an  averment  of  failure,  de- 
tention, and  delay  on  part  of  defendant,  and 
consequent  shrinkage  in  weight,  and  ex- 
penses (or  feeding  and  caring  for  stock 
during  delay;  and  a  further  averment  of 
loss  in  market  price  or  value  at  place  of 
consignment  because  of  the  delay ;  and  fix- 
nig  the  measure  of  damages  as  the  expense 
incurred  in  feeding  and  caring  for  said  live 
stock  during  the  detention  over  and  above 
the  expense  of  keeping  them  at  home,  and 
also  any  additional  loss  by  shrinkage  in 
weight  because  of  delay,  as  well  as  differ- 
erence  or  loss  in  market  price  because  of 
said  delay,  is  proper.  Armstrong  v.  Mis- 
souri Pac.  R.  Co.,  17  Mo.  App.  403.— Fol- 
lowing Glasscock  v.  Chicago  &  A.  R.  Co., 
69  Mo.  589;  Sturgeon  v,  St.  Louis,  K.  C.  & 
N.  R.  Co.,  65  Mo.  570. 

A  train  conveying  stock  accompanied  by 
tlie  owner  was  delayed  by  water  submerging 
the  track,  and  the  owner  requested  the  con- 
ductor to  place  the  cars  in  a  position  where 
the  stock  could  be  unloaded  and  cared  for, 
which  he  failed  to  do.  There  was  some 
evidence  tending  to  show  that  the  engine 
was  disabled  by  the  negligence  of  the  con- 
ductor in  trying  to  run  through  the  water. 
Held,  that  it  was  proper  to  instruct  the  jury 
that  if  the  engine  was  disabled  by  such 
negligence,  then  a  refusal  to  place  the  cars 
where  the  stock  could  be  unloaded  would 
not  be  excused  by  a  want  of  motive  power. 
Bills  V.  New  York  C.  R.  Co.,  3  Am.  &*  Etig. 
R.  Cas.  318,  84  A^.  Y.  5. 

152.  What  instructions  are  im- 
proper.— In  charging  as  to  the  common- 
law  liability  of  the  company,  the  court 
treated  it  as  an  insurer  of  the  animals  trans- 
ported against  all  loss  or  injury  from  what- 
ever cause  except  the  acts  of  God  or  the 
public  enemy.  In  view  of  the  testimony 
tending  to  show  that  the  loss  may  have 
resulted  from  the  intrinsic  qualities  and 
propensities  of  the  live  stock  transported, 
without  the  fault  of  the  company,  the  court 
should  have  added  a  further  exception,  re- 
lieving the  company  from  liability  if  the  jury 
found  that  the  loss  or  injury  was  attributable 
to  the  nature  and  propensities  of  the  animals 
themselves,  and  could  not  have  been  pre- 


vented by  ordinary  diligence  on  the  part  of 
the  company.  St.  Louis  &•  S.  F.  R.  Co.  v. 
Clark,  55  Am.  6-  Eng.  R.  Cas.  367,  48  A'an. 
321,  2^  Pac.  Rep.  312. 

A  lot  of  mules  were  shipped,  and  defend- 
ant company  was  sued  for  allowing  some  of 
them  to  escape  while  being  driven  to  water 
after  they  had  arrived  at  the  end  of  its 
road.  It  became  a  question  in  the  case  as 
to  whether  defendant's  duty  as  common 
carrier  ceased  upon  the  arrival  of  the  mules 
at  the  end  of  its  road,  or  whether  it  contin- 
ued liable  as  common  currier  until  they 
were  delivered  to  a  connecting  line.  Held, 
that,  in  instructing  the  jury  as  to  the  amount 
of  care  required,  the  distinction  should  have 
been  made  between  its  duty  if  it  was  acting 
as  a  common  carrier,  and  its  duty  if  it  was 
acting  as  warehouseman.  North  Mo.  R.  Co. 
V.  Akers,  4  Kan.  453. 

After  a  company  had  received  plaintitT's 
cattle  for  shipment,  it  allowed  them  to  es- 
cape with  cattle  belonging  to  a  third  party. 
Plaintiff  sued  for  a  loss  of  part  of  his  cattle. 
and  for  expenses  in  recapturing  others.  The 
evidence  showed  that  plaintiff  and  the  other 
owner  paid  a  certain  sum  in  doing  so,  but 
there  was  nothing  showing  whether  any  of 
the  cattle,  either  lost  or  recovered,  belonged 
to  plaintiff.  Held,  that  it  was  error  to  in- 
struct the  jury  that  they  could  assess  plain- 
tiff's damages  in  a  sum  bearing  the  same 
proportion  to  the  entire  sum  paid  out  as 
his  cattle  did  to  the  whole  number  of  cattle 
escaping.  Kansas  Pac.  R.  Co.  v,  Nichols,  9 
Kan.  235,  5  Am.  Ry.  Rep.  275. 

In  an  action  for  damages  to  stock  while 
being  transported  on  defendant's  cars,  it  is 
error  to  instruct  the  jury  that  "  the  car  must 
be  sufficiently  strong  to  resist  the  struggles ' 
of  the  stock,  and  the  company  is  liable  for 
any  loss  occasioned  by  its  neglect  in  this 
regard,  in  spite  of  the  fact  that  the  animals 
are  vicious  and  unruly,  upon  the  principle 
that  it  is  within  its  power  to  provide  those 
which  are  actually  and  absolutely  sufficient." 
Selby  V.  Wilmington  <J*  W.  R.  Co.,  \\i  N. 
Car.  588,  \%S.  E.  Rep.  88. 

Where  there  is  no  evidence  that  a  railway 
company  received  cattle  for  carriage  other- 
wise than  under  a  special  contract  evidenced 
by  ticket  given  to  the  shipper  releasing  the 
company  from  any  liability  for  delay,  it  is 
error  for  the  judge  to  leave  it  to  the  jury  to 
say  whether  the  company  received  the  cat- 
tle as  common  carriers  or  whether  they  re- 
ceived them  under  a  special  contract.    York, 


CARRIAGE   OF   LIVE   STOCK,  153-155. 


81j 


the  part  of 
'^.  /•.  Co.  V. 
67.  48  Kan. 

nd  defend- 
ng  some  of 
en  to  water 
end  of   its 
le  case  iis 
i  common 
the  mules 
1"  it  contin- 
until   tliey 
lie.     Held, 
he  amount 
hould  have 
was  acting 
ty  if  it  was 
Alo.  K.  Co. 

I  plaintiff's 
liem  to  cs- 
hird  party. 
r  his  cattle, 
hers.    The 
i  the  other 
ing  so,  but 
tier  any  of 
I,  belonged 
rror  to  in- 
isess  plain- 
the  same 
lid  out  as 
r  of  cattle 
Nichols,  9 

tock  while 

cars,  it  is 
Jcarmu.st 

struggles ' 

liable  for 
ct  in  this 
e  animals 

principle 
'ide  those 
jfficient." 
•.  113  N. 

a  railway 
ge  other- 
videnced 
ising  the 
:Iay,  it  is 
e  jury  to 
the  cat- 
thev  re- 
t.    York, 


N.^*  n.  R.  Co.  V.  Crisp,  14  C.  B.  527,  2  C. 
L.  K.  1357,  18 /«r.  606,  23  /../.  C.  P.  125. 

153.  PrayerH  t'ur  iii8tructiuiiM.— In 

an  action  for  freight  for  carrying  live  pig- 
cons,  where  neither  the  pleadings  nor  any- 
thing in  the  evidence  on  the  trial  indicated 
in  what  character  the  plaintiffs  conducted 
thecarrying.the  refusal  of  requests  to  charge, 
which  seek  to  avert  liability  for  injury  to  the 
pigeons  carried,  upon  an  assumption  that 
common  carriers  are  not  liable  for  such  in- 
jury to  live  animals  in  the  course  of  trans- 
portation, is  not  error.  American  Mer- 
chants  U.  Exp.  Co.  v.  Phillips,  2^  Mich.  515. 
Where  a  carrier  of  horses  is  sued  for  a 
delay  in  shipment,  and  introduces  some  evi- 
dence in  defense  tending  to  show  that  the 
delay  was  due  to  atmospheric  causes  over 
which  it  had  no  control,  it  is  entitled  to  the 
benefit  of  such  evidence ;  and  it  is  error  to 
refuse  to  charge  the  jury  upon  the  effect  of 
such  evidence.  International  &>  G.  N,  K. 
Co.  V.  Hynes,  3  Tex.  Civ.  App.  20,  z\  S.W, 
Rep.  622. 

154.  Questions  for  tbe  Jury.*— In  an 
action  to  recover  damages  for  not  properly 
feeding,  watering,  and  caring  for  stock  dur- 
ing transportation,  the  company  contended 
that  the  only  contract  of  shipment  was  a 
special  contract  specifying  that  plaintiff 
should  accompany  the  stock  and  attend  to 
watering  and  feeding;  while  plaintiff  de- 
nied this,  and  said  that  the  only  contract 
was  the  one  contained  in  the  bill  of  lading, 
except  that  there  was  an  oral  contract  by 
which  he  was  to  have  a  ticket  free.  It  ap- 
peared that  plaintiff  obtained  a  ticket  at 
reduced  rates,  but  rode  on  a  passenger  train. 
Held,  that  the  question  as  to  what  the  con- 
tract was,  and  the  rights  of  the  parties 
thereunder,  should  have  been  submitted  to 
the  jury.  Cincinnati,  N.  O.  &»  T.  P.  R.  Co. 
v.  Disbrow,  76  Ga.  253. 

A  company  was  sued  for  a  delay  in  deliv- 
ering cattle  in  time  for  the  market  of  a  cer- 
tain day.  After  allowing  for  the  ordinary 
delays  of  freight  trains,  it  was  doubtful 
whether,  if  there  had  been  no  special  delay, 
the  train  would  have  arrived  in  time  for  the 
market  of  that  day.  The  stock  were  deliv- 
ered in  the  evening  and  were  ready  for  the 
market  the  next  day.  Held,  that  the  ques- 
tion of  the  company's  negligence  as  to  delay 
was  for  the  jury.  Wabash,  St.  L.  &*  P.  R. 
Co.  V.  AfcCasland,  11  ///.  App.  491. 

*  See  also  ante,  44. 


A  train  containing  stock  accompanied  by 
the  owner  was  delayed  by  water  submerging 
the  track,  and  tiie  owner  requested  the  con- 
ductor to  place  the  cars  in  a  position  where 
he  could  unload  and  feed  the  stock,  which 
he  declined  to  do.  The  engine  was  disabled 
by  running  into  the  water,  but  it  appeared 
that  another  engine  could  have  been  had 
43  miles  away,  but  the  conductor  failed  to 
telegraph  for  n.  Held,  that  there  was  no 
error  in  submitting  to  the  jury  the  question 
whether  it  was  not  gross  negligence  for  de- 
fendant to  omit  to  send  for  the  engine,  if  it 
could  be  had  43  miles  distant.  Pills  v.  Ne%v 
York  C.  R.  Co.,  3  Am.  <S-  F.ng.  R.  Cas.  318, 
84  A';  Y.  s.  —  Approving  Willis  v.  Long 
Island  R.  Co.,  34  N.  Y.  679. 

Where  a  company  defends  an  action  for 
injuries  tolive  stock  shipped,  on  the  ground 
that  the  plaintiff  entered  into  a  written  con- 
tract, agreeing  to  give  notice  of  any  claim 
for  damages  to  its  station  agent  before  the 
stock  were  removed,  it  is  a  question  for  the 
jury  to  determine  whether,  under  all  the 
facts  of  the  case,  such  requirement  of  writ- 
ten notice  was  reasonable  or  not.  Gulf,  C. 
&*  S.  F.  R.  Co.  V.  IVright,  i  Tex.  Civ.  App. 
402,  21  .9.   IV.  Rep.  80. 

The  validity  of  a  stipulation  in  a  contract 
for  the  shipment  of  live  stock,  requiring  the 
owner  to  give  notice  of  a  claim  for  damages 
within  one  day  after  delivery  of  the  cattle 
at  the  place  of  destination,  as  a  condition 
precedent  to  his  right  of  recovery,  depends 
upon  the  circumstances  of  each  particular 
case ;  therefore  when  a  carrier  sets  up  such 
defense  it  is  error  for  the  court  to  decide, 
as  a  question  of  law,  on  demurrer,  that  the 
provision  is  void,  but  it  should  be  left  to  the 
jury  to  determine  its  validity  under  all  the 
facts  of  the  case.  Missouri  Par.  R.  Co.  v. 
Childers,  i  Tex.  Civ.  App.  302,  21  .V.  W.  Rep. 
76.— Quoting  Missouri  Pac.  R.  Co.  v.  Har- 
ris, 67  Tex.  172;  Missouri  Pac.  R.  Co.  v. 
Fagan,  72  Tex.  132 ;  Texas  &  P.  R.  Co.  v. 
Adams,  78  Tex.  374 ;  Ft.  Worth  &  D.  C. 
R.  Co.  V.  Greathouse,  82  Tex.  in. 

155.  Verdict. — In  an  action  for  the 
loss  of  three  horses,  lost  by  negligence,  and 
for  three  which  died  from  the  same  cause, 
the  value  of  all  being  placed  at  $355,  and  for 
damages  to  two  car-loads,  the  jury  returned 
a  verdict  for  $335.84.  Held,  that  it  was  ap- 
parent that  the  damages  were  awarded 
upon  both  causes  of  action  set  forth  in  the 
petition,  and  that  neither  the  pleadings  nor 
the  proof  justified    a  verdict  for  general 


81G 


CARRIAGE   OF   LIVE   STOCK,  150. 


charges.    Hale  v.  Missouri  Pac,  R.  Co.,  36 
Neb.  266.  54  A'.  IV.Kep.  517. 

A  verdict  in  favor  of  the  plaintiff,  in  an 
action  for  a  failure  to  deliver  cars  at  a  cer- 
tain time  and  to  transport  cattle  to  their 
place  of  destination  by  a  certain  tine  is  not 
supported  by  the  evidence,  where  pluintifT 
admits  that  there  was  no  contract  to  de- 
liver the  cattle  at  a  certain  time,  and  there 
was  no  contradiction,  but  that  the  cattle 
were  delivered  at  the  time  alleged  in  the 
complaint,  as  agreed  upon,  Te.ras  Trunk 
K.  Co.  V.  Pannill,  4  Tex.  App.  {Civ.  Cas.) 
471,  17  S.  W,  Rep.  1 100. 

1 II  an  action  to  recover  for  damages  to  live 
stock  carried  by  a  railway,  the  evidence 
showed  that  in  part  the  damages  were  due  to 
the  acts  of  the  carrier  and  in  part  to  the  acts 
of  the  owner  in  overcrowding  them  in  the 
cars.  The  jury  returned  a  general  verdict 
against  the  company  in  a  sum  not  greater 
than  the  damages,  which  were  claimed  to  be 
the  result  of  the  acts  of  the  carrier.  Held, 
no  ground  for  setting  aside  the  verdict. 
Houston  &*  T.  C.  R.  Co.  v.  Hesttr,  (Tex.)  7 
.S".  ir.  Rep.  776. 

156.  Meamire  of  damages,  geuer- 
ally.* — (i)  Statement  of  general  rule. — 
The  measure  of  damages  for  injuries  sus- 
tained by  cattle  during  transportation, 
through  the  negligence  of  the  carrier,  is 
the  difference  in  their  value  between  the 
time  of  shipment  and  the  time  of  delivery. 
Black  V.  Camden  &*  A.  R.  &»  T.  Co.,  45 
Iiarb{N.  K.)4o. 

The  measure  of  damages  for  injuries  to 
live  stock  by  a  common  carrier  is  the  dif- 
ference in  its  value  when  delivered  and  the 
value  it  would  have  had  if  not  damaged  in 
the  course  of  transportation.  Estiil  v.  New 
York,  L.  E.  &*  W.  R.  Co.,  41  Fed.  Rep.  849. 

And  this  rule  as  to  the  measure  of  dam- 
ages is  the  same  whether  the  owners  in- 
tended to  sell  them  in  the  market  or  to 
keep  them  on  their  farms  for  breeding  pur- 
poses. New  York,  L.  E.  &*  IV.  R.  Co.  v. 
Estill,  147  U.  S.  591.  13  Sup.  a.  Rep.  444.    . 

Where  a  horse  dies  while  in  the  hands  of 
a  common  carrier  through  its  negligence, 
the  measure  of  damages  is  the  value  of  the 
horse  at  the  place  of  delivery  by  the  carrier 

*  Damages  against  carriers  of  live  stock  for 
failing  to  transport,  and  for  delay  in  shipment 
and  delivery,  see  note,  g  L.  R.  A.  450. 

Damages  for  negligent  loss  of  or  injury  to 
live  stock  while  being  carried,  see  note,  9  L.  R. 
A.  451. 


to  the  owner  or  consignee.    Davis  v.  AVw 
York  6-  E.  R.  Co..  1  Hilt.  (N.  Y.)  543. 

Where  cattle  are  shipped  and  the  charges 
are  not  prepaid,  the  measure  of  damages  for 
injuries  thereto,  resulting  in  death,  is  the 
value  of  the  cattle  at  the  place  of  destina- 
tion, less  the  freight  charges ;  and  this  is  so 
though  the  cattle  are  injured  while  in  the 
hands  of  an  initial  carrier  and  the  point 
of  destination  is  a  place  beyond  its  line. 
East  Tenn.,  V.  &»  G.  R.  Co.  v.  Johnston.  22 
Am.  <S-  Eng.  R.  Cas.  437,  75  Ala.  596,  51 
Am.  Rep.  489. 

Where  a  company  fails  to  furnish  suitable 
cars  for  the  shipment  of  cattle,  or  fails  to 
transport  the  same  within  a  reasonable  time, 
it  is  liable  in  damages ;  and  the  measure  of 
damages  is  the  difference  in  the  value  of 
the  cattle  at  the  time  of  their  arrival  at  the 
place  of  destination  and  their  value  at  same 
place  at  the  time  when  they  should  have 
arrived.  Missouri  Pac.  R.  Co.  v.  Nicholson, 
2  Tex.  App.  {Civ.  Cas)  147. 

(2)  Hs  extent  and  limits. — The  measure 
of  damages  in  an  action  to  recover  for  in- 
juries to  live  stock  is  limited  to  such  as 
occur  up  to  the  time  of  their  arrival  at  the 
place  of  destination ;  and  the  expense  to 
the  owner  of  feeding  them  for  two  days 
after  their  arrival,  and  before  he  accepted 
them,  due  to  some  misunderstanding  about 
the  amount  of  charges,  cannot  be  recovered. 
Louisville  &»  N.  R.  Co.  v.  Trent,  16  Lea 
(Tenn.)  419. 

The  rule  which  makes  the  measure  of 
damages  the  difference  between  the  value 
of  goods  at  the  place  of  shipment  and  their 
value  at  the  point  of  destination  applies  to 
cases  where  the  goods  are  never  delivered 
at  all  at  their  ultimate  destination,  and  not 
where  there  has  been  loss  sustained  by  the 
failure  to  start  them  on  time  from  the  point 
of  shipping.  Texas  Pac.  R.  Co.  v.  Nichol- 
son, 21  Am.^*  En^.  R.   Cas.    133,  61    Tex. 

491. 

Where  it  is  shown  that  a  large  part  of  a 
car-load  of  horses  consists  of  mares  with 
foal,  there  is  an  inherent  defect  in  such 
freight,  and  a  correct  measure  of  damages 
for  total  loss  while  in  the  carrier's  hands  is 
tlie  price,  less  the  freight  charges,  which 
they  would  have  brought  at  the  place  of 
destination,  in  the  condition  which  they 
would  have  been  in  had  they  been  trans- 
ported with  proper  care.  Missouri  Pac.  R. 
Co.  v.  Fagan,  35  Am.  &»  Eng.  R.  Cas.  666,  72 
Tex.  127,  2  L.  R.  A.  7$,  9  S.  W.  Rep.  749. 


CAKl<lA(;ii   or   MVli   STOCK,   l.-»0. 


8" 


>is  V.  Xew 

)  543- 

he  charges 
ama(;cs  for 
!ath,  is  the 
of  deslina- 
d  til  is  is  so 
rhile  in  the 
the  point 
d  its  line. 
ohnston,  22 
lla.  596,  51 

ish  suitable 
or  fails  to 
liable  time, 
measure  of 
e  value  of 
rival  at  the 
lue  at  same 
lould  have 
.  Nicholson, 

le  measure 
)ver  for  in- 
to such  as 
rival  at  the 
expense  to 
•  two  days 
^e  accepted 
ding  about 
recovered. 
«/,  16  Lea 

neasure  of 

the  value 

It  and  their 

applies  to 

r  delivered 

)n,  and  not 

ned  by  the 

n  the  point 

V.  Nichol- 

,  61    Tex. 

;  part  of  a 
nares  with 
:t  in  such 
if  damages 
s  hands  is 
^es,  which 
e  place  of 
'hich  they 
een  trans- 
ri  Pac.  R. 
TrtJ.  666,  72 
Rep.  749. 


In  assessing  (liimaf;fs  frir  an  injury  to  live 
stock  wliicii  iicccssilutcfl  killing  it,  only  the 
lift  iinionnt  which  should  have  i)CL'n  realized 
friim  a  sale  of  it,  after  reasonable  iillowancc 
made  for  time  and  troiibk;  required  in  ef- 
fecting the  sale,  should  be  deducted  from 
the  value  of  the  stock.  Dean  v.  Chicago  &* 
N.  IV.  R.  Co.,  43  IVis.  305. 

Where  race-horses  are  shipped,  and  some 
are  killed  and  others  injured,  the  measure 
(if  damages,  as  to  those  killed,  is  not  what 
the  owner  might  have  made  by  the  horses 
on  the  track,  but  their  reasonable  market 
value  in  cash  at  the  place  where  the  loss  oc- 
currcfl ;  and  as  to  those  injured,  the  dam- 
ages are  the  actual  loss  which  the  owner 
sustains  by  reason  of  the  injuries,  which  is 
to  be  determined  by  the  jury  from  all  the  evi- 
dence and  the  facts  and  circumstances  of  the 
<;ase.  Oniisby  v.  Union  Pac.  A'.  Co.,  2  Mc- 
Crary  ( U.  S.)  48,  4  /Vv/.  A'f/>.  706. 

Where  a  shipper  of  cattle  seeks  to  recover 
damages  to  cattle  while  being  carried,  and 
the  issue  is  made  as  to  whether  the  damage 
was  caused  by  the  negligence  of  the  com- 
pany, an  instruction  states  the  law  correctly 
which  tells  the  jury  that  if  plaintiff  is  en- 
titled to  recover,  the  measure  of  damages  is 
the  difference  between  the  value  of  the  cat- 
tle as  they  were  at  and  when  they  reached 
the  place  of  destination  and  their  value  at 
the  same  place  and  time  had  they  arrived 
in  good  condition  ;  but  that,  if  they  find  that 
the  cattle  were  not  damaged  by  the  company, 
or  its  agents,  or  employes,  then  they  must 
find  for  the  defendant.  Galveston,  //.  &*  S. 
A.  R.  Co.  V.Johnson,  (Tex.)  19  S.  IV.  Rep. 
867. 

An  instruction  to  the  jury  that  the  meas- 
ure of  damages  for  injury  to  live  stock  was 
the  difference  in  the  market  value  of  the 
stock  if  they  had  been  delivered  without 
delay  and  their  market-value  after  delivery 
in  an  unsound  condition  was  not  erroneous, 
as  declaring  or  assuming  that  the  stock  was 
injured  by  unreasonable  delay  in  transporta- 
tion. Richmond  &*  D.  R.  Co.  v.  Trousdale, 
(Ala.)  55  Am.  &*  Eng.  R.  Cas.  400,  13  So. 
Rep.  23. 

(3)  Under  special  contract. — The  cause  of 
action  being  the  negligence  which  caused 
the  killing  of  the  horse,  outside  of  the  con- 
tract under  which  he  was  being  transported, 
the  plaintiff  is  entitled  to  recover,  if  at  all, 
the  full  value  of  the  animal,  and  is  not  lim- 
ited to  the  sum  stated  in  the  contract  as  the 
maximum  for  which  the  company  would  be 
I  D.  R.  D.— 53.tt 


lialile  in  the  event  of  Idss  or  injury ;  though 
the  contrail  of  alTreightnieiit,  coiitiiining 
the  limitation  .i>  to  the  liability  for  loss  or 
damage,  is  admissible  as  evi(leiic<'  on  the 
(luestion  of  value.  Louisville  &»  W  R.  Co. 
V.  Kelsey.  \x  Am.  fr'  Lug.  R.  Cas.  584,  89  .lla. 
287,  7  .So.  A'f/>.  (148. 

Where  it  appeared  that  there  was  aspei  iai 
contract  exempting  defendant  fiom  liabiliiy 
for  any  loss  by  sulTocation  <>f  the  hogs,  and 
that  several  were  sulToeatefl  in  the  cars — 
//(•/(/,  that,  if  this  resulted  from  the  negli- 
gence of  defendant,  plaintilT  was  entitled  to 
recover  for  the  loss,  and  that  the  measure  of 
his  recovery  would  be  the  dilfcrcnce  in  the 
v.iliie  of  ihe  hogs  when  alive  and  when  dead 
at  the  point  (jf  delivery.  Stur^ron  \.  St. 
Louis,  K.  C.  <S-  A'.  R.  Co.,  65  Mo.  569.-  f'oi.- 
l.dWKD  IN  Carroll  v.  Missouri  I'ac.  F<.  Co., 
88  Mo.  239.  Qi(iii:ri  in  Jones  7\  Chicago 
&  A.  R.  Co.,  28  Mo.  App.  28. 

Where  a  contract  was  made  for  the  fur- 
nishing of  a  stock-car  for  the  purpose  fif 
transportation  of  live  stock,  wiili  an  a^'rce- 
ment  to  pay  the  regular,  ordinary  price  for 
said  car,  upon  a  refusal  to  furnish  the  car 
and  to  ship  the  stock  by  the  railroad  com- 
pany, the  measure  of  damages  is  the  dilTer- 
cncc  between  the  market  price  or  value 
of  plaiiilifT's  propeity  at  the  destination  to 
which  it  was  to  have  hoen  carried,  at  the 
the  time  it  would  have  arrived  there  if  the 
carrier  had  performed  its  contract,  and  its 
value  at  the  same  time  at  the  place  from 
which  it  was  to  have  been  carried.  liitney 
V.  Wabash,  St.  L.  &•  P.  R.  Co.,  20  Mo.  App. 
470. 

Only  such  damage  as  might  be  reason- 
ably considered  as  within  the  contempla- 
tion of  the  parties  as  likely  to  happen, 
in  case  there  was  a  failure  to  comply  strictly 
with  the  terms  of  the  special  contract  of 
shipment,  should  be  given.  It  is  not  re- 
quired to  state  specifically  in  the  pleadings 
the  details  which  make  up  the  constitutive 
facts.  Armstrong  v.  Missouri  Pac.  R.  Co, 
1 7  Mo.  App.  403. 

Where  an  animal  is  shipped  under  a  con- 
tract providing  that  in  case  of  loss  its  value 
at  the  place  of  destination  shall  be  taken  as 
the  measure  of  damages,  there  can  be  no 
recovery,  in  case  of  total  loss,  of  an  amount 
greater  than  the  amount  for  which  the  ani- 
mal is  already  sold  to  the  consignee.  Gulf, 
C.  Gf  S.  F.  R.  Co.  v.  Key,  4  Tex.  App.  (Civ. 
Cas.)  448,  16  S.  IV.  Rep.  106;  modifying  16 
.V.  W.  Rep.  543. 


HIH 


CAKKIACiK    OK    I.IVK    STOCK,   157,  I5H. 


I 


i; 


im.  Proxliiialo  iiikI  r«>iiiot«' daiii- 

!!{;«'«•— Suit  was  brou^lil  to  recover  dam- 
a^es  (or  tlie  lireach  of  a  verbal  contract  for 
till'  transportation  of  cattle,  and  anionji  the 
icins  of  daniafje  was  the  value  of  liftceii 
head,  which  escaped  during  a  stampede  and 
wiiich  were  not  recovered,  the  stampede 
bcinfj  caused,  as  alleged,  dnriny  a  delay  in 
kc'pingthe  cattle  before  shipment,  by  their 
gttiiiig  hungry  and  lliirsty.  //</i/,  that  the 
'  recovery  was  limited  to  such  damages  as 
were  the  natural,  direct,  and  proximate  loss 
occasioned  by  breach  of  the  contract  to 
carry;  and  that  the  question  whether  the 
stampede  and  ihc  consequent  loss  were  the 
direct  and  proximate  result  of  the  breach 
of  contract  was  a  question  for  the  jury. 
Giilveston,  H.  &*  S.  A.  A'.  Co.  v.  S/o7'ii//,  3 
Tex.  App.  (Civ.  Cas.)  307. 

In  an  action  for  injuries  sustained  by  a 
jack  during  transportation,  plaintilT  cannot 
recover  for  loss  of  profits  to  be  made  liy  let- 
ting him  to  marcs,  such  profits  not  being 
certain  and  presumably  not  hiiving  been 
within  the  contemplation  of  the  parties. 
Chicago,  B.  6-  Q.  R.  Co.  v.  Ilnle,  83  ///.  360. 
Defendant,  in  receiving  cattle  from  a  con- 
necting carrier,  unloaded  them  to  transfer 
them  to  Its  own  cars,  whereupon  officers  of 
the  law  seized  them  under  the  statute  pro- 
hibiting the  introduction  of  Texas,  Mexi- 
can, or  Indian  cattle  into  the  state,  except 
under  certain  restrictions,  and  imposed  a 
fine  upon  the  owner  for  a  violation  of  the 
statute,  and  s  >ld  the  cattle  to  pay  the  fine 
and  costs.  The  owner  then  sued  the  rail- 
road company  for  damages,  claiming  that 
the  sei.  ure  would  not  have  taken  place  if 
the  cattle  had  not  been  unloaded.  Held,  in 
the  absence  of  anything  to  show  that  de- 
fendant was  bound  to  continue  the  trans- 
portation without  a  change  of  cars,  or  that 
it  knew  that  they  were  of  the  kind  of  cattle 
that  it  was  unlawful  to  bring  in,  that  it  was 
not  liable  for  the  unloading,  and  that  the 
damages  sufTered  by  plaintifl  were  too  re- 
mote to  be  recovered.  McAlister  v.  Chi- 
cago, R,  I.  &*  P.  R.  Co.  7  Am.  (&«•  lCng. 
R.  Cas.  373,  74  Afo.  351.— Distinguishing 
Streetcr  v.  Horlock,  7  Moore  283. 
158.  LoHH  of  market— Decline  in 
^  prices.* — Where  a  cairier  of  live  stock 
fails  to  transport  them  to  the  place  of  desti- 
nation in  time  for  market  on  a  certain  day. 


*See  also  <i»le,  37,  38. 


accordiii;;  to  its  .igrccnicnl,  ihe  measure  of 
damage  is  the  dilleience  between  tlu'ii 
mark)  t  value  in  good  condition  on  the  day 
tlicy  should  liavi;  been  delivered  and  their 
inurkei  value  in  thecomlition  in  which  they 
WLMc  when  delivered.  Smilli  v.  \'nv  Haven 
&*  N.  R.  Co. ,  1 2  Allen  (Mass.)  531 . -y  UOTi'  l) 
IN  Uambcrg  %>.  South  Carolina  K.Co.,  9  So. 
Car.  61.  Kkvikwku  in  Wiston  v.  Grand 
Trunk  K.  Co.,  54  Me.  yjb.— Sangamon  &* 
M.  R.  Co.  V.  Utnry,  14  ///.  156.— Distin- 
(iUlsiiKU  in  Priestly  v.  Northern  I.  &  C. 
R.  Co.,  26  111.  2q(>.— Kent  v.  Hudson  River 
R.  Co.,  22  Barb.  (N.  V.)  278.— Kkvikwino 
Wilson  V.  York.  N.  C.  k  13.  K.  Co.,  18  Eng. 
L.  and  Eq.  553.— Nor  kollowku  in  Jones 
V.  New  York  &  E.  R.  Co..  29  Barb. 
(N.  Y.)  633 ;  Kirkland  v,  Leary,  2  Sweeny 
(N.  Y.)  bn.-Gulf,  C.  &-  S.  J-'.  R.  Co.  V. 
McCarty,  82  Tex.  608.  18  i".  W.  Rep.  716. 
/•■/.  Worlli  6-  D.  C.  R.  Co.  v.  Greathouse, 
49  ///;/.  (&-  Eng.  R.  Cas.  157.  82  Tex.  104.  17 
S.  IV.  Rep.  834.  Texas  l\u.  R.  Co.  v.  Nich- 
olson, 2\  Am.  St' Eng.  R.  Cas.  133.61  Tex. 
491.     Ring  V.  Woodbridge, -^^  F/.  565. 

Uiit  evidence  to  show  a  decline  in  the 
market  between  the  time  of  their  arrival 
and  th(!  time  when  they  were  sold  is  not  ad- 
missible, itlascock  V.  Chicago  &'  A.  R.  Co., 
G^  Afo.  589. — Followed  in  Armstrong  z'. 
Mis.souri    I'ac.    R.  Co..   17    Mo.    App.  403. 

Where  it  is  sought  to  recover  for  the  loss 
of  hogs  while  in  course  of  transportation,  if 
it  usually  took  twenty-four  hours  to  get  a 
car  of  hogs  from  the  place  <jf  shipment  to 
the  place  of  destination,  and  the  hogs  were 
started  from  the  place  of  shipment  in  the 
evening  of  a  certain  day,  then  the  price  of 
hogs  at  the  place  of  destination  on  the  next 
day  after  such  shipment  should  not  be 
taken  as  the  basis  of  damages.  Illinois 
C.  R.  Co.  V.  Hall,  58  ///.  409,  II  Am.  Ry. 
Rep.  95- 

In  an  action  against  a  carrier  for  damages 
arising  from  delay  in  transporting  live  stock 
to  market,  where  it  appears  that  the  stock 
should  have  arrived  in  time  for  the  market 
on  Thursday,  but  did  not  arrive  until  Fri- 
day evening,  and  there  was  no  market  in 
which  they  could  be  sold  on  Saturday,  the 
owners  may  recover  for  the  shrinkage  and 
depreciation  in  value  and  the  expense  of 
keeping  the  stock  from  Thursday  until  the 
f<jllowing  Monday.  Hut  if  the  stock  could 
have  been  sold  on  Saturday,  there  can  be 
no  recovery  for  a  depreciation  or  expense 


,i 


CAKKIACilC    OF    MVI'    STOCK,   ir,U,  HW. 


UlU 


neasurc  of 
vecti  ilu-ii 
>ii  I  lie  (lay 
and  their 
vliicli  tlicy 
yni/  Haven 

— yucjTi  1) 

Co.,  9  So. 

7'.  Grand 
%ui>iion  (3- 
— DlSTIN- 
n  I  &  C. 
/aon  Ki'vi'f 
KVIKWINC 

.  1 8  Eng. 

'N  Jones 
29  Barb. 
2  Sweeny 
A'.  Co.  V. 

/>A  716. 

>eathouse, 
'-».  104,  17 

0.  V.  AVf//- 

3.61    7>.t. 

S65. 
ne  in  tlic 
ir  arrival 
is  not  ad- 

^.  />'.  Co., 

istrong  V. 

App.  403. 

>r  the  loss 

rtation,  if 

5  to  get  a 

pment  to 

logs  were 

nt  in  the 

price  of 

the  next 

not    be 

Illinois 

^m.  Ay. 

damages 
vc  stock 
le  stock 

market 
ntil  Fri- 
arket  in 
lay,  the 
ige  and 
lensc  of 
ntil  the 
<  could 

can  be 
expense 


of  keeping  beyond  that  d.iy.  .  I) res  v.  c//- 
cii^o  &»  X.  If.  A'.  Co.,  40  ,////.  &*  l''"ji'  A', 
til*.  108,  75  //'/v.  215,  43  A'.  //'.  /('</. 
1122. 

A  verdict  for  8745  against  a  r.iilroad  cdim- 
[)any  fur  not  carrying  and  (ieli\'ciiiig  lallii; 
in  proper  lime  and  in  proper  condition  is 
sustained  by  evid<Mice  showing  that  they 
sold  lor  $$(^27.55,  bill  that  if  ihey  had  been 
properly  delivered  liiey  would  have  sold  f(jr 
25  to  35  per  ceiii  more.  A/i.uoioi  J'lit .  A'. 
a:   Co.    v.   A'ltisi/l,    (/f.i.)    18  i'.    /r.    A'i-/>. 

594- 

IffO.  Dcturiuratioii  in  quality  or 
C'Oiiditiuil.— Where  the  owner  of  live 
stock  sues  to  recover  damages  for  a  delay 
in  transportation,  he  is  enliilcd  to  recover 
l)oth  for  a  decline  in  the  market  and  for 
extra  shrinkage  of  the  strjck  caused  by  tiie 
delay.  Stnrt^con  v.  .St.  Louis,  A".  C.  &^  A'. 
K.  Ck,  65  Mo.  569.— Iu)i,i,()wr.l)  IN  Ann- 
strong  7'.  Missouri  I'ac.  K.  Co.,  17  Mo.  App. 
4.0^. —liods  V.  Ctntral  A'.  Co.,  87  (Jn.  463,  13 
S.  li.  Rep.  711. 

The  fact  that  cattle  are  allowed  to  stand 
for  some  time  in  the  cars  without  foofi  is  a 
proper  element  of  damages  in  an  action 
against  the  carrier,  where  it  was  under  cir- 
cumstances where  the  owner  could  not  be 
expected  to  provide  food.  Illinois  C.  R.  Co. 
V.   W.aters,  41  ///.  73. 

Where  live  stock  are  shipped,  and  some 
are  never  delivered  and  others  are  de- 
livered in  an  injured  condition,  the  measure 
of  damages  is  the  value  of  the  animals  not 
delivered  at  the  jilacf!  of  destination  and 
the  actual  damage  incurred  on  .iccount  of 
the  injuries  to  the  others.  IWillinyiford  v. 
Columhiti  &•  Ci.  R.  Co.,  3c  Am.  i^  l'-»ii- 
R.  Cas.  40,  26  .SV).    Car.  258,  2  ^^   A".  A'</. 

>9- 

The  general  rule  as  to  the  measure  of  dam- 
ages for  injuries  sustained  by  cattle  during 
transportation  is  the  dilTercnce  between 
their  market  value  at  the  place  of  destina- 
tion, in  the  condition  in  which  they  are  de- 
livered, and  what  would  have  been  their 
market  value  if  they  had  not  been  injured; 
but  it  only  applies  where  cattle  are  shipped 
to  be  sold  in  the  market,  and  not  where 
they  are  intended  to  be  kept  by  the  own<r. 
In  the  latter  case  the  measure  of  damages  is 
the  actual  damage  to  the  stock  and  any 
expense  that  the  owner  may  have  incurred 
in  treating  and  in  caring  for  ihem  uiitil 
ci  red.     Gitl/,  C.  &^  S.  /•'.  A'.  Co.  v.   CoiUxir, 


3  r,:\.  Civ.  Afip.  514,  22  .V.  //'.  Rep.  777. — 
I'lilLnwiNi;  Joins  V.  (ieoiKc,  61  Tex.  354; 
lladley  v.  Haxendale,  9  I'^xch.  341. 

In  an  action  again.it  a  railroad  <'ompaiiy 
for  d. images  caused  by  a  delay  in  shipping 
cattle,  during  which  time  there  was  a  fall  in 
tlie  market,  and  by  not  pro|)erly  (ariiig  for 
the  cattle  while  in  transit,  a  verdict  ag.iinsi 
the  company  for  $865  cannot  be  sustained, 
where  the  evidence  shows  that  the  calt It- 
sold  al)ove  the  average  market  prices,  and 
that  after  allowing  the  usual  loss  of  weight 
while  in  transit,  the  decline  in  price  would 
amount  to  but  ft"6i>  25.  Missouri  I'm.  R. 
Co.  V.  Russe/l,  (  /«M.)  15  .V.  //'.  /up.  206. 

Where  a  railroad  company  lails  u>  trans- 
port with  reasonable  dispatch  live  stock 
delivered  to  it  f(jr  shipnient.  and  it  ap- 
pears that  the  owner  has  been  |)ut  to  ex- 
pense ill  feeding  the  stock,  and  that  the 
market  has  fallen,  and  that  the  stock,  owing 
to  driving  and  ex|>osure,  have  sliiunk  in 
weight  from  60  to  70  pounds,  a  vt-rdici  for 
$134  will  not  be  regarded  as  excessive  dani- 
ag<'S.     Illinois  C.  R.  Co.  v.  Simmons,  49  ///. 

^PP-  443- 

Where  a  r.iilway  company  fails  to  jirovide 
horse-boxes  for  the  conveyance  of  horses 
for  sale,  pursuant  to  contract,  and  the  owin  r 
is  compelled  to  send  the  horses  by  road,  and 
they  arrive  in  bad  condition,  and  do  not 
realize  such  prices  as  would  otherwise  have 
been  obtained,  the  measure  of  damages  in 
an  action  against  the  railway  company  is  the 
deterior.ition  winch  the  horses,  if  in  ordi- 
nary condition  and  fit  to  make  the  journey, 
would  havi-  sufTered  thereby,  and  the  time 
and  labor  expended  on  the  road,  ll'aller 
V.  Midland  U.  II'.  R.  (Ireland)  Co.,  I..  R.  4 
//•.  376 ;  reversing  I..  R.  1  //'.  520. 

lUO.  lOvidciire  on  qiio.slioii  of  dam- 
a(;<'><> — Where  hogs  are  shipped  by  rail  from 
Illinois  to  Pittsburgh,  and  the  freight  is  paid 
through,  and  some  of  them  are  lost  en  route, 
proof  of  their  value  at  their  destination  may 
be  considered  by  the  juiy  in  hxing  their 
value  between  the  two  places.  Indian- 
apolis, B.  (S^  W.   R.   Co.   V.   Strain,  81    ///. 

504. 

It  seems  that  proof  of  the  market  value  of 
a  bloodefl  animal,  and  of  her  value  fors|ieed 
and  breeding  at  the  place  of  shipment,  is 
competent  to  show  the  measure  of  damages, 
where  she  is  injured  while  in  transportation; 
and  where  the  animal  is  shipped  with  a  pro- 
vision in  thecontract  that  in  case  of  injury 


ti'M 


CAKKIAGii   or   LIVE   STOCK,  101,  102. 


the  value  of  the  sKjcIc  ut  tlic  place  and  date 
uf  shipment  sliall  (jovcrii  the  seltlcnient, 
sucli  evidence  is  clearly  admissible.  C'///- 
i:ij,^o&'  E.  I.  K.  Co.  V.  Katziiikxch,  38  Am. 
«>  Eng,  R.  Las.  375,  118  /«</.  174,  20  A'.  E. 
Ju'fi.  jog. 

Where  a  railnnid  company  permits  caule 
to  escape  after  they  are  delivered  to  it  for 
ti;inK|.v)riaticn,  liie  cosi  uf  services  and  ex- 
|)Lnr(S.  of  recapturing  them  may  be  proven 
and  rtccvercd  as  part  of  tiie  damages. 
S.,itlt  Mo.  K.  Co.  v.  Alits,  4  Kan.  453. 

Where  cattle  were  injured  in  ilie  course 
of  their  transportation  from  the  wharf  at 
Hoston  to  the  quarantine  grounds,  in  esti- 
mating the  damages  it  is  not  error  to  admit 
evidence  as  to  the  injury  to  tiie  cattle  if  they 
liad  at  their  arrival  been  put  up  for  sale, 
liaving  regard  to  their  market  value  at  the 
time  in  tlie  nearest  place  to  the  quarantine 
grounds  the  witness  knew  of  whore  there 
was  a  market  for  them,  and  the  cost  and 
risk  of  getting  them  there.  Leonard  v. 
l-'itchbtn\ii  A".  Co.,  28  Am.  &•  Eng.  R.  Cas. 
105,  143  Mass.  307,  9  ..V.  E.  Rip.  667. 

VVliere  horses  arc  shipped  and  some  are 
ki  led  and  others  injured,  the  measure  of 
damages  is  the  value  of  tlKse  killed  and  the 
depreciation  in  the  value  of  th<jse  injureilat 
the  place  of  destination  ;  and  these  may 
be  proven  by  direct  evidence  of  the  vi.lue 
of  the  animals,  or  by  proving  the  de- 
scription of  the  animals  with  their  quali- 
ties and  the  ciiaracter  of  the  injuries, 
aiiJ  the  market  value  of  such  animals 
in  neighboring  cities,  though  they  be 
in  another  state,  but  connected  by  rail. 
Louisville  Sf*  N.  R.  Co.  v.  Mason,  16  Am.  <S^ 
Eng.  R.  Cas.  241,  11  Lea  (Jenn.)  116. —.\i'- 
PROVED  IN  >icDonald  v.  Unaka 'limber  Co., 
88  Tenn.  38.  Followed  in  Louisville  & 
N.  R.  Co.  V,  Wynn,  45  Am.  &  Eng.  R.  Cas. 
312,  88  Tenn.  320,  14  S.  W.  Rep.  311. 

in  a  suit  against  a  railroad  for  injuring 
live  stock  while  being  shipped,  whicii  is  in- 
tended (or  breeding  purposes,  its  market 
v.ilue  at  a  place  where  there  is  a  market  for 
such  animals  may  be  shown,  it  appearing 
jthatiliere  is  no  market  for  sjch  animals 
where  kilK-d.  Gtil/,  C.  &•  S.  F.  R.  Co.  v. 
Dunman,  4  Tex.  App.  {Civ.  Cas.)  147,  16  S. 
W.  Rep.  421. 

lUl.  Interest  oil duiiia|j;vN. — Wherea 
carrier  of  live  stock  is  sued  for  a  failure  to 
deliver  them  within  a  r(asonal>le  time,  it  is 
proper  to  instruct  ihc  jury  that  i)!aiiitifl  is 


entitled  to  interest  from  the  date  of  the 
breach  of  the  contract,  if  the  suit  be  con- 
sidered as  one  for  breach  of  contract,  or 
from  the  date  of  the  iiiiury,  if  the  action  is 
viewed  as  one  in  tort.  Illinois  C.  R.  Co.  v. 
Jlaynes,  30  .,-/;//.  &•  Eng.  R.  Cas.  38,  O4  Miss. 
604,  I  So.  Rep.  76  5. 

Under  the  statute  and  decisions  of  the 
courts  of  Missouri  it  is  improper  to  allow 
interest  on  the  amount  of  damages  from  the 
time  of  bringing  suit  in  an  acti(jn  against 
a  carrier  <jf  live  stock,  where  the  suit  is 
brought  in  a  federal  court;  but  where  the 
verdicL  show?  the  amount  of  interest  errone- 
ously allowed  the  supreme  court  will  strike 
out  such  interest  and  order  judgment  to  'le 
entered  for  the  proper  damages,  with  in- 
terest from  the  time  of  entry  of  judgment. 
New  York,  L.  E.  «S-  W.  R.  Co.  v.  Estill,  147 
U.S.  591,  13  Sup.  Ct.  Rep.  444. 

Where  a  shipper  of  cattle  recovers  dam- 
ages for  injury  to  cattle  while  being  carried, 
he  is  entitled  to  8  per  cent  interest  on  the 
<lamages  from  the  time  of  the  injury  to  the 
time  of  recovery.  Galveston,  H.  &•  S.  A. 
R.  Co.  V.  Johnson,  {Tex.)  19  S.  W.  Rep.  867. 

Although  there  is  no  pleading  asking  for 
iiilerest  in  an  action  by  a  shipper  to  recover 
damages  for  the  negligent  transportation  of 
live  stock,  it  is  proper  for  the  jury  to  allow 
intcr'>st  on  the  amount  of  damages  sus- 
tained. /■/.  Worth  &*  D.  C.  R.  Co.  v.  Great- 
house,  49  Am.  &'  Eng.  R.  Cai.  1  57,  82  Te.r. 
104.  17  S.  IV.  Rep.  834.— AuilERKU  TO  IN 
Inter-ialional  &  G.  N.  R.  Co.  7'.  Anderson,  3 
Tex.  Civ.  App.  8. 

102.  Iteview. — Where  a  carrier  of  live 
stock  is  sued  for  injuries  caused  by  a  col- 
lision, one  of  the  claims  for  damages  being 
for  the  abortions  of  certain  cows,  which  were 
claimed  to  have  been  caused  by  the  collision, 
and  the  case  has  been  submitted  on  proper 
instructions,  a  verdict  finding  for  the  plain- 
tilT  will  not  be  reviewed  on  appeal  on  the 
weight  of  evidence,  where  ther^  is  sufficient 
evidence  to  sustain  the  verdict.  A'eiv  York, 
L.  E.  &-  ir.  R.  Co.  V.  Estill,  147  0\  S.  591, 
13  Sup.  Ct.  Rep.  444 

A  railroad  com|)any  carrying  cattle  to  a 
point  beyond  its  own  line  was  sued  for  dam- 
ages, and  the  case  was  tried  upon  the  theory 
that  the  measu"  oi  damages  was  their  value 
at  the  place  of  destination.  Jlelil,  that  the 
question  whether  the  true  meiisure  of  dam- 
ages wouU!  not  be  the  value  of  the  cattle  ai 
the  end  of   defendant's  line   could    not  he 


CARRIAGE    OF    LIVIi    STOCK,   102. 


821 


late  of  the 
iuit  be  con- 
contract,  or 
lie  action  is 
f.  J\\  Co.  V. 
38, 64  Miss. 

ons  of  tlic 
LT  to  allow 
;es  from  llie 
i<jn  against 
the  suit  is 
.  where  the 
Test  erronc- 
t  will  strike 
;inent  to  ')c 
:s,  with  in- 
:  judgiiicnt. 
.  Lsti'll,  147 


raised  on  appeal  for  the  first  time.  Nao 
York,  L.  E.  &*  IV.  R.  Co.  v.  Estill,  147  ^• 
S.  591.  13  Sup.  Ct.  Rep.  444. 

A  judgment  will  not  be  reversed  for  an 
error  which  does  not  injuriously  affect  the 
complaining  party.  So  where  the  weight  of 
cattle  has  already  been  proven  in  an  action 
against  the  carrier  for  injuries,  an  error  in 
allowing  another  witness  to  testify  to  their 
weight  from  a  memorandum  is  no  ground 
for  reversal,  as  such  evidence  is  but  cuniu- 
lative.   Fort  Worth  &*  D.  C.  Ji.  Co.  v.  Great- 


/loitst;  49  /7w.  vl^-*  E'/jf-  R-  <  "*•  '  57>  82  Tex, 
104,  17  .S".   IV.  Rep.  S34. 

In  an  action  against  a  railroad  company  to 
recover  damages  for  injury  to  live  stock 
while  being  carried,  where  the  company  ap- 
peals from  a  justice  to  the  county  court, 
and  reduces  the  amount  of  the  judgment,  it 
is  error  to  adjudge  that  it  shall  pay  all  costs, 
in  the  absence  of  anything  in  the  record 
showing  why  the  costs  are  thus  adjudged. 
Southern  Pac.  R.  Co.  v.  Duncan,  3  Ttx. 
App.  {Civ.  Cas.)  285. 


lovers  darn- 
ing carried, 
rest  on  the 
ijury  to  the 
/.  6-  .v.  A. 
V.  Rep.  867. 
;  asking  for 
r  to  recover 
jortation  of 
iry  to  allow 
mages  sus- 
So.  V.  Great- 
57,  82  Tex. 
:kkd  to  in 
\nderson,  3 

rrier  of  live 
d  by  a  col- 
lages being 
which  were 
ic  collision, 
on  proper 
r  the  plain- 
leal  on  the 
is  sufficient 
A'civ  Vori', 
7  (^'-S.  591, 


cattle  to  a 
ed  for  dam - 
1  the  theor> 
itheii  value 
U,  that  the 
ire  of  (lani- 
he  caiile  at 
uld    not  he 


\i 


5 


